Health and Care Bill (Ninth sitting)
Tuesday 21st September 2021
(3 years, 3 months ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 September 2021 - (21 Sep 2021)
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
Justin Madders (Ellesmere Port and Neston) (Lab)
On a point of order, Mrs Murray. There have been quite a few changes on the Government Benches in the Committee. We congratulate the Under-Secretary of State for Health and Social Care, the hon. Member for Erewash (Maggie Throup), on her promotion and the Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for Bury St Edmunds (Jo Churchill), on her transfer. If there was a Sky Sports News transfer deadline day reshuffle pack, I can see Jim White in wheels of excitement about the number of changes at the Department of Health and Social Care. We are delighted that the star striker remains in his place.
On a more serious note, the composition of the Committee has changed. Was that in order? Was some kind of approval process from the House required before that could take place?
Justin Madders
Further to that point of order, Mrs Murray. Derek Wilton on “Coronation Street” used to say, “I shall be on the cocoa by the time Trevor McDonald has finished”—a reference to people retiring for the night at around quarter-past 10 or half-past 10. We got an email at 10.22 pm last night with an updated selection list from the Chair. I do not think there are any substantive changes, but in a case where there are dramatic changes to selections and groupings at short notice, is there any rule or procedure about how much notice must be given?
The Chair
There is no minimum notice requirement, but I am sure there will not be an issue in future.
Justin Madders
Further to that point of order, Mrs Murray; I have had a few days to think about these points. The Minister very helpfully said he would write to me about the workforce amendment we put forward last week. Over the weekend, I was talking to some members of the public who are very interested in the Committee’s proceedings. They asked when that letter might be published. I know the Minister is very busy and has a lot of new inductions for his colleagues to get through, as well as his work on the Bill, so I am not going to ask when he will release it, but would it be appropriate to add that letter to the page on the Government website where all the Bill information is contained?
The Chair
I am sure the Minister has heard your point of order, Mr Madders.
Clause 25
Integrated care system: further amendments
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider:
Government amendment 14.
That schedule 4 be the Fourth schedule to the Bill.
The Minister for Health (Edward Argar)
Mrs Murray, it is—even more than usual—a pleasure to serve under your chairmanship: I am still standing before you in this Committee and opposite the hon. Member for Ellesmere Port and Neston, as seems to be our fate. He has served in his Front-Bench role longer than I have in mine, and that is going some.
Clause 25 gives effect to schedule 4, which contains minor and consequential amendments relating to the introduction of integrated care boards. The majority of the amendments relate to replacing existing references to clinical commissioning groups in legislation with references to integrated care boards. The schedule is necessary to ensure that existing primary legislation that refers to CCGs will continue to operate effectively once ICBs are established. Without it, references to clinical commissioning groups would be erroneous and the new commissioning bodies, ICBs, would not be referenced where they need to be across the statute book.
Following from that, Government amendment 14 is minor and technical. It is simply to ensure that the legislation hangs together properly. It makes no change to the status quo, but reflects that clause 15 of the Bill replaces section 3 of the National Health Service Act 2006 with a slightly amended proposed new section 3. A consequential amendment is therefore needed to section 187 of the 2006 Act so that it refers to the correct subsections. Previously it referenced subsections 3(1)(d) and (e), but those same subsections have now been moved to 3(1)(e) and (f) in proposed new section 3.
The amendment simply updates the cross references in section 187, without which section 187 would refer to incorrect subsections, which could result in regulations made under section 187 allowing for charging for the wrong services. That is, quite clearly, not our intention, and we are simply continuing the status quo and clarifying that matter.
Question put and agreed to.
Clause 25 accordingly ordered to stand part of the Bill.
Schedule 4
Integrated care system: minor and consequential amendments
Amendment made: 14, page 151, line 34 in schedule 4, at end insert—
“107A In section 187 (charges for designated services or facilities), for ‘section 3(1)(d) or (e)’ substitute ‘section 3(1)(e) or (f)’.”—(Edward Argar.)
This amendment is consequential on clause 15 of the Bill, which changes the numbering in section 3(1) of the National Health Service Act 2006.
Schedule 4, as amended, agreed to.
Clause 26
Abolition of Monitor and transfer of functions to NHS England
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
That schedule 5 be the Fifth schedule to the Bill.
Clauses 27 to 32 stand part.
Edward Argar
NHS England and NHS Improvement, comprised of Monitor and the NHS Trust Development Authority—the TDA—requested the primary legislative changes to support the merger of their organisations, and these clauses are fundamental to fulfilling that ambition. In recent years, NHS England and Monitor, as part of NHS Improvement, have been working closely together with a view to acting as a single organisation with a single operating model. They already have aligned board and committee arrangements and joint senior executive appointments through the joint working programme. Despite the progress made, there are limits to the extent to which they can collaborate under the current statutory framework.
Establishing a single statutory body responsible for the health care system in England has several clear benefits. First, it will create a more joined-up approach across the NHS to provide national leadership and speak with one voice to set clear and consistent expectations for providers, commissioners and local health systems. Secondly, it brings services, support and improvement under a single regulatory and legislative framework. That will deliver improved care for patients, enabling better use of collective resources, removing unnecessary duplication and ultimately making better use of public money. The merger will provide clearer lines of accountability so that the public can be assured that any service they use meets the same requirements around safety and quality.
Alex Norris (Nottingham North) (Lab/Co-op)
One of the problems that we have found in Nottingham around driving integration was the duplication of lots of different regulators and metrics, which meant that organisations were often working to different purposes. This obviously tidies that up a bit in terms of regulators. Does the Minister envisage going further in the future?
Edward Argar
I am grateful to the shadow Minister for that question, which reminds me of some of the questions that he used to ask me in this room about what the future held when we discussed delegated legislation. I am always cautious not to predict the future, but hopefully it will be helpful if I set out the principles that I think should apply. I agree that unnecessary duplication that does not bring clear and tangible benefits to patient safety or improve outcomes is clearly undesirable. Therefore we will seek to streamline where appropriate, but without compromising patient safety or the outcomes that patients experience. While not predicting the future, I hope that gives him some reassurance of the direction of travel as I see it.
Clause 26, along with other provisions in the Bill, including clause 29, makes the legal changes necessary to bring these organisations together as one legal entity. Clause 26 abolishes Monitor and introduces schedule 5, which contains amendments that transfer Monitor’s functions to NHS England in order to fulfil the Bill’s intention to merge Monitor and the NHS TDA into NHS England to form a single body. The schedule transfers powers and duties from Monitor to NHS England and repeals provisions that are no longer necessary in the light of the merger. For example, Monitor’s functions in relation to NHS foundation trust mergers and acquisitions in sections 56 and 56(a) of the 2006 Act, and in relation to licensing providers in sections 81 to 114 of the Health and Social Care Act 2012, will all transfer to NHS England.
We acknowledge that bringing together the commissioning functions previously exercised by the NHS commissioning board, and the regulatory functions previously exercised by Monitor, under a single organisation could be perceived as giving rise to conflicts of interest. The Bill will therefore ensure the proper management of any such conflicts, and we will work with stakeholders on robust processes that will safeguard the separation of responsibilities and improve transparency. For those reasons, clause 27 seeks to insert new section 13SA, which deals with minimising conflicts between the body’s regulatory and other functions, into the National Health Service Act 2006.
The clause places a duty on NHS England to minimise the risk of conflict or manage any conflicts that arise between its regulatory functions and other functions. In the event that a conflict were to occur, NHS England would be under a duty to resolve or manage that conflict and to ensure appropriate transparency. NHS England must include within its annual report details of such conflicts and how it had complied with its duties to manage them under new section 13SA of the 2006 Act.
Clause 28 amends section 100 of the Health and Social Care Act 2012, which relates to the modification of licence conditions for providers. Licences are the basis by which NHS Improvement and, in future, NHS England set conditions on providers as to the terms on which they can operate. The clause requires that when NHS England makes a major change to the standard licence conditions, as permitted under section 100 of the 2012 Act, it must assess the likely impact of the change or publish a statement explaining why such an assessment is not needed.
The clause also provides that the impact assessment carried out by NHS England must be included in the notice of the modification that is sent to the relevant licence holder and others, as required by section 100(2) of the 2012 Act. This new requirement is intended to make it clearer why NHS England is altering a standard licence condition, which we think is in the interests of providers and the smooth running of the system.
Clause 29 abolishes the NHS TDA and works in harmony with clause 26, which abolishes Monitor and other provisions in the Bill that confer functions on NHS England in relation to providers, in order to merge the two organisations into NHS England to form a single body. In transferring functions that were formerly delegated to the TDA, we have considered the mechanisms and processes associated with those duties and assessed the best fit for the system, to ensure that the relationships already in place are not unduly affected. Clause 29 revokes the directions that established the TDA, and subsections (3) and (4) include consequential amendments that remove references to the TDA. They will no longer be relevant once the TDA is abolished.
Clause 30 makes a consequential amendment to NHS England’s general functions to reflect its oversight of NHS trusts and foundation trusts due to the merger of NHS England and NHS Improvement. The clause ensures a joined-up approach to decision making, allowing NHS England to understand the services required to best serve patients. It amends section 1H of the National Health Service Act 2006 so that for the purpose of discharging its duty to promote a comprehensive health service in England, NHS England must exercise its functions in relation to English NHS trusts and foundation trusts, as well as in relation to ICBs, which will replace the current reference to CCGs, so that services are provided for that purpose.
As part of the merger of NHS England, Monitor and the NHS TDA, and as a consequence of the abolition of Monitor and the NHS Trust Development Authority, clause 31 gives the Secretary of State the power to make schemes to transfer the staff, property, rights and liabilities from Monitor and the TDA to NHS England. These transfer scheme provisions follow a similar protocol used within the Health and Social Care Act 2012 for the transfer of assets, rights or liabilities on the abolition of the National Institute for Clinical Excellence and the Health and Social Care Information Centre. The transfer schemes used then proved effective and efficient, ensuring a smooth transition and no impact on the services they delivered.
Finally, clause 32 contains a regulation-making power that allows the Treasury to vary the way in which any relevant tax has effect in relation to the transfer scheme. Regulations made under this power can be used to ensure that no taxes arise, and that there are no changes to the tax positions of either the transferee or transferor body. It is appropriate to avoid unnecessary tax complications relating to a transfer scheme between public bodies. The types of taxes that can be varied are set out in the clause.
Without this clause, the transfer of assets or liabilities between the bodies mentioned in clause 31—namely Monitor, NHS Trust Development Authority and NHS England—could give rise to unintended tax liabilities. As I have highlighted, this merger has clear benefits and is central to the Government’s plans for establishing a more integrated, responsive and accountable health and care system.
Justin Madders
I am grateful to the Minister for his detail on those clauses, which have been very helpfully grouped. Although we have not put forward any amendments, we do want to raise some general concerns—mostly around what these clauses do not do.
As we have heard—although I do not think the Minister used quite the same terminology as we would have—these clauses have got rid of the worst trappings of the market architecture, which were characteristic of the Lansley Act. As we have heard, they enable the merger of NHS England and NHS Improvement, although I do not think that NHS Improvement is actually mentioned anywhere in the Bill. All references are to Monitor and the NHS Trust Development Authority. It is almost as if the Government want us to forget that NHS Improvement ever existed—or probably want us to forget who was chairing it.
The abolition of Monitor sounds another death knell for the Lansley Act, but does leave some of the market mechanisms in place. However, since they were ignored anyway, I can understand why the Government have not bothered to go the whole hog.
Clause 26 finally turns the Monitor off at the mains—although I think it is fair to say that it stopped working some time ago. NHS England is now the undisputed, supreme leader over commissioning and both flavours of providing, so the Bill not only tears up the Lansley reforms but quietly changes the 2003 amendments. Monitor was set up as the regulator of foundation trusts, and was to be the approver of applications to become a foundation trust.
Foundation trusts have had many incarnations, but were once heralded as the vigorous, autonomous new organisations that would shake up the NHS and bring choice and competition into healthcare. They were beyond the reach of those nasty bureaucrats who ran the rest of the NHS. However, as I think we have seen today, it has not quite turned out like that. There must be a clever saying somewhere that “All health service reforms end in failure”, just like all politicians’ careers—although the Minister is clearly an exception to that!
It is fair to say that we are seeing the end of the foundation trust experiment. There is no evidence that the new foundation trust model did any better than the old model. Of course, the first few anointed foundation trusts did outperform non-foundation trusts, but that was because they were already the best-performing trusts. That was why they were allowed to become foundation trusts in the first place. It was, really, a self-fulfilling prophecy, but, as time has moved on, it has been harder and harder for trusts to excel to the level originally envisaged.
Foundation trusts did have some good characteristics; they did have a better go at accountability to their governing bodies. Given this Bill’s focus on involving patients and the public in the wider health system, perhaps this system also has some positives—something to commend it. It might not have been a bad idea to have an equivalent model for the governance of ICBs, but I will not return to that now. I know the Minister has not warmed to our suggestions of greater accountability, but I will leave that for him to consider if he brings forward amendments on Report.
The Lansley Act favoured foundation trusts and made the optimistic—and what turned out to be highly inaccurate—assumption that, in time, all NHS providers would become foundation trusts. As so much happened with that Act, however, it turned out not to be the case at all. Foundation trusts are now no different from the old-school, old-style NHS trusts—a “distinction without a difference”, as Lord Stevens once quipped. For all relevant purposes, NHS trusts and NHS foundation trusts are performance-managed in exactly the same way.
Karin Smyth (Bristol South) (Lab)
My hon. Friend is right in what he says. Given Monitor’s role, NHS Improvement’s role and local scrutiny of what is happening within the system—it is almost independent in some cases—there is a real gap here now. I have called them cartels before, although my hon. Friend will perhaps not use that word. With the absence of Monitor, where is the transparent and independent scrutiny? What is the new regime, and how will that accentuate the patient voice? We have also been unable to highlight how many millions of pounds have been wasted in the intervening years from 2012 with regards to how the previous Act was pushed through, and the terrible waste that has arisen as a result. Surely the patient voice must be really important in holding trusts to account.
Justin Madders
I can assure my hon. Friend that I will not waste opportunities to refer to the waste of public money as a result of the Lansley Act, but the wider point is one that the Opposition have made already in Committee and will continue to make. There is clearly a gap where accountability ought to lie. It will be interesting to hear what the Minister says about why the governing model for foundation trusts cannot be expanded to all remaining trusts. We would particularly want to see far greater patient involvement in the integrated care systems in the Bill. Clearly, we have had that debate unsuccessfully, but I hope that we will perhaps have an opportunity to return to it once the Bill returns from the other place.
I will say a few words on the licensing scheme. Given that the Bill marks an end to the whole era of markets and competition and a move, at least in theory, to a model of collaboration and co-operation—not a cartel, as my hon. Friend the Member for Bristol South might call it—why is it necessary to license NHS bodies that are now fully under the control of NHS England and the Secretary of State? That does not seem to be a particularly good use of anyone’s time, and it will create more unnecessary paperwork and bureaucracy.
We will do our best to help the Minister in reducing obstacles to delivering patient care, so we will not oppose these clauses. However, we think that they have probably not gone far enough. They are clearly a necessary tidying-up job, but the Government should do the job fully and properly.
Edward Argar
As ever, I am grateful to the shadow Minister. He should be optimistic—perhaps not on this issue, but more broadly—about the reception of some of his suggestions. I think I managed to take him aback slightly last week with one suggestion, although it was perhaps not the one with which he expected me to be willing to engage. I always listen to and consider carefully what he says.
The shadow Minister made a number of points. He mentioned the references to Monitor and TDA and said there are no references to NHS Improvement. That is because NHS Improvement is not the named body in law—that is simply a legal distinction. The named bodies are the NHS TDA and Monitor, which we understand and know as NHS Improvement.
I gently chide the shadow Minister. His reference to the chair of NHS Improvement, Baroness Harding, was a little unmerited. She has worked tirelessly. Colleagues will have their views, as is entirely appropriate in this place, but his reference was uncharacteristically uncharitable.
Karin Smyth
Given that the Minister, who I think is an honourable man, has mentioned that, does he think it acceptable for the chair of NHS Improvement to take the Conservative Whip in the House of Lords, as was outlined in the pre-screening scrutiny commission by the Health and Social Care Committee? Does he think that is acceptable, as other Ministers have not done so?
Edward Argar
I believe that all appointments, including that one, are conducted entirely appropriately, in line with Cabinet Office guidance.
I move on to the shadow Minister’s substantive points, which he perhaps made more in hope than anything else. We are not resiling from the value that choice and competition can bring, but we recognise that it is not the only driver of improvement and that collaboration plays a key role, so the position is perhaps a little more nuanced than he might like to suggest or wish to see. What we are seeing here is a reflection of the reality. We are ensuring that the way the system has evolved in practical terms over time is reflected by updating the appropriate legislation.
The shadow Minister mentioned a number of specific points around foundation trusts, and I hope I can give him some reassurance. We are not abolishing foundation trusts or their rights. The licensing system that we are talking about allows for equivalent management of both types of trust in a consistent way, and the NHS will still have the power to authorise new foundation trusts in the future, if they meet the appropriate criteria.
Justin Madders
I think the Minister probably has the gist of what I was getting at in my comments. Can he tell us how many applications for foundation trust status are currently in the pipeline?
Edward Argar
The shadow Minister is an able parliamentarian. I hesitate to say with certainty, but my belief is none at present. However, I caveat that by saying I would not wish to mislead the Committee. If I have got that wrong, I will of course let him know.
There is nothing that stops the evolution of trusts into foundation trusts, if they so wish and meet the criteria. What we are saying here is that it is not one size fits all. We will not force anyone down that route, but the option remains for NHS England. I would argue that the way the system has evolved is a reflection of the strength of that system and the framework that we have put in place around it. On a serious note, I know that the point about foundation trusts is of considerable interest to the shadow Minister. When we reach clauses 51 to 57, which cover this issue and the operation of foundation trusts, I suspect that we may get into rather more detail about how they actually operate. I might even be able to confirm that my understanding of the figure for which he asks is correct.
The shadow Minister has made his points clearly, but I hope the Opposition will agree to these clauses. They are technical clauses in essence, and the shadow Minister has rightly used them to air broader issues that are related. They are technical clauses to reflect the reality of the evolution of the system.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Schedule 5 agreed to.
Clauses 27 to 32 ordered to stand part of the Bill.
Clause 33
Report on assessing and meeting workforce needs
Chris Skidmore
I beg to move amendment 94, in clause 33, page 40, line 6, leave out from beginning to end of line 11 and insert—
“(1) The Secretary of State must, at least once every two years, lay a report before Parliament describing the system in place for assessing and meeting the workforce needs of the health, social care and public health services in England.
(2) This report must include—
(a) an independently verified assessment, compliant with the National Statistics Authority’s Code of Practice for Statistics, of health, social care and public health workforce numbers, current at the time of publication, and the projected workforce supply for the following five, ten and 20 years.
(b) an independently verified assessment, compliant with the National Statistics Authority’s Code of Practice for Statistics, of future health, social care and public health workforce numbers based on the projected health and care needs of the population for the following five, ten and 20 years, consistent with the Office for Budget Responsibility long-term fiscal projections.
(3) NHS England and Health Education England must assist in the preparation of a report under this section.
(4) The organisations listed in subsection (3) must consult health and care employers, providers, trade unions, Royal Colleges, universities and any other persons deemed necessary for the preparation of this report, taking full account of workforce intelligence, evidence and plans provided by local organisations and partners of integrated care boards.”
This amendment would require published assessments every two years of current and future workforce numbers required to deliver care to the population in England, based on the economic projections made by the Office for Budget Responsibility, based on projected demographic changes, the prevalence of different health conditions and likely impact of technology.
The Chair
With this it will be convenient to discuss the following:
Amendment 2, in clause 33, page 40, line 6, leave out
“at least once every five years”
and insert “annually”.
This amendment would require the Secretary of State to publish a report on assessing and meeting the workforce need annually.
Amendment 40, in clause 33, page 40, line 7, leave out “the health service” and insert “health and social care services”.
This amendment would require the Secretary of State to publish a report on assessing and meeting the workforce need for both health and social care services.
Amendment 41, in clause 33, page 40, line 11, at end insert—
“(3) Health Education England must publish a report each year on projected workforce shortages and future staffing requirements for health and social care services in the following five, ten and twenty years.
(4) The report must report projections of both headcount and full-time equivalent for the total health and care workforce in England and for each region, covering all regulated professions and including those working for voluntary and private providers of health and social care as well as the NHS.
(5) All relevant NHS bodies, arm’s-length bodies, expert bodies, trade unions and the National Partnership forum must be consulted in the preparation of the report.
(6) The assumptions underpinning the projections must be published at the same time as the report and must meet the relevant standards set out in the National Statistics Authority’s Code of Practice for Statistics.
(7) The Secretary of State must update Parliament each year on the Government’s strategy to deliver and fund the long-term workforce projections.”
Amendment 42, in clause 33, page 40, line 11, at end insert—
“(3) The annual report must include an assessment by the Secretary of State of safe staffing levels in the health service in England and whether those levels are being met.”
Chris Skidmore
I wanted to speak to amendment 94, which is the product of a revision on my part. I initially tabled an amendment to clause 33, but it was as a result of the oral evidence sessions when the clause was discussed at length by a number of organisations that I decided to re-table amendments with further detail.
Clause 33 is one of the shortest clauses in this substantial Bill, but it is one of the most important. When it comes to looking at how we plan the NHS workforce for the next five years as the clause suggests, or the next 10 or 20 years, we face significant demographic changes in the United Kingdom. We have an aging population with sadly more co-morbidities and chronic conditions, such as diabetes, than ever before, which puts increasing pressure on not only the health service, but the health and care service. That is the omission. The clause has no mention of the care service, which needs to be dealt with.
The clause is rather perfunctory. At the moment, the duty on the Secretary of State is to,
“once every five years, publish a report describing”
—not necessarily detailing or taking any action—
“the system in place for assessing and meeting the workforce needs of the health service in England”
—not the care service.
Secondly, the report would be prepared by NHS England and Health Education England alone, not mentioning any of the other wider workforce organisations. They would,
“assist in the preparation of the report”
but only,
“if requested to do so by the Secretary of State.”
The Secretary of State holds all the cards about how the report is published and what type of data is used.
Amendment 94 sets out that we should have a report every two years. The first amendment I put down actually wanted an annual report. I know there are some amendments on annual reports, but it was very clear from organisations, such as NHS Confederation and NHS Providers, that they saw an annual report as being too bureaucratic. They would have to start the next report having just finished the previous one, hence I withdrew the amendment. In that spirit of the Committee, it is important that Back-Bench Members listen and change our amendments where possible.
I have tabled some amendments saying that the Secretary of State must lay a report every two years. We have seen with the pandemic that five years is too long a period to anticipate unknowable events and uncertainties within the system. Having a two year report would reflect better on the pressures that can occur within a system over a shorter period of time. Amendment 94 also addresses two specific issues around what this report would look like and how it is put together, because ultimately a report is only as good as the data it utilises. Where are we getting that data from? If the clause allowed NHS England and Health Education England simply to assist in the preparation of the report without any understanding of what data measures are used in such reports, we would miss an opportunity to embed detailed demographic research into our understanding of the workforce needs of the NHS and care population.
Karin Smyth
The right hon. Gentleman is making some excellent points. He and I share a health economy, two universities and a thriving region, but we still have problems. People in my constituency cannot get the sorts of jobs and apprenticeships that they need. How would his amendment deal with the geographical discrepancies across the country through a single two-year report, and how would we account for the different training demands in different parts of the country?
Chris Skidmore
I think there is a subsection here about how clause 33 relates to clause 19 and the duties on ICBs as the placemaking organisations that can provide the training opportunities for the future. I also think there are great opportunities in the Department for Levelling Up, Housing and Communities for potential further devolution of the skills budget through a mayoral system. That skills budget will already be devolved in some of the metro Mayor areas, so I hope that it will also be devolved across wider areas that do not necessarily have a city population. The Government are clearly looking to fill that gap. Those are also the skill needs of the healthcare population, which is why, when it comes to the duties for the ICBs, I am keen that they take on board the wider non-healthcare resident population, whether in universities, colleges or elsewhere, to bring in expertise on creating training pathways for the future.
Without going off-piste, I think there are future opportunities for more flexible qualifications. We have the lifelong learning allowance. We are looking at how to allow individuals to retrain for the future, creating apprenticeship opportunities, in-work opportunities and course-based opportunities. This is not just about providing nurses and doctors; it is also about allowing nurses to move up the scales and retrain when they are in the NHS, which would help to lower the attrition rate.
Retention is one of the greatest challenges we have—it is not only about training—and I am sure that the intention of clause 33 is also to get to grips with retaining the 20% of the workforce who leave over a five-year cycle. It would do so much better if it took into account statistics consistent with the Office for Budget Responsibility’s long-term fiscal projections and if we were able to look at the needs of the population. That is what subsection 2(b) of my amendment suggests—looking at workforce numbers
“based on the projected health and care needs of the population”
as well as the demographic numbers of the workforce.
The amendment suggests a number of organisations that should be able to contribute to the report, including health and care employers. I return to the point that the care sector is not reflected in clause 33, and it really should be. Trade unions also play a vital role in identifying needs; that may be strange coming from a Conservative MP and I may disagree politically with unions, but they have the data and the opportunity to provide feedback from their members, which is really important. I have mentioned the royal colleges in discussions on previous amendments. Universities are critical for identifying ways of integrating healthcare and education practices. I also suggest
“any other persons deemed necessary for the preparation of the report, taking full account of workforce intelligence…and plans provided by local organisations and partners of integrated care boards.”
The amendment would therefore allow for place-based opportunities, as the hon. Member for Bristol South has said, in delivering on the clause’s workforce planning.
I do not intend to push the amendment to a vote. It is a probing amendment, which I hope the Minister will take seriously, especially given the length of time the issue was discussed in the oral evidence sessions.
I am sure all Members have received briefing packs from various organisations. Clause 33 comes up as one of the priorities. The organisations’ intentions are not vexatious; they are not raising the issue to make a campaign point against the Government. The tone of the Bill is one of collaboration and partnership. As was mentioned in the oral evidence sessions and the early sittings of the Committee, the Bill is unique. It is not a top-down reorganisation—it is filling in the jigsaw puzzle that has been constructed from below upwards, providing the legislative cherry on the top of a cake that has already been baked by local healthcare communities who know what they need. What they need is certainty on workforce planning. The Bill provides the legislative certainty of consistency at national level that will trickle down to local level.
I urge the Minister to listen to the requests for more frequent reporting on workforce planning, better use of data in producing the report and a widening of opportunities to be partners in that report. The Minister and Department have done a fantastic job in allowing the partnership model to evolve. We have moved away from institutional top-down accountability, where there was a competitive spirit between institutions. We have broken that down; the ICPs and ICBs now provide an opportunity for greater partnership working, for the benefit of patients and the outcomes that need to be delivered. This is the missing piece in the legislation.
We need to move workforce needs to a partnership model and away from the top-down approach that clause 33 very much suggests. The Secretary of State holds all the cards on the planning of the report and does not even necessarily have to work with NHS England or Health Education England. In the spirit of the Bill, I urge the Minister to open up the clause and consider the proposal in amendment 94 on Report or in the other place. It is an important change that would make the Bill even better. I urge him to give it due consideration.
Justin Madders
I will speak to amendment 94 and the other amendments in my name and the names of my hon. Friends, since they are grouped together and we are clearly all talking about the same thing. There is probably only a cigarette paper between many elements of these amendments and, I hope, the Minister’s position when we get to the end of the debate.
One reason why there are so many amendments and they are all fairly similar is that it was clear from the evidence sessions that this is one of the few areas on which there was complete agreement among the witnesses. Clause 33 is simply nowhere near good enough. Given the importance of workforce issues, which is the most crucial issue facing our NHS and social care system—as the right hon. Member for Kingswood mentioned, social care must be included within this—it is strange that we have really quite a tepid offering in the Bill.
It feels as though the whole question of workforce is firmly in the Department’s “too difficult” box. It knows it has to do something; it knows that without the tremendous efforts of the staff the NHS would simply collapse, but rather than coming up with an effective strategy, it has produced this fig leaf of a clause to create the impression that the issue is being taken seriously and dealt with.
Justin Madders
It is now in the Minister’s inbox, and he will know that what is currently in the Bill does not cut it in terms of the challenges we face. As I often do, I place on record our thanks and admiration for the whole NHS workforce, for turning from theory into reality an organisation that demonstrates the benefits of collectivism and socialism and is one of the nation’s proudest achievements—I certainly expect the Minister to agree with the latter part of that sentiment, if not the former.
I have said this many times before, and I will say it again: without its workforce, the NHS is nothing. It is not only the doctors and nurses, but all the others who contribute to the delivery of a comprehensive and universal service, free at the point of use: the radiographers, the porters, the cleaners and the allied health professionals. I will not list them all, but we should acknowledge that a number of different people contribute towards even the most straightforward engagement with a patient, and we are grateful for each and every one of them and the service they give.
I briefly refer hon. Members to the report by the Health and Social Care Committee on workforce burnout and resilience. It conducted an inquiry into the issue and found that staff shortages were
“ultimately the biggest driver of burnout.”
It was presented with much evidence from staff about feelings of low energy or exhaustion, increased mental distance from or negative feelings about the job, and reduced professional effectiveness. Excessive workload was identified as the key predictor of staff stress, workers’ intention to quit and patient dissatisfaction, and was also highly associated with the level of errors.
I draw this Committee’s attention to some of the conclusions in the report. Paragraph 22 states:
“It is clear from our witnesses that although the People Plan presents comprehensive ambition to address the failings in the culture of the NHS, and address the needs and wellbeing of NHS staff, its delivery will depend on the level of resourcing allocated to these priorities. Without adequate funding the laudable aspirations of the People Plan will not become reality.”
Paragraph 23 states:
“We recommend that the Department publishes regular, costed updates along with delivery timelines for all of the proposals in the People Plan.”
That is something we are trying to turn into reality with our amendments.
Turning to the specifics of amendment 40, paragraph 24 of the Select Committee report states:
“The absence of a People Plan for social care serves only to widen the disparity in recognition and support for the social care components of health and social care. The Government should rectify this as a matter of urgency in their upcoming work to reform the social care sector; and it is essential that it is included in the social care reforms promised this year.”
Some reforms have been promised, but we still await the further White Paper on integration, which we have touched on many times.
“The adult social care workforce has stepped up to the plate during the pandemic. They deserve the same care and attention that the People Plan pledges to NHS colleagues.”
We wholeheartedly agree with the sentiments stated there.
Karin Smyth
I entirely concur with the comments of my hon. Friend, who asked: if not now, when? The right hon. Member for Kingswood described this as a short clause, but one that is hugely important. I do not want to quote everyone who has given us evidence, but we all agree that this is a major issue for the service and has been for a number of years. It is the major omission from this Bill, which has had all sorts of other things added to it but does not look at this issue seriously. This is a massive missed opportunity, unless the Minister takes on board some of what has been said today and supports some of these amendments, to indicate to the service, post pandemic, that this message has been heard loud and clear. The Secretary of State seems to want to take on a lot of responsibilities, and this is something quite significant that he could do something about. He could give that indication.
As I said to the right hon. Member for Kingswood earlier, we have to recognise the differences between health economies and parts of the country. Fairly recently, the Government expanded medical training places in parts of the country where there is a low take-up, and to which people are not moving to work. We know that if we train people locally, they stay local and if the Government would like a quick and easy way to level up—however they want to define it—that is it.
Edward Argar
I am grateful to all the hon. Members for tabling the amendments. They relate to increasing the Government’s accountability for assessing workforce planning and setting workforce projections. Before I turn to their substance, as the hon. Member for Ellesmere Port and Neston suspected, I entirely agree with the latter half of his sentiment about the achievement that is the NHS. I am not sure I would necessarily attribute that to unbridled socialism, which tends to fail where it is tried. However, as Opposition Members will know and as set out well in the book written about Nye Bevan by their right hon. Friend the Member for Torfaen (Nick Thomas-Symonds), which I re-read over the weekend, the genesis of the NHS was a complex one, which owed much to all parties in the House.
Justin Madders
I am glad the Minister has time to be reading such excellent tomes over the weekend. Can he remind us what the Conservative party did when voting on the original National Health Service Act 1946?
Edward Argar
Could the hon. Gentleman remind me what the Labour party did when in government, resulting in the resignation of the architect of the NHS?
The point I make is a serious one. The genesis of the NHS which, quite rightly, we are all proud of and recognise as a great achievement, is far from as simple as sometimes it might be portrayed by both parties in the House. The hon. Gentleman is right to highlight the fact that while the new hospitals we are building, the developments in drugs and therapeutics, and the new technology and new kit are all hugely important, they are limbs of the NHS. Its beating heart is its workforce and he is right to highlight that. I join with him, as I often do on these occasions, in paying tribute to all those who make up that beating heart.
Continuing to grow the workforce remains a top priority for the Government. Although I may disappoint some hon. Members, I am genuinely grateful to those who tabled amendments and spoke to them today, because this is a crucial debate, and I suspect the matter will continue to be raised, not just during the passage of the Bill but, rightly, more broadly. As ever, I am grateful to my right hon. Friend the Member for Kingswood, who brings a high degree of expertise to this subject, as the only hon. Member or right hon. Member to have occupied both the office that I now occupy and that of Minister of State for Universities, Science, Research and Innovation. He brings to the Bill the perspective he has gained from both those offices.
When I got this job back in September 2019, which seems like an age ago, I was responsible for workforce for a few months, until that responsibility was taken on by my hon. Friend the Member for Faversham and Mid Kent (Helen Whately) at the beginning of 2020. One of my first visits was to the University of Lincoln, which had just opened its medical school. That medical school had been campaigned for very hard by my hon. Friend the Member for Lincoln (Karl MᶜCartney), who was out of office at the time, and by the then Opposition Member for Lincoln.
The hon. Member for Bristol South is absolutely right to highlight the importance of local medical schools. Lincolnshire, for example, has a challenge in attracting and retaining a workforce. We are already in the early stages of seeing a growing workforce of people there who are likely to start their careers in Lincoln. When I visited, my right hon. Friend the Member for Kingswood was remembered with fondness. I did not take it personally that they almost seemed disappointed to see me and not him, but that is a reflection of the affection in which he is held and the respect for him in this sector.
As the shadow Minister rightly said, yesterday I again resumed responsibility for the NHS workforce and I look forward to working with him constructively on these matters, which is the way we tend to work. We will consider the role that all stakeholders can play in identifying the needs and opportunities around the workforce. I always value input and I echo the words of my right hon. Friend, which I hope will find favour with the shadow Minister, that that includes input from professional bodies, think-tanks, NHS bodies and the trade unions. There may be times when we disagree, but I look forward to working with all of them constructively and courteously, as I do with the shadow Minister.
This year, we have seen record numbers of nurses and doctors working in the NHS, and the total number of NHS staff has increased to almost 1.2 million. There are over 17,800—2.9%—more professionally qualified clinical staff working in NHS trusts and clinical commissioning groups than in June 2020, including over 2,700, or 2.3%, more doctors and over 8,900 more nurses.
We continue to make good progress towards meeting our manifesto commitment of 50,000 more nurses by March 2024. Encouragingly for future workforce supply, applications for nursing and midwifery courses in England were up 21% this year compared with last year, and we have seen the highest number of students accepting places in the past 10 years. Through Health Education England, we will continue to invest in the NHS and social care workforces, and an additional duty is not required for this to happen.
I will not repeat the point that the shadow Minister very kindly made about the July commission. I will certainly look into the status of the response to that report. He will recognise that even when we do not agree, which is not that often, although there are such times, I endeavour to be efficient and courteous in responding to such matters, so I look forward to picking up on that with my new responsibilities.
Justin Madders
I certainly did not intend to upbraid him for not responding, given that he took over responsibility only yesterday. He will be aware of the importance of the report and of an official response.
Edward Argar
I am, of course, and I reassure the hon. Gentleman that prior to the reshuffle I was looking at a number of issues related to the recovery of our workforce. A fit, healthy and supportive workforce is crucial to that. I have read and considered the report, and, with my new responsibility, I will endeavour as swiftly as I can to ensure that the Government respond as appropriate to the Committee, and to Committee reports more broadly, in a timely fashion.
We believe that the proposed duty in clause 33, which inserts proposed new section 1GA into the National Health Service Act 2006 in order to require the Secretary of State to produce a workforce accountability report at least every five years, addresses one of the main issues in the current system: the need for greater transparency and accountability for the various bodies involved in the workforce planning process in England. The proposal in the Bill is to ensure that there are proper structures and accountability for ensuring that the necessary workplace planning and projections are carried out and co-ordinated effectively by the various bodies in the system. For example, the report will set out the role and responsibilities of the new ICBs and how they will support the delivery of effective local and national workplace planning.
Draft guidance issued by NHS England, which covers the role of ICBs regarding the workforce, sets out the direction of travel in that regard. It sets out the ICBs’ responsibility to develop system-wide plans to address current and future workforce supply for the local area, with demand and supply planning based on population health needs. The guidance also refers to their responsibility to provide workforce data to regional and national workforce teams in order to support aggregated workforce planning and to inform prioritisation of workforce initiatives and investment decisions.
I fear that my remarks may be a little more lengthy than usual, but I think that that reflects the importance and breadth of this issue. Turning to the other amendments in the group, amendment 2 would require the Secretary of State to publish the report on assessing and meeting the workforce need annually, rather than at a minimum of every five years. I acknowledge the witnesses’ comments, which the shadow Minister has rightly highlighted, but we need to be a little cautious. We cannot predict all future evolution and needs, which is why we have mandated the report to be published at a minimum of every five years. That flexibility allows us to provide an updated report in order to reflect any changes to roles and responsibilities earlier than the statutory required period, if necessary, but requiring an annual report would impose an unnecessarily prescriptive and, I fear, rigid arrangement on the production of this document and would be disproportionate to the level of change in roles and responsibilities that we expect to see in the system on an annual basis. I therefore suspect that it is a matter for debate as to what the most appropriate timescale is—we have therefore set a minimum period, rather than a maximum period.
Amendment 40 seeks to go further than our current duty on reporting workforce accountabilities, by requiring the report to set out the system in place for assessing and meeting workforce needs, both of the health service and of social care. As the shadow Minister has alluded to, and as he and I agree, our 1.5 million-strong social care workforce is an absolutely essential and valued part of the social care system and, indeed, our broader healthcare system in this country. Social care workers are on the frontline, caring for and supporting people at the heart of their communities.
I understand the intention behind the amendment, but I fear that we will not be able to accept it today. The scope of clause 33 as it stands has been carefully drafted to ensure that it reflects the statutory role and responsibility of HEE, which will assist in the production of the report. As a result, the workforce accountabilities report will cover the NHS in England, including primary, secondary and community care; the regulated adult social care workforce where sections of the workforce are shared between health and social care—for example, registered nurses and occupational therapists; and the regulated public health workforce, including doctors and other regulated healthcare professions. Regulated professionals in adult social care are therefore already included in the scope of the report, but HEE has no specific remit for the wider, unregulated adult social care workforce. I can reassure the Committee, however, that the Government are working hard to bring forward a White Paper for adult social care. As the shadow Minister rightly alluded to—he repeated his comments, so I will repeat mine—the proposal set out by the Prime Minister will build on the strong foundations for reform and integration that will be laid through the Bill.
Justin Madders
I will not tempt the Minister to tell us what will be in that, but his confidence that it will be an improvement on the current position is noted. Does he anticipate that the White Paper will also include a very clear commitment to a workforce strategy, along the lines that we have discussed?
Edward Argar
I do not know whether the shadow Minister has seen what I was about to say, but after two years of doing this together, he has become relatively psychic. I anticipate that the White Paper will set out in detail how we propose to fund social care professionalisation, as well as initiatives or plans to improve workforce wellbeing and further reforms to improve social care recruitment and support.
Sarah Owen (Luton North) (Lab)
I know it is not the done thing for Whips to contribute to debates, but because I have been a care worker, this part of the Bill is close to home for me. I wanted to touch on the word that the Minister used when he spoke about “assumptions” about workforce planning. Does he agree that actual independence takes away the need for Ministers to make assumptions, and that is why the amendment is important? Otherwise, Ministers are in danger of marking their own homework when it comes to whether they have met the workforce projections that they say they have met.
Edward Argar
The hon. Lady alludes to it not being normal form for a Whip to intervene, but her contribution is, as ever, extremely valuable in this context—particularly given the work that she did before she became a Member of this House—and I am grateful to her. My counterpoint would be that we need to be cautious about a separation of projections and planning from the reality of day-to-day delivery. The system, as envisaged, will bring together an actual knowledge of what is going on on the ground with those projections and data delivery.
I suspect that I will not convince the hon. Lady, but I recognise and acknowledge the expertise that she brings to the area. Back in my days as a councillor, I was a cabinet member for adult social care and saw at first hand the amazing work done by care professionals and by volunteers in the care sector. Notwithstanding any political disagreements we might have, I pay tribute to her for that.
Finally, regarding the consultation requirements in amendments 94 and 41, I assure the Committee that consultation already happens throughout the workforce planning and delivery process. To give a recent example of such engagement, HEE completed a call for evidence as part of its refreshed “Framework 15”. That call for evidence closed on 6 September and received responses from a wide variety of bodies. Between October and April of next year, engagement and consultation will continue through various events led by HEE. I am sure that as I assume my new responsibilities, I will occasionally be questioned on those by the shadow Minister, either across the Dispatch Box or in written questions and letters, as is his wont and, indeed, his right.
At local level, ICBs will be under various workforce-related responsibilities and obligations, as I have set out. As part of that work, we can expect ICBs to work with local stakeholders in their area. We expect all this stakeholder consultation to continue, but we want engagement to be flexible, in keeping with one of the principles—the permissive principle—behind the Bill.
Let me turn to the issue of safe staffing. Amendment 42 would significantly amend our proposed workforce accountability report so that it would have to cover an assessment by the Secretary of State of safe staffing levels for the health service in England and whether those were being met. The effect of the amendment in reality would be to require the Secretary of State to make such an assessment but, in so doing, risk detracting from the responsibility of clinical and other leaders at local level for ensuring safe staffing, reflecting their expertise and local knowledge, supported by guidance and regulated by the Care Quality Commission. We do not support the amendment as drafted, for various reasons.
First, there is no single ratio or formula that can calculate the answer to what represents safe staffing in a particular context, and therefore against which the Secretary of State could make an objective assessment. It will, as we have seen over the past year and a half, differ across and within an organisation. Reaching the right mix, for the right circumstances and the right clinical outcomes, requires the use of evidence-based tools, the exercise of professional judgment and a multi-professional approach. Consequently, in England, we think that the responsibility for staffing levels should remain with clinical and other leaders at local level, responding to local needs, utilising their expertise, supported by guidelines from national bodies and professional organisations, and all overseen and regulated by the CQC.
Secondly, the amendment would require the formulation of safe staffing levels against which the NHS workforce could be assessed. I fear that that would be a retrograde step, as it would inhibit the development of the more productive skill mixes that are needed for a more innovative and flexible workforce for the future. That new workforce is crucial to successful implementation of the new models of integrated care that the Bill is intended to support.
The specific wording of the amendment is incredibly broad and would require the Secretary of State to assess safe staffing levels across all healthcare settings, across the whole of England, for all medical and clinical staff. Such a duty would be burdensome not only for the national system but, potentially, locally—for local clinical leaders. It would move us away from that local accountability and expertise.
I assure the Committee that we will continue to engage with stakeholders and hon. Members, including my right hon. Friend the Member for Kingswood, to look closely at this area. I want to reassure Members, including Opposition Members, that we have heard their concerns and the views that they have expressed in relation to workforce in today’s debate and reflecting the evidence of witnesses. I am grateful, as ever, for the tone in which the shadow Minister has raised his concerns and put his points. We will carefully consider these issues and continue to ensure, and to reflect on ensuring, that we work to address them through the Department’s wider work on workforce.
Let me just say, before concluding, that while we were doing the changeover between clauses, I did a very quick check and I believe I was correct in my answer to the shadow Minister that no applications were currently pending for foundation trusts. I wanted to clarify that it turns out I was right—I suspect he thinks he was right in his assumption as well.
For the reasons that I have set out, I encourage hon. Members not to push these amendments to a Division but to continue engaging with me and other Ministers.
Chris Skidmore
I thank the Minister not only for his kind words to me personally, but for his considered response to this set of amendments. It is clear that he is mulling over this, and I would like to give him time to think about potential opportunities for changing the clause. I know how these things work; I have sat in the very same seat that he is sitting in. I know he has to spin off various pieces of paper that have been provided to him by departmental officials. The officials who are sitting here have listened to this debate and will want to go back to the Department to discuss with their colleagues what has been mentioned in Committee today.
There is a gap between the sector’s expectations of what workforce planning might look like and what is currently written in the Bill. The Minister has proven my amendment to be defective. It is already highlighted in the legislative remits of Health Education England that it has to consult the social care sector and also the wider sector. I will not press the amendment to a vote, but I do think there is an opportunity. If we can plan in advance and create systemic frameworks, we will save ourselves time—a stitch in time saves nine. We have an opportunity to provide certainty and security for the workforce and to provide a sustainable framework, although I am not sure whether the five years is sustainable.
As I have mentioned before, I was here 10 years ago on the Committee for the Health and Social Care Bill, which became the Health and Social Care Act 2012. We are now removing parts of that, and the Minister at the time, in the very same seat, argued until he was blue in the face that there would be a benefit. We can learn from that experience, but the lived experience of professionals suggests we need to be more frequent in our assessment of the workforce needs of the NHS and the care sector.
We know that the demographic train that is coming down the tracks is going to hit us. We have seen what has happened with gas supply prices and the energy sector; we knew nine years ago that we had only about four days’ gas supply, and yet no action was taken. If we transpose that over here, we know that we face workforce issues, if not a crisis, in the next 10 years. That will all come down the tracks in a perfect storm of increasing healthcare issues, an ageing population and an attrition rate in a workforce that cannot currently keep up with demand.
There are supply and demand issues. We need more frequent assessments to ensure that supply and demand meet each other, and we need investment in the workforce and in training. Although I will withdraw amendment 94, I am keen for the Minister to consider what further action might be taken on Report or in the other place. I beg to ask leave to withdraw the amendment.
Justin Madders
I would just like to say a few words about amendments 40 to 42, if that is acceptable, Mrs Murray. We wish to press amendments 40 and 41 to a vote, with your permission. It is clear from the evidence that there is a demand for something to be done. It is interlinked with patient safety and cannot be ignored. Our main concern is: if we do not do this now, when will we?
Amendment, by leave, withdrawn.
Amendment proposed: 40, in clause 33, page 40, line 7, leave out ‘the health service’ and insert ‘health and social care services’—(Justin Madders.)
This amendment would require the Secretary of State to publish a report on assessing and meeting the workforce need for both health and social care services.
Hywel Williams (Arfon) (PC)
I beg to move amendment 85, in clause 33, page 40, line 11, at end insert—
‘(3) The Secretary of State must consult the Welsh Ministers before the functions in this section are exercised.”
This amendment would require the Secretary of State for Health and Social Care to consult the Welsh Government before the functions on workforce assessments in this clause are exercised.
I will be brief, given that much of what I would otherwise have said has been covered in the debate on the previous group of amendments. I will just say to those on the Front Benches, in their discussion of the genesis of the NHS, that success has many parents. Aneurin Bevan of Tredegar was the father of the NHS, based on his experience of the provision of health in that area, but it was also based on the foundation that was set up by my predecessor but three as Member for Caernarfon, David Lloyd George.
Having got that out of way, the amendment would place a duty to consult the Welsh Government on workforce assessments. Although the amendment is a probing one, I am concerned that the devolution settlement remains somewhat complicated and sometimes unclear, even in its current iteration. As a piece of history and a reference to how that settlement can cloud matters, I will mention a question I asked a former Labour Secretary of State for Health, Mr Alan Milburn, some years ago about nurses’ pay. His response, which I committed to my memory, was “It is one of the abiding joys of my life that I have no responsibility for things Welsh.” Unfortunately for both Wales and him, he actually had responsibility for nurses’ pay at that time. Even Secretaries of State are not perfect, let alone Ministers of State and others. That situation has now been resolved.
The danger is always that the remaining integration of parts of the Welsh health service and health service in England might be overlooked. I referred to that earlier in respect of services and people from Wales—and people from England, for that matter—accessing health services on the other side of the border. People in north Wales specifically will recognise the names of individual hospitals in England. I refer briefly to Alder Hey on the Wirral, which provides services to children with severe conditions. There is the Royal Liverpool; the Christie in Manchester, which provides specialist cancer treatment; and the hospital in Gobowen, which has for a long time provided orthopaedic services. Recently, severe casualties and people who have suffered road traffic accidents have been helicoptered to Stoke for specialist treatment. As I said the other day, around 13,500 Welsh people access GP services in England, and 21,000 or so people from England access GP services in Wales. Those are the 2019 figures.
The workforce-training and education aspects of cross-border arrangements must be considered because staff are mobile. People from Wales access training in England and then return to Wales, and it works the other way around as well. In my own constituency specifically, the school of nursing at Bangor University has for a number of years trained nurses from all over the UK and elsewhere. We are now establishing a medical school that will certainly be training doctors who will return to Scotland, England or Northern Ireland.
The other positive opportunity that proper workforce planning would present the health service throughout the UK is in the specialisms that we hope to develop in Wales—particularly in my area of north Wales. Those specialisms include, for example, treating injuries arising from accidents on our coasts and mountains, for which we already have some specialism. There are also particular issues around mental health and multilingualism, particularly in talking therapies and work with children and older people.
There are opportunities for people who might be trained in Wales before going over to England, and vice versa. For the reasons that I have outlined, I think it essential that those matters be taken into consideration in workforce planning.
Alex Norris
It is a pleasure to serve with you in the Chair once again, Mrs Murray, and to follow the thoughtful contribution by the hon. Member for Arfon.
The hon. Gentleman’s points about interdependency are important. Of course, we cherish and build on the devolved settlement, but we understand that we still have important relationships, not least at our borders. I thought that his point about specialised care was a thoughtful one, too: we know that as conditions or treatments become complex, there will be specialisations, and we would never want artificial barriers to get in the way of people accessing specialised care. His point about training was also good and jumped out to me.
Yesterday, I spoke to a surgeon in my community who took great pride in working in the hospital where he was born. In between, he had gone away; I am told that there are parts of the world other than Nottingham—I dispute that fact—and he wanted to go and see some of them. That will inevitably involve crossing borders, and it is important that that is reflected in the Bill. That will happen from nation to nation, but in the future it will happen from integrated care system to integrated care system. Where there is divergence, we need to be thoughtful of it.
The statement of values relating to cross-border care said:
“no treatment will be refused or delayed due to uncertainty or ambiguity as to which body is responsible for funding an individual’s healthcare provision.”
That is an important principle because it sets out that it is the job of the system rather than the individual to understand and navigate the separation between different bodies that may diverge but which work together in common purpose. That is easy to say, but hard to do at times. As I say, that is something that we will see between integrated care systems in time, too. That is true for patients, but also for staff, whether those staff work in Wales but live in England or vice versa, and for the important interrelationships between border integrated care systems on the Welsh border and the NHS in Wales.
There will be devolved and separate competencies between those bodies, but the human beings who make those systems go live side by side in communities, sometimes even next door to each other. A decision taken in one place, of course, impacts on everybody; we see that a lot in social care. Local authorities are under so much pressure at the moment, both in the resources that they have to fund social care and finding individuals to staff that care. There could be price wars at the borders that mean that individuals move between organisations more frequently than they would in a system that was better planned. We have to be mindful of that.
During the evidence sessions, we heard about the safe staffing legislation for nurses in Wales. That is the sort of thing that would already impact on border CCGs, and will do on integrated care systems in due course. That will only grow as the considerable workforce pressures that we discussed in the previous debate bite down even harder. Again, we must be mindful of that. It is crucial that there is a collective approach—a minimum approach—where the NHSs in neighbouring nations have due regard to each other. If the workforce becomes a zero-sum game, we will all lose in the long term.
I was heartened in those proceedings to hear about the contact between the Minister and his colleagues in Wales. I know that he takes matters seriously in Wales and across the United Kingdom, which is good. We might hear more about how that works with regard to the work- force. In the meantime, we support the inclusion of this measure in the Bill and the fact that it will be a priority.
Edward Argar
I am grateful to the hon. Member for Arfon. Although I represent an east midlands constituency, in sunny Leicestershire—the hon. Member for Nottingham North would argue that Nottinghamshire is sunnier—I have a huge affection for Wales. In every speech he gives, the hon. Member for Arfon brings to the fore his pride in Wales and his constituency. In the vein of highlighting successful politicians representing Welsh constituencies, I take this opportunity to put on the record a tribute to my former Parliamentary Private Secretary, my hon. Friend the Member for Ynys Môn, who has become the PPS to the Secretary of State for Wales. I congratulate her on that appointment. It is well deserved; she has looked after me very well during her time in this House. I am grateful to her and put my congratulations to her on the record.
I am grateful to the hon. Gentleman for bringing the amendment before the Committee. It would require the Secretary of State to consult Welsh Ministers before the functions contained in clause 33 were exercised. Clause 33 would insert proposed new section 1GA into the National Health Service Act 2006, which, as we have just debated, would require the Secretary of State to publish, at least once every five years, a report describing the system in place for assessing and meeting workforce needs of the health service in England.
The shadow Minister, the hon. Member for Nottingham North, alluded to a point regularly made to me by my hon. Friend the Member for Vale of Clwyd. Although politicians and people in this House might see neat administrative boundaries drawn on a map, the reality is often much more complex. Certainly, those boundaries should not be seen in their everyday lives by constituents and others, who on occasions rightly need to exercise their right to access specialist services in England; I dare say there will be occasions where the counterpoint is true, and people living on the English side of the border may access health services on the Welsh side. We need to recognise that and work pragmatically with that reality.
Although in many other areas of the Bill we will work closely alongside the devolved Administrations, we do not agree that there is a formal need to impose an obligation in the legislation to consult Welsh Ministers before the Secretary of State exercises the specific power in proposed new section 1GA. I will turn to how we work with the Welsh Government in a moment.
Hywel Williams
I am not entirely reassured by the Minister’s words; possibly the best response is, “We shall see”.
I make one further point, if I may, in reference to his former Parliamentary Private Secretary: people from Ynys Môn are known in Welsh as people from “Gwlad y Medra”, which translates as “the land of I can do it”. Clearly, she can do health, and we look forward to seeing her performance at the Wales Office as well. I add my congratulations to her. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
Can I clarify, Mrs Murray, that we have a hard finish at 11.25 am?
Edward Argar
I will endeavour not to be on my feet at that moment.
Clause 33 inserts new section 1GA into the National Health Service Act 2006, which sets out a duty on the Secretary of State to report on workforce systems. Under the duty, the Secretary of State is required to publish, at least once every five years, a report describing the system in place for assessing and meeting the workforce needs of the health service in England. A duty is also placed on HEE and NHS England to assist in the preparation of the report, if asked by the Secretary of State to do so.
As we have discussed this morning, the report will describe the workforce planning and supply system for healthcare workers, including those working in the NHS and public health, alongside regulated healthcare professionals working in social care and other sectors in England. The report will be published at a minimum—I emphasise in each of my remarks that word “minimum”, although the shadow Minister may feel that it is not sufficient—of every five years. However, I can commit to that publication cycle being kept under review by the Secretary of State, should circumstances change.
Clause 33 will provide greater clarity and transparency on how the workforce planning and supply system operates in England. The report produced under it will describe in one single document the workforce planning and supply roles and responsibilities of relevant national bodies, including the Department, HEE and NHS England, the new integrated care boards and individual employers, and how they work together in practice at national, regional and local levels.
Clause 33 will complement our ongoing non-legislative steps and investment in workforce planning in England. In July 2021, the Department commissioned HEE to work with partners to review longer-term strategic trends for the health and social care workforce. This important programme will review, renew and update the existing long-term strategic framework for the health workforce—HEE’s framework 15—and will genuinely help to ensure that we have the right numbers, skills, values and behaviours to deliver world-leading clinical services and continued high standards of care.
Alongside the work that we are already doing with NHS England and HEE, clause 33 will further improve accountability for all the bodies involved on the important subject of planning for and meeting future workforce supply and demand.
Justin Madders
I will not detain the Committee for long; I have said more than enough on the subject—not persuasively, clearly.
The Minister made the point that I did not think that a minimum of five years was sufficient for a report on the workforce, and that is absolutely correct—and I am not alone, by any stretch of the imagination. Every stakeholder and every person who gave evidence to the Committee said that five years was simply insufficient to deal with the magnitude of the challenge that we face. If the Department really wants to grasp the nettle, it should be taking heed of what those stakeholders said.
The workforce is a very complicated and ever-changing issue. It is part of a world market in healthcare staff. What the right hon. Member for Kingswood said about his amendment was important: simply to dip into other parts of the world when we are running short is not a solution. Not only is it morally difficult to justify, but it does not represent a long-term solution—we are as prone to losing staff to other parts of the world as anyone else. People will remember that the junior doctors’ dispute resulted in an exodus to Australia and other parts of the world. Going around the world and dipping into other countries’ healthcare resources is not a solution to the challenges that we face. We are not going to divide the Committee on clause 33, but we think that it is insufficient.
I repeat the Health and Social Care Committee’s finding that
“workforce planning was at best opaque and at worst was responsible for unacceptable pressure on staff.”
That really cannot be ignored. We cannot keep kicking the can down the road. I hope that when the clause gets to the other place, there is more success in putting the onus on the Government to deal with the challenge.
Edward Argar
I hear what the shadow Minister says, and I hope that I can give him some reassurance: the Government will continue to reflect very carefully on the points made both in the debate today and in our evidence session.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Nationality and Borders Bill (First sitting)
(3 years, 3 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee consisted of the following Members:
Chairs: †Sir Roger Gale, Siobhain McDonagh
† Anderson, Stuart (Wolverhampton South West) (Con)
Baker, Duncan (North Norfolk) (Con)
† Blomfield, Paul (Sheffield Central) (Lab)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
Coyle, Neil (Bermondsey and Old Southwark) (Lab)
Goodwill, Mr Robert (Scarborough and Whitby) (Con)
Grant, Mrs Helen (Maidstone and The Weald) (Con)
† Gullis, Jonathan (Stoke-on-Trent North) (Con)
† Holmes, Paul (Eastleigh) (Con)
† Howell, Paul (Sedgefield) (Con)
Lynch, Holly (Halifax) (Lab)
† McLaughlin, Anne (Glasgow North East) (SNP)
† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
† Owatemi, Taiwo (Coventry North West) (Lab)
† Pursglove, Tom (Parliamentary Under-Secretary of State for the Home Department)
† Richards, Nicola (West Bromwich East) (Con)
† Whittaker, Craig (Lord Commissioner of Her Majesty’s Treasury)
Rob Page, Sarah Thatcher, Committee Clerks
† attended the Committee
Witness
Jon Featonby, Policy and Advocacy Manager for Refugees and Asylum, British Red Cross
Public Bill Committee
Tuesday 21 September 2021
(Morning)
[Sir Roger Gale in the Chair]
Nationality and Borders Bill
The Chair
Good morning, ladies and gentlemen. Before we begin, I have a couple of preliminary announcements. I encourage Members to wear masks when they are not speaking, in line with Government guidance and that of the House of Commons Commission. Please give each other and members of staff space when seated and when entering and leaving the room. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk. Any doubt about that, please ask the Clerk at the end. We must ensure that Hansard gets the notes. Please ensure that all your mobile phones are switched to silent. I remind Members that tea and coffee are not allowed in Committee. If you want to have coffee, you have to go outside the Committee Room.
Today, we will consider the programme motion on the amendment paper. We will then consider the motion to enable the reporting of written evidence for publication and the motion to allow us to deliberate in private about our questions before the oral sessions begin. In view of the time available, I would like to take those matters formally. I have discussed it with the Minister and he agrees. I call him to move the programme motion standing in his name, which was discussed yesterday by the Programming Sub-Committee.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 10.25 am on Tuesday 21 September) meet—
(a) at 2.00 pm on Tuesday 21 September;
(b) at 11.30 am and 2.00 pm on Thursday 23 September;
(c) at 9.25 am and 2.00 pm on Tuesday 19 October;
(d) at 11.30 am and 2.00 pm on Thursday 21 October;
(e) at 9.25 am and 2.00 pm on Tuesday 26 October;
(f) at 11.30 am and 2.00 pm on Thursday 28 October;
(g) at 9.25 am and 2.00 pm on Tuesday 2 November;
(h) at 11.30 am and 2.00 pm on Thursday 4 November;
2. the Committee shall hear oral evidence in accordance with the following Table:
TABLE DateTimeWitnessTuesday 21 SeptemberUntil no later than 11.25 amBritish Red CrossTuesday 21 SeptemberUntil no later than 2.45 pmImmigration Services Union; Joint Council for the Welfare of ImmigrantsTuesday 21 SeptemberUntil no later than 3.15 pmDerbyshire PoliceTuesday 21 SeptemberUntil no later than 4.00 pmKent County Council; Westminster CouncilTuesday 21 SeptemberUntil no later than 4.30 pmFortinus Global LtdTuesday 21 SeptemberUntil no later than 5.15 pmNational Crime AgencyThursday 23 SeptemberUntil no later than 12.15 pmMigration WatchThursday 23 SeptemberUntil no later than 12.45 pmThe Hon George Brandis QC; High Commissioner for Australia to the United KingdomThursday 23 SeptemberUntil no later than 2.30 pmUnited Nations High Commissioner for RefugeesThursday 23 SeptemberUntil no later than 3.15 pmSiobhán Mullally, United Nations Special Rapporteur on Trafficking in Persons; Dame Sara Thornton, Independent Anti-Slavery CommissionerThursday 23 SeptemberUntil no later than 4.00 pmRefugee Council; Refugee Action; Women for Refugee WomenThursday 23 SeptemberUntil no later than 5.00 pmEPCAT; European Network on Statelessness; Immigration Law Practitioners Association
Date
Time
Witness
Tuesday 21 September
Until no later than 11.25 am
British Red Cross
Tuesday 21 September
Until no later than 2.45 pm
Immigration Services Union; Joint Council for the Welfare of Immigrants
Tuesday 21 September
Until no later than 3.15 pm
Derbyshire Police
Tuesday 21 September
Until no later than 4.00 pm
Kent County Council; Westminster Council
Tuesday 21 September
Until no later than 4.30 pm
Fortinus Global Ltd
Tuesday 21 September
Until no later than 5.15 pm
National Crime Agency
Thursday 23 September
Until no later than 12.15 pm
Migration Watch
Thursday 23 September
Until no later than 12.45 pm
The Hon George Brandis QC; High Commissioner for Australia to the United Kingdom
Thursday 23 September
Until no later than 2.30 pm
United Nations High Commissioner for Refugees
Thursday 23 September
Until no later than 3.15 pm
Siobhán Mullally, United Nations Special Rapporteur on Trafficking in Persons; Dame Sara Thornton, Independent Anti-Slavery Commissioner
Thursday 23 September
Until no later than 4.00 pm
Refugee Council; Refugee Action; Women for Refugee Women
Thursday 23 September
Until no later than 5.00 pm
EPCAT; European Network on Statelessness; Immigration Law Practitioners Association
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 8; Schedule 1; Clauses 9 to 21; Schedule 2; Clauses 22 to 26; Schedule 3; Clauses 27 to 39; Schedule 4; Clauses 40 and 41; Schedule 5; Clauses 42 to 71; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 4 November.—(Tom Pursglove.)
Bambos Charalambous (Enfield, Southgate) (Lab)
On a point of order, Sir Roger. On the initial list of witnesses there were some Home Office officials. On the present list, there are no Home Office officials, which makes it much harder for the Opposition to scrutinise the Bill. We had certain questions that we wished to pose to Home Office officials. I put it on the record that they were initially on the list of witnesses but are no longer there.
The Chair
That is not strictly a matter for the Chair; it is a matter for the usual channels. That should be discussed between the Government and Opposition Whips. I had better ask for the relevant parties to do that privately, and to have a conversation with you. It is not something, I am afraid, that I can adjudicate, but you have made your point. The opportunity to discuss it was at the Programming Sub-Committee yesterday, where it should properly have been raised. It was not raised on that occasion.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Further to that point of order, Sir Roger. I may have raised it had the Programming Sub-Committee started at the time it was supposed to start. I arrived yesterday a minute before the start time, and the sub-committee had finished its work. I was going to make the point that Government witnesses had disappeared. We have now lost a couple of hours, and the opportunity for other witnesses to give evidence. I wanted to put it on the record that I was disappointed not to be able to make that point yesterday.
The Chair
The sub-committee was quorate when it started yesterday. Members are expected to be there in a timely fashion. I think that I am right in saying that we started on the nose of the time at which we were supposed to start. I take your point, but again it is a matter for the usual channels, not the Chair.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Tom Pursglove.)
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Tom Pursglove.)
The Committee deliberated in private.
Examination of Witness
Jon Featonby gave evidence.
The Chair
We are now sitting in public, and proceedings are being broadcast. Before we start hearing from the witnesses, do any Members wish to make a declaration of interests in connection with this Bill? Then, as a matter of record, there are no declarations of interest.
Good morning, Mr Featonby. We will now hear oral evidence from Jon Featonby, who is the policy and advocacy manager for refugees and asylum at the British Red Cross. Before calling Mr Charalambous to ask the first question, I remind Members that questions should be limited to matters within the scope of the Bill, and that we have to stick to the timings in the programme motion that the Committee has agreed. As such, we have just under one hour for this session, until 11.25 am. Mr Featonby, I have introduced you, but could you please introduce yourself for the record?
Jon Featonby: I am Jon Featonby. I am the policy and advocacy manager for refugees and asylum at the British Red Cross.
The Chair
Thank you very much indeed for taking the trouble and the time to join us this morning.
Bambos Charalambous
Q Mr Featonby, I am going to ask you some questions about the Bill in which the Red Cross has indicated some interest. According to the Government, the main objectives of the Bill are to increase fairness in the asylum system; to better protect those who are supported and in need of asylum; and to deter illegal entry into the UK and break the business model of people smuggling networks. To what extent do you think this Bill achieves those objectives?
Jon Featonby: I will start off by saying that as the British Red Cross, we very much welcome this opportunity to give evidence to the Committee today, but the short answer to that question is that we do not think the Bill is going to meet those objectives at all. To build on that a bit, we take that from our role as the largest independent provider of advice and support to refugees and people seeking asylum in the UK. We work with around 30,000 people each year in all four countries of the UK, supporting people throughout the asylum process, from when they first enter it to when they get decisions, and in making decisions about what happens next. Through that work, we see that there are three key elements of an asylum system. First, it must be safe for people to access it; secondly, it must be fair and efficient and make decisions in a timely way and, thirdly, those people who are in the system, while they are in the system, should receive the advice and support they need.
At the moment, there are a number of challenges to that, as shown by the number of people taking dangerous journeys to reach the UK, the increasing backlog in asylum decision making and the length of time people are having to wait for a decision on their application. There are also challenges that local authorities, organisations such as our own and, importantly, people in the system face in terms of the support they receive, whether that is support with accommodation, mental health or other areas. We believe those should have been some of the priorities for both this piece of legislation and the new plan for immigration that runs alongside it.
That work is also informed by the people we work with. We run the VOICES Network, which is a group of people with lived experience of the asylum system. They were among those who gave evidence to the Government during the consultation on the new plan, and when we speak to them about this legislation, one of their key messages, as people who have made that dangerous journey, is that there is nothing in the Bill or in the new plan that would have changed the decisions they made.
We absolutely agree that there are too many people making those dangerous journeys; we want to see a reduction in the number of people making dangerous journeys in small boats across the channel as much as anybody else does, but we do not believe the measures in the Bill will do that.
Bambos Charalambous
Q As a follow-up, how do you think a reduction in those dangerous journeys would be better achieved?
Jon Featonby: There is no simple answer to that; as the Home Secretary said on Second Reading, there is no silver bullet for many of these challenges. If there were, I am sure some country would already have come up with it. However, there are some key things that the Red Cross believes could be explored further.
The expansion of safe routes for people seeking protection is prime among those things. We welcome the Afghan citizens resettlement scheme announced recently. The UK has a good recent record of providing resettlement places, and we believe that on top of that Afghan resettlement scheme there is the need for a wider global scheme. There is the UK resettlement scheme, the successor to the Syrian resettlement programme, but there is no annual quota for that. On top of that 5,000 commitment for the Afghan scheme we would like to see an additional 5,000 for the global scheme.
We also call for refugee family reunion. One of the core bits of work that the Red Cross does in the UK is support refugees being reunited with their family members. As the new plan for immigration stated, family reunion is currently the largest safe route for people to get to the UK. Over the five years to 2019, 29,000 people arrived in the UK through refugee family reunion, compared with 25,000 through resettlement over the same period.
From what we see in our work supporting families, as much as that reunion is a moment of joy for so many people, there are other families whom the current rules do not allow to reunite. One of the prime examples is that the rules do not cater for adult dependent children. A parent in the UK who has refugee status can sponsor their parent, their partner or spouse and any children under the age of 18 to come and join them, but we see that often there are people whose child may have turned 18 or 19, potentially while they were in the asylum process, who face a difficult decision about whether they leave that child overseas, or just do not bring any of their family to come and join them.
We believe the Bill is an opportunity to expand the rules. One of our key concerns about the Bill, in clause 10 on the differential treatment of refugees, is that there is potential for family reunion to be limited, although the Bill does not quite state how.
Alongside those safe routes, we recognise that the UK cannot alone solve all those issues. However, it has a vital role to play internationally, ensuring that no matter where people are after they have been forced to flee their home, they can access protection systems, whether in the UK, France, Germany or close to the countries from which they first leave.
Bambos Charalambous
Q You mentioned clause 10 in your answer. What other problems do you see with clause 10, which treats people differently depending on how they arrive?
Jon Featonby: The starting point for the British Red Cross is that people’s protection should be based on their protection needs, and not on how they have entered the UK. Clause 10 provides a power that would move away from that and treat people on the basis of how they arrive in the country. It is difficult to ascertain what some of the impact would be, because clause 10 just creates a power for that to be introduced later in the immigration rules. Certainly, our concern is that the list of the ways in which leave can be differentiated for those people recognised as refugees is an example list and non-exhaustive, and there is therefore scope within the immigration rules to follow for that differentiated treatment to be undertaken in a much wider way.
In terms of the impact of that differentiated treatment, which I am sure falls within the Bill’s aim to deter people from making dangerous journeys, we certainly do not believe that it will do that. From the people we work with, we know it is rare for people making those journeys—even if they have any element of choice over where they are going to end up—to have any clear idea about what their rights and entitlements will be when they arrive, so we do not believe it would deter dangerous journeys.
We also believe there would be negative impacts from some of the ways people’s leave will be differentiated. Some of that concern draws on the evidence from Australia, which has used temporary protection visas, similar to those that clause 10 would allow to be introduced, on and off for the past two decades. One of the key findings is that that has increased the insecurity people feel when they have that protection status. This is a group of people who will have been recognised as refugees by the UK Government, but one way they will be treated differently is that those who have arrived irregularly will only get temporary protection for maybe two and a half years, which will then be extendable at each point.
The lack of security around that has an impact on not only people’s mental health, but their prospects for integration and their ability to get jobs and rebuild their lives. Employers looking at that type of temporary leave are less likely, we believe, to employ that person, compared with somebody who might have indefinite leave to remain, as a refugee arriving under the resettlement programme would have.
I have already mentioned our concerns about the potential impact on family reunion. It is important to note that those people arriving in the UK through family reunion are predominantly women and children; 90% of all family reunion visas currently granted are to women and children. Limiting access to family reunion for the refugee in the UK is taking away a safe route for his—in most cases—wife and children to be able to come and join him. The evidence from Australia was that where that happened, it incentivised and increased the number of dangerous journeys being made by women and children, which is something the British Red Cross believes should absolutely be avoided.
One of the other potential routes for differentiation is giving those people granted refugee status no access to public funds. Most of the refugees we support struggle when they are first granted status, and one of the main groups of people we support across all our services in the UK is people who are destitute, at all stages of the asylum process. Around one third of the people we have supported in our destitution services over the past year are people with refugee status, and often that is because they fall into the gap between Home Office and local authority support when they are first granted status and the Home Office support ends.
Without giving people access to the social security and welfare system, you risk embedding some of that destitution at that point as well. Not only is that bad for those individuals, putting them at great risk, but it puts extra pressures on local authorities. We see that within our services at the moment.
Bambos Charalambous
Q Moving on to clause 11, on asylum accommodation, I know in the past the Red Cross has been critical of the Government’s using Napier Barracks to house asylum seekers. What are your thoughts on clause 11 and dispersal, and what lessons can be learned from the problems with Napier Barracks?
Jon Featonby: The issues with accommodation and the challenges the Home Office faces in providing it are well known and serious, and there is no simple solution to many of them. Some of the problems around the shortage of accommodation were caused by the covid pandemic. We welcome the Home Office’s move at the start of the pandemic not to evict people from asylum accommodation, but that obviously meant that fewer people were moving through the system.
Some of the challenges with the dispersal system and the shortage of housing are also caused by the increasing backlog in asylum decision making. There are now around 70,000 people waiting for an initial decision, the majority of whom have been waiting longer than six months. That includes people from places such as Syria, Afghanistan, Iraq and Eritrea, who will almost certainly go on to get refugee status, but the lack of throughput in the system has created that pressure. Several Members on this Committee represent areas that do great work hosting people through the dispersal system, but we do not think the Bill will do anything to help them.
The accommodation centres in clause 11 are part of the response to that pressure. As you rightly said, the Red Cross has raised concerns around some of the Ministry of Defence sites that have been used over the last year, and their suitability for people seeking asylum. In particular, we were operational in Penally Barracks in south Wales when that was open, and we continue to support people in Napier.
From our experience, we think that the best way to accommodate people while they are in the asylum system is within communities. They can feel a part of those communities and receive the support that they need. It is also beneficial for those communities, in terms of social cohesion. That relates to some of the negative impacts that we have seen, where people have been accommodated in some of the military barracks.
We also have some concerns about the way that clause 11 currently works. Reading the explanatory notes, what seems to be happening is that, rather than the Bill itself setting out the framework for an accommodation centre, it relies on the Nationality, Immigration and Asylum Act 2002. That legislation was passed almost 20 years ago during a very different time: asylum applications were far higher, the length of time that people waited for a decision was far shorter, and far fewer people were then getting positive decisions after going through that system.
The 2002 Act has quite a few concerning aspects, including not allowing children in accommodation centres to access local authority schools. We see that as being quite serious. It may well be that the idea behind the centres, and the Government’s proposed use of the centres, would include families or children being accommodated there, but that is not clear from what is currently in the Bill. The Bill does, however, change the 2002 Act around some of the limits on the length of time that people can stay in one of those accommodation centres. Currently, under the 2002 Act, somebody in an accommodation centre could only be accommodated there for up to six months. The Bill gives the Home Secretary the power to increase that length of time.
It is noteworthy that, in the recent special development order, which was laid before Parliament to extend the use of Napier Barracks by an additional five years, one of the ways in which the Home Office changed the operation of that site was to limit the length of time that somebody could stay there to 90 days. Therefore, we would certainly see that one of the safeguards around the use of accommodation centres would be to limit the length of time that somebody could stay there, rather than extending it.
The Chair
I must offer other Members the opportunity to ask questions. I will come back to you if there is time, Mr Charalambous.
Stuart C. McDonald
Q How many clauses in this Bill do you think will have a direct impact on people smugglers?
Jon Featonby: There are 71 clauses and four schedules in this Bill. As far as we can see, from our reading of the Bill, there is one clause that directly targets people smugglers themselves. That is the clause extending the criminal sentence for somebody convicted of that to a life sentence. We absolutely welcome that tightening of people smuggling. We absolutely believe that one approach that the Government should continue to take is in targeting those people smugglers who take advantage of people trying to seek safety.
Our concern is about the other aspects of the Bill, which seem to be more about trying to deter people from making those dangerous journeys. As I said earlier, we do not believe that those clauses will have that impact.
Stuart C. McDonald
Q You have said, essentially, that you do not think disincentives work. I want to look at one of the Government’s attempts to disincentivise people from using people smugglers: this new scheme of notices of intent. It is in the Bill, but it is also already in the immigration rules as of the start of this year. What impact have those notices had?
Jon Featonby: It is not clear that they have had any impact. I suppose that you could rightly say that one of the things the Bill does through clause 14 is move the current inadmissibility rules, which are in the immigration rules, into primary legislation. Those have been in force since 1 January, replacing what was the Dublin system, which the UK was part of when it was a member of the European Union.
Since those rules were introduced, 4,500 notices of intent have been issued to individuals. When somebody first arrives in the UK’s asylum process, they are interviewed by a member of the Home Office at the initial stage. Then, if, for whatever reason—there are five potential reasons—the Home Office believes that that person’s asylum claim may be inadmissible in the UK’s asylum system, a notice of intent is issued to that person at that instance. At that point, the person’s asylum claim is still live, but it does not go any further. There are no interviews and it is not substantively considered by the Home Office. The guidance that was introduced by the change in rules then gives the Home Office six months to try to get a return agreement in place, or to look further at that person’s claim to try to work out whether that claim is inadmissible.
What we have not seen since the beginning of this year is a decrease in the number of people making dangerous journeys. It is not apparent to us that it has deterred people. However, because of that in-built six-month delay, it has further increased the delays that people already face while waiting for a decision on their asylum claims.
Stuart C. McDonald
Q So basically, people are waiting another six months. What impact does that and the other measures in the Bill have on local authorities that are involved in asylum work?
Jon Featonby: We pay tribute to the local authorities that are part of the dispersal scheme. We work very closely alongside them, and the ones that we work with are very proud of the roles that they play. However, we also recognise that the local authorities that support people are under quite a lot of pressure. There are not enough local authorities currently taking part in the dispersal system, and we encourage more to do so and believe that that should be a priority for the Home Office.
One of the problems with the increased delay, whether it is caused by the inadmissibility rules or by wider decision-making delays, is that people are left in limbo in the asylum system longer, unable to work and reliant on the Home Office for support. There is then a negative impact on people who do go on to get refugee status, on their ability to integrate and to stand on their own feet; they are more likely to have to rely on local authority support for a longer period.
Stuart C. McDonald
Q What does that mean for the cost of the system?
Jon Featonby: It is well known, and it was mentioned in the equality impact assessment published at the beginning of the week, that the cost of the asylum system has increased significantly over the last year. While we are not aware of a breakdown of the drivers of that cost, it is likely that a lot of it has been driven by the increased pressure on asylum accommodation, and in particular the increased use of hotels over the last year or so. One of the quickest ways to reduce that cost would be to get people moving through the system much faster again—making those decisions and reducing the pressures on the accommodation system.
Because the Bill will not deter people or reduce the number of people entering the asylum system—if anything, it is just going to increase some of the delays in the system—there is a danger that it will increase the overall cost. It is unknown at the moment what the cost of the accommodation centres might be. A contract notice was issued in August saying that they will potentially accommodate up to 8,000 people, but there is very little known about the cost of that.
Stuart C. McDonald
I know colleagues will have other questions on provisions relating to the asylum system. Does the Red Cross want to speak about the provisions relating to modern slavery or statelessness?
Jon Featonby: One of the roles of the Red Cross in the UK is that we work alongside police forces when they undertake anti-trafficking raids to disrupt situations of exploitation; we are there to work alongside police forces and local authorities to support people at those points. We also support people who have gone through the national referral mechanism and been found to be survivors of modern slavery in terms of what happens next—to support them with their onward journeys.
The Modern Slavery Act 2015 was definitely a landmark change. It has very much changed the way the UK has responded—it has improved it. We know from our work with other Red Cross national societies around the world that the UK is now seen as an international leader through that legislation. We are concerned, though, that this is an immigration Bill that contains a large modern slavery element; there is a danger that part 4 moves away from protection as a first port of call in cases of modern slavery. In particular, when we set up reception centres at anti-trafficking raids, we found that the vast majority of people who are taken out of situations of exploitation do not enter the national referral mechanism. When we monitored 10 reception centres, 170 people were taken out of those situations and only four consented to go into the NRM. Some of the changes to the NRM contained in part 4 of the Bill may raise those barriers.
However, there is also an opportunity in the Bill to improve the treatment of people who come out of the national referral mechanism with a positive conclusive grounds decision. We welcome the commitment in the Bill to offer immigration status to some of the people with positive conclusive grounds decisions. When people get a positive conclusive grounds decision and the support that they received while they were in the NRM ends, one of the challenges that they face is that, if they do not have a secure immigration status, it is very difficult for them to get on with their lives—to make decisions about what happens next. It potentially also means that, if they are unable to work and access local authority support or welfare support, they are at risk of being re-exploited. We have made recommendations in the past that people should get that status.
We feel that those provisions can be strengthened to make it clearer that more people will be able to access that immigration leave. At the moment, if the Home Office believes that somebody would be able to receive protection in their country of nationality, they are not eligible for that grant of leave. Having seen the need in people who have gone through the NRM, we believe that it should pretty much be a universal offer of leave at that point. We would like to see the Bill strengthened in that way. I pay tribute to the work of Lord McColl and Sir Ian Duncan Smith in particular for their campaign around this in recent years.
Stuart C. McDonald
Q Anything on statelessness, or do you want to leave that to other witnesses?
The Chair
There are other Members who wish to ask questions, Mr McDonald. If there is time, I am happy to bring you back in. At present I have Jonathon Gullis, Paul Blomfield and Anne McLaughlin who are waiting to speak. Minister, would you like to come in now or wait?
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
I am happy to come in later.
Jonathan Gullis (Stoke-on-Trent North) (Con)
Q Clause 10 talks about the idea of differential treatment. To people in Stoke-on-Trent this seems absolutely acceptable. Stoke-on-Trent is, by the way, a member of the asylum dispersal scheme and the fifth largest contributor in the UK. Some people have come via safe and legal routes, such as from Afghanistan, whereas others are illegal economic migrants who were already in a safe country in France but who have come over the English channel,. Do you not think that saying we are going to treat people differently is going to deter people from making that journey? That will impact the people smugglers, because people will not make the dangerous journey they should not be making in the first place, because they are aware of the consequences when they are caught.
Jon Featonby: That is one of the reasons why we are concerned about the clause. We come from a different viewpoint in that we believe that people’s rights and entitlements should be based not on how they entered the UK, but on their protection need. People who go through the asylum system and fall into group 2 in clause 10 are people whom the UK has recognised as being in need of international protection, and they have refugee status.
We work with and have conversations with people who have been through the process. Maybe they arrived in the UK on a small boat or through some other irregular means. They tell us that these changes would not have impacted the decisions they made. It is very unlikely that people have a clear idea about what the UK’s asylum system looks like and what their entitlements will be when they are in it or when they go on to get status. Some people have very little choice in the country they end up in. They may well not have started out being involved in the smuggling networks in France. It could have been much closer to the country from which they have fled. The smugglers have much more control over where people end up.
Where somebody feels safe is subjective to the individual. There are many reasons why people in France may be unable to avail themselves of the protection system there. It might be that, because of how they were living in France, they were not aware of how they could claim asylum or the route to do that. It may be that they were treated in some way along that journey that meant they felt unable to avail themselves of protection in France. It is also important to note that the vast majority of people who do make it to France in search of protection stay in France. France receives, generally, at least three times as many asylum applications as the UK.
We do not believe that the differential treatment will deter people, and there are challenges around the differential treatment in clause 10. Stoke is absolutely one of the places in the country that we work with and pay tribute to. Abi Brown, the leader of the council, speaks very eloquently about how proud she is of the council’s role. However, clause 10 will potentially make it harder for those local authorities who support people. If people continue to come to the UK, go through the asylum process and get status and are then unable to reunite with their family members or have insecurities around the length of time they are going to get status, and, crucially, if they are unable to access public funds, that impacts on their integration prospects and ability to support themselves. That may well increase the pressures on local authorities.
Jonathan Gullis
You mention that some people say that they would still choose to make the journey despite the Bill. Those who are willing to make the journey, of which over 70% are 18 to 30-year-old men on their own, have put thousands of pounds into the hands of people smugglers by their own choice. They are willing to keep funding a smuggling entity in order to try to access the UK, because they seem to think the UK is a better deal than mainland France, Italy or Greece, which are obviously all part of the European Union and have the same protections that the UK does—the European convention on human rights and such. Ultimately, does that not show that the system is broken and the legislation is needed? We do need to make sure that illegal economic migrants crossing the channel are treated differently from people from Afghanistan, for example, who have taken the safe and legal route we provided through Operation Pitting.
Jon Featonby: We disagree that they are illegal economic migrants. They are people who have protection needs. Obviously, if they have gone through clause 10 and they fall into that group too, they have gone through the asylum system and it has been found that they are refugees.
We absolutely agree that action needs to be taken to reduce the number of people making dangerous journeys. There are too many people putting their lives at risk crossing the English channel to get here. Our concern is that we do not believe that the provisions within this Bill will deter that. We think the Government would be better off approaching this by increasing some of the safe avenues for people.
Afghanistan is a good case in point. Obviously, we now have the Afghan citizens’ resettlement scheme alongside the relocation programmes. We have been working with families as they arrive at airports and hotels across the country, and we see their relief and joy. However, that is only ever going to go so far in meeting the needs of the number of people who are likely to be displaced from Afghanistan and other refugee-producing places and situations, and there will always be people who take irregular journeys in order to reach safety. From the point of view of the Red Cross, it it paramount that people are treated with the dignity and respect they deserve because of their protection needs, and that they are helped to rebuild their lives and to enjoy that protection, if they get that in the UK or anywhere else in the world.
Jonathan Gullis
Q The issue is that we have people illegally entering the country in record numbers via the English channel. They are illegal economic migrants, because they are able to claim refuge in a safe place, such as France. France is not a war-torn country; they are safe over there. Ultimately, this is putting huge pressure on cities such as Stoke-on-Trent that step up to the plate. I hope local authorities in places like Scotland step up to the plate; I know that Glasgow does its bit, but sadly others do not. I hope to see other places take part in the asylum dispersal scheme. More importantly, you talk about the pressure on local authorities that clause 10 might impose. We have an issue with housing in Stoke-on-Trent, which has lower than average house prices and is taken advantage of because of that. Stoke-on-Trent has lodged to pause its involvement in the asylum dispersal scheme until other areas step up.
Does it not make sense that we would provide good-quality accommodation? I think Napier Barracks was fantastic accommodation. It provided safety and shelter, had hot running water and sanitation, and provided yoga as well. We have Napier Barracks and others like it that we can use. What do you think about doing what Denmark is doing, which I think is a fantastic idea, and taking people to another country, such as Rwanda, and processing them outside the United Kingdom? That will also help to deter people from making these dangerous journeys.
Jon Featonby: On the point about accommodation, we recognise the pressure that local authorities are under. Part of our concern around the Bill is that there is nothing in it that we think will encourage more local authorities to take part in dispersal, or reduce the number of people entering the asylum system. The number of people claiming asylum in the UK at the moment is not anywhere near the historic highs of the early 2000s. It has gone up slightly over the last couple of years, but it is still lower than at the height of the movement from Syria in 2015 and2016. We do not believe that there are too many people claiming asylum. The UK should be able to deal with the number of applications at the moment.
What we have seen over many years, predating the covid-19 pandemic, is a slow down in the rate of decision making. That leaves more people in the asylum support system for longer periods of time and increases the pressure on asylum accommodation. That is why I again reiterate the point about the focus on decision making and ensuring that the Home Office is resourced to make good-quality, quick decisions as an absolute priority.
The point around accommodation centres is an interesting one. From the people we work with, we certainly believe that Napier has had a negative impact on the people accommodated there. It has not provided the environment that many people who have been through traumatic experiences require. At Penally Barracks, there was a live firing range on site, which was retraumatising for many people.
The Chair
Order. Mr Gullis, this is an opportunity to ask questions not to make speeches. I have to accommodate as many Members as possible. If there is time, I will come back to you later.
Paul Blomfield (Sheffield Central) (Lab)
Q Correct me if I am wrong, but I think the Red Cross would view itself as a close partner of the Home Office and in a trusted relationship to deliver on the ambitions of whatever Government are in power in relation to asylum. In that context, I guess that you are regularly consulted by and engage with the Home Office on issues of policy. The thinking behind the Bill is clearly predicated on the assumption that there will be a significant opportunity to develop safe and legal routes into the UK. Have you had any discussion with the Home Office about the shape of those future routes?
Jon Featonby: The start of your question was a very good point, and yet as the Red Cross we are an auxiliary to Government for humanitarian purposes, as other national societies are to their Governments around the world. Regarding the things I have said today, Home Office officials have heard them from me several times before. We enjoy a good relationship with them and I hope they would reflect similarly back to us as well. We use the expertise from supporting people across the UK to reflect back what we see and to help the Home Office to meet some of the challenges it faces.
The precursor to the Bill was the new plan for immigration and the consultation on that. We took part in the formal consultation process and in some conversations with officials around that process. We also take part in frequent stakeholder meetings with the Home Office on a number of different areas, as well as having private dialogue.
Family reunion is one of the key areas for us. When the new plan for immigration was published, we welcomed the commitment to look at changing the rules around family reunion, to allow adults who had arrived through a safe route to sponsor their adult dependent children. We were disappointed then to see in the consultation response that that proposal has not been taken forward, but we continue to have dialogue with the Home Office around it, as well as on a report that we published towards the end of last year, which looked at the family reunion process itself and the safety of it for the family members outside the UK. We welcome the commitment within the consultation response to continue working with us in considering how those recommendations can be followed through.
Also, around the issue of the resettlement programme, we welcome the Afghan scheme, as I said, but we believe that there is more that can be done there and on family reunion, to make sure that more people are able to access safe routes rather than putting their lives at risk by taking desperate journeys.
Paul Blomfield
Q But from your discussions, you have had no sense of what schemes the Home Office might have in mind beyond that? I ask that because it is a fairly fundamental issue on which the Bill is predicated.
Jon Featonby: At the moment, there is the Afghan resettlement scheme and the global resettlement scheme, which has an unset number. Family reunion may be potentially negatively impacted by the Bill.
Within the new plan, there is the commitment for the Home Secretary to be able to use an almost ad hoc discretionary power to be able to provide a safe route for people, and we very much welcome that. However, we believe that the Bill is an opportunity to go further, both on existing safe and legal routes, and to explore something like humanitarian visas, which would enable people to apply for asylum from outside the UK as well, because it is obviously noteworthy that the only way that someone can enter the UK asylum system is by being on UK soil.
Paul Blomfield
Q May I ask one further question on a different point? The Bill introduces a new element to the asylum system in the consideration of late evidence, and it requires a reduction in the weight of evidence that is submitted late and indeed the credibility of applicants who give it. Do you see any potential difficulties with that and, if so, could you share those with us?
Jon Featonby: On those elements, the view of the British Red Cross is that it will be quite hard to work out what the impact of some of those clauses will be without further detail about them becoming available. There is already a section 120 notice, which can be issued to people to make sure that they provide evidence as soon as possible within the asylum process, and there is a particular focus at appeal stage.
The Home Office has done great work over recent years in looking at some of the reasons why people do not necessarily provide all of their evidence early on in the process. There are particular groups that quite often will struggle to provide all of their evidence early on. For a woman who has been a victim of sexual, gender-based violence, for example, there are very good reasons and very strong evidence as to why she may not disclose all of the evidence very early on. When someone comes to make a decision on an individual’s asylum claim, a potential result of that individual not having disclosed some of the evidence is an impact on their credibility, and you could end up with people not being given protection even though they are really in need of it.
The Chair
I will call Ms McLaughlin, then the Minister, and then we will see how we are doing for time.
Anne McLaughlin (Glasgow North East) (SNP)
Q The British Red Cross is part of the International Red Cross, so perhaps it has a clearer picture of the scale of the global crisis that is leading to the displacement of people. The Bill is apparently partly a response to the number of people seeking asylum and refugees that the UK is taking. You said a moment ago that we should be able to take the number we have at the moment. The UK Government’s argument is that we are taking proportionately higher than most other countries. Is that correct? Are the Government right to be concerned enough about the proportionally higher numbers that the UK is taking to bring in this legislation?
Jon Featonby: As you rightly say, the British Red Cross is part of the Red Cross and Red Crescent global movement of 190 national societies around the world. Working with our international partners gives us that insight into what is happening globally.
We know that 75% of refugees are hosted by countries that border the ones that they fled, and 85% of refugees are hosted by some of the poorest countries in the world, so it is absolutely the case that most people who are displaced from their own countries stay within their regions. Almost everybody we work with wants to be able to return home at some point, which is why they stay as close to their home as they can for as long as possible. One of the other trends we have seen over the past decade is that the situations that produce refugees are lasting for longer, which means that people are living in those other countries for longer. That potentially results in more people looking to move on in order to be able to rebuild their lives.
The UK has about 35,000 to 40,000 asylum applications a year at the moment. Compared with other European countries, that puts us 17th in the number of applications per capita. We are fourth overall for the past year. Germany received four times as many asylum applications as the UK did last year. France received three times as many and Spain received twice as many.
Anne McLaughlin
Q That is interesting. If I have time for one more question, I want to mention the concerns that have been raised about aspects of the Bill that are not compliant with some of the UK’s international obligations—the refugee convention is one, but there are many of them. There is a huge debate; one commentator says, “It doesn’t comply,” and the Government say, “Yes, it does comply.” Do you share those concerns? If so, is it possible to amend the Bill so that the UK is not defying international obligations?
Jon Featonby: We are aware of that debate going on. I am also aware that the Committee is taking evidence from the United Nations High Commissioner for Refugees later in the week, which is, compared with the Red Cross, in a far better place to make comments on that.
From our point of view, that debate will probably rage on through the course of the Bill’s passage and after it becomes law, but it is important to remember where the idea of the refugee convention comes from. We can have a debate about article X or article Y of the convention and how this legislation fits or does not fit with them, but the convention was obviously born out of what happened during the second world war and built on international agreements before that. It is largely predicated on the idea that no one country can respond to global displacement on its own. To be able to do that and make sure the people who are displaced receive the protection they need, there needs to be an international framework based on solidarity and co-operation, and that is absolutely what the convention is part of. Obviously, the UK played a key role in its drafting.
One of our concerns about what is in the Bill, particularly around inadmissibility rules and reducing access to the UK’s protection system, is that what the UK says and does matters, so other countries look to the UK and take a lead from it. There is a potential negative impact. If the UK says, “We don’t believe that these people should be claiming asylum here”—not making a decision on their protection needs but just saying, “These people are inadmissible to our rules”—and they get pushed back to France, France could be within its rights to do the same, and you end up with a domino effect.
To return to what is happening in Afghanistan at the moment, one of the international community’s primary objectives should be to make sure that the countries bordering Afghanistan continue to keep their borders open so that the people who need to escape Afghanistan can do so. We saw that with the Syrian crisis and the role that Turkey, Lebanon and Jordan, in particular, played in the region. There is the danger that if countries such as the UK prevent access to their protection system, some of those countries can—almost quite rightly—turn around and say, “Why should we continue to keep our borders open?”
Rather than getting into the ins and outs of the convention, we believe that it is important for the UK to continue to show that leadership by offering protection, whether through the resettlement programmes, which are absolutely among the world’s best, or through continued access to a protection system and the asylum system in the UK.
The Chair
I will now call the Minister. Mr Anderson, if there is time after we hear from the Minister, we will try to fit you in.
Tom Pursglove
Q Thank you, Sir Roger. Thank you for coming to give evidence, Mr Featonby. I welcome the support you have expressed for the principle of the Afghan scheme. Of course, this Government are absolutely committed to the principle of establishing safe and legal routes. You have been asked several times about the issue of channel crossings, and I feel that you have glossed over that slightly in your answers. Do you think that it is a priority? How would you go about tackling that challenge?
Jon Featonby: It should be, and it is right that it is a priority. There are too many people trying to cross the channel. It is well known that it is the busiest shipping lane in the UK. It is not said enough, but tribute should be paid to Border Force and the Royal National Lifeboat Institution because we have not seen huge numbers of lives lost, especially compared with what we have seen in the Mediterranean.
We would certainly say that although people continue to make those journeys, the primary focus should be on ensuring that people’s lives continue to be saved and that the loss of life stays relatively low. However, it comes back to the fact that we do not think the Bill will deter people from putting their lives in the hands of people smugglers or, as we are increasingly seeing, taking to small boats—relying not on people smugglers but on very small and even less seaworthy crafts.
There is no easy way to tackle the problem. There is no one simple solution. However, some of it will come down to the increased provision of safe routes. The more safe routes there are, the less likely people will need to take dangerous journeys. Something that needs to be a part of the UK’s international co-operation, and something that it can play an increasingly important role in, is making sure that people have access to protection systems outside the UK.
It comes back to the point about understanding why people make those journeys in the first place. People do not get on those boats on the French shores lightly—it is clear what the risks are going to be when they are there. Understanding what leads someone to that point is vitally important, and I am not sure that the Bill reflects what people with that lived experience would tell us. Some of that will require continued work with our European partners, in particular, to make sure that people have access to information, as well as to their protection systems, in order to look at the reasons why somebody may not have claimed asylum in France, for example.
A vital point that came up in the equality impact assessment published earlier this week is that when states such as the UK look to put in extra measures to protect their borders and asylum systems, they must ensure that does not lead to inverse reactions, which will just lead to people making more dangerous journeys. That is certainly what we have seen over the last 10 to 15 years. The harder it has been for people to make journeys when one route is cut off, the more people are generally pushed to make more dangerous journeys. We should be dealing with the root causes of why people make those decisions in the first instance.
Tom Pursglove
Q What assessment have you made of those evil criminal gangs and the associated criminality? You have referred to the life sentences for people smugglers. What more would you propose doing to break their business model?
Jon Featonby: It is largely about the points I have just raised. The explanatory notes to the Bill talk about breaking the business model, and absolutely there are the enforcement procedures regarding the people smugglers themselves. We agree that that should continue to be a priority. However, we need to look at why people turn to people smugglers, and that is because of a lack of other alternatives, whether that is accessing protection systems or those other safe routes.
Tom Pursglove
Q On modern slavery, I recognise that one of the challenges to modern slavery prosecutions is maintaining victim engagement throughout the criminal justice process. In your view, what are the key barriers for victims?
Jon Featonby: That is a very good point. We believe that the modern slavery response needs not only to provide protection for people coming out of situations of exploitation, but to enable those people to take part in prosecutions to tackle people who are exploiting others, whether in the UK or abroad.
The challenges that we see people quite often face are, first, at times a lack of trust in the police or whoever else it might be, but also—probably more importantly and more pertinent to the Bill—a lack of security about their immigration status. The people we work with, who predominantly do not have a secure immigration status in the UK, are thinking about where they are going to sleep that night, and how they are going to feed themselves and their family, rather than how they are going to help the police through this, or potentially how they will have to recount quite traumatic experiences to support those prosecutions.
That is why we support the measures in the Bill to try to give more people secure immigration status. We think that will make a big difference, but we absolutely encourage the Government to go slightly further to ensure that more people can avail themselves of that protection, which would have a beneficial impact on prosecutions as well.
Tom Pursglove
Q I will ask one more quick question, so that hopefully my hon. Friend the Member for Wolverhampton South West can come in. In your view, will the new legal aid provision in relation to the one-stop process encourage earlier referrals into the national referral mechanism?
Jon Featonby: Potentially. Some of it depends on how it is implemented. We would probably like to see some changes to that provision. I touched earlier on the work that the Red Cross does at reception centres to support people when they first leave those situations of exploitation. At that point, people come out, they are in these centres, the Red Cross may well be there, but it is probably the police, local authorities and increasingly immigration enforcement. There are very few opportunities for people to get legal advice at that point around what the NRM entails for them.
The provisions in the Bill on legal aid are welcome, but they are only for those people who have ongoing protection claims. Most people who come out of those situations of exploitation will not necessarily have an ongoing asylum claim. We would welcome the broadening of the provisions in the Bill to make sure that it covers everybody who may be thinking about entering the NRM, so that they are able to get legal advice, whether or not they have an ongoing human rights or asylum claim alongside it.
The Chair
Thank you. This will have to be one final question from Mr Anderson and one final answer.
Stuart Anderson (Wolverhampton South West) (Con)
Q I have been listening today in keen trepidation of your answers. When sitting through several of these Bill Committees, we always find people—we will hear it today—who say it goes too far or it is not enough. I represent Wolverhampton, which has certainly stepped up to the plate and done its bit over the last few years. I have heard what you have said from your point of view about the gaps in the Bill. What positives can I take back to Wolverhampton City Council that the Bill will help to alleviate pressures?
Jon Featonby: It is very difficult for me to highlight any positives. That is one of the things that we will continue to raise with parliamentarians and the Home Office, because we do not think the Bill meets those challenges. The Bill is an opportunity to meet some of the challenges, particularly around the move-on period for people when they get refugee status, to make sure that the move from Home Office support to local authority support is as smooth as possible. We hope that as the Bill progresses such issues will continue to be debated. We do not believe that the Bill, as currently drafted, will alleviate any of the current pressures that local authorities face.
Stuart Anderson
Q Do you not believe it will alleviate any of the pressures that the council will face?
Jon Featonby: No.
The Chair
I am afraid that brings us effectively to the end of the time allocated for this morning’s sitting. Mr Featonby, the Committee is indebted to you. Thank you very much for joining us. The Committee will meet again this afternoon. The doors will be locked, so Members may leave papers in the room if they wish to do so. You will continue to take oral evidence this afternoon. Please leave promptly and observe social distancing as you go out the exit door.
Ordered, That the debate be now adjourned.—(Craig Whittaker.)
Adjourned till this day at Two o’clock.
Nationality and Borders Bill (Second sitting)
Tuesday 21st September 2021
(3 years, 3 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 September 2021 - (21 Sep 2021)
The Chair
I remind Members about the public health guidance, and that electronic devices should be switched to silent.
We will now hear oral evidence from Lucy Moreton, the professional officer at the Immigration Services Union, and Zoe Gardner, policy adviser at the Joint Council for the Welfare of Immigrants. Lucy is appearing in person and has just arrived, and Zoe is appearing virtually. Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill, and that we must stick to the timings in the programme motion that the Committee agreed. For this session, we have until 2.45 pm.
Examination of Witnesses
Lucy Moreton and Zoe Gardner gave evidence.
The Chair
Q
Lucy Moreton: Good afternoon. My name is Lucy Moreton, and I am the professional officer for the ISU, which is the union that represents borders, immigration and customs staff.
Zoe Gardner: Good afternoon. My name is Zoe Gardner. I am actually policy and advocacy manager at the Joint Council for the Welfare of Immigrants—I think my title was communicated wrongly before. JCWI is one of the oldest organisations in the country representing migrants and refugees going through the UK immigration system.
Bambos Charalambous (Enfield, Southgate) (Lab)
Q
Lucy Moreton: I think that if we knew how to fix the system, we would all have much quieter and easier lives. The Bill addresses some of the issues with the current asylum system, but without a significant underpinning of resources it will not make the difference that is anticipated. We have reached the situation that we have with the structures, both above and below the border, breaking, if not in fact broken, because of under-resourcing. You can set up an additional fast-track appeals process, for example, but if you do not resource the courts to enable them to have the rooms to hold the hearings, the judges to make those adjudications and the clerks to promulgate them, it will make no difference. You can express wishes in a Bill to return migrants to a safe third country, process them offshore or turn them back before they reach UK waters, but all that requires the co-operation of international partners, and if you cannot achieve that, it is nothing more than words on a bit of paper.
Bambos Charalambous
Q
Zoe Gardner: Yes. Thank you for the opportunity to speak to you today. The short answer is that the available evidence does not support the approach being taken in this Bill. The aims of the Bill that the Government have put forward are to create a fairer asylum system and to discourage the use of irregular journeys by asylum seekers using smuggling routes. A fair asylum system would provide protection to refugees based on their need. The Bill does not propose a system that would do that. Furthermore, the evidence from similar policies enacted in other countries, or previously enacted in the UK, shows us that this approach is unlikely to deter people from seeking to come to the UK using irregular means, because it does not provide meaningful alternative ways for people to travel. In short, the Bill will not work. The only people who will be celebrating its implementation will be the criminal smuggling gangs.
Bambos Charalambous
Q
Lucy Moreton: I do not know the details of those 399 cases. If they have been in the system for more than 10 years—about 10 years ago, I was an asylum decision maker—it is likely that there will be other elements within that that are more complex. It is possible to repeatedly delay conclusion of a case through the late submission of evidence, for example. Whether that is the case in any or some of that group, I do not know. Clearly, the needs of anyone genuinely seeking protection in the UK are not served by being stuck in the system for months, let alone years.
Bambos Charalambous
Q
Lucy Moreton: My understanding is that the stated aim is to deter irregular migration. I cannot see how some theoretical change, which is what it is at the moment, to how you might eventually be treated when you are finally granted asylum here would deter irregular migration. One element proposed for the group 2 refugees —the ones who have entered irregularly—is that it may limit their family reunion rights. Absolutely accepting the political balancing act that has to be done here, if you prevent people from travelling through a regular route, they will use an irregular route, so that alone seems to be circuitous.
Zoe Gardner: I agree with that assessment. The available evidence shows that the people who are making these journeys in order to seek asylum do not know the detail of different refugee protection regimes in different countries. They base their decision making on where to go. Either they do not make the decision at all themselves and it is in the hands of the smugglers who transport them, or they make the decision based on their connection to a country—so having family members in a country, speaking the language, or having other connections. In the case of Afghans at the current time, they might be ex-colleagues who have worked with the British military in Afghanistan. That might be a reason for their trying to come to the UK. The details of the system will not deter anybody.
With regard to the aims of the Bill, which is concerned with fairness, if we look at how the inadmissibility rules have operated so far, in the first six months of their operation since January, 4,500 people have been issued with a notice of intent under the inadmissibility rules, and 173 of those are from Afghanistan. This means that in effect their asylum claim has been put on hold for at least six months while the Government seek to find another place to send them—anywhere else but here. That is obviously not in the interests of fairness when it comes to people from Afghanistan who are clearly fleeing a dangerous situation.
JCWI has a client from Syria who is 19 years old. He was individually targeted by the Syrian military and was forced to flee at a moment’s notice. He had no other option but to take an irregular route. He has two sisters living here in the UK, so that was what motivated his choice to pay a smuggler to make a desperate escape and come to the UK. He is now in the inadmissibility process, and his mental health is deteriorating because of his fear that he will be sent away. The Government have told him that they are considering his removal to Austria or France or to anywhere else—anywhere else being somewhere that has no legal obligation to take him in and where he will have no family members. If he were to be removed, we would potentially be giving the smuggling gangs a repeat customer, because he would obviously have reason to seek to come back to the UK.
It also does not make any sense to pause that client’s claim for the time being, and the claims of 4,500 others—probably more at this stage—and have them wait in this limbo system, at great cost to the taxpayer and great harm to their mental health, on the basis of agreements to return people here, there or anywhere that we do not actually have yet. This approach is not going to achieve its aims whatsoever. The only thing it will achieve is cruelty, delay, additional bureaucracy and, as I say, lining the pockets of the smuggling gangs.
Bambos Charalambous
Thank you. I will let other Members ask questions now. If there is time, I would like to ask some more later.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Q
Zoe Gardner: There is considerable evidence that every time we spend more money on trying to close down a route that is regularly used by smugglers to bring people through irregular means to the UK—indeed, this is the case in any other country—the people who are desperate to take that route do not simply disappear. In fact, the routes are simply redirected, often to more dangerous paths. It does not stop the journeys, but it does allow the smugglers to charge more, for yet more dangerous journeys and yet more complicated ways of making it through these barriers. There is always going to be more flexibility on the side of the smugglers than on the side of the state. Until we provide people with a regulated alternative means of travel to the UK, every round of security spending that we throw at this and every attempt at this failed model of deterrence and pushbacks will be celebrated by the smugglers, because it simply lines their pockets.
The increased sentences proposed by the Bill are all very well, and would be perfectly reasonable if in reality they were aimed at smuggling gangs. However, what we have seen in the last 12 months is that the Home Office has used legislation that was intended to be used against smuggling gangs and members of international criminal gangs to unjustly prosecute asylum seekers themselves. Several asylum seekers have served jail time on the basis that they were facilitating the entry of other asylum seekers on the same boat.
That practice was being undertaken until, in August this year, the Crown Prosecution Service published some clarified guidance confirming that it is not a crime to enter the UK, even on a small boat or through other irregular means, if your purpose is to present yourself to the authorities and seek asylum. That is the case for almost all, if not all—I think the official figure is 98% —of the people on these boats. It has been confirmed that those people are not committing a crime or an immigration offence.
The danger of the increased sentences is that they will be targeted at the wrong people and that they will be used to punish people who are exercising their right to claim asylum rather than being targeted at the people at whom it should be targeted: the organised criminal gangs. That should be done on the basis of credible intelligence and international co-operation, and not on the basis of picking people up off the beach in Kent when they clearly intend to make an asylum claim.
Stuart C. McDonald
Q
Zoe Gardner: This refers to the differential treatment for people who, once they have arrived and been served with their notice of intent, have to wait six months in this unnecessary and harmful limbo situation in the asylum system. If the Government do not find somewhere else to send them—another country willing to take on our responsibilities for them—as is likely to happen in most cases, they will have their asylum claim assessed in the usual system. Given that the nationalities are overwhelmingly those recognised as refugees in this country—people from countries such as Afghanistan, Iran, Iraq, Sudan and Syria, which have a high recognition rate—they will be recognised as refugees in need of protection from persecution.
The Government then propose, with this Bill, to offer them only temporary protection status, which is not the same as the refugee protection status that we have provided them with until now. That would mean people having an unstable status that would need to be consistently renewed, potentially once every 30 months, and with no guarantee of obtaining permanent settlement.
That is completely harmful to the mental health and integration prospects of refugees. It runs counter to obligations under the UN refugee convention, which requires that recognised refugees are assisted to naturalise and integrate. It also simply does not work from a practical perspective. We have an example of a JCWI client who is a gay man from Iran. He has been granted a temporary protection status for six months, due to complicated factors of his case. The Home Office proposes to reassess whether this gay man from Iran will be at risk again in six months, and again in six months, and again in six months. If it was every 30 months, I am sure that members of the Committee can see the lack of logic being applied there.
People who obtain refugee protection almost always need long-term, stable protection status. They come from countries where it is very unlikely that it will be safe to remove them again within 30 months. That puts a huge additional bureaucratic burden on a Home Office that is already failing to get through its case load at a reasonable speed and will very seriously hamper those people’s integration prospects.
Furthermore, as Lucy Moreton mentioned, those people may be denied the right to family reunification. That means that the largely female or child contingent of refugees who are currently able to get protection through a safe route of family reunion would then be denied that protection. That might mean that, in desperation to join their loved one who has come to the UK, they may then embark on those dangerous irregular journeys, so this may in fact provoke more irregular journeys and, again, enrich and empower the smugglers yet more.
Finally, the proposals also suggest that refugees granted this secondary status of protection would not be granted access to public funds. Aside from being cruel and harmful to refugees, that follows the same pattern of being illogical and impractical. The reality is that if these refugees are destitute, they will be able to apply to have the “no recourse to public funds” conditions lifted. Given that they will have waited for at least six months and then gone into the standard asylum procedure, which at the moment takes well over six months in many cases, and during that time will not have been allowed to work, plus being people who are recovering from trauma, the likelihood that they can go into a job and start earning straightaway is extremely low. The likelihood that they will be destitute under those circumstances is extremely high.
This just adds a huge additional bureaucratic burden where there will be application after application for these “no recourse to public funds” conditions to be lifted. In the meantime, there is the risk that people will fall into destitution. From the perspective of fairness and compassion, this plan does not work. From the perspective of having a functioning asylum system and a Home Office that produces efficient and tolerable procedures that work on a reasonable time frame, again, it completely fails.
Stuart C. McDonald
Q
Lucy Moreton: My colleague’s point on the administrative burden of constantly having to reassess and read asylum claims was absolutely right. It feeds back into the point I made about resourcing: you cannot make this work if you do not put the resources in. If you want civil servants to reconsider applications every six or 30 months, you are going to have to put enough civil servants in there to do it.
On the issue of pushbacks, as things stand at the moment, given the instructions that we work under to ensure the safety of life at sea and the legality of it, it seems to us—the trade union, and the members who advise us—extremely unlikely to happen in practice. The restrictions are, quite rightly, very tight. No one wants to see a fatality from what is a very dangerous manoeuvre. It was not expected to be announced as it was. It had been in discussion in various iterations for a couple of years, but for it to be announced suddenly in the press came as a surprise.
It had the unfortunate impact of endangering both border officers and migrants because suddenly migrants feared that they were going to be pushed back, even though they are in circumstances where they never would be—they are vulnerable, the vessel is vulnerable, it has vulnerable people in it and it is not in the right bit of the channel. Because they are frightened of being approached by border officers, they are less willing to be rescued in circumstances where they deeply need rescuing. That was most unfortunate.
I recognise the risk in saying this, but I will personally be very surprised if this ever actually happens and is completed. I would be amazed. We do not see migrant vessels that are not vulnerable in one way or another.
Paul Howell (Sedgefield) (Con)
Q
Lucy Moreton: There are communications channels between migrants who make it and those who are waiting. Also, the spin put on it by the smuggling gangs is absolutely phenomenal. For example, we were seeing a lot of migrants being told that the small vessel route over the English channel would become illegal once the UK had left the EU. It was illegal before and it was going to be illegal after: nothing changed. But the gangs used that to pressure more people into taking the route—“Go now, before they stop it!”—and to charge more money for that route. Different vessels have different amounts of information, but this has been reported quite widely in the press.
Migrant groupings in France, I understand, are now aware that this is a risk. We know that they resist approaches by the French; they put themselves at risk in order to prevent the French intercepting and returning them while they remain within French waters. We get reports from our members on the cutters, particularly the smaller ribs, that migrants make absolutely sure that they have got a British vessel. They are far more likely to trust the RNLI or the coastguard, who they recognise because they are on telly and have different uniforms, than to trust us. The last thing we need is someone standing up and going overboard. If they are trying to avoid being intercepted, either by the French, by us or anyone they do not recognise, that is the risk.
Paul Howell
Q
Zoe Gardner: Can I jump in on that point? There is a difference between having some gossip information or potential misinformation about what will happen directly on the boat journey and what to do immediately on disembarkation, and actually having a complex and sophisticated understanding of the functioning of the asylum system in the UK, especially in comparison to the functioning of the asylum system in France.
Regarding the levels of understanding and information, as Lucy rightly said there is a lot of misinformation going around, but knowing that you need to avoid being intercepted at sea is different from knowing what your entitlements will be once you have got to this stage in the asylum system in the UK. They are different issues.
Lucy Moreton: I think that is a fair point; it is more about misinformation, spin and misunderstanding than about concrete information and a robust or detailed knowledge of what actually happens.
Paul Howell
Q
I will come to the point I was going to make. The number of cases and the backlog are increasing at a faster rate than the number of applications. I would like to try to understand whether that is purely resource—you have indicated there are resource concerns anyway—or whether there are ways in which the Bill could be written so that it was easier to make decisions and the decisions could be clearer and swifter, rather than having too many complexities, which results in longer times before you get a first decision. Is it the Bill? Is it the resources? Is it a combination thereof?
Lucy Moreton: It is a combination, inevitably, but there are elements of both. The rate of cases in decision is increasing in relation to the number of initial applications, but that is because of late and repeated applications that slow things up, and that may well be an element in the 399 that was mentioned earlier.
One provision in the Bill suggests that individuals would be served with a notice of information to say, “If you do not produce all the information that you know at this time, you will not be able to bring it up later—or, if you do bring it up later, much less weight will be given to it.” I am not convinced that that will work as well in practice as it might appear.
There will always be information that changes if someone has been here and been in the system for six months or six years. There can be a change of situation in their home country that might make late information come up, and even if the information comes up late and is given less weight, it must still be considered and will still have some limited access to appeal, albeit I think that the intention is to remove the ability to seek judicial review of the decision by giving an expedited appeal through the immigration tribunals process.
If the immigration tribunals process does not have the capacity to hear that case for six months, it will not make a great deal of difference anyway, but certainly any measures that assist in encouraging migrants to produce as much information as they intend to rely on at the beginning will help. Most migrants do that, but you get to the end of the system and then suddenly you get, “Oh, but hang on a minute—now I’ve changed my religion, recognised my sexuality, the situation at home has changed, I’m married, I’ve got a child, I’ve got closer ties here, I’ve got a medical condition,” or whatever additional applications come in.
Anything that can control and manage that better will help; that is a recognised method of abusing the process, but we cannot shut it off, because there will always be people for whom it is absolutely true that their situation has changed and they do need protection. We need a method for considering that quickly, getting it through the appeals process quickly, if that is relevant, identifying those who are abusing the system and, crucially, removing them. Another large part of the Bill is the ability to remove people who have come to the end of the system, while still identifying and extending protection to those for whom we have an obligation to do so.
Paul Howell
Q
Lucy Moreton: Everything will be in the detail. The words used will help, but I suspect we will find ourselves in a situation in two or three years’ time where there has been a loophole or a contrary decision by an upper court that has changed the way this works. There will always be genuine last-minute situations; there will always be genuine last changes that merit a fresh application.
If you front-load the resourcing at the beginning, if you can decide an application and have it through the court system in a matter of weeks, the scope for those last-minute changes of situation is significantly narrowed. If you make the whole process faster and tighter, rather than just trying to block the tail end of a very lengthy process, that would probably be more beneficial both to genuine refugees and to the British taxpayer.
The Chair
I do not want to limit anybody’s questions, but there are quite a few people who would like to ask questions. Jonathan Gullis.
Jonathan Gullis (Stoke-on-Trent North) (Con)
Q
I am a bit perplexed. On the one hand, I am hearing that the system is broken; on the other, I am hearing that ultimately this is not going to be good enough. Lucy, on the pushbacks—I think the pushbacks are something that our commanders on those vessels need support and top cover from—you have said that that is not a deterrent, even though you have said that people will be scared of it. We have talked about the fact that people will not be getting access to housing in the legislation, at clause 11—we will use centres such as Napier barracks—which I think is brilliant and is also about the use of public resources; that will not deter. In Stoke-on-Trent they are livid at seeing illegal economic migrants—the ones coming over the Channel at the moment—paying thousands of pounds into the hands—
The Chair
Mr Gullis, I do not want to stop you, but it would be great if there could be a question, so that your colleagues can also ask questions.
Jonathan Gullis
There will be. Illegal economic migrants put thousands of pounds into the hands of people smugglers. Does that not show that these people are not genuine refugees or asylum seekers, like those we have seen from Afghanistan and Syria, who we have brought through safe and legal routes?
Lucy Moreton: It is a system that requires a great deal of money. You are not likely to have that money immediately available to you if you have fled in circumstances of danger. You may be able to gain it from relatives outside the country. Worse, though: you may put yourself into the hands of people traffickers, who will lend you the money for your crossing in exchange for your services in one way or another in the UK, be that in the grey economy or in modern slavery.
If you knew, before you spent all that money, that it was only going to get you a few weeks here until your claim is processed and dealt with, you would be far less likely to spend that money. If you knew that you spend that money and you are going to spend six to 10 years here to get through the system, that money is probably worth it.
Jonathan Gullis
Q
Lucy Moreton: From what I understand, the experience of Australia has been that it has not been as much of a deterrent as they would have hoped, but certainly, on paper, anything that shortens the system is going to be a positive. The reasons why people travel are so multi-factoral; it is not going to be a 100% answer, but nothing is. If there was an easy answer, we would have done it a decade ago when this started to be a problem. It may help, but it will not be a universal panacea.
Jonathan Gullis
Q
Zoe Gardner: I would like to pick up on the distinction you were making between Afghan refugees and the people you referred to as illegal economic migrants crossing the channel. It might interest you to learn that Afghans make up one of the most significant groups of people making those irregular journeys across the channel.
JCWI has some difficult in ascertaining at what point these people switch from being considered refugees—for example, if they worked with our military, or if they are gay and are facing persecution by the Taliban. Given that the resettlement efforts, as laudable as they are, will necessarily not reach all those people and certainly will not reach even all the people who worked with our troops in that country, if those people are facing being hunted down and murdered by the Taliban and are therefore forced to make a chaotic and immediate escape by whatever means necessary, be that with a smuggler, that does not remove their need for protection. It does not make them any less refugees.
It is really useful that you make that point, because it does point to a wider distinction that the Bill seeks to make, which is to draw a completely false distinction between two groups who are made up of essentially the same people. As I have mentioned, over two thirds of the people who are in Calais at the moment and who are making that crossing are from countries with very high recognition rates as refugees in this country. As I have said, they are from Iran, Sudan, Syria, Afghanistan. They are refugees and they need our protection.
I draw the Committee’s attention to the commitment made by the Home Secretary to implement the recommendations of the “Windrush Lessons Learned Review”. One of Wendy Williams’s recommendations in her review was to avoid viewing policy making on a binary of “Do this or do nothing”. That is the binary that, with respect, you are putting forward here. Nobody is suggesting that the status quo is acceptable. Unfortunately, the do-this option, according to all the available evidence, is likely to make the situation significantly worse rather than achieving its ends.
As Lucy mentioned, the evidence from Australia suggests that offshore processing centres for refugees had no discernible impact on the numbers of people attempting the crossing, but it did have a huge impact of cruelty and harm to the refugees who were subject to offshoring. We already have difficulty in this country in ensuring that asylum seekers have adequate access to legal representation, to adequate hygiene and to the other most basic needs. To take that process offshore to somewhere out of sight and away from our ability to scrutinise it would make it much more difficult to ensure that those minimum standards were met.
What I hope would never happen is what happened in the Australian case, where teams of experts from the UN and Médecins sans Frontières, and teams of paediatricians, reported finding the most traumatised population that they had ever seen or worked with, including among victims of torture. There were extremely elevated rates of self-harm and suicide, even among children. It ended in abject failure. Not only had it not deterred people from taking boats to Australia; it ended up with the Australian Government forced to medically evacuate all remaining residents of those camps in 2019, having spent €6 billion on the entire process. That is an absolutely disastrous model for the UK that we absolutely should not pursue.
Aside from the moral objections that may not be shared by all but that the JCWI certainly feels about the UK––one of the richest countries in the world––attempting to palm off our responsibility to refugees on to a developing country such as Rwanda, the impact was cruelty, and cruelty with no point, no purpose and no achievement. The situation just continued––
The Chair
Ms Gardner, you have put your case extremely well and I do not want to inhibit what you want to say, but I do want to see whether more Members can ask questions.
Jonathan Gullis
Q
Lucy Moreton: Many of them have.
Zoe Gardner: As I am sure you are aware because I think the previous witness did say this, the vast majority of people who seek asylum worldwide––86% of refugees and displaced people worldwide––remain in the country neighbouring the one they have fled. So 86% of people remain in developing countries.
France received three times as many asylum applications as we did last year. Most people stop as soon as they feel safe. The people making their way to England and who specifically wish to come to the UK do so because they have ties to this country, either because they have served with our military, as in the case of people from Afghanistan, or they have family members, as with the Syrian client I mentioned whom the JCWI is representing. They may also speak the language because of our colonial history and have other ties of kinship and history here.
There are people who have legitimate ties to the UK and there is no good reason why they should have their claims assessed in France if they do not wish to. It does not really work for us to say to the French, “Given that we are geographically located slightly to the west of you, none of these refugees is our responsibility. They are all on you,” because France could say the same thing. Then Italy could say the same thing and the entire international refugee protection system will crumble. It is necessary––
The Chair
Ms Gardner, you are making your case really well but I am trying to get a couple more people in before we go to the Minister, if that is okay, so I apologise. Paul Blomfield.
Paul Blomfield (Sheffield Central) (Lab)
Q
“There is a risk that increased security and deterrence could encourage these cohorts to attempt riskier means of entering the UK.”
Could you share your views on that with us––first, Lucy?
Lucy Moreton: That has been the experience to date. There is a large displaced population in Europe. The majority of them have been there for some time. Just under half of them, in the last set of statistics I saw, have a failed asylum claim elsewhere within Europe. Whether they have legitimate ties here or legitimate reasons to be here or not, they will not simply say, “Oh gosh, it got a bit difficult today. Let’s turn around and go home.” If they do not have another route that they can try, they will simply become—as the risk assessment says—more and more risky.
We built the fence around the edges of where the Eurotunnel trains were, so people moved to Calais. We fortified Calais port, so they moved to Boulogne, went further north, or moved to Le Havre or Ouistreham. Every time we build a wall, they just move a little further down. Nobody wants—I don’t think anybody wants—to build a massive fence along the entirety of northern France, Belgium and Holland, but if we did so, they would come from Spain. Simply reinforcing the border is not effective if we do not also provide some form of alternate route, ideally an expedited route.
Paul Blomfield
Does Zoe have anything to add to that?
Zoe Gardner: Lucy covered it perfectly.
The Chair
Anne and Stuart, you have about a minute to ask your questions and to get some answers before I bring in the Minister.
Anne McLaughlin (Glasgow North East) (SNP)
Q
Stuart Anderson (Wolverhampton South West) (Con)
Zoe, I am trying to understand one of the points that you made earlier and your example of the young gentleman from Syria who came over here. You said that, under the legislation, even if he is sent out of the country, he will try to get back in, regardless of the legislation, even though he knows the system. Is that solely because he has family members here, or because, no matter what legislation we put in place, people will still—even when they know the system—try to come back in? Will you expand on that, please?
Zoe Gardner: I certainly would not like to say that I know anything about his intentions individually, but I would say that, as a young person and a refugee, if he were to be sent to another country, anybody in those circumstances would seek to be with their loved ones. That is the natural and human thing that we would all do. As Lucy Moreton explained clearly, once you have taken such a long and dangerous journey, and seen things that we in this room have certainly never seen and hope never to, there is no prospect of going back or of giving up so, yes, people will try to make the journey back again. It already happens. It is factored into the price in some of the smuggling operations that we hear about, that if you are turned back by the French coastguard, you get one extra shot free on us, half-price or whatever.
People who have made the journey this far and believe that the UK is the place where they will be safe and their human rights respected will seek to come here. We cannot make them disappear, so—this goes to Anne’s point—the only credible response is meaningful and good-faith international co-operation. We need to engage with the French, step up to say that we will take our fair share and then speak from a position of moral authority to ask others to do the same. That means taking in people who have connections to the UK.
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
Q
Zoe Gardner: I am quite confused about that being the aim of the legislation that we have in front of us. The measures that have been put forward in the Bill, as far as I can tell, will only serve to exacerbate and complicate the repeated legal claims that will be made. For example, the split standard of proof in the Bill would apply a different standard of proof to different parts of a person’s asylum claim. That will be challenged and tested in the courts and will take longer. Obviously, the delays of six months will make the system take longer. On the other side, slapping a priority sign on to somebody’s deportation order does not actually make any difference. Again, as Lucy said, that is a matter for having well-resourced court systems and a fair and efficient system, and the Bill just does not do anything to achieve any of that.
The Chair
Apologies, but that brings us to the end of the time allotted to ask questions. I thank our witnesses on behalf of the Committee. Many questions were asked and our witnesses gave evidence that Members wanted to listen to.
Examination of Witness
Assistant Chief Constable Dave Kirby gave evidence .
The Chair
We will now hear oral evidence from Dave Kirby, the assistant chief constable of Derbyshire police. Dave is joining us virtually. We have until 3.15 pm. Will the witness please introduce himself for the record?
Assistant Chief Constable Dave Kirby: Good afternoon. My name is Dave Kirby, assistant chief constable with responsibility for crime and criminal justice in Derbyshire Constabulary.
Stuart Anderson
Q
Assistant Chief Constable Dave Kirby: Specifically in relation to the clause 45 defence?
Stuart Anderson
Yes.
Assistant Chief Constable Dave Kirby: If I can start with the background, what we find—forgive me if I tread over ground that you have already been over—is that the defence can be abused either way and there might be ways to alleviate that. We find instances where people who have a genuine claim to be a victim are admitting principal offences—cannabis cultivation or similar—in order to protect the people who exploit them. It tends to have the effect of limiting an investigation, including limiting the examination of telephones or other digital devices that might show us a broader conspiracy, for example. Again, that is because they are still under that control. We see that in an organised way, which I will come to.
Similarly, we see people we believe are genuinely committing offences, such as the organisers of those cannabis growers or people who are in some way managing them, using the defence—some people might use the phrase “Get out of jail free”—to avoid prosecution. In either case, we have seen a high level of organisation, which it is important to point out. I cannot go into the tactical detail in a public forum, but we can see a level of control that goes beyond one organised crime group, for example. Then we see people who are genuinely being exploited perhaps admitting offences and being prosecuted, or being bailed or released under investigation and then simply going round the cycle.
There are two important points around how the legislation currently sits. One is that the defence can be raised at any time, which makes life quite difficult for investigators because they have the original investigation to consider and then they have the secondary, parallel investigation that is required around status. That has to be conducted even if a person has not claimed to be a victim of modern slavery, because that defence could be brought in at any time. I understand that people might initially be hesitant to do that, given that they are being exploited, so it could be problematic to change. However, a second area of interest is that there is no duty for people claiming to be victims to co-operate with the parallel investigation around their status; that is difficult for investigators because there are quite often a few lines of inquiry, with some exceptions.
Stuart Anderson
Q
Assistant Chief Constable Dave Kirby: I would be hesitant to make that statement. There could be benefits for victims, with various revisions. I would not want to make that statement directly.
Bambos Charalambous
Q
Assistant Chief Constable Dave Kirby: I think that would assist hugely. The delay can still be there, because people can choose when to bring the defence, and sometimes that is even at trial. But, yes, more speedy decisions from the civil competent authorities would be helpful, because investigators—we all know that resources are very stretched in every force area—could then focus on the areas they really need to.
Bambos Charalambous
Q
Assistant Chief Constable Dave Kirby: At a national level, we have had some quite good interaction and support from Albania and other countries, including Lithuania—in fact, my own force in Derbyshire has had a joint investigation with the Lithuanian authorities around forced labour exploitation. So I would say that the support is good; in general, it is conducted in conjunction with Europol or the National Crime Agency. Given the complexities in achieving that level of co-operation, it tends to be for our higher level investigations, where we have mapped organised criminality working at an international level, as opposed to the day in, day out criminality and exploitation that we uncover.
Bambos Charalambous
Q
Assistant Chief Constable Dave Kirby: I think what you are getting at is correct. The reason is that some of these people are under a huge amount of duress, including their families being threatened. Their families remain in Albania and other countries, so they cannot protect them, and violence is often used by these groups. If people are told not to claim that they are a victim and to go through the criminal justice process, and then at some point change their minds for whatever reason, I think that needs to be allowed and not counted against them. The difficulty is, of course, those who would exploit the system and raise a defence at a late stage in order to cause complications for the prosecution and who are in fact criminals, sometimes at a fairly high level. That is where the police and other agencies always need to be cognisant that that defence can be raised and to run those parallel investigations.
Anne McLaughlin
Q
That turns the presumption of innocent until proven guilty on its head. Do you think that that is the most helpful way to go forward and, if so, are there other circumstances in which we should not offer support to people because we do not believe them, before they have had the opportunity to prove otherwise? If you do not think that it is helpful, how would you amend the legislation to be more helpful, while recognising that we do not know whether people are victims of slavery at the point at which they are arrested?
Assistant Chief Constable Dave Kirby: There are a few areas there. First, the existing legislation does not apply to a lot of crime types in any event—some of the more serious crime types that you mentioned, such as kidnapping and manslaughter, and lots of offences included in the Offences Against the Person Act 1861 and firearms legislation, so some of that is there already. I do not think that it is right to say that policing is turning the presumption of innocent until proven guilty on its head. What I would say is that, where we already have information and intelligence in relation to individuals and their place within a criminal hierarchy, at that point it may be appropriate to turn that presumption on its head.
To illustrate, there is a recent case in Derbyshire where an Albanian gang has been dismantled only in the last couple of weeks. There have been 24 arrests, and I think 12 of those people were Albanians, running cannabis growers and other types of criminality in the region. More than one of those people claimed to be victims, but we had a covert investigation behind us that showed their level of control, their ability to communicate, the resources that they had and various things that clearly went against that claim. Absent that information and intelligence, I do not think that we would say, “We don’t believe this person,” in the first instance. An investigator should, and in all investigations does, go into that situation with an open mind. This person could be a victim or could, in fact, be a criminal. They start at that point, not on one side or the other.
The other part of your question was about what we do to make things easier for investigators to understand the true position. I think that, again, that would be some sort of duty to co-operate, because it is quite difficult if somebody claims to be a victim and then, for example, refuses to provide a phone passcode, and so on. Perhaps a duty there would assist us. I mentioned whether a person should have to declare straightaway, because often there are delays, but I think that a lot of genuine victims would suffer that way.
Tom Pursglove
Q
Assistant Chief Constable Dave Kirby: Absolutely. I cannot give you names right now. That perhaps would not be appropriate, but in various areas of criminality we have seen that, and again it is for various reasons. One reason that I have alluded to already is to hamper prosecutions, as a tactic. Quite often we can get around that as investigators because we have been looking at the various areas that would prove or disprove a person’s status throughout, but sometimes the defence is raised in order to obtain access, we believe, to other services that we would of course want to provide to genuine victims, such as access to housing and potentially some assistance in securing visas and so on.
We do see those things. I can only say that in some cases we have proved that those people are not victims—for example, through covert activity that was already in place because it was a part of larger operations or because of things such as telecoms investigations and so on, sharing that work. There is a lot of technical detail in how it is done, but we have detected people exploiting the system for those two reasons: benefits and to avoid prosecution.
Tom Pursglove
Q
Assistant Chief Constable Dave Kirby: By “sequential”, do you mean repeated?
Tom Pursglove
Q
Assistant Chief Constable Dave Kirby: Okay, I am trying to understand where you are going with the question. I am sorry, do you mean if somebody makes a claim and is referred, and then does so again following a criminal justice process? Or have I misunderstood your question?
Tom Pursglove
Q
Assistant Chief Constable Dave Kirby: We see victims being referred into the system and then disappearing from it and turning up somewhere else, and then being referred into the system again, and so on. That is an indication, of course, that the control that these criminal gangs have has remained in place and they continue to be controlled, coerced and taken out of that process. Again, in general terms, the speedier the decision that is made in terms of a conclusive grounds decision and the support put in place in a substantive way, the less likely we are to see that because this would be an alternative for people who otherwise are in some sort of a holding pattern, waiting for decisions to be made, perhaps in temporary accommodation and so on. So, for me, the measures that are most effective are those that are going to cement those decisions the quickest and provide real support to those individuals—[Inaudible]—so they can be taken out of that coercive group of organised crime groups.
Tom Pursglove
Q
Assistant Chief Constable Dave Kirby: Can you repeat the question? I had an issue with the connection. I apologise.
Tom Pursglove
Q
Assistant Chief Constable Dave Kirby: The ability of gangs to bring people across the channel is a really important part of how many of those gangs work, particularly when we talk about foreign national offenders and foreign national organised crime. Again, at the risk of being boring talking about west Balkan criminality, I think it is a good way to illustrate that. West Balkan criminality, Albanian criminality, which is really what we are talking about, has taken more of a foothold since around 2017 in the UK, partly because of a real crackdown in Albania around cannabis cultivation. There needs to be a business model to support that. The gang members themselves do not want to spend long hours in uncomfortable and dangerous cannabis grows, for example, with the risk of being caught. Why would they want to do that? Similarly, if the business model is to exploit people for sexual practices then there need to be people to exploit. The ability to bring people into the country across the channel is hugely important for them.
Of course, there are other rackets such as labour exploitation and so on that have been talked about many times. Focusing on those two, they need people who can be exploited. British citizens form part of that, but people from comparatively poor areas who have comparatively few opportunities are much easier to exploit. In fact, many of those people do not initially believe they are victims—they believe that they are entering into a business deal. “You do this for this long, and then we will fly you back, or there will be some sort of benefit”. Sometimes that is the case. I would suggest that the conditions those people are living in are appalling and that the deal is a terrible one, but for some of them that is a better deal than they had where they came from.
Forgive me, that is a bit of a long answer. The point is that without the ability to bring foreign nationals in-country, those very well-organised criminal gangs—in my experience, many of them are far better organised than our own high-level criminality—would struggle to prosper in the way they currently are.
Bambos Charalambous
Q
Assistant Chief Constable Dave Kirby: At the moment, there is a heightened threat from people from those areas. That is what we are seeing most of in terms of foreign national offenders in Derbyshire and the east midlands, and I am fairly confident that is also the pattern elsewhere. To illustrate, we used to see Vietnamese organised criminals involved in cannabis growing, sex trafficking and other issues, but more often than not we now see Albanians in control, potentially exploiting those Vietnamese people, or, if not, working together. Some alleged groups are so well-organised and disciplined that they are able to effectively out-perform other criminal gangs. That is the threat we are seeing most in terms of foreign national criminality.
Bambos Charalambous
Q
Assistant Chief Constable Dave Kirby: It is happening very regularly. However, we are uncovering victims very regularly, so in their cases that is a very positive thing. Forgive me, could you repeat the last part of the question?
Bambos Charalambous
How often is it occurring? How much of a problem do you see it as being?
Assistant Chief Constable Dave Kirby: I think it is occurring a lot, but whether I would classify it as a problem or not is another issue. When it is being used genuinely for victims in some of the most terrible circumstances imaginable, I would not classify that as a problem. However, the abuse is real; it is actually organised and, in some cases, quite systematic.
Bambos Charalambous
Q
Assistant Chief Constable Dave Kirby: From a domestic point of view, we would look at things like if they have access to communications, do they have their own phone or not? Have they got an evident network of contacts or friends? Have they got control of their own finances? Have they got control of their own documents? Are they able to come and go, or are they locked into a premises, for example? There are not many people within the sex-trafficking area of exploitation who are there voluntarily, of course, so we look at all of those factors.
Really, we are looking at someone’s freedoms; their access to resources, including money, telephones, that kind of thing; and whether they have a normal pattern of life, a normal pattern of life for a criminal, or if they are very much restricted in what they can do. That is one of the ways we can identify people as victims. We would also conduct more detailed work around finances. For example, if benefits are being claimed, who are they being collected by? Which accounts are they being paid into? Are we seeing the same account more than once, which might show an element of organisation and coercion? Those kinds of things.
Bambos Charalambous
Q
Assistant Chief Constable Dave Kirby: Again, I think it is really important that victims are allowed to make that claim at any point. I say that because of the coercion that exists, including threats to family members and so on. If somebody is arrested for whatever offence and know that they are a victim, they dare not claim to be so because their bosses say, “Don’t do that.” They know that if they plead guilty, and indicate that they will do so, the investigation is likely to be stopped short, saving further investigation into the organised crime group. The person is told to toe that line because of the threat to their family. It is difficult to say that they must declare early in those circumstances.
Bambos Charalambous
Q
Assistant Chief Constable Dave Kirby: No, it does not, and again, it is down to the skill, knowledge and understanding of the investigators and other agencies to spot the signs and be alive to the fact that they are not just investigating whatever criminality is reported; they are also investigating the status of those involved.
The Chair
If there are no further questions, I thank our witness for his evidence. We will move on to the next panel.
Examination of witnesses
Councillor Roger Gough and Councillor Rachael Robathan gave evidence.
Chair
We will now hear oral evidence from Councillor Roger Gough, from Kent County Council, who is joining us virtually, and Councillor Rachael Robathan, from Westminster City Council, who is here in person. We have until 4pm. Would the witnesses introduce themselves for the record?
Councillor Roger Gough: I am Roger Gough. I am the leader of Kent County Council. I also chair the South-East Strategic Partnership for Migration.
Councillor Rachael Robathan: I am Rachael Robathan, I am leader of Westminster City Council.
Bambos Charalambous
Q
Councillor Rachael Robathan: Just to give a current picture; we have 638 Afghan refugees who have come in as part of the current settlement in one hotel on the Edgware Road. We have a further 589 refugees who were in Westminster prior to that, spread across five hotels. Our experience is that clearly there is a lot of pressure on local services in terms of identifying health, educational and other support needs. There is not always the advance warning that local authorities would wish to have in terms of knowing about the placements before they arrive. Clearly, as much notice as we can be given from the Home Office, Clearsprings or whoever is placing the asylum seekers is very much to our advantage so that we can prepare and know what we are dealing with.
The other thing to stress is that there are particularly significant issues that arise. For example, over a third of the current Afghan refugees placed in Westminster are children and of those 10% are not with their parents or guardians, and have not travelled with them, so there is an immediate safeguarding issue, which the local authority needs to step in and deal with. While there is funding for the people placed in the hotels, there are undoubtedly significant pressures and concerns about how we support other people. It is unclear how long those refugees will be staying in those hotels. We are working on three months, but it could be longer than that, or it could be less. Those are the main things.
The current Afghan refugee settlement has been more co-ordinated than previous asylum-seeker placements, because there has been more of a joined-up approach. Westminster has a lot of tourist hotels in the centre of our city, which currently are not as full as hopefully they otherwise would be, so in areas where there is an availability of hotels there tends to be a disproportionate placement of asylum seekers, without necessarily the recognition of the pressure that that puts on the surrounding area.
Councillor Roger Gough: As you indicated in your question, clearly we have a very specific set of circumstances in Kent which relate to the Channel crossings and in particular to unaccompanied asylum-seeking children. Taking asylum overall first, most of the adult and accompanied child asylum seekers who arrive in Kent do not spend very long in Kent. There has been an exception to that for the last year, which is the use of the Napier Barracks near Folkestone, which has been a source of some challenge and controversy throughout its period of use. Most adult asylum seekers are rapidly moved on and dispersed. For us, the big issue has been unaccompanied asylum-seeking children. As you may know, we have twice in the last year had to suspend full operation of our statutory duties. Between August and, I think, early December last year and again between June and earlier this month, we did not collect young people from the port because our services at that point were put under extreme pressure.
To give an idea of what that means, there was great pressure on accommodation capacity since, this year in particular, we started to see more younger young people––under-16s––than we had in previous years. That certainly put pressure on fostering placements. For the slightly older young people, there was also pressure on some of the accommodation that they were placed in. That meant that young people were being placed outside the county, which clearly has significant impact in terms of oversight, safeguarding and so on. You must then add to that the fact that case loads and the pressure on our social work teams were reaching levels that we viewed as unsafe. Those are the sort of pressures that we were seeing in that area, and we have been working with the Home Office to try to make that a more manageable situation.
Turning to some of the wider areas, adult asylum dispersal, with the significant exception of Napier Barracks, has not been a factor for us very much in recent years. In terms of resettlement schemes, Kent, along with other parts of the south-east, played a full role in the Syrian scheme and is now looking to do so to the greatest possible extent with the Afghan scheme. We have three hotels in Kent that are being applied to Afghan families who are arriving.
Bambos Charalambous
Q
Councillor Roger Gough: Historically, resources in the sense of money have been an issue for us. That has changed in the last year and a bit. Historically, we carried a loss, if you like: a difference between what we received from the various grants—chiefly Home Office grants—and what we spent of between £1.5 million and £2.5 million a year. In the summer of last year, there was a significant increase in the rates paid by the Home Office, particularly targeted on those of us in authorities with large numbers of unaccompanied asylum-seeking children. As part of the launch of the latest version of the national transfer scheme, there were some further enhancements to rates including some things on the care leavers area. That has made a real difference to us financially, so the point that I have made constantly is that when we speak about pressure and the areas in which Kent is feeling the impact, it is to do with the capacity of our services to respond. It has not been a case of financial resources this year or last, but historically it was.
Bambos Charalambous
Q
Councillor Rachael Robathan: As Councillor Gough mentioned, it is not currently so much around the financial support; it is more to do with the wider pressure on services across the piece. For example, at the moment, we in Westminster, like Kent, have more than our allocated number of unaccompanied asylum-seeking children, which represents a significant responsibility because of the length of time that they are likely to be in receipt of services. There is a very significant pressure there, but it is more the wider pressure on overall services.
At the moment, we have 638 Afghan refugees in one hotel on the Edgware Road. We are having to put significant resources into trying to understand exactly who is there and what their needs are—all that information we need to gather in order to be able to look after those people safely while they are here. There is also the question of uncertainty. We do not know how long they will be within the borough and in need of our services. There are issues around education. Do we provide education within the hotel for those children? Clearly, if they were to go into our schools, that is disruption for the school and for the children themselves, as well as for the other children in that school.
So there are a number of other issues that need to be taken into account so that we can look after the children properly. That is why there needs to be more planning on where the asylum seekers are placed, and full co-ordination between the Government and local authorities on this.
Bambos Charalambous
Q
Councillor Rachael Robathan: Yes, I think there should be a balanced approach to the whole process. Recognition needs to be made of the services and the housing accommodation that is available in different areas. Clearly, in inner-city areas there is more pressure. For example, the current Afghan refugees that we are seeing tend to have larger families, so there is more of a need for four-bedroom or even five-bedroom properties, which are under more pressure in an inner-city area than in other areas. Some balance needs to be made. Absolutely, in terms of dispersing and further placement, that needs to be balanced.
Bambos Charalambous
Q
Councillor Roger Gough: I agree with that. What we have to remember is that there are different schemes for different groups of asylum seekers and others being resettled. The rhetoric that is always applied by central Government and the authorities is a place-based approach. Many of us would say that in practice that does not always work out.
When it comes to unaccompanied asylum-seeking children, in Kent we have been vociferous that the scheme should be mandatory. At the moment, the Government are still very much committed to a voluntary scheme. We will have to see how that works out. The Government are seeking to make it work, but we have a view on that.
On adult asylum seekers, part of the difficulty is that you have a very different mechanism being applied and very different responsibilities for the authorities or areas that are taking part. For instance, the south-east is massively under-represented in terms of adult asylum seekers within its population by comparison with, say, the west midlands or the north-west. The problem is not so much that the authorities are unwilling to step up to the plate. It is much more to do with the cost and availability of housing and developing the infrastructure. To some extent, once you have established the infrastructure, it can support more arrivals; it is getting it started that can be the issue. That has generated a slightly vicious circle, in terms of where you get concentrations of asylum seekers. That is something that the Home Office and groups such as the regional migration partnerships were working on over the last couple of years. It was quite a major strand of work prior to the pandemic striking. There is very much a variation.
The other key point, which fits in with what Councillor Robathan has just mentioned, is engagement with local authorities. Many of us would say that the resettlement scheme—what started as the Syrian scheme—has been a great model of very effective engagement with local authorities, and that has been reflected in the fact that authorities across the country have played their part in it. Not all schemes work quite as well.
Bambos Charalambous
Q
Councillor Roger Gough: Clearly, it is not welcome that we have another element of this particular picture in a part of the country that very visibly experiences large numbers of arrivals. In a sense, having a presence of this kind in east Kent is not ideal, and we have always been clear—both Kent County Council and our colleagues in the local district council, Folkestone and Hythe—that this is a decision taken by the Home Office, not by the local authorities, and is not something we were in support of.
That said, I think that a great deal of work has been undertaken to seek to address some of the problems that produced the real crisis in and around Napier Barracks in the early part of this year, where we saw some disorder and a significant covid outbreak. Significant steps have been taken on that, although there are still concerns about that facility.
Paul Howell
Q
Councillor Rachael Robathan: Yes, there are certainly some things that we would welcome, although it would be good to see some more detail when the secondary legislation comes forward. Just to back up slightly, a further issue that we have in Westminster, as many of you will be aware, is the significant number of rough sleepers. Our latest count was 171, which is actually fewer than there have been previously. We worked very closely with Government on the Everyone In programme and so on last year, which was very successful, but we still have 70 in a bridging hotel within Westminster, so there is a significant issue around rough sleeping.
Over half of those people have no recourse to public funds. All of the asylum seekers in Westminster have come through the sanctioned route, so they would be in category 1 under this Bill, but one of the concerns for us would be if there is more clarity, if you like, in terms of no recourse to public funds for category 2, whether some of those people who would have no recourse to public funds might slip into rough sleeping. There is always a draw to the centre of Westminster: it is known that an aggressive beggar can make up to £500, or sometimes more, on our streets in Westminster, so if people find themselves on the street, there is an economic pull into the centre. That could lead to increasing numbers within Westminster.
Speaking very specifically about Westminster, the issue is that we then have an issue with tented accommodation, and the point about tented accommodation—I have had a number of meetings with the Home Office and the Ministry of Justice about this—is that there is a very high bar for the police or others to be able to gain entry to the tents. Not only is it difficult to enforce against those who would be illegally there but, much more importantly, it is very difficult to address issues around trafficked women and other people who are on the streets and need support and help, because we are unable to deliver that. That is a concern.
One of the things that we would welcome—I think this has come through in what both Councillor Gough and I have said—is a more organised approach to the way asylum seekers are looked after and accommodated. More planning around the process would help. I think we have also both said that the Afghan resettlement has been much better in terms of being able to have planning and co-ordination with local authorities, so that is something we would welcome.
Also in Westminster, I welcome the measures around modern slavery, but also the greater sanctions to stop people coming back into the country if they have been convicted of criminal activity. Once again, we have people on the streets in Westminster who engage in criminal activity to earn money. That activity is not at a very high level, but they are still things that have a real impact on our residents’ lives. We would welcome the moves around electronic travel authorisation and other measures to make re-entry into the country more difficult for those people who are here to commit criminal activity.
Councillor Roger Gough: I would endorse what Councillor Robathan has said; I agree with all those points. There are a couple of specifics from our side. One slightly begs the question as to how effective the measures will be, ultimately, because others looking at the Bill can judge that better than me. The basic principle of seeking to promote safe and orderly routes at the expense of those that involve things like the small boat routes would be very welcome. There is no doubt, and it has been much emphasised, that that route is very dangerous. It creates a degree of political tension because it is so visible. It is something that we very much wish to avoid. Those issues come home to those of us who are border authorities, particularly in the case of the small boats in areas such as Kent. The measures to try to shift the balance between the two ways in which people get here would in principle be very welcome.
The second area I want to touch on relates to age assessment. Broadly, the direction there seems to me to be a favourable one. The attempt to create a national body, not to carry out or provide support to local authorities, unless it is requested, so much as to provide some consistency and regularity to a very time-consuming process that can wrap up huge amounts of time from very qualified social workers and which often has no very obvious end to it because it is relatively loosely guided, is welcome. Establishing best practice as well as providing support for local authorities, many of which will be less experienced in this area than authorities such as mine, would be very welcome.
Tom Pursglove
Q
Councillor Roger Gough: We are slightly betwixt and between on that. I apologise if I give an answer that may not be quite as definite as you would like. I shall explain why. If we take this year and last year, the very specific pressures that we have been experiencing were rapid increases in the numbers of young people coming into our care, the end result of which was that social work case loads rose far above recommended levels, particularly for the specialist teams dealing with those cases. We also had reception centres that, particularly with the first wave of big pressure last year, were filling rapidly. That was the point at which placing young people in other accommodation was difficult because of the circumstances of the pandemic.
Just to be clear, it is perhaps worth saying that when we talk about unaccompanied asylum-seeking children, historically, these have been adolescent males. Indeed, if you look at last year’s figures, we have very few indeed who were under the age––or stated age––of 16. There was something of a shift in the early part of this year where, from memory, about a fifth of those arriving were of stated age under 16. That tended to push you more towards foster accommodation rather than the semi-independent and other forms of accommodation that we would provide for the 16 and 17-year-olds. That has meant that through the pressures on fostering, and to some extent on other forms of accommodation, we had to place more young people outside the county, and we were certainly heading into that sort of territory at the time when we were closing our doors again in June. That was the biggest area of concern.
One thing that is worth noting, too, and it has a longer lag on it, is care leavers: those who come into our care, or indeed the care of any authority, under the age of 18—they are taken in as children in care—then become care leavers. Councillor Robathan referred to that. Under the changes to legislation that took place three or four years ago, we have a responsibility for them through to the age of 25. While at the moment, we have around 300 under-18s in our care, we have over 1,000 care leavers. In fact, our care leaver service is more ex unaccompanied asylum-seeking children than it is ex Kent children in care. As you can imagine, that generates a number of specific pressures, too. I hope that answers your question. The only reason for my hesitancy at the start was that we have just come out of the period when we were not taking young people into our care, and therefore some of the very large numbers of arrivals that we saw a few weeks ago, of whom typically 10% to 15% would probably be unaccompanied asylum-seeking children, were not having a very direct effect on us at that point. But clearly if those numbers were to continue, we would potentially be in a different situation.
Tom Pursglove
Q
Councillor Roger Gough: First, there is a big variety of views in Kent, as I think there is anywhere. My inbox, my postbag, tells me that about all the issues that are raised, but as I mentioned in my earlier responses, the very visible sense of large numbers of arrivals on the coast has had an effect within the county, and therefore that has made the issue a pressing one. As I say, from a service delivery point of view, for us the most pressing element of it has been to do with the children.
Tom Pursglove
Q
Councillor Roger Gough: On the first question, it is a demand and I cannot quantify it at this moment, but I can give you perhaps some indications. It is a demand on social worker time, so you will tend to see that a typical age assessment involves two experienced social workers, who will carry out interviews. If you just take everything going smoothly, if I could put it that way, that would involve a couple of half-day interviews followed by extensive paperwork, research and then later stages of the process. In practice, and this goes back to my earlier comments about age assessment, there are a number of ways in which the process may well be less smooth running than that. But you need experienced social workers, and one of the areas in which we have worked with the Home Office has been through their support for us in backfilling posts so that experienced social workers can take that role on.
On safeguarding, clearly there is a significant concern—it is quite hard to specify the full details of it—where you have adults in what one would take to be a young person’s space. Clearly, you will have a challenge over those who are, if you like, on the cusp. What happens—this ties in, perhaps, to your third question—is that we have had historically quite large numbers of young people being put through by the Home Office where doubts have been raised by Border Force regarding their age. There are some of whom they would say—interestingly, recent court findings have helped with this process a bit—“Look, this person is definitely, in our view, out of the reasonable range to be considered a child,” and they would be into the adult part of the process.
That can sometimes come back. For instance, where asylum seekers have been placed in hotels elsewhere, disputes about age assessment then come back as an issue for the new local authority. I know of a number of places across the south-east where that has happened, but in our case, there are a number of cases where any local authority, I think, would take the view that, where it is very hard to establish—again, the guidance around this is relatively loose—that a young person is definitely out of that age range, there is precious little point in pursuing that further.
That still leaves you with a material number. At one point, at the height of things, around half the young people who were arriving arrived with doubts raised about them by the Home Office. We would then probably in practice seriously investigate, because it was considered viable to do so, only a portion of those, but they would very often go into cases where the age dispute would be pushed to the point of saying that this was indeed an adult.
Councillor Rachael Robathan: As Councillor Gough said, this is very time consuming. As he stated, almost all of the UASC are late-teen boys, and it can be very difficult at the best of times to tell someone’s age, so it involves a huge amount of time on the part of the local authority. There is a very clear safeguarding issue, because once someone has been accepted as UAS they are put into a child setting—schools and other child settings—where there is a very clear safeguarding issue. That is something that we are all very conscious of, clearly.
The other point, as we said earlier, is that there is an ongoing responsibility to these young people, because the responsibility to support them carries on until they are 25, so if you have someone who presents as a 16-year-old, let us say, that means that you have almost 10 years during which you will support that young person. In terms of ensuring that there is the best use of public funds, which we all know are always very stretched, we need to ensure that the people coming into the system are the ones who really need that support, and who are legitimately there.
Tom Pursglove
Q
Councillor Rachael Robathan: Anything that moves towards a uniform process will greatly help. At the moment, involving the local authorities and putting the responsibility on them is very difficult for what are very often stretched institutions. Having a uniform, joined-up process would be very welcome.
Councillor Roger Gough: Already when you see changes in, for instance, what the courts have found about what is a reasonable basis on which a challenge can be presented by Border Force, as we have seen recently, that has made a huge difference. The proportion of young people coming to us age disputed is significantly lower than it was before that.
When you get changes in the process, it can make a material difference. Authorities like ours are at least experienced in this area, even if we are in the eye of the storm. As dispersal happens, or when, as I mentioned earlier, those who have been placed as adults launch a challenge within their own authority, issues may arise for an authority that is not nearly as well set up to deal with them as we are.
To pick up on the point that Councillor Robathan made, it is worth emphasising what a difference going into the children’s system or the adult system makes. As we have both said, first there are children in care and then there is the care leaver process, all of which, quite properly in their own way, have particular requirements for children’s services departments in authorities. The process around adult dispersal clearly still makes demands on council services, but in the first instance it is a housing-related issue, from which a number of other things follow. It is not quite the same as building in what can be a seven, eight or 10 year process of somebody being part of the children’s services operations of the council.
Stuart C. McDonald
Q
Councillor Roger Gough: Sorry, could you just run your last point by me again?
Stuart C. McDonald
It just strikes me that a lot of the pressure around these decisions, and perhaps even a degree of cynicism about where a number of age claims fall, arises from the fact that UASC leave, as I understand it, takes young people up to 17 and a half. If UASC leave carried on until 19, 20 or 21 there would be much less pressure, or motivation—if you are cynical about it—to make a claim that you were 15, 16 or 17 than there is now. Would that be a different way to try to go about fixing this?
Councillor Roger Gough: I need to think about this one, but I suspect my answer will probably be that where the pressure arises is not so much on the immigration side of things as in respect of the children’s services obligations. As long as a young person is identified as being of a particular age that, under the current rules, makes them a child in care for the council, that is where the issues for councils arise. As has been mentioned, that takes those involved through to the age of 25 as care leavers. The answer almost certainly is that it is Children Act responsibilities that matter in this case. As you say, there is normally UAS leave to remain, which will then usually transfer over into a five-year leave to remain. In a sense, the age issues tie into Children Act responsibilities.
Stuart C. McDonald
Okay, I will give that some further thought.
Councillor Roger Gough: And so will I.
Stuart C. McDonald
Q
Councillor Roger Gough: I am certainly more supportive of something that is there to support local authorities and provide more of a framework and a structure, rather than completely taking the process over—I do not think that that is necessarily what would be envisaged. In short, going back to the two points you have posited, you are quite right that safeguarding arguments would cut both ways. What all of us are asking is simply, how do we find a process that is as robust as it can be and that does not have a hugely distorting effect on local authority children’s services departments in terms of their time, their resources and their officers’ commitment?
In terms of the function that this body could have, there is a suggestion that it could support, and take decisions with, authorities who wish it. But the key thing in many ways is that it provides more of a framework within what, at present, is a relatively hazy area of activity. To the degree that you can do that, I think you would make local authorities’ lives easier and better, and they would hopefully provide better services in this area than would otherwise be the case.
Councillor Rachael Robathan: I would largely agree. In terms of your first point, about moving the age higher, I would be wary of introducing a hurdle or age bar that was different from that for other young people in our care. I would be quite wary about introducing a parallel process that has different criteria. I suspect that you might just push the problem forward a few years; then you would have a 19-year-old, but are they really 19 or actually a 22-year-old who is presenting as a 19-year-old? That might move the issue around, rather than addressing it.
I agree with what Councillor Gough said: having a national process that helps local authorities in determining age would be a support. It is not determining the shape of the services that local authorities then deliver; it is basically saying, “This young person qualifies on this age basis to access your services.”
Stuart C. McDonald
We will have to see what the placeholder clauses in the Bill are replaced with, but thank you both very much.
The Chair
If there are no more questions, I thank the witnesses for their evidence. We will move on to the next panel.
Examination of Witness
Tony Smith gave evidence.
The Chair
We will now hear evidence from Tony Smith, from Fortinus Global Ltd, who is joining us virtually. We have until 4.30 pm. Could the witness please introduce himself for the record?
Tony Smith: Good afternoon, everybody. My name is Tony Smith. I am now an independent international border management consultant, but I am probably better known as a former director general of UK Border Force, with 40 years’ experience of working in the Home Office in immigration and border applications.
Bambos Charalambous
Q
Tony Smith: I think there is a broad consensus that the system is broken. I spent a great many years working in the areas of immigration enforcement, border control or immigration control, and asylum. I think what has happened recently has been a new method of gaining entry to the UK. This channel crossing was not an issue in my time. I retired in 2013, and at that time most of our energies were devoted to securing the port of Calais and preventing illegal migrants from concealing themselves in vehicles, to reduce that route.
In some respects, we have been victims of our own success, in that the smugglers will not give up; they constantly try new methods to get around our controls. This method has been used only in the last two or three years; they have found a gap in our defences. I think, therefore, the Bill is right to try to distinguish those asylum seekers that enter in this way—coming across the English channel in small vessels and claiming asylum on arrival—many of whom have spent a good deal of time in another safe third country, from those that are being evacuated by the UNHCR or through the Afghan programme. I think the Bill does that. It does attempt to distinguish the method of entry by redefining article 31 of the refugee convention, and to distinguish those people that are immediately fearing persecution from those that are not, so that we can get back some form of control of that part of our border, which at the moment I fear we have lost.
Bambos Charalambous
Q
Tony Smith: Yes, but as I say, I worked in senior positions in the immigration service when we had our really big asylum influx, which was in 2001. I am afraid corporate memory in the Home Office is not all that it might be, but at that time we were on the cusp of introducing the juxtaposed controls in northern France, because over 100,000 came in 2001 and the Government of the day saw it as a priority to reduce asylum intake from France. The effect of the juxtaposed controls was that by moving the UK border to Calais, it was not possible to claim asylum in the UK, because the applicants were not within the jurisdiction, so people were originally coming on forged passports—initially by air and then by ferry—and claiming asylum. Once we introduced those measures, they resorted to concealment in vehicles. We were then able to establish an agreement with our friends in France that we would have a British control zone in France, which would enable us to conduct our own searches in the UK zone. Subsequently, I was involved in a lot of the berthside checks to prevent people pervading through the fences and getting on to the vessels berthside.
We did a lot of work to secure that part of the border and in collaboration with our colleagues in France. That worked in terms of the targets, which were to reduce asylum intake via these methods, coupled with other measures that were taken, such as the third country unit to return people to safe third countries. We had the detained fast track system for manifestly unfounded cases. A lot of these things were tried previously and did work to an extent. As I say, the maritime environment is an extraordinarily complex one, as the Committee will no doubt be hearing, in terms of the complexities of international law and what we can do in our domestic law to manage that. I do think the attempt is a bold one to make this distinction, because I think we are conflating two different issues here, in terms of people who are travelling across between two safe third countries, and those that are genuinely in need of resettlement—of whom the numbers far outweigh the levels that the western world is prepared to take, I am afraid.
Bambos Charalambous
Q
Tony Smith: After the first signs of Brexit, we did have an APPG, more on freight rather than people, about what we were going to do about the border with France. I participated in that with some French officials and a number of MPs. The ending of free movement is in itself a significant challenge for that border. There were certainly some overtures from French politicians that they wanted not just to retain the juxtaposed controls but to work with us on joint enforcement measures because they really did not want international organised crime groups working in the Hauts-de-France region. Nor did they want large numbers of irregular migrants, shall we say, who are already in the Schengen zone––as you know, there are no borders in the Schengen zone––effectively migrating into the Hauts-de-France in the hope of being able to get across to the UK.
I did think there was an element of goodwill there, in terms of continuing to work with them, and we have seen some of that. We have persuaded the French police to conduct checks on the beaches and to prevent people boarding small vessels to get across. The difficulty we have is that once they are seaborne, the French position is that they will not intervene because they see this as a search-and-rescue operation, which is covered by international conventions. The migrants do not want to be rescued by the French police or coastguard because they would be taken back to France. They want to be rescued by the UK Border Force. For the UK Border Force, our primary mission at sea ought to be the preservation of life on both sides. Once we bring people aboard a Border Force vessel, they are within our jurisdiction, they can claim asylum and that just fuels the business model that the human smugglers are exploiting.
Bambos Charalambous
Q
Tony Smith: I think it is highly dangerous. I am in touch with former colleagues from the Australian Border Force, which is often held up as a model for pushbacks. That was an entirely different model from the one that we are proposing. These are dangerous waterways and very vulnerable vessels. I fear for the worst. We have already had drownings. They are not as well reported as they should be but we have had them. We do not know how many, of course, because bodies have not always been retrieved. We will certainly see the smugglers resort to tactics, as we saw in Australia, such as vessels literally being holed so that they sink and lifejackets being thrown overboard in the trust, hope and expectation that those on board will then be rescued, which we have an international duty to undertake.
The only real way out of this is to come to an accommodation with the French Government, which I have been advocating for some time. There is provision under article 98 of the UN convention on the law of the sea for countries to establish regional arrangements, so it is possible, with political agreement with France, that we could have joint patrols on the English channel. We could have British officers on their vessels and they could put French officers on our vessels, but the premise would be that if you are returned to either side, there is no risk of refoulement because both countries are signatories to the 1951 refugee convention and you would get a full and fair asylum hearing on either side. I do think that is possible, but there is a reluctance on the part of the French Government to go down that road at the moment because they have significant immigration problems of their own. They cannot control their own southern border because they are part of the Schengen group and there is a significant lobby in France saying, “Why would we stop people crossing to the UK when we have plenty of irregular migrants already coming into France?”
Anne McLaughlin
Q
You talked about Australia, which I was going to bring up. I am sure I read recently that Australia also criminalised those who rescued people who were seeking asylum and arriving by boat, but made the exception that if the vessel was not seaworthy they would not be criminalised. I think that is what you referred to when you talked about the traffickers putting holes in the boats so that they became dangerous. That sort of thing assists traffickers now that they know what to do. First, would you caution the UK against making that caveat and perhaps urge it to drop the pushback thing altogether? Would you caution against the criminalisation of people who rescue people at sea?
Tony Smith: We could spend a lot of time talking about the Australian model, which we do not have, but you are talking about a much, much longer stretch of water there. The Australian Border Force—I was down there helping it to set up—took the view that its maritime response was significantly different from ours. The vessels it deployed are significantly different from the UK Border Force cutters. The cutter fleet that we have in the Home Office are legacy Customs cutters. They are not designed to bring people ashore or to process people. They were even processing people on some of the Australian vessels to determine whether they were admissible to the asylum system before they brought them ashore. In the end, they invested in vessels of their own. They could then move the individuals from the unseaworthy vessels that they were encountering into their own vessels that they had purchased and escort them back to Indonesian waters. There was a significant investment by the Australian Government in doing that, which did work, but trying to compare that with what we see on the English channel is a different question.
Yes, of course we should preserve life, and I think the French should do that, too. There is an obligation on both sides of the channel for us to work together to find a way to stop human smugglers. The current model simply demands, “You pay €5,000 to me and I will put you in an unseaworthy vessel, and I really don’t care whether you drown or not because I have got my money.” I am afraid that is the way the mind of the human smuggler operates. They are getting the upper hand, we are seeing numbers going up and we will see more drownings. It is difficult to lay this at the door of the UK Border Force, who have a lot of other pressures on their resources at the moment.
We need to find a way, if we can, of getting common sense to prevail on a joint strategy with France. We already have a significant number of bilateral treaties with the French that have survived Brexit and that would enable us to fix this problem, but I do not think we have been able to find anybody in a senior position in the French Government who would go that far.
Anne McLaughlin
Q
Tony Smith: I would dispute those figures. We are probably about fifth in Europe in terms of asylum intake, but you are right that other countries have more asylum applications every year than we have. That is not necessarily because those numbers have been invited by the EU to go and live there. It is because they are unable to control their own external frontier. Because of the Schengen arrangement, asylum seekers can choose where they would like to go. Many drift north to Scandinavia, Germany, Holland or France, where they would rather be than in some of the southern or eastern European states.
The EU has its own difficulties in determining the allocation of asylum seekers across the Schengen zone because they do not agree among themselves about how they should be distributed. The bigger question is not necessarily a European one but a global one. No doubt you will hear evidence from experts on this. The need for international resettlement is a huge problem. We have seen it in Afghanistan; we have climate change; and we have migratory pressures coming up from South America to the US border. People are going to continue to move in great numbers over the next 20 or 30 years. The question is how the western world is going to cope with that.
I am quite a big fan of the refugee resettlement programme. UNHCR has been going out to western countries for some years saying, “We have 80 million people displaced, and 40 million in different countries in our camps already. These are refugees who have already fled war zones whom we would like you to take.” Even though we were taking only about 5,000 or so, we are still third highest in the world, so we are not really getting to grips with the global challenge of resettling refugees through the resettlement route. It has picked up a bit since Afghanistan, and we are doing more. There is certainly evidence that we are trying to do more, and I think we could become global leaders on refugee resettlement programmes, but it is going to be difficult politically for anyone to sell that when we are seeing uncontrolled migration across the English channel.
It is finding the balance. How can we help to contribute to genuine resettlement for genuine refugees, but at the same time take back control of our borders, which is clearly the Government’s stated intent?
Tom Pursglove
Q
Tony Smith: I do think that. It is absolutely important in all this. While I would not defend the turn back strategy, I can understand why the Government are looking at those kinds of measures to stop the boats. It must be extremely frustrating not to be able to do anything about the ever-increasing numbers, particularly when a succession of Home Secretaries have come in saying that that was what they would do. A number of my successors—civil servants—have given evidence to the Home Affairs Committee, saying that they were going to make the route unviable. I am afraid it is not within their gift to make the route unviable within the current frameworks. One would hope that the new legislation would change things. It certainly changes the dynamic. We can now say, “We know that you arrived by this route. We know that you are not immediately fleeing persecution.”
I am not a big fan of the criminal justice system for migrants. It has not really worked. I am a fan of it for smugglers and facilitators, but putting migrants in prison is not necessarily going to be the answer and will lead to more challenges. The question is how we disrupt the smugglers and break that business model. The only way is to start seeing people going back to France. Then people will see that there is no point putting their life at risk in a small dinghy. There will be no point in more and more of them spreading up to Calais because that business model is broken. The big difficulty for the Government is how to persuade the French that we ought to have a policy like that and negotiate an agreement, and how to counterbalance that with the other problem of significant numbers of people around the world seeking resettlement. How are we going to contribute to responding to that?
Tom Pursglove
Q
Tony Smith: Without a doubt. I support the investment of resources in France, and that is something that we have been doing for a long time now. The French could legitimately say, “Actually, why would you not help us to contribute to border security?” Let us not pretend that the French operational arms, including the police aux frontières, the douanes, the various coastal agencies—I used to talk to them regularly when I was in the job—are not supportive of preventing criminality at an operational level.
We can be quite pleased with the work that we have done to at least try to disrupt the smuggling gangs. Quite a few have been prosecuted on the French side, albeit, sadly, more the middle men rather than the big fish who are behind human smuggling gangs. You will hear from other witnesses more qualified than me to tell you about that level 3 criminality, but it is really difficult. How do we disrupt the business model? It is about deterring people from coming. We owe a duty under the 1951 refugee convention to give refugee status to those who are genuinely in need, but I am not sure that it is the same duty for those who are arriving in this way, from a fellow original signatory to that convention, than those coming through evacuation processes such as we have seen recently in Kabul.
Tom Pursglove
Q
Tony Smith: We lived through this before. We had something called the new asylum model when I was in the UK Border Agency, before taking the top job in the Border Force. Previously, I was regional director for UKBA London and the south-east, which meant that my teams were the ones who were processing asylum arrivals coming into the country. I was actually responsible for removals.
Yes, we did have targets in the Home Office in those days for enforcement. It was part of my mission to ensure that those who did not qualify to stay, either because they had arrived under safe third country rules, or they were coming on a manifestly unfounded route, were sent back. The trouble is we have seen a good deal of judicial overreach by the European Court of Justice, and significant interpretations and European directives, which kind of hindered those arrangements on returns. We have now got to a point where we are not really returning anybody who is coming across on these boats, and people notice that. If we do not start returning people, the numbers will continue to rise. We need to find a way of segmenting those applicants who we know have a genuine claim for asylum in this country from those who have probably been in Europe for a long time and may have had applications for asylum rejected—they have had a notice de quitter from Schengen, sometimes two or three notices—who are not genuine asylum seekers but who would just like to come to live here. That is not effective border control.
It is going to be really, really difficult, but I applaud the authors of the Bill, because it finally gets to grips with the difficulty of the way we have interpreted the 1951 refugee convention and put up what I think is the right interpretation of it in not conflating two different arguments, which is human smuggling across the English channel by criminal gangs, putting lives at risk, and the genuine need to resettle refugees from different parts of the world.
Jonathan Gullis
Q
Tony Smith: That is a great question. It is called the pull factor. A number of books have been written by people probably better qualified than I am that talk about what that pull factor is. I think there are number of reasons why people would quite like to live in the UK rather than in mainland Europe. Personally, I think the main one is communities. We have a significantly diverse range of communities across the UK where people can feel comfortable in terms of getting the support they need. We are generous—I would not say very generous—in our treatment of asylum seekers. We have hosted conferences in places like Hungary and Croatia—countries where, if you were to ask asylum seekers, they would probably say that you do not get a very good deal from the Government who are supposed to be protecting your welfare, whereas you will get that in the UK; you will also get good legal representation and a very full hearing. These are all things that we should be very proud of, but I think inevitably it does mean that more people want to come to the UK.
The other element is language. English is the second language for many, many people from different parts of the world, which means that this is still—you might not believe it—a very desirable place to come and live. People are prepared to pay a good deal of money to get here on the basis that not only would they have a better life if they came here, but their broader family would have a better life. It is a genuine aspiration for a lot of people.
That is the nature of immigration and border controls. There will be a dividing line. You are going to create legislation and a set of rules. You are going to get people in front of you who do not want any border at all and who think we should let everybody in. You are going to get other people here who want to build a fortress around Britain. That has always been the case, but in 40 years at the Home Office—I was one of those civil servants who stayed in the Department; I did not bounce around Whitehall like they do nowadays—I never once worked for any Government who said that they were prepared to approach a fully open border and free movement across our borders. In fact, the vast majority have sought to tighten up our immigration and borders system, or at least to make it firmer but fairer.
We cannot lose sight of the firmness bit. There will be a need to arrest people, and there will be a need to deport people. That does not sit well, does it? It does not feel nice, but if you are going to have an effective border control, you have to be able to enforce your laws. At the moment, there is a feeling that with this particular cohort, we are not really doing any enforcement at all.
Jonathan Gullis
Q
The Chair
Mr Smith, if you could hold your answer to that question, I am going to try to bring in Paul Howell as well.
Paul Howell
Q
Tony Smith: I particularly welcome the distinction between those people who are entering the country from safe third countries, with the new interpretation of article 31 where we can actually test whether they face an immediate fear of persecution in the circumstances under which we find them, and those who are genuinely fleeing persecution coming through refugee resettlement routes. I think that is the part that I favour the most.
The other thing we will have to consider is whether we will have to establish proper arrangements for the reception of people coming via this route. The facilities in Tug Haven—I do not know whether the Committee has been there—are appalling. We have a marquee there and we have Border Force officers changing nappies and ordering pizzas because we simply do not have the infrastructure to cope with these numbers. Other countries at least provide sensible, safe accommodation. You are going to hear lots of evidence about the circumstances at Napier Barracks. There is a real problem in the Home Office right now about being able to manage the proper reception of these people, whether or not we allow them to stay.
Stuart C. McDonald
Q
The Chair
Sorry, Stuart, but I am going to break in here so that we can get an answer. Mr Smith, you have 30 seconds.
Tony Smith: The Dublin convention never worked. It certainly did not work with France even when we were in the EU. In fact, we were in the EU when some of the boats started coming. They still would not take anybody back because it relied on a flawed policy framework. I stand by what I say about the criminal justice system, because we have tried this many times before and people do not fear prison. What they fear is not achieving their ultimate ambition, which is to get settlement in the UK. That is where we need to focus our minds.
The Chair
I am afraid that brings us to the end of the allotted time for the Committee to ask questions. I thank our witness on behalf of the Committee and we move on to our next witness.
Examination of Witness
Rob Jones gave evidence.
The Chair
We will now hear oral evidence from Rob Jones, director of threat leadership at the National Crime Agency. What a great job title. We have until 5.15 pm. Will the witness please introduce himself for the record?
Rob Jones: My name is Robert Jones. I am one of the operational directors at the National Crime Agency. I tackle all the serious organised crime threats and my particular interest in this is that I tackle organised immigration crime as one of the national priority threats that the agency deals with.
Bambos Charalambous
Q
Rob Jones: Obviously, there is a lot of interest in the small boats business model. I will talk about the whole route first and then focus on small boats. For some time, we have operated with our international liaison network and international partners to try to deal upstream from the UK with smuggling gangs that are targeting the UK for profit. That is a big part of what we do. That has involved targeting people who use high-risk methods of clandestine entry, where they pack people into concealments in lorries and move them overland from as far afield as Turkey, typically via an overland route.
For a variety of reasons, beginning in 2018 over the Christmas period, we have seen a movement towards the use of the small boats business model to execute clandestine entry into the UK. That has been driven by a number of factors. Obviously, during the period of lockdown when we had a long period of benign weather, almost perfect conditions and the traffic through the Schengen area and traditional border crossings was supressed, we saw those same smuggling gangs recognising an opportunity and beginning to exploit the small boats model.
Our stated intent is to disrupt as much of this as far away from the UK as possible. That means operating in a range of different environments, which we do. We also work very closely with French, Belgian and German authorities to try to disrupt smuggling gangs that are much closer to home. The emphasis, particularly post exit and particularly because of small boats, on that relationship in the near continent is ever more important. The centre of gravity for small boats is not in the UK; it is in France, Germany, Belgium and further afield.
Bambos Charalambous
Q
Rob Jones: When we can identify crime groups in the UK, we target them and we use a range of investigative tactics to bring them to justice and take them through the criminal justice system. A big part of what we do is intelligence collection, where we share intelligence about known smuggling gangs with overseas partners. We do that very effectively with the French through a joint unit that we set up; we also work with German and Belgian partners in a similar bilateral way. Crucially, if we have lead intelligence that a boat is being supplied to a smuggling gang, an engine is being supplied to a smuggling gang, or smugglers are moving migrants to lay-up points where they are then going to be involved in small boats crossing, we pass on that intelligence as quickly as possible for action to prevent that crossing from happening. The stated intent for all of this is to prevent loss of life. Our biggest concern is a mass casualty event in the English channel, so everything we do is driven by that article 2 responsibility.
Bambos Charalambous
Q
Rob Jones: We work closely with national policing and we are one of the first responders for dealing with modern slavery, so we proactively investigate controllers and traffickers who keep people in debt bondage in the UK, and we bring them to justice through the criminal justice system. Through our liaison network, we also try to disrupt that threat further afield. That work has led to some powerful results through Project Aidant, where we worked with policing partners to look at things thematically. You talked about sexual exploitation, and with that, forced labour and all the areas that form the modern slavery threat, and we operate against them to try to disrupt them. That involves encountering victims, setting up reception centres and dealing with the victims of trafficking as well as with the perpetrators who keep them in debt bondage.
Bambos Charalambous
Q
Rob Jones: Some victims disclose relatively quickly. We recognise that others will not and that there are some people who, because of their level of vulnerability, need safeguarding and will need time before they can talk about their experiences. What I would say about the legislation and proposed changes is that we now have a national system for recognising the victim engrained. I do not see any of this changing that. First responders have become very good at recognising a victim, and we have significantly improved the picture nationally with national policing. In the victim-suspect paradigm, what are you dealing with? The intent is always to recognise the victim as quickly as possible. I recognise that it takes some time and is not straightforward.
Bambos Charalambous
Q
Rob Jones: A range of different scenarios. Many of these people are in debt bondage and there is leverage on their families, or they have already committed to working in an area that might be illegal, such as cannabis cultivation. It is a complex area, but we have a lot of experience of dealing with it and we deal with victims very carefully to ensure that we get the safeguarding right and whatever intelligence dividend we can.
You mentioned small boats in the context of modern slavery, so to deal with that really quickly, it does not really lend itself to the typical exploitation model. That said, we have seen some evidence of some nationalities coming through on small boats where there are some signs of that business model being used. I say it does not lend itself to that business model because these people are coming pretty much straight into the asylum system and to first responders. Traffickers do not like that; they do not want it. They would prefer those individuals to arrive in a truly clandestine fashion, so that they are not met by first responders and debriefed.
Bambos Charalambous
Q
Rob Jones: Potentially. I am not saying that it does not happen at all, but that business model does not lend itself to trafficking as much as it does to organised immigration crime.
Bambos Charalambous
Q
Rob Jones: This is a really difficult area. In the practical application of those provisions, it is really important that the level of oversight we have now is maintained. The other side of that coin is that you need to ensure that the defences available to people involved as victims in modern slavery are not abused. We see both sides of this. Our tactical advisers and expert witnesses disprove false claims from people claiming to be the victims of slavery and support legitimate claims. It is really important that the system maintains its credibility by having some appropriate tension and challenge without undermining victims.
Bambos Charalambous
Q
Rob Jones: It is recognising victims, understanding what is in front of you and making sure that you are consistent in applying safeguarding where it is needed.
Bambos Charalambous
Q
Rob Jones: This is inherently challenging: 150 km of coastline and it is not a canalised control point, so it is not like juxtaposed controls. The level of ambition required to tackle this is similar to that required to set up juxtaposed controls. The Le Touquet agreement set up what was then an unprecedented system for joint controls over immigration, and indeed customs. Where we find ourselves now is that we work really closely with the French on meeting that challenge.
Ultimately, it is for French law enforcement to deal with those departures and, from our perspective, our intent is to make sure that the disruption of departures is as far away from beaches as possible. That means that smuggling gangs are disrupted away from beaches and that the French do not have to chase migrants on beaches. That is not the best way to do this. It is an intelligence-led, planned response. That is the aspiration of the relationship with the French, which we build on every day with colleagues in the Clandestine Threat Command from immigration enforcement. Dealing with people who are leaving a border that is not controlled in the way that a typical border would have been controlled is inherently challenging. Those controls need to push back inland from the border, so that there is an intelligence-led proactive response. The French are working very closely with us to try to achieve that.
Bambos Charalambous
Q
Rob Jones: We are, absolutely. We have very positive relationships with those countries. The supply of boats to northern France and of engines in the infrastructure that supports these crossings is something that those partners can help us with.
Tom Pursglove
Q
Rob Jones: We know that that route is more and more attractive to organised crime. That is why we need to break the momentum that is pushing the viability of that route. People who are involved in the facilitation of migrants are also involved in drug trafficking and other serious organised crime. We have seen that polycriminality with HGV companies that will one day smuggle drugs and another day smuggle migrants.
One of the good things about these provisions is that they, to coin a phrase, level up the sentencing for people involved in the facilitation of migrants with that for those who are dealt with for drug trafficking. It cannot be right that, at the moment, if you smuggle 20 kg of class A drugs, you could face a life sentence, but if you conceal 20 people in a false floor in a lorry, which is one of the things that we encounter at the border, it is 14 years. Some of the provisions here, including the life sentence for facilitation, are a useful deterrent that we feel will help with that broader organised crime threat where some of this money is reinvested in other crimes.
Tom Pursglove
Q
Rob Jones: That is another helpful element that has, we hope, a deterrent effect. Criminality linked to the western Balkans, and really determined people who will be deported and then engage in a merry-go-round using false ID cards and clandestine entry to come back to the UK to continue committing crime, is something that we need to deal with. Those provisions would be helpful in that context.
Tom Pursglove
Q
Rob Jones: It is now recognised by organised crime groups as something that can generate a lot of revenue quickly. The previous witness talked about pull and push factors. The UK is a very attractive destination, and people will pay significant amounts of money—thousands of pounds—to smugglers. As we move forward with more pressure—we have seen what has played out with Afghanistan—and with more irregular migrants moving, there is the opportunity for organised crime to capitalise on that. Having a strong deterrent and being able to project our response and deal with organised crime groups upstream is really important to us, because there will be more and more pressure on the system, which inevitably will be exploited by smuggling gangs.
Tom Pursglove
Q
Rob Jones: Absolutely, with the normalisation of clandestine entry, where people are allowed to hide in a crowd. When this problem began, a big day was 100. We are now looking at a big day as being over 700. Within that, you get an increased risk that people will enter the country in a truly clandestine fashion. The more that you can do to offer safe and legal routes, and to disincentivise the business model through deterrents and a range of provisions, the more effective we can be at tackling the organised crime element, because we can then concentrate on the worst groups, which pose the highest risk and will potentially be moving people with a criminal history, whom we are most concerned about.
Stuart C. McDonald
Q
Rob Jones: There has been some progress. We have been working constantly with the social media companies to get a better response, and to ensure that their platforms are not being used to promote dangerous crossings, and there is progress. We are working in a voluntary environment. We are, in some ways, short of regulation, particularly in relation to this element, but we continue to work with those companies on a day-to-day basis to take material down. That response has improved. It is still not as good as I would like it to be, and we are working to an action plan where we have a common agreement of standards in terms of takedown and our aspiration to prevent adverse outcomes in the English channel, which is ultimately what this is all about. It has got better. It is not as good as it could be. Your point on encryption and some of the closed spaces that we cannot see that are being used to promote these crossings remains an issue for us.
Stuart C. McDonald
Q
Rob Jones: Obviously, we welcome the Online Safety Bill and its passage. It is a complex area, and only some of this can be dealt with in the Bill. We still require platforms and technology companies to be responsible, because however far regulation takes us, we still need the platforms to understand who is using them and to ensure that they are not being abused by organised crime figures, who are making money out of desperate people.
Stuart C. McDonald
Q
Rob Jones: This is a shared endeavour. I say that the centre of gravity for the organised crime element of this is in France—that is really important—so building on the partnership with France in order to deal with the issue is really important, and we continue to do that. We are also working with partners across Europe and developing those relationships. The factors that surround this, many of which are touched on in the Bill—safe and legal routes, the deterrents effect and so forth—are all important, because there is no silver bullet here. Because of the pull factors, the incentive for organised crime remains, and that is what we are trying to deal with by tackling the problem upstream. It is a range of all those factors, which need concurrent effort, and you cannot underestimate the need for the French to prevent departures in order to allow space for other measures, such as the organised crime element being tackled, to actually kick in and make a difference.
Stuart C. McDonald
Q
Rob Jones: I understand the point you make, but in relation to illegal entry, you do need an offence and you do need to be able to deal with it. None of that should create the issues that you describe, if the legislation is applied judicially and proportionately, and with properly trained people. I say that because we still have a position at the moment whereby, in relation to illegal entry, there is a difference between entry and arrival. In a maritime scenario, that is really unhelpful. It is not helpful for the safety of the migrants who could be on a smuggler’s boat, and it is not helpful for law enforcement.
One of the things that the proposal suggests is tidying up the position around arrival and entry for illegal entry, which is quite important. I recognise what you describe, but the NCA would never be involved in uniformed border control, where the mass criminalisation that you describe as a risk is something that would be the net impact of what we do. We are intelligence-led and deal with organised crime. Looking at it from that angle, I can see the benefit of those measures.
Stuart C. McDonald
Sure, but our concern is that that is exactly what the Bill does, and obviously we will hear evidence from UNHCR and various others who have that concern as well. Thank you for your evidence.
Paul Blomfield
Q
You talked about the factors that had led smuggling gangs and others to move from lorry and train crossings to boat crossings. We heard from witnesses earlier that we blocked off the opportunity to board lorries through the fortifications around terminals, which was one of the factors that pushed people to the more desperate route of boats. The Home Office’s own impact assessment of the Bill says that there is a serious risk that these measures could encourage people to attempt even riskier routes. Do you think that is a factor we should bear in mind?
Rob Jones: Displacement, in terms of protecting security measures, is always a potential second-order consequence. Organised crime is flexible, and we will respond to that. In terms of where we are at now with the general maritime threat, this does need dealing with. We are trying to second guess where people will go next. We had a terrible mass casualty event in Purfleet, where people were locked into a fridge box. We have had fatalities in the channel already, so we know just how ruthless some of the individuals involved are. We are trying to second guess where they may go next. We already know that bigger vessels have been used, and some of these tactics we have spoken about are important in dealing with bigger vessels.
I think we have pretty much got to the point now where a lot of the tactics and trade craft used in the eastern Mediterranean and other areas of the world are now being deployed in high-risk clandestine entry to the UK. That risk has already manifested itself. We need to live with it, confront it and deal with it, because it is happening now. With the numbers that we see and some of the vessels that are in the channel, we do need to do something different. It has grown to the point where you now have 50 or 60 people in vessels that are not licensed and that are taped together with plywood floors. That is, unfortunately, going to end one way unless it is disrupted, so it does need a second look.
On the displacement point, yes, it is a risk, but where is it? We are now living with a range of tactical options from smugglers that pretty much covers all of the modes. The riskiest one right now is, unfortunately, the English channel and small boats.
Paul Blomfield
Q
Rob Jones: That would certainly help our efforts, which are always going to be against the subset of the threat of a small number of individuals that are at the higher end of organised crime. That is going to be much more effective if some of those push and pull factors are not there anymore and if the incentivisation of the business model is taken away.
Anne McLaughlin
Q
Rob Jones: Thankfully, that is a policy issue, which I do not need to deal with. It is for others to deal with. I can give you my perspective on the impact of tackling organised crime. In relation to the other factors, it is helpful. No doubt, those considerations are under way, but that question is best asked to others.
Anne McLaughlin
Q
Rob Jones: Concurrent pressure against all of the factors that create a scenario in which thousands of people cross the channel in unsafe boats is absolutely something we need to.
The Chair
If there are no further questions from Members, I thank the witness for his evidence.
Question put, That further consideration be now adjourned. —(Craig Whittaker.)
Building Safety Bill (Seventh sitting)
(3 years, 3 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text
The Committee consisted of the following Members:
Chairs: Philip Davies, Peter Dowd, †Clive Efford, Mrs Maria Miller
† Amesbury, Mike (Weaver Vale) (Lab)
† Bailey, Shaun (West Bromwich West) (Con)
† Baillie, Siobhan (Stroud) (Con)
† Byrne, Ian (Liverpool, West Derby) (Lab)
† Cadbury, Ruth (Brentford and Isleworth) (Lab)
† Clarke, Theo (Stafford) (Con)
† Clarke-Smith, Brendan (Bassetlaw) (Con)
† Cooper, Daisy (St Albans) (LD)
† Hopkins, Rachel (Luton South) (Lab)
† Hughes, Eddie (Walsall North) (Con)
† Logan, Mark (Bolton North East) (Con)
† Mann, Scott (Lord Commissioner of Her Majesty’s Treasury)
† Osborne, Kate (Jarrow) (Lab)
† Pincher, Christopher (Tamworth) (Con)
† Rimmer, Ms Marie (St Helens South and Whiston) (Lab)
† Saxby, Selaine (North Devon) (Con)
† Young, Jacob (Redcar) (Con)
Yohanna Sallberg, Adam Mellows-Facer, Abi Samuels, Committee Clerks
† attended the Committee
Public Bill Committee
Tuesday 21 September 2021
[Clive Efford in the Chair]
Building Safety Bill
Clause 21
Authorised Officers
The Chair
Before we begin, I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted, except for the water that is provided. I encourage Members to wear masks when they are not speaking, in line with current Government guidance and that of the House of Commons Commission. Please give one another, and members of staff, space when seated and when entering and leaving the room. Hansard colleagues will be grateful if Members email their speaking notes to hansardnotes@parliament.uk.
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following:
That schedule 2 be the Second schedule to the Bill.
Clause 22 stand part.
The Minister of State, Department for Levelling Up, Housing and Communities (Christopher Pincher)
It is a pleasure to serve under your chairmanship, Mr Efford. I welcome the Committee back to its deliberations.
Clause 21 allows the Building Safety Regulator to authorise individuals to exercise powers on the regulator’s behalf. However, before making an authorisation, the regulator must be satisfied that the individual being authorised is suitably qualified to exercise that role. This power is designed to enable the effective functioning of the Building Safety Regulator’s functions in respect of higher-risk buildings.
Dame Judith Hackitt’s independent review found that the regulation of higher-risk buildings could be improved by bringing together Health and Safety Executive expertise, local authority building control expertise and fire safety expertise from fire and rescue services. As we have already discussed, clause 13 enables the Building Safety Regulator to secure the assistance of staff from local authorities and fire and rescue services in its work on higher-risk buildings.
This clause goes further and consolidates the independent review’s recommendation, allowing the regulator to authorise others, including officers of these bodies, to exercise powers on its behalf. Under its general powers, the Building Safety Regulator will also be able to secure expertise from the private sector to deliver building functions on higher-risk buildings. In certain circumstances, the regulator may want to authorise such individuals to exercise powers, and this clause enables that to be done. The regulator will be able to authorise such individuals only where they have been appropriately trained to exercise these powers.
As some individuals will have more competence and expertise than others, the Building Safety Regulator will have discretion to confer different sets of powers on different individuals. For example, one person might be authorised to make applications for search warrants because they have appropriate experience, whereas another might be authorised to do site visits and seize documents.
In practice, that could work as follows: the Building Safety Regulator may request assistance with building control matters from the local authority, which provides an appropriately trained building control expert to assist with the regulator. The building control expert could be given Building Safety Regulator powers to enter non-domestic premises with or without a warrant. However, the Building Safety Regulator may decide not to designate this individual with the power to enter domestic premises, on the grounds that they do not have the necessary experience and training to do so. Deciding to enter domestic premises requires a balance to be struck between a person’s right to privacy—the resident—and the public interest in making entry to obtain, for example, evidence of wrongdoing. Not all those working with the regulator will have the necessary experience and training to make such decisions.
The full list of powers available is set out in schedule 2, which I will now turn to in some further detail. With the introduction of new duties and new processes into the building control regime, authorised officers will play a significant role in ensuring compliance with the new regime. This schedule provides officers who have been authorised under clause 21 with a suite of powers to enable them to assist the regulator in carrying out its building functions. This includes powers of entry, inspection and collection of evidence that mirror existing powers used effectively under similar regulatory regimes, such as the Health and Safety at Work etc. Act 1974. These powers are designed to be flexible and to be useful in every situation that authorised officers may encounter.
To ensure proportionality, as with existing practice, warrants will be required to enter residential premises or any premises where it is expected to be necessary to use force to enter. If an application is made to a magistrate for a warrant to enter domestic premises, additional powers may be requested, where required. Those are powers, first, to use force to gain entry; secondly, to collect and take away evidence; or, thirdly, take other personnel—for example, experts—on to the premises.
Compliance with the requests of authorised officers will be integral in ensuring the effective functioning of the new regime and will avert potentially dangerous situations for residents. As such, authorised officers have been provided with the powers necessary to enforce compliance where required. Paragraph 8 of schedule 2 provides that failure to provide information upon request to authorised officers will be a criminal offence. Deliberately providing information to the regulator that is false or misleading, when required to provide information or in the other circumstances in the clause, is an offence under clause 23.
Shaun Bailey (West Bromwich West) (Con)
Does my hon. Friend agree that establishing criminal offences of obstructing the regulator’s work solidifies the regulator’s position, which is vital in ensuring residents’ safety?
Christopher Pincher
My hon. Friend is quite right: we must ensure that every player in the design, development and construction of in-scope buildings recognises the importance and powers of the regulator and the penalties that may apply should any attempt be made to obstruct or impersonate it. The offences will carry a maximum custodial sentence of up to two years to provide an effective deterrent to non-compliance. I hope that my hon. Friend recognises the power and veracity of the penalty.
I hope that members of the Committee will agree that this clause is key in enabling the regulator to carry out its functions effectively, drawing on the expertise and involvement of local authorities and fire and rescue services.
Clause 22 makes it a criminal offence to obstruct or to impersonate an authorised officer of the Building Safety Regulator. Under clause 21 and schedule 2, authorised officers will play a significant role in exercising powers on behalf of the regulator. This clause is designed to protect authorised officers by ensuring that they are not impeded and that they—and, by extension, the Building Safety Regulator—can go about their business of keeping residents safe.
Clause 22 does that by deterring and, if necessary, enabling the punishment of those who seek to obstruct or impersonate authorised officers—behaviour that could severely disrupt or sabotage critical building functions. The difference in penalties for obstruction and impersonation are proportionate to the expected gravity of each offence, reflecting the greater intent required to impersonate an authorised officer. The penalties mirror existing penalties for obstructing or impersonating a police officer and reflect similar provisions protecting staff of other regulatory bodies such as the Food Standards Agency and the Financial Conduct Authority.
The two clauses are crucial components of building the regime of the Building Safety Regulator and I commend them to the Committee.
Mike Amesbury (Weaver Vale) (Lab)
It is a pleasure to serve under your chairmanship, Mr Efford.
As the Minister rightly said in his introduction, clause 21 ensures that appropriately trained individuals secure the involvement of local authorities, key stakeholders and fire and rescue teams in working with the Health and Safety Executive and the regulator.
The current definition of at-risk buildings is those of 18 metres and above. I have said throughout proceedings on the Bill that the scope of “at risk” should be broadened, and we will debate that under later clauses.
We welcome the recommendations, which draw on the findings of the independent review conducted by Dame Judith Hackitt.
How will the regulator ensure that individuals are appropriately trained and qualified under the framework? An example arose yesterday on social media of a resident living in a block in Bournemouth. The block was signed off by a previous employee of the council but it has been riddled with fire safety issues that we in this room and beyond are all familiar with. The individual has now set up as a private contractor, free to assess so-called fire safety issues in other at-risk buildings.
Clause 22 is straightforward, and we agree with it. Although it is beyond the Minister’s remit, a £1,000 fine for impersonation seems little deterrent, given the amount of money involved in building construction. As the Minister said, current levels of fines under the justice system for impersonating police officers will apply.
Shaun Bailey
It is a pleasure to be back on a Committee with you, Mr Efford, and to see you in the Chair. I shall keep my comments brief because my right hon. Friend the Minister articulated most of the relevant points in his customary clear manner. I do not want to be repetitious.
Clause 21 is positive. It reinforces the non-siloed approach that we need to take to building safety. The Building Safety Regulator has the ability to work with different agencies and ensure it can meet its goals. The ability to gain entry to buildings and ensure compliance is important. We discussed the issue last week and it was clear that safety has to be at the heart of this. We must ensure that the mechanism safeguards residents.
We also discussed last week the need to ensure that the regulator is not beholden to anyone—that it is independent. I was heartened by the comments made last week by my right hon. Friend the Minister about the regulator always being the independent voice, especially in its engagement with third parties to deliver the objectives in clause 21.
Clause 22 deals with the criminal offence element. As I said in my earlier intervention, it reinforces the role of the Building Safety Regulator. It says to the industry and to stakeholders, “You have to take this seriously. You cannot stop the regulator doing what it needs to do to keep people safe.”
The introduction of a level 3 fine seems proportionate, but I implore the Minister to use a degree of flexibility. As circumstances change, things might need to become a bit more severe. I hope not. I hope that the Bill will lead to a sea change in the environment we have seen hitherto. The fact that we have put obstruction of the regulator on a statutory footing will reinforce that.
I fully support the clauses and wish them well.
Christopher Pincher
I am grateful to my hon. Friend the Member for West Bromwich West and concur with his sentiment that we must ensure that the Building Safety Regulator has the flexibility to do its job properly and the enforcement powers to ensure that all players across the in-scope sector recognise the importance and veracity of those powers.
As we move through the Committee’s deliberations we may disagree on matters of scope, but I hope that as we build the Bill—clause by clause and schedule by schedule—the House, of which this Committee forms a part, and the sector will recognise the powers that we are creating for the Building Safety Regulator and the importance of the law.
The hon. Member for Weaver Vale asked a couple of questions about clauses 21 and 22. He will know—he has heard me say it before in this Committee—that it is the responsibility of the Building Safety Regulator to build multidisciplinary teams that include local authority resources, fire and rescue service resources and those of others. We believe that the duty on them to co-operate will ensure the right level and that the right skills and expertise are available to the regulator.
We are working closely with the Health and Safety Executive to identify appropriate training arrangements for authorised officers. The powers available to authorised officers are very similar to existing powers available to local authority building control, the HSE and so on. We do not believe that new and further training and skills will be required, but I take on board the hon. Gentleman’s point about training.
The hon. Gentleman mentioned enforcement and penalties. We believe we have struck the right balance in the penalties that apply to the obstruction or impersonation of an authorised officer of the Building Safety Regulator. If he rereads the explanatory notes, he will see that impersonation of an enforcement officer acting on behalf of the Building Safety Regulator is subject to a fine not of £1,000, but to an unlimited fine. If someone were to obstruct the regulator or an enforcement officer, the fine is £1,000. We have created that differentiation because we want to make it clear that impersonating an enforcement officer is a much more grave offence than obstructing an officer, even though that is an important offence in itself.
Siobhan Baillie (Stroud) (Con)
I am interested in the point that the Minister is making and in how the penalties for obstructing and impersonating compare with those for obstructing and impersonating other officials.
Christopher Pincher
I am grateful to my hon. Friend for asking that question. For example, if an authorised officer of the Building Safety Regulator is obstructed, a level 3 fine of £1,000 may be levied. That compares with a similar fine for impersonating a police officer. However, given the nature of policing, the warrants held by police officers and the threats and difficulties that police forces can sometimes encounter, it is also possible for one month’s imprisonment to be imposed on an obstructer of a police officer. We have tried to make sure that the penalties are proportionate, and I trust that the Committee will agree that they are.
Having said that, I trust the Committee will see that clause 21 and schedule 2 enable the Building Safety Regulator to carry out its functions effectively, drawing on the expertise and involvement of local authorities and fire and rescue services. Clause 22, which we have just debated, enables the punishment of those who seek to obstruct or impersonate authorised officers, and I hope that the Committee will agree that these are good and proportionate clauses. I commend them to the Committee.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Schedule 2 agreed to.
Clause 22 ordered to stand part of the Bill.
Clause 23
Provision of false or misleading information to regulator
Question proposed,That the clausestandpart of the Bill.
Christopher Pincher
The Committee will see that there is a theme running through the clauses numbered 20-something. Clause 23 makes it an offence to provide false or misleading information to the Building Safety Regulator in circumstances specified in subsection (1). The Building Safety Regulator will have powers to make a number of individual regulatory decisions based on the information provided by duty holders. As such, the Building Safety Regulator’s decisions have a direct effect on the safety of residents in high-rise buildings. It is therefore essential that correct information is supplied to the regulator to ensure that the residents in the building are safe and that the proper and requisite requirements of building safety are adhered to. This power aims to deter the provision of any information that could impair the regulator’s decision-making capability.
The independent review recommended a stronger enforcement regime in line with the approach taken in the Health and Safety at Work etc. Act 1974. This offence carries a maximum penalty of an unlimited fine and/or two years imprisonment, which mirrors the maximum sentence for the similar offence in the Health and Safety at Work etc. Act. Again, that takes forward the recommendation in the independent review. The weighty custodial sentence in this provision seeks to provide a strong deterrent against the provision of false or misleading information. This is to preserve and promote the effective functioning of the Building Safety Regulator and the safety of the building and residents.
We will come on to clause 138, but it is worth referencing it in the context of clause 23. It will allow for any officer of the corporate body to be held responsible for the same offence if they participated in the offence in the ways set out in clause 138. However, it illustrates that there are similar and sufficient powers for the BSR to apply to corporate bodies, and that again mirrors the provisions in the Health and Safety at Work etc. Act. This goes above and beyond the current building safety enforcement regime and it creates a stronger incentive for those who are directing companies to provide accurate information to the BSR. I hope that the Committee will agree to the clause. I commend it to the Committee.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24>
Review by regulator of certain decisions made by it
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
I will speak first to clause 24. The Government support the independent review’s recommendation that the new regulatory system should have
“a clear and easy route of redress to achieve resolution in cases where there is disagreement”.
I suspect that, from time to time, there will be disagreements. We are committed to ensuring that, where disputes occur in relation to regulatory decisions, they are resolved as quickly as possible for all parties involved. Our fundamental and overriding objective is to make sure that buildings and the people in them are safe.
The Building Safety Regulator will make a significant number of regulatory decisions under the new legislation. The approach to any disputed decision will be two-staged: first, an internal review by the regulator and following that, if necessary, an appeal to the tribunal. It will be in both parties’ interest that an independent team within the regulator carry out an initial review of any disputed decision. This will ensure swifter resolution for both parties.
Selaine Saxby (North Devon) (Con)
The Minister has mentioned a two-tier approach, so will he clarify whether that will put lengthy delays into the whole process?
Christopher Pincher
I am obliged to my hon. Friend for asking that question. The very reason for having a two-stage process and an initial stage is to try to make sure that disputes that can be resolved quickly are resolved quickly and to minimise the number of disputes that go to the first-tier tribunal. That can be a more lengthy process. Our objective is to move as swiftly as we can through any disputes. We believe that will be for the public good.
As I have just said to my hon. Friend, clause 24 provides the legal basis for a person affected by the Building Safety Regulator’s decisions to request to have that decision internally reviewed. In the initial years of operation, we expect that there will be a substantial number of requests for review owing to the natural adjustment required by all industry actors to the new regulatory regime. We expect, and we intend, the Building Safety Regulator to make every effort to resolve disputes at the internal review stage. We believe that will be the swiftest way of achieving resolution. The right of appeal to the courts remains because individuals will be able to appeal against a decision made on review to the tribunal if they think it is unsatisfactory.
Brendan Clarke-Smith (Bassetlaw) (Con)
The Minister has mentioned appeals. Will he say more about what the Government are going to do to ensure that the regulator is transparent in those appeals and in the outcome of the reviews?
Christopher Pincher
We certainly want the system to be transparent and the outcome to be agreeable to both parties, so that things can be done as swiftly as possible. We certainly want to make sure that the right resources are made available to all parties to ensure that that can be done. I am grateful to my hon. Friend for highlighting the importance of swift and transparent resolution.
As I have said, the right of appeal to the courts remains and if I give an example of how the system may work in practice, it may assist the Committee and my hon. Friend the Member for Bassetlaw. Relevant duty holders may have submitted a full gateway-2 application with all its constituent parts. The Building Safety Regulator, however, finds some of these documents to be not compliant, so does not approve the application to enable construction to begin. The developer then lodges an appeal—an internal review—against the Building Safety Regulator’s decision within the period prescribed. The BSR then decides the most appropriate form of review and how comprehensive the review will be. If the developer is not content with the final decision of the regulator, they can appeal that decision to the first-tier tribunal. I might add that this clause is intended for certain types of regulatory decisions, such as the example of the refusal of a gateway application, but it does not include enforcement decisions, which will be appealable directly to the tribunal. The clause reflects our intention that, where disputes occur in relation to regulatory decisions, we want them to be resolved as rapidly as possible for all parties involved.
Where disputes regarding the regulator and its decisions occur, and given that the BSR will make a significant number of regulatory decisions, it is in all parties’ interests for them to be resolved in an expedient and expeditious manner. Clause 25 therefore specifies that a decision by the BSR, if disputed, must initially be reviewed by the regulator’s independent internal review procedure before an appeal can be lodged with the first-tier tribunal. The intention behind this clause mirrors that of clause 24, because it seeks to ensure swifter resolution for both the individual who has lodged the request and for the BSR by providing an alternative dispute resolution procedure. It is important that disputes are swiftly identified and rapidly resolved, we hope, to the satisfaction of all parties. We believe that the two clauses provide an expeditious set of methods, so I commend them to the Committee.
Mike Amesbury
Again, we welcome the ability to request a review and the provision for a first-tier tribunal, which will create the necessary expertise going forward. The detail of quite a lot of the provisions is left to secondary legislation, so will the Minister expand on some of that? Would he also provide some clarity on the persons directly impacted and an example of when the regulator would intervene because it is not happy with the work carried out by the developer? In what circumstances could the developer apply for a review?
Siobhan Baillie
It is a pleasure to serve under your chairmanship, Mr Efford. I am a lawyer, so I would say this, but I agree that it is super-important for disputes to be dealt with properly. That was a key plank of the Minister’s explanation of the clauses. I am also pleased that a right of appeal to the court remains, but I will be interested to hear from the Minister how the Government will ensure that the regulator reviews decisions and whether there has been any assessment of how long reviews can take. We know that the issues are incredibly complicated, so there should be some investigation into that now and an ability for the regulator to check their own homework and for us to do so too.
When a developer lodges an internal review against the Building Safety Regulator’s decision within the prescribed period, the explanatory notes to the Bill say:
“The Building Safety Regulator decides the most appropriate form of review and how comprehensive the review will be.”
If the developer is not content with the final decision of the BSR, it can appeal that decision to the first-tier tribunal and that is what we were discussing earlier. The thing that shone out for me when we heard from the witnesses, particularly those affected by building safety concerns in their own homes, was the lack of trust in a range of policies and the legislation. It is therefore incumbent on us all to create the trust so that those people are able to rely on what we are doing. We have talked about transparency in the dispute resolution process and that is obviously key, but I would like to know a little more about how we will ensure that good transparency runs through the disputes process.
Christopher Pincher
I am obliged to my hon. Friend the Member for Stroud and the hon. Member for Weaver Vale. We are clear that the process should be as collaborative as possible. We want it to be fair and transparent. When disputes arise, we envisage that the first stage of that dispute will be an informal discussion between the parties. That is normally part of the process that the HSE employs in other examples. If there is an internal review and if that is followed by an appeal to a first-tier tribunal, all those discussions and decision points will of course be publicly aired in the normal way.
What we want fundamentally to ensure is that the BSR has the flexibility to do its job effectively and to build casework and a casebook of knowledge and expertise that it can then use in cases as they develop. That is one of the reasons why—to answer the question from the hon. Member for Weaver Vale about secondary legislation—we are employing statutory instruments largely through the affirmative procedure. That will give the Commons in Committee and in the full House the ability to scrutinise, debate and vote on the issues. Fundamentally, it allows us as the Government, on the recommendations and advice of the BSR, to improve legislation rather than write it into the Bill and thus require further primary legislation should we find that events and examples arise to require that. We are trying to be flexible.
Daisy Cooper (St Albans) (LD)
It is a pleasure to serve under your chairmanship, Mr Efford. The Minister talked about internal discussions and internal reviews and, if necessary, going to the first-tier tribunal, which he said ordinarily happens under the HSE. How long might that process take? How long does it normally take under the HSE? Will he address the point made by the hon. Member for Stroud about the need to build trust into the system?
Christopher Pincher
I am grateful for the hon. Lady’s intervention. It is true to say that the first-tier tribunal element of any dispute resolution procedure can take months before a hearing is held. The tribunal is a busy organisation. It can, indeed, take a little longer, depending on the nature of the case, for a decision to be handed down. That is why informal discussion and decision between the appellant and the Building Safety Regulator are sensible in resolving smaller disputes, particularly in the early stages of the regulator’s existence when there are likely to be a number of disputes and a body of casework by which internal dispute resolution will be conducted. The two-tier mechanism is the right way of ensuring swift dispute resolution, enabling all parties to get on with their work.
Daisy Cooper
I thank the Minister for his patience on this point.
I note from the Minister’s use of language that it is “anticipated” that most cases will be dealt with informally at an early stage and that only exceptional cases will go to the first-tier tribunal. Can he assure the Committee that in the event of many cases going to tribunal and lots of leaseholders getting caught up in this lengthy, slow and bureaucratic process he will consider intervening to bring in other mechanisms to speed up the resolution of disputes?
Christopher Pincher
Without making any firm and final commitment to the hon. Lady, and as I said to the hon. Member for Weaver Vale, one of the reasons we are using secondary legislation in the Bill is to provide the Government, of whatever colour and stripe, and on the advice of experts such as the Building Safety Regulator, with the ability to make changes to the operation of the legislation as the terrain develops. As I said during our deliberations last week, we committed during the covid emergency to increase the resources of the Health and Safety Executive. It is a matter for my right hon. Friend the Chancellor to determine in the spending review the exact amount, but we have committed to ensuring that the BSR and associated bodies have the appropriate resources to do their work. We expect a material number of dispute cases to occur, at least initially as the regulator beds in. I shall bear in mind what the hon. Lady says.
I am grateful to the Committee for its questions and deliberation. Clause 24 aims to ensure that where disputes occur in relation to regulatory decisions, they can be resolved as quickly as possible, which is to the advantage of all parties involved.
Clause 25 ensures that disputed decisions must initially be reviewed by the regulator’s independent internal review procedure before an appeal can be lodged with the first-tier tribunal—again, to ensure that a degree of consistency and transparency runs through the BSR’s deliberations.
With those final remarks, I commend clauses 24 and 25 to the Committee.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Clause 25 ordered to stand part of the Bill.
Clause 26
Cooperation and information sharing
Question proposed, That the clause stand part of the Bill.
The Chair
With this, it will be convenient to discuss that schedule 3 be the Third schedule to the Bill.
Christopher Pincher
As the Committee will have heard me say earlier and, indeed, last week, the duty to co-operate is key to the approach that we are taking in the creation of the Building Safety Regulator and its powers.
At the centre of the Government’s strategy to implement our improvements to the building safety system is the setting up of the first national Building Safety Regulator. To deliver its functions effectively, it is vital that the Building Safety Regulator is empowered to work closely with other public bodies with responsibilities for building safety and standards and for dealing with residents’ concerns.
Clause 26 and schedule 3 will foster and enable that joined-up working in two ways. First, they will create statutory information-sharing gateways and duties to co-operate between the Building Safety Regulator and other public authorities that have statutory responsibilities for the safety and standard of buildings and for supporting residents. These powers will apply only to specific functions relevant to building safety and standards and supporting residents; they will never override data protection requirements.
To take a practical example, when regulating high-rise residential and other in-scope buildings, the Building Safety Regulator will typically set up a multidisciplinary team, including the local authority and the fire and rescue authority. The Bill creates legal information sharing gateways enabling the authorities expected to be represented in this multidisciplinary team to share intelligence about residents’ safety, and use it to co-ordinate their respective operational activity. It is entirely appropriate that this collaborative approach to regulation is supported by reciprocal duties to co-operate between the Building Safety Regulator and local authorities, and between the Building Safety Regulator and fire and rescue authorities. We are also taking this opportunity to provide legal clarity for local authorities and fire and rescue authorities so that they may share information about building safety and standards issues across all buildings.
Secondly, the Building Safety Regulator, certain ombudsmen and the Social Housing Regulator are all likely to receive numerous complaints and concerns from residents. The Government intend that these bodies should co-operate and work together to support residents. For example, if a resident of a high-rise residential building sends an urgent safety concern to an ombudsman to be investigated, these provisions enable the concern to be passed to the Building Safety Regulator as the body able to take action.
Brendan Clarke-Smith
The Minister mentions the duty to co-operate between the Building Safety Regulator and other regulators, and the information-sharing gateways. Will he tell us a little more about that, and why ombudsmen and the Building Safety Regulator will need to work together?
Christopher Pincher
The reason is that it is entirely possible that a resident who has concerns will send them to an ombudsman, even though the Building Safety Regulator is the appropriate repository of that concern.
An example that we will all recognise is that often as Members of Parliament we receive our constituents’ concerns because we are the easiest people with whom to raise those concerns. The appropriate place to express the concern might be the local council and a local councillor, so we share information with our local councillors when constituents raise concerns. An ombudsman who receives a concern from a local resident in a high-rise, in-scope building should be able to share appropriate information with the Building Safety Regulator, and that is what these provisions do. The police share crucial intelligence. The fire and rescue service shares crucial intelligence. It is important that the Building Safety Regulator and other ombudsmen have the same opportunity. Schedule 3 enables the sharing of information between the Building Safety Regulator and two other bodies: the police, who may need to investigate more serious criminal matters; and the Secretary of State, who ultimately oversees the building regulatory system.
Shaun Bailey
I am grateful to my hon. Friend for giving way; he is being incredibly generous in taking interventions. My hon. Friend the Member for Stroud and the hon. Member for St Albans mentioned ensuring efficiency in the broader process. Does my right hon. Friend the Minister agree that by enabling data sharing we can ensure that concerns and complaints are addressed by the appropriate person? More importantly, it brings expediency to the process so that, if necessary, intervention by the regulator can be timely and a resolution can be found.
Christopher Pincher
My hon. Friend is absolutely right. Underlying our approach is the need to ensure an efficient and expeditious method of information sharing, whereby resolution is achieved.
It is also possible that, with effective information sharing, it will be possible over time for the Building Safety Regulator to understand the data flows between concerned residents and itself. The regulator will understand why information goes to ombudsman A or ombudsman N rather than to the regulator, and that will enable it and its multidisciplinary agencies better to communicate to involved parties what the correct and therefore most expeditious route to data sharing should be. By sharing data, everything can occur more quickly and people can be better informed.
Schedule 3 contains regulation-making powers enabling the creation of limited further information sharing gateways and duties to co-operate. For example, if evidence necessitated a change to the scope of the higher-risk regime, such that it proved essential that the Building Safety Regulator co-operated and shared information with further regulators, it is appropriate that regulations enable this.
Theo Clarke (Stafford) (Con)
I am grateful to the Minister for taking my intervention. Schedule 3 clarifies information-sharing powers on building safety and standards between local authorities and fire and rescue services. Will he provide further information on how personal and confidential data is to be managed appropriately?
Christopher Pincher
We certainly do not want inappropriate data to be shared. As I said earlier, these powers and data-sharing rights relate specifically to the work in hand of the Building Safety Regulator. They do not override ordinary data privacy rules and requirements. We shall certainly—as this House will want to—monitor that that data is used appropriately.
Given the potential significance of new duties to co-operate and of information-sharing gateways, any regulations creating them will be subject to the affirmative procedure. In a Committee of the House—if necessary, on the Floor of the House—therefore, there will be an opportunity to debate and vote on them.
Placing duties to co-operate and powers to share information on a statutory footing will encourage collaborative working to improve building standards and to ensure resident safety. That will all be done as expeditiously and transparently as possible. I commend the clause to the Committee.
Mike Amesbury
We support the clause and the schedule. They are pragmatic, common sense and based on learned experience—the experience of those who were ringing alarm bells for a considerable number of months with regards to Grenfell and other tragedies before that. The evidence is crystal clear: people being passed from pillar to post and information being lost and in some cases hidden from key stakeholders. Strengthening the provisions and the regulatory regime is most welcome. In 2018, I noted, Kensington and Chelsea was again found wanting by the Information Commissioner—on withholding information about building safety in Grenfell. The Minister was right, as were others in all parts of the Committee, about building trust in the new regulatory regime. That is vital.
Shaun Bailey
I feel that my contribution might be slightly repetitive, given the broad agreement on the clause in Committee.
The hon. Member for Weaver Vale was right that the clause is pragmatic. He was spot on when he said it is about rebuilding trust in the processes. Like my hon. Friend the Member for Stroud, I trained as a lawyer and I know the frustration when bodies do not share information with one another. We have to remember—the hon. Member for St Albans picked up on this in her interventions—we are dealing with people who do not understand the systems, but will have to access them. After looking at the array of information, should someone send their concern or query to the wrong body—unaware that they had done so—we have to ensure that it is still actioned. We are dealing with situations and problems that impact on people’s lives: this is about the safety of individuals in their homes. Where that happens, we have to ensure that seamless sharing of information and co-operation between the agencies—the clause does that.
It is also right for those organisations to co-operate with one another. As we touched on last week in our deliberations, we cannot have a siloed approach. Organisations have to communicate and work together. We have to build a structure within the legislative framework that not just enables that, but to a degree ensures it happens and almost makes it the default that they have to share information, because that is the system in which they find themselves—so there is no way they can avoid doing so.
That being said, the proof of how this will work is in how it is delivered operationally. What will be vital for the regulator to do and for my right hon. Friend the Minister to work on is to ensure that the operational delivery works, that the systems are there to allow that to happen and that the communications are there, that agencies are talking to one another and we have computer systems that do not just fall down at the first moment, but can operate. Once the system becomes operational, I will be looking at how it functions.
I am heartened to see an emphasis on data privacy. We have to get the balance right. Ultimately, we are dealing with personal data. We still need to ensure the right of individuals to have their personal data safeguarded, and their right to remain anonymous, where necessary, is also important. We must ensure that data is dealt with appropriately.
It is right to handle the situation by putting a duty on the different stakeholders. The way we have had to deal with these horrendous issues has been through a multifaceted, multi-stakeholder approach, so we are going to have to build networks. As is often the case, when the networks are built, there is then pressure to ensure that operational delivery works.
I support the clause and am heartened to see what is in schedule 3. We have to ensure that the clause can deliver, and it will be for my right hon. Friend the Minister, his ministerial colleagues and the civil servants to ensure that can happen. If the clause delivers and we ensure that it works, we will have a seamless system that people trust, and people will know that if they have concerns, they will be addressed.
Ian Byrne (Liverpool, West Derby) (Lab)
It is a pleasure to serve under your chairmanship, Mr Efford. For me, this is about funding, as it was last week. We go back to delivery. As the hon. Gentleman says, this is absolutely and intrinsically about the safety of the people we are talking about, but without the funding for the organisations he mentioned—the fire authorities and the councils—it will fall down. Will the Minister ensure that the correct funding is ring-fenced for the organisations to be able to ensure the safety that is required for the people in the buildings?
Shaun Bailey
The hon. Gentleman touches on a really important point. I have a couple of points to address it. Last week, we heard from the Minister that there would be, broadly speaking, a new deal for funding. We also have to look at the procurement mechanisms that are used, in which I have a particular interest. They are really important and must be well scrutinised. We must use the procedures available in this place to ensure that that is done properly.
I was very heartened by what my right hon. Friend the Minister said last week on funding. As Members of this place, we have to ensure, in the ways we do as Back-Bench Members, that he follows through. I have found in the two years I have served as a Member of this place that funding is one thing, but making sure it is used effectively—not just properly—is another. One way to ensure that the organisations to which we say, “Right, build me a system,” can do that is to have the guidance in place, if, for example, we are talking about the systems that will have to be developed. The fire authorities’ primary function is to protect people. They are not whizz kids at building IT systems. We need to ensure that there is a method by which that could be done.
Equally, as I am sure the hon. Member for Liverpool, West Derby will agree, local authorities have many different duties. I think of my own local authority, Sandwell. It could have one department doing four things at the same time. They have to prioritise. They cannot be procuring systems at the same time as dealing with building safety. There has to be a way.
The clause has triggered a broader conversation. I want to stay within scope and I do not want to stray too far, but when we think about how we ensure co-operation, clause 26 highlights that there are broader discussions about ensuring that is done in the right way. I do not disagree with the sentiments expressed by the hon. Member for Liverpool, West Derby on funding. The Minister touched on that last week. Let us see how that goes, and scrutinise it. Ultimately, it is about processes working.
This is the right clause. Sharing data and information will be important, but it is about ensuring that that can be done properly and that the systems are there. I am absolutely sure that my right hon. Friend will do his best to ensure that that happens in the best way possible.
Christopher Pincher
I am grateful to my hon. Friend the Member for West Bromwich West and other members of the Committee for their contributions. As a former IT professional, I spent 18 years implementing IT systems, so I will certainly not commit to this Committee or beyond that all the IT that the HSE and its associated bodies may use will work optimally all of the time. However, we certainly want the Building Safety Regulator to work optimally all of the time.
My hon. Friend the Member for West Bromwich West mentioned the importance of the propriety of data and its use. We want to ensure that data and information can be shared effectively even if they are sometimes of a confidential nature where residents’ safety is concerned. The Bill allows certain public bodies to share information with the Building Safety Regulator, but it does not require them to do so. The ombudsman, of whichever source or nature, will be able to make decisions about what information to share based upon individual circumstances. When, for example, it appears that lives are at risk, we believe that it appropriate that the information could be shared with the Building Safety Regulator. That is why the shadow Building Safety Regulator in the Health and Safety Executive has already started to work with other public bodies to identify the sorts of detailed safeguards that will be required to ensure that personal information is appropriately protected, while issues that might pertain to risk to life are also fully understood so that data are properly and proportionately shared.
Shaun Bailey
I am incredibly grateful to my right hon. Friend; he is being generous in allowing me to intervene. Given his expertise as an IT specialist, does he not agree that one of the key things that we must do across Government when we implement these systems is take a lessons-learned approach? Will he assure me that he has looked in detail at some of the previous occasions when we have tried to implement such systems and that he will ensure that his officials will take away the lessons so that we can support the agencies in the most effective way possible as we set up the system?
Christopher Pincher
Once again, my hon. Friend flatters me in his description of my expertise. I have certainly had some experience of IT programmes in the context of Government that have gone awry. The national IT programme, Connecting for Health, is just one example. I certainly agree to keep a gimlet eye open on the way IT is deployed in this and other circumstances while still recognising the operational independence of the agency and the Building Safety Regulator.
My hon. Friend is right to ask for lessons learned. That segues nicely into the point made by the hon. Member for Weaver Vale when he talked about the importance of learned experience in the context of Grenfell. He is right. That is one of the reasons we want to make sure that the Building Safety Regulator and the associated multi-disciplinary teams have the flexibility to learn. Again, that is why we want to use effectively secondary legislation and regulations rather than primary legislation so that there is the flexibility to build the new authority.
The hon. Gentleman mentioned the challenges of withholding information, and I refer him back to clauses 22 and 23 when we dealt with that issue and made it very clear that withholding information is a grave offence that can be punishable by a fine. He is right also to stress the importance of trust and flexibility. Again, that is a reason why we want to build the multi-disciplinary teams so that the BSR can co-operate with other expert parties. That will help to build the confidence of residents in high-rise blocks as well as that of developers, large and small, and those involved in the construction industry that there is the appropriate degree of co-operation and trust.
Mike Amesbury
There are a number of live applications to the building safety fund, and this is a practical plea on behalf resident leaseholders that many in the Committee will be familiar with. The information on progress is not being shared, and that is a genuine building safety issue that causes considerable anxiety. It has been raised on the Floor of the House, and it is relevant to the discussion that we are having now. It is a practical plea that many residents and leaseholders up and down the country have raised.
Christopher Pincher
I shall expand a little on the scope of this debate to answer the hon. Gentleman very briefly. He will know that we have put aside £1 billion of public money for the building safety fund, and a significant amount has now been disbursed. If there are specific examples of challenges around information being shared or the speed of delivery being effective, I will be happy to look at them.
In summary, clause 26 and schedule 3 will empower the Building Safety Regulator to work closely with other public bodies with responsibilities for building safety and standards. They will encourage collaborative working to improve building standards and ensure residents’ safety.
I am very grateful for the contributions that we have heard from across the Committee but, before I conclude, I should refer to the hon. Member for Liverpool, West Derby who asked about resources. He will know from our deliberations last Thursday that I made it clear that we have increased the resources available to the Health and Safety Executive by 10% of its total budget during the covid emergency. We have also committed to make sure that the Building Safety Regulator is appropriately funded. That is a matter for the spending review, but we have also—he will have seen this as we have progressed through the Bill—put in place clauses that will allow the Building Safety Regulator to charge and levy fees on appropriate parties to ensure that cost can be recovered. I hope that will give him some assurance that we have at the forefront of our minds appropriate funding to ensure that the Building Safety Regulator can do its work.
I commend the clause to the Committee.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Schedule 3 agreed to.
Clause 27
Fees and Charges
Christopher Pincher
I beg to move amendment 7 in clause 27, page 14, line 24, after “fee” insert “or charge”.
The Chair
With this it will be convenient to consider Government amendment 8 and clause 27 stand part.
Christopher Pincher
Let me begin by speaking to amendments 7 and 8. They are minor and technical, and they align the language on the charging powers in clauses 27 and 56—the hon. Member for Liverpool, West Derby will be taking close note—by inserting additional references to charges alongside fees. We will say more about that in future. The intention is to avoid any unintended ambiguities or inconsistencies in the charging provisions created by the Bill. The context is that clause 27 contains important provisions enabling the Secretary of State to introduce regulations that enable the Building Safety Regulator to charge.
Charging powers are necessary to deliver Dame Judith’s recommendations in the independent review that the regulator should charge, and to put the regulator on a sound financial footing. The amendments ensure that there is no ambiguity that regulations under clause 27 can allow the Building Safety Regulator to make charges as well as levy fees. Charges are a slightly broader concept than fees, because fees typically relate to a service. Someone provides me with a service, so I pay them a fee. A charge could go wider by covering additional activities, such as regulatory interventions needed to bring the regulated party back into compliance with the regime. The recommendations of the independent review indicated that where possible, regulated parties should bear the cost when their behaviour results in additional regulatory activity. When the regulated parties have caused such activity, they should potentially bear the cost. We therefore want the Bill to allow charges that meet the recommendations of the independent review to be applied. Fees and charges provided for in regulations under clause 27 will of course remain within the bounds set by “Managing Public Money”.
Let me turn now to clause 27 itself. The Government are committed to ensuring that the Building Safety Regulator receives the funding required to enable it to deliver.
Christopher Pincher
The hon. Gentleman is attempting to lead me down a path that I suspect he will return to later in the Committee’s deliberations. As I said, we want to ensure that should a regulated party engage in behaviour that results in additional activity for the regulator, the regulator should be able to charge. I will confine my answer to that very specific set of grounds.
Mark Logan (Bolton North East) (Con)
It is great to serve under your chairmanship, Mr Efford. Will the Minister explain a little more how leaseholders will be protected from unfair charging in relation to regulator fees?
Christopher Pincher
Yes, of course. Let me be really clear—we will discuss the building safety charge specifically in future deliberations—that we certainly do not want such costs to be passed on to individual residents or leaseholders. The point of the clause is to ensure that where regulatory activity is required by the Building Safety Regulator as a result of an identified party’s actions, that identified party pays for the cost. That certainly should not be passed on to leaseholders or other residents.
Shaun Bailey
I am incredibly grateful to my right hon. Friend for giving way; his characteristic generosity is shining through. I do not wish to lead him astray, but I am conscious of the broader spirit of what we are debating. We have just deliberated over clauses that talk about fines and sanctions. Will my right hon. Friend consider using the funds raised from that, and ensuring that they can be fed through to the regulator? I am sure he will agree that when it comes to funding, a holistic approach is a good way to ensure that we can maximise the resources this vital regulator needs.
Christopher Pincher
I will make some remarks about that as I advance through my speech on clause 27, but we certainly want to make sure that the Building Safety Regulator can recover associated costs from the regulated parties involved.
The independent review recommended that the regulator for buildings in scope of the new and more stringent regulatory regime should fully recover its costs from those it regulates. The recommendation reflected that duty-holders who require the most intervention by the Building Safety Regulator should pay more. The principle of charging within the building safety regulatory system is not new. Local authorities can already charge for building control work under the Building Act 1984, as can approved inspectors. The Bill needs to enable the charging of fees by the Building Safety Regulator, both to implement the independent review’s recommendation and to put the Building Safety Regulator on a firm financial footing.
Brendan Clarke-Smith
May I say once again what a pleasure it is to serve under your chairmanship, Mr Efford? My right hon. Friend mentioned the independent review’s recommendation that the regulator for higher risk buildings be funded by this full-cost recovery approach. Can the Minister explain why the Building Safety Regulator is going to charge fees and how those fees compare with those of other regulators?
Christopher Pincher
The Building Safety Regulator will charge fees in the normal way, and there will be a mechanism to levy that charge on an identified party. It will be the identified party’s responsibility to pay in the normal way. The fees are consistent with the sorts of fees that are paid through other regulatory mechanisms that local authorities, for example, employ, too. That comes with the caveat that we want to ensure that full-cost recovery is achieved by the Building Safety Regulator, so the charges will rather depend what the costs are. I trust that if there are charges for additional regulatory activity on the part of the Building Safety Regulator, it is in the interests of the identified parties not to cause that additional regulatory activity. That is another means of ensuring that everybody behaves appropriately.
Clause 27, alongside clause 56, provides the legal basis for the charging of fees by the Building Safety Regulator. It enables the Secretary of State to make regulations authorising the Building Safety Regulator to charge fees and recover charges from those it regulates.
Christopher Pincher
As I wish to maintain my 100% record of interventions, I will give way on this occasion.
Christopher Pincher
We will discuss the building safety charge in later clauses. I will make it absolutely clear at that point how appropriate costs may be passed on to leaseholders, what the caps are and what it is not appropriate to pass on, such as the examples I am giving here.
Christopher Pincher
I am grateful to the hon. Lady.
The clause enables regulations to be drafted to allow fees to be charged for the Building Safety Regulator’s general functions in part 2 of this Bill, its functions regulating the higher-risk buildings in occupation and its functions under the Health and Safety at Work etc. Act 1974. The Government’s approach will ensure that fees and charges are appropriate. In line with the principles set out in “Managing Public Money”, the Building Safety Regulator will not make a profit on fees and charges for its regulatory activities. They are merely a means of cost recovery.
Setting out fees in secondary rather than primary legislation and allowing the Building Safety Regulator to put certain details in a charging scheme will ensure that fees can change over time. I hope that helps to address the questions that my hon. Friend the Member for Bassetlaw asked.
Initially, the Building Safety Regulator will have to use assumptions to develop fees, but once set up it is standard practice for a public body setting a fee for cost recovery to recalculate fees based on actual experience. This allows the regulator to learn from experience and change the way it charges fees over time to ensure they are both effective in recovering the appropriate amount of money, and proportionate and fair to those charged. Making provision for fees in regulations allows for regular scrutiny of proposed charges through consultation and, importantly, by Parliament. To deliver the recommendations of the independent review and put the Building Safety Regulator on a firm financial footing, we expect that the regulator will charge the accountable person for regulating their actions under part 4.
We will have an opportunity to debate all the issues about which costs the accountable person should fairly be capable of passing on to leaseholders when we come to part 4. However, I will briefly reassure the Committee that part 4 of the Bill ensures that any costs associated with enforcement action by the Building Safety Regulator or resulting from any negligent or unlawful act by the accountable person cannot be passed on to leaseholders through the building safety charge, so the potential costs we are talking about in the clause cannot be passed on to a leaseholder in that way.
That safeguard provides a financial incentive for the accountable person to do the right thing, as I indicated to my hon. Friend the Member for Bassetlaw, because the accountable person will bear the Building Safety Regulator’s costs when it has to tackle serious failures. The Government are working closely with the Health and Safety Executive to develop these proposals, building on its strong track record of successfully delivering cost recovery regimes—a track record that dates back to 1975, so it has some 46 years of experience.
The Health and Safety Executive rightly aims for the Building Safety Regulator to become a world leader in its field and to share best practice and expertise with international partners on a commercial basis. That is another means by which some funds can be raised. Subsection (6) enables the Secretary of State to approve commercial charging by the Building Safety Regulator. This power will be used only with the consent of the Secretary of State and in line with Government guidance on charging.
We believe the clause is vital to ensuring that the Building Safety Regulator has the funding required to enable it to do its critical work, that the accountable parties do the right thing and that any costs associated with these clauses are not passed on to leaseholders or residents through the building safety charge. I commend the clause and the amendments to the Committee.
Mike Amesbury
I thank the Minister. The amendments are a tidying-up and technical exercise that we quite naturally support. I heard what the Minister said about fees and charges, and obviously there have been a number of questions about those fees and charges potentially being passed on to leaseholder residents. I know that where there is a regulatory failure, and fees and charges are passed on to the accountable person, those cannot—I am seeking clarity on this one—be passed on to leaseholders. Is that the same for service charges as well?
Shaun Bailey
This might seem quite a technical clause and set of amendments, but it is an important one. I speak as the Member for the 14th most deprived borough in the country. I am conscious that we have to strike a balance, and I was quite reassured by what my right hon. Friend the Minister said.
Starting from the beginning, it is not uncommon for bodies to charge fees in respect of their activities, where necessary, and in particular bodies that exercise a function such as the regulator. In a way, clause 27 and the accompanying amendments are not uncommon in the nature of what we are discussing. The broader point, which has been made by Members on both sides of the Committee, is that we have to ensure proportionality. That was the key point made by the hon. Member for Weaver Vale.
We need to find a way to ensure that the regulator itself is financially stable and can carry out its work properly; it has to be able to undertake tasks that will be so important in keeping residents safe, and in ensuring that the industry knows it is being regulated and watched. A lot of the detail will be set out in secondary legislation, and it will be incumbent on all of us across the Committee to grasp the detail of that to ensure that it is done in the right way. I think of the leaseholders in my constituency who would not be able to afford ridiculous levels of service charge; it would not strike them as proportionate. However, there is clearly a balance to strike.
I listened to the intervention from the hon. Member for St Helens South and Whiston. She is a distinguished former council leader, and at some point she will have had to make decisions about what to charge for council services. It is difficult, when leading a public body, to decide how to balance those charges with the needs of the public. I do not envy anyone in that situation. Ultimately, we all agree that we want to deliver a public service in the way that has the least impact on the livelihoods of the people trying to use it. They are taxpayers too; they want to feel that they receive that public service when they pay their taxes.
Clearly, as my right hon. Friend the Minister has articulated, the key principle is ensuring that the regulator can carry on. What I am trying to express to my right hon. Friend—something that he has articulated in his contributions—is the need to be open-minded in terms of how that operates. We all accept that there has to be a fee-charging regime, but we have to ensure that it is proportionate and accepts the fact that the people at the right end of that are leaseholders and residents, and those are the people we are here to protect and serve. We need to make sure there is the right balance. I get the impression from the contributions made from across the Committee that there is acceptance that this has to be done. It is probably broadly agreed that the methods proposed in the clause are the way we need to do this but, as with much of our deliberation of the Bill thus far, the detail will come afterwards in the secondary legislation.
I am conscious of the need to ensure that we have a regulator that is well funded but that does not impact too much. We want to encourage proper behaviour in the marketplace. It is important in this clause to ensure that that is done in the right way. I support the Government amendments and the clause. I am heartened by what my right hon. Friend has said thus far and I appreciate that we will deliberate further on these matters: I do not want to be called to order. I just want to get on record that we should keep as open a mind as possible as we progress, but the detail, particularly with clause 27 and the amendments, will be in the secondary legislation, which I await with interest.
Christopher Pincher
I am grateful to my hon. Friend for his contribution and for the interest that the Committee has taken in this clause. The hon. Member for Weaver Vale asked about service charges, which are a well-established regime separate from the one that we are discussing here. I can reassure him on the question of costs. We recognise that the costs of the regulator will be a small fraction of the building safety charge and we will discuss that in greater detail under the appropriate clauses. To reiterate my earlier point, the Bill ensures that fees associated with breaches of the new regime can never be passed on to leaseholders. That is to ensure that the accountable person pays the costs of the wrongdoing and not the leaseholder. I hope that that is clear.
Clause 27 provides the legal basis for the charging of fees by the Building Safety Regulator, which is vital to ensuring that it has the funding required to enable it to deliver its critical work. Government amendments 7 and 8 ensure that there is no ambiguity about regulations under this clause allowing the Building Safety Regulator to make charges to identify parties as well as fees. I commend amendments 7 and 8, with clause 27, to the Committee.
Amendment 7 agreed to.
Amendment made: 8, in clause 27, page 14, line 25, leave out “to be or” and insert “or charge to be”.—(Christopher Pincher.)
Clause 27, as amended, ordered to stand part of the Bill.
Clause 28
Service of documents
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
Clauses 28 and 29 are quite short, and concern how documents will be validly served by the Building Safety Regulator. Clause 28 is a technical provision, setting out how documents will be validly served, whether physically or electronically, on and by the regulator, in connection with its functions under parts 2 and 4 of the Bill.
It may assist the Committee if I point out that service of documents under the Building Act 1984, as amended by part 3 of the Bill, is dealt with in section 94 of that Act. Section 94 is itself amended by paragraph 58 of schedule 5 to the Bill, to modernise it and take account of the regulator’s role as a building control authority. We are amending an amendment to another Bill. The effective provisions of clause 28 essentially mirror what is already in the Building Act, but updated to reflect changes in practice since 1984.
Turning briefly to clause 29, this provides key definitions used in part 2 of the Bill, and provides for a specific place within part 2 as a helpful index of the terms contained within it.
Christopher Pincher
Without pressing the Committee further, I shall conclude my remarks there and commend it to the Chamber. The hon. Lady may wish to make a speech.
The Chair
If you put it in the form of a speech, then I am sure the Minister will have the courtesy to respond to you.
Mike Amesbury
Again, we have moved on considerably since 1984. If we take our minds back to 1984—I notice that some probably cannot—we have since seen the development of emails and various other things. This certainly brings those provisions up to date, with the narrative descriptions contained in clause 29. I will give way to my hon. Friend and colleague.
Ruth Cadbury
I thank my hon. Friend, and it is a pleasure to serve under your chairmanship, Mr Efford. I wanted to pursue the question, which I raised with the Minister last week, on the definition of a residential building. Is it anywhere where one sleeps overnight—whether temporary, permanent, or one’s sole residential home? I listed a series of residential spaces that do not come under the definition of a normal tenancy or leasehold property, such as student accommodation, other forms of residential licences, hotels, guest houses, and so on. I wondered whether my hon. Friend the Member for Weaver Vale could pursue this with the Minister in his contribution, referring to subsections (1)(a) and (1)(b) of clause 29.
Mike Amesbury
I thank my colleague for her intervention. I am fairly confident that the Minister will oblige by furnishing her with an answer, if not now then soon.
Shaun Bailey
I am sure that many on the Committee are wondering what on Earth I could have to say about the service of documents. I would, of course, have given way to the hon. Member for Brentford and Isleworth. I was hoping to rise to put an important question to the Minister, but I am glad that the hon. Member for Weaver Vale was able to help the hon. Lady.
I know this is an incredibly technical clause, but I speak from some painful experiences around service of documents in my previous life. While it might seem straightforward and we look at the clause and think, “OK, fair enough. It is very prescribed and descriptive”, I must say that having explained how service of documents works to numerous people, that is not the case.
My right hon. Friend the Minister articulated incredibly well how it will function. On the face of it, it is straightforward. We look at subsection (2) on how documents may be given and think, “OK, that seems pretty straightforward to me”. I implore him—I hope I am not going astray, Mr Efford, but I am sure you will tell me if I am—that we must ensure this is communicated to the people who will be utilising it. These are people who may not have a lot of experience of how documents are served. They are not doing this all day, every day. From my past life, I know the pain of having people who do not have the experience and are trying to do this themselves, and it causes issue after issue.
One thing that may come out of this, which touches on some of my previous comments, is around the idea of data share and co-operation. Without sounding flippant, the documentation we served and the information that would be exchanged using the process will be an important part of a vital regulatory process. It is vital that we ensure that is communicated as clearly as possible and the individuals who use the processes laid out in clause 28 understand how that operates. I do not want to see circumstances where legitimate problems and concerns are delayed because of a misunderstanding or issue with the process.
I reiterate my concern that if we do not ensure the provisions of clause 28 are translated down in a usable way to individuals, we run the risk of processes we have built up to now and have deliberated in previous clauses not being as effective as we would like.
I am glad that the clause understands that times have moved on. Gone are the days when things were couriered round. Email has been revolutionary. I remember from my professional life having to run round to another firm’s office to serve stuff. I was the junior so I made tea and served documents.
I am happy to see an understanding that the provision can be amended under subsequent regulations too. We have to be conscious that time and technology moves on, and we must ensure the process can continue and still function as things progress. While this may seem to be a very technical clause—I hope I have answered the question as to why on Earth I am speaking on this particular point—it underpins the importance of this process. Ensuring that the service of documents is done in a clear way and that those who utilise the process, from the large corporations down to the individual, understand how it functions properly will be key to ensuring that everything we have done up until now functions appropriately. I am heartened by the Minister’s contribution and he was very clear. I am glad to see that, as with most clauses in the Bill, there is a degree of flexibility in clause 28, and it is a vital part of this important Bill.
Christopher Pincher
I am obliged to my hon. Friend the Member for West Bromwich West. Let me assure him that it is our intention through the clause to ensure that neither he nor anyone else has to jump on their moped and serve papers in a rather more 1984 way than they may ordinarily have to, given that now, as the hon. Member for Weaver Vale rightly identifies, email and modern methods of communication allow for a much more speedy and clear way of serving documents. We want to ensure that the law reflects that.
On the questions raised by the hon. Member for Brentford and Isleworth about in-scope buildings, I do not want to stray on to other amendments and clauses unduly, but let me to try to help her by reminding her of what I said last week. In-scope buildings are high-rise residential properties of seven storeys, or 18 metres, or more. Other in-scope buildings include care homes of the requisite threshold and student accommodation, for example, because we have said that such properties need to have two or more dwellings. She offered a list of other potential properties. I think she mentioned hotels, which are covered by the Regulatory Reform (Fire Safety) Order 2005, and which tend to have a number of entrances and exits, and fire doors. Equally, prisons are covered by the 2005 order. I think there are seven immigration centres in the country, and none of them meets the height threshold that we have set out.
We have tried in all circumstances to act in a proportionate way that follows the advice and direction given to us by the independent review and Dame Judith Hackitt’s 53 recommendations. That does not, of course, preclude future changes to the Building Safety Regulator’s responsibilities. We have outlined how that may be done, and I am sure that we will go on, in further clauses, to do more of that. I hope that gives the hon. Lady some clarity on her question, which she managed, if I may say—tongue in cheek—to shoehorn into this clause. It is a skill not unknown to many of our other colleagues. I think that you have been guilty of that, Mr Efford—or rather, you have demonstrated the skill—in another context.
I remind the Committee that the clause essentially mirrors one that is already in the Building Act 1984. It updates it to reflect the changes in practice, as well as technology, since 1984, while clause 29 defines key definitions used in part 2 of the Bill, which we will further come to. They are technical clauses, which have none the less generated some interesting and, if I may say so, skilful debate, and I commend them to the Committee.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
Clause 29 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned.—(Scott Mann.)
Adjourned till this day at Two o’clock.
Health and Care Bill (Tenth sitting)
Tuesday 21st September 2021
(3 years, 3 months ago)
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The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 5 - Question accordingly agreed to.
The Minister for Health (Edward Argar)
As I said this morning to Mrs Murray, and I will repeat this afternoon for your benefit, Mr McCabe, it is a pleasure, particularly following the reshuffle, to still be serving under your chairmanship.
Clauses 34 and 35 would allow the Secretary of State to confer the exercise of his public health functions on NHS England or integrated care boards, and would allow those functions to be further delegated or subject to other collaborative arrangements, as defined elsewhere in the Bill.
Clause 34 substitutes proposed new section 7A for the existing section 7A in the National Health Service Act 2006, originally created as part of the 2012 health and care reforms, and amending the 2006 Act. To date, section 7A has been used to support the commissioning of key national NHS public health programmes, including our world-leading screening and immunisation programmes. The Government’s intention is that it should continue to do so. These public health services are embedded within, or have a clear affinity with, local NHS delivery mechanisms—a clear example being the delivery of childhood vaccinations by general practitioners.
Proposed new section 7A fulfils the same purpose as the original, in that it enables the Secretary of State to delegate the practical exercise of his public health functions to other bodies, but it is updated to keep pace with the thrust of the Bill and enable a wider range of delegation and collaboration arrangements. Not to do so would risk leaving public health programmes behind, with unnecessary restrictions on, for example, the range of bodies that could enter collaborative arrangements. The clause also consolidates amendments to section 7A made previously by the Cities and Local Government Devolution Act 2016 in respect of inclusion of combined authorities as bodies to which the exercise of public health functions may be delegated.
In addition, to ensure that the delegation or joint exercise of functions does not lead to reduced accountability for delivering services, we have proposed appropriate safeguards that make further provision on joint working and delegation arrangements. For example, the Secretary of State will be able to set out in regulations which functions can and cannot be delegated, impose conditions in relation to the delegation or joint exercise of functions, and specify the extent of such arrangements. Furthermore, the parties will be able to agree terms regarding the scope of the delegation arrangement. NHS England will also have the ability to issue statutory guidance in relation to functions that are being delegated or jointly exercised under those provisions. Subject to those safeguards, the clause supports the aims of greater health and care integration and a focus on improving population health outcomes.
Clause 35 introduces a new power for the Secretary of State, by direction, to confer the exercise of any of his public health functions on NHS England or ICBs. The clause, again, goes with the grain of the Bill more generally in resetting the relationship between the Secretary of State, as rightly accountable to Parliament, and an enlarged NHS England with an expanded set of responsibilities, which include direct commissioning and oversight of some health services.
The Bill is moving away from a focus purely on competition, and is instead re-emphasising the value alongside it of integration and collaboration. That includes being very clear on the role that the Government have to play. To that end, there is a suite of proposals in the Bill that assert the Secretary of State’s ability to intervene, set direction and make decisions, not as a substitute for clinical expertise, but in setting that clear direction and being accountable. I suspect that, if not on these clauses, then on those we will debate in a moment, that will come to the fore in our discussions.
Clause 35 is, to an extent, illustrative of that and relates closely to, for example, clause 37’s power to direct NHS England. As the law stands, and indeed as it would stand with the changes proposed by clause 34 alone, the Secretary of State’s ability to delegate the exercise of his public health functions effectively depends on securing agreement with the body being delegated to. That arrangement has generally worked well since its inception as part of the 2012 reforms, and as far as possible the Government intend to continue to operate in that way. However, the power gives Minsters a backstop if agreement is not reached in a timely way or is unreasonably withheld. It also enables them to give clear instructions where needed or where it would be more efficient to provide a direction rather than set up a whole arrangement.
Delay and confusion can and do affect the health of those relying on public health services, so the backstop power reflects the proper relationship, as we see it, between the Secretary of State and the public health system. It also sits alongside other mechanisms, notably regulation-making powers, in relation to local government’s exercise of public health functions. However, it is important to emphasise that directions must be published as soon as practicable, and the power would, of course, have to be exercised within the normal bounds of ministerial decision making, accountability and transparency.
Furthermore, any decision to exercise the power will be premised and guided by general public law principles and in line with the Secretary of State’s general statutory duties. Those duties will of course form part of any Secretary of State’s reasoning on whether it would be appropriate to exercise the power. In particular, they would need to consider section 2A(1) of the NHS Act 2006. As such, the Government believe that clauses 34 and 35 embody a proportionate addition to the Secretary of State’s powers.
Alex Norris (Nottingham North) (Lab/Co-op)
As the Minister says, the clauses relate to public health. We might previously have anticipated that the hon. Member for Bury St Edmunds (Jo Churchill) would have fielded them, but obviously she has moved Departments. I want to take this opportunity to put on record my thanks to her for her service as Public Health Minister. We worked well together, particularly in the proceedings on the Medicines and Medical Devices Act 2021. We have disagreed over the course of our work, and that is good—disagreement is good in a democracy—but we always disagreed well. I wish her well in her new role, although I might highlight the irony that, after all the work she did in public health to reduce fizzy drinks consumption, the top of the order of business at the Department for Environment, Food and Rural Affairs at the moment is presumably trying to restore carbon dioxide supplies to get those fizzy drinks going again—I am sure she will seek for them to be sugar-free, if nothing else.
Today is also my first opportunity to formally congratulate and welcome the hon. Member for Erewash (Maggie Throup) to her new role as Public Health Minister. I have long thought that it is pretty much the best job in Government, and gives the Minister the chance to shape and improve the lives of millions, if done well. From my work with her as a near neighbour, I know that she will give the job her all. I look forward to working with her and scrutinising the work that she does.
Of course, the job of Public Health Minister has been made an awful lot harder by the preceding decade. The other day I spoke about the bill for a decade of austerity falling due, and that is manifest nowhere more than in the provision of public health services and the impact of cuts on those services. In his introduction to these clauses, the Minister characterised the legislation as protecting the status quo, but the status quo relative to where we were in 2012 is very different: public health funding for 2019-20 was down 15% on where it was prior to the changes in the 2012 Act. If we set that against a growing and ageing population and all the attendant extra spending challenges that go with that, the real-terms impact is much greater. That has meant significant cuts: a cut of nearly half for support for health at work, the place where many of us will fall sick; a cut of a quarter for NHS health checks, a core preventative tool; and a cut of a quarter for smoking cessation programmes, despite how effective they are. Of course, the areas with the greatest needs have suffered the most and experienced the greatest cuts. Those cuts do not even fall equally.
For all the talk that we hear from the Government about prevention—we see it in these proceedings, the White Paper and the Bill—the reality is that Government policy over the last decade has made things much harder for our health system by creating extra demand. That is devastating not only for those individuals who have missed out, but for the system too. There is much greater demand on our health system as a result of the decisions that we have taken, and that is sad.
We have talked a lot about the 2012 Act, and much of what we are doing in Committee is removing its provisions, because they were not very good. However, one area where there seems to be no disagreement—no suggestion from the Government or the Opposition that we might change the position—is the idea that public health should go back home to local government. That is still an area of consensus that we can build on—of course it is. It means that our excellent public health staff, spearheaded by our world-class directors, can influence not only traditional public health-type services, but the whole range of services that shape the public’s health: licensing, planning, leisure, social care and much more—all those important things our local authorities do. It is just a shame and a wasted opportunity that this period has been characterised by cuts, particularly to those with the greatest need, rather than by investment in our communities.
I shudder to think of two things. The first is the amount of time that those skilled staff have spent on what is euphemistically called “service redesign” but is actually cuts. What could that amount of wasted time have been better spent on? The second is the professionals in that field who have chosen to leave because they do not want to be part of that. That is a real shame, and has really hindered our approach to tackling public health.
The Opposition do not intend to divide the Committee on clauses 34 and 35; at the end of the day, we would much rather that public health funding was spent at a local level than at a national one. We think it will have greater impact, and frankly we can get better value from it by combining it with local services. However, I want to test the clauses a little, starting with clause 34.
What we have seen in proceedings so far—I think this is sitting 10—is that, in reality, this is not an integration Bill; it is an NHS reorganisation Bill under an integration banner. I heard the Prime Minister himself promising a further White Paper, and presumably a further Bill, on integration in the future. The Minister has said that this Bill paves the way, but this was never a paving Bill. I challenge anybody to find in the White Paper or any publication from the Government relating to this piece of legislation the word “paving”—that is, until the Minister introduced it after the Prime Minister’s rather unhelpful intervention.
We heard from the Minister himself, when explaining to the Committee why a councillor cannot chair an integrated care board, that NHS bodies do not permit councillors to do so. He is telling us that this is about NHS bodies, not about partnership bodies. These are NHS bodies; they are accountable to NHS England and they can be altered by NHS England.
It has been a settled point of public policy for the past decade that public health is delegated to local authorities, for all the good reasons I mentioned. This may well be just my understanding, but I do not want to let this clause go without testing it: proposed new subsection 7A(2) provides for the range of eligible bodies that the Secretary of State can delegate the powers to. The first is NHS England, which would make sense in the case of big, national programmes such as the ones the Minister talked about in terms of vaccination. Another is a local authority, which makes sense for all the reasons I have given.
Yet another is a combined authority, which I suspect was not a feature of the 2012 Act—I do not think, although I might be wrong, that combined authorities were yet a twinkle in a local government leader’s eye at that point. However, with a combined authority, any arrangement would surely be by the consent of its members, rather than by delegation to the combined authority itself. Combined authorities are generally skeleton structures that act as an agglomeration of interested parties, rather than significant entities in themselves, so surely a local authority would receive those powers first and then, by agreement, transfer them to combined authority level with its partners.
Finally, there is an integrated care board. What is the reason for that? If these things get delegated to local government, why would they be delegated to an NHS body? Is that not an attempt, rather than repealing the provisions in the 2012 Act that moved public health back to local authorities, to do it on a de facto basis without addressing the point? That might be an unintended consequence, so I hope the Minister will address that and say that that is not the case.
Last Thursday, we dealt with the counterpart conversation to this one. We have debated multiple times the provision for health functions of the Secretary of State or NHS England to be delegated to the integrated care boards. That is in the spirit of what this legislation is about— local decision making—but at no point was there ever a proposal for any of those functions to be delegated to a local authority or combined authority. That, again, gets to the root of the problem with this Bill, and the core reason why the Government’s frequent integration efforts stall, spin their wheels and do not go anywhere. Local authorities are not treated equally, whether that manifests in social care—a very visible inequality in our health system—or in public health, as in this case. They ought to be equal partners, but they are anything but. Again, I hope the Minister can address that issue.
Edward Argar
The shadow Minister has made a number of serious points—I am not sure how one spins the wheels when the car is stalled, but none the less I took his point. First, at the heart of this Bill is the fact that we seek to strike the appropriate balance between what is clearly a national health service, accountable to the Secretary of State and Parliament, and local flexibilities and local integration. The debate we will have for the next two hours or so will probably be about whether we have struck that balance appropriately, but that is the core of what we are seeking to do here.
The hon. Gentleman rightly talked about the importance of local authorities in this space. He and I share a common view on that, and he is right: one of the few things in the 2012 Act that I suspect he would have agreed with was the recognition of the public health function of local authorities. We are not seeking to do anything in the Bill to undermine that function in any way. It will not surprise the hon. Gentleman to know that I believe that the Bill provides for multiple layers of integration. Within a local NHS system, at an ICB level and then at an integrated care partnership level, there will be increased integration with local authorities and others, laying the foundations for the ambitious programme that the Prime Minister set out when he spoke earlier in this Session about the health and care levy.
The hon. Gentleman spoke about combined authorities. My recollection—I may be wrong—is that they date to about 2016, rather than 2012, and my understanding of the power is that it does not go against what he was saying, but provides for the continued evolution of the system and enables that delegation to take place. In practical terms, I would envisage that, where local authorities combine and work together, they would have their own arrangements, and we are not seeking to cut across those local working arrangements.
The hon. Gentleman also talked about the ICBs, saying that they are NHS bodies and asking whether this is a threat to local authority delegation of public health functions. My reading of that is that, as I mentioned in my opening remarks on these clauses, there are some public health functions that are NHS and delegated through CCGs, such as GPs participating in child immunisation programmes—hence the reference to ICBs, because they will be replacing CCGs in the new world.
Understandably, the hon. Gentleman talked about funding for public health. On his comments about the bigger picture on funding and spending levels more broadly, I simply remind him of the note left by a previous Chief Secretary to the Treasury:
“I’m afraid there is no money.”
We cannot get away from that context in this space, but more broadly he is right to highlight the importance of public health. The past 18 months have shone a light on public health; under Governments of all political complexions, public health has not always enjoyed that prominence in public debate, external media and other commentary. One thing that I hope will follow on from the terrible events we have endured over the past 18 months is a greater understanding and appreciation of public health and its measures, and for public health to enjoy the support it needs to do its job. I think all Members would agree that one of the few positives has been the recognition of the value of public health and prevention.
I think that those were the main points that the hon. Gentleman raised. I see these clauses as permitting a further evolution of the system and a recognition of the need, ideally, where we can, to further delegate powers from the Secretary of State to lower down within the system. On that basis, I hope the hon. Gentleman and his colleagues will feel able to support the clauses.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35 ordered to stand part of the Bill.
Clause 36
Power of direction: investigation functions
Justin Madders (Ellesmere Port and Neston) (Lab)
I beg to move amendment 108, in clause 36, page 42, line 33, at end insert—
“(10) Nothing in subsection (2) supersedes Part 4 of the Health and Care Act 2021.”
This amendment will ensure nothing in new section 7D of the NHS Act 2006 about the Secretary of State’s powers to direct HSSIB supersedes what is in part 4 of the Bill.
It is a pleasure to see you in the Chair, Mr McCabe, and to see the Minister back again. We heard about his increased workload this morning; I also saw him on the Treasury Bench during the urgent question. I wonder where he finds the time—he should speak to his trade union rep if he feels there are too many demands being placed on his time. We will do our best to ensure that this afternoon is as stress-free for him as possible; if he accepts our amendments, that will go some way towards enabling that.
I will not speak for long on amendment 108 because we will be talking extensively about the Healthcare Safety Investigation Branch later on in the Bill. Concerns have been expressed in briefings received by the Committee and in evidence about some of the relevant provisions in the Bill, particularly on access to information. Clause 36 looks at the proposed power over bodies that have investigatory powers, which include HSSIB. It is difficult for us to accept the clause as it stands without having gone through all the details on HSSIB, because we cannot possibly know whether our concerns will be resolved about how it will operate in practice. That is why we have put forward amendment 108.
The amendment would ensure that the powers in clause 36 do not in any way impede the important principle that HSSIB will be an independent body established by the Bill. In conjunction with further amendments, which we will no doubt get to in part 4, we can all be confident that HSSIB’s independence is sacrosanct. That is important for not just us as parliamentarians, but everyone within the NHS who may have reason to come across HSSIB. It is also important for patients, of course, because they will ultimately be the judges of whether HSSIB has been a success. It would be helpful to understand what the approach will be in relation to maternity investigations. HSSIB has a potentially important role in identifying how providers can sustainably and systematically improve the quality of such investigations and then provide appropriate support. However, ensuring proper accountability, clarity and independence remain important, and this amendment seeks to ensure that those matters are enshrined on the face of the Bill.
Edward Argar
I am grateful to the hon. Gentleman; I made it in rather slower time down to the Chamber to listen to the statement. After one of our sittings last week, I think the hon. Member for Nottingham North was on his feet asking a question in the Chamber before I had even made it out of this room, which shows a certain speed that I can only seek to emulate.
I appreciate that the amendment is linked to the independence of the Health Services Safety Investigation Body. The Government are clear that HSSIB will be independent, which is why it is being set up as a non-departmental public body, with a chief executive—to be known as the chief investigator—and executive and non-executive members. I hope I can reassure hon. Members that clause 36 is a temporary measure to ensure that the current Healthcare Safety Investigation Branch can continue to exist in the interim phase before the new body is established.
As I am sure hon. Members are aware, the merger of NHS England and NHS Improvement means that the NHS Trust Development Authority, of which the Healthcare Safety Investigation Branch is a part, will be abolished. We need the important investigation function that the Healthcare Safety Investigation Branch provides to continue until HSSIB is fully operational which, subject to parliamentary approval, is planned for spring 2023.
The power set out in clause 36 is designed to enable the Secretary of State to direct NHS England, or another public body, to carry out the investigation function in the interim period. I reassure hon. Members that the HSSIB will be independent. Clause 36 is not designed to infringe upon its independence and cannot be used to direct the new HSSIB in how it exercises its functions; it is there simply to ensure the continuity of current investigations until the 2023 start date. For those reasons, I ask the hon. Member for Ellesmere Port and Neston to consider not pressing the amendment to a vote.
Justin Madders
I am reassured to some extent by the Minister’s words, but we have seen over the past 18 months that temporary powers do have a habit of becoming rather more permanent than was originally intended. I think it would be perfectly possible for the Government to include some sort of sunset clause to ensure that the intentions set out by the Minister are adhered to, but we may come back to that. As things stand, we maintain our criticisms, and it would be remiss of us not to push this matter to a vote.
Question put, That the amendment be made.
Edward Argar
I will be brief, because I believe that in responding to the shadow Minister’s amendment I set out the intentions behind the clause and the reasons why it is drafted as it is. Notwithstanding his desire to push his amendment to vote, all I can say is that I will continue to reflect on the points he has made. I cannot promise the outcome, but I will reflect on what he said. Having made the case when I addressed the amendment, I commend the clause to the Committee.
Question put and agreed to.
Clause 36 accordingly ordered to stand part of the Bill.
Clause 37
General power to direct NHS England
Question proposed, That the clause stand part of the Bill.
Edward Argar
I suspect that, with this, we get to the main event of this afternoon’s proceedings.
I begin with clause 37, which introduces powers for the Secretary of State to give directions to the newly merged NHS England. This merger, which is widely welcomed, of three different bodies with different accountability arrangements into one has inevitably required us to look at the appropriate accountability arrangements for the future, and the extent to which the accountability arrangements have evolved and kept up with the evolution of the organisation. The powers in the clause will ensure the appropriate balance between democratic accountability to the Secretary of State and the NHS’s clinical and day-to-day operational independence.
Clause 37 will give the Secretary of State new powers over a newly merged and larger NHS England. It does not give the Secretary of State any new powers over other NHS bodies. It gives the Secretary of State precisely no new powers over clinical decisions. The clause is about ensuring appropriate accountability mechanisms between the democratically elected Government and one of the biggest arm’s length bodies, if not the biggest. That is a principle of democratic accountability in a publicly funded national healthcare service, and I am sure it is accepted not just by the leadership of NHS England, but by Opposition Members, even if they may not feel that the clause reflects their interpretation of it.
In practice, NHS England will continue, as now, to make the vast majority of its decisions without direction, consulting the Government and others as it needs to. The Government’s primary means of shaping the NHS agenda continues to be the mandate to NHS England, which has been an established means of providing direction to NHS England since 2013.
As we have learned in recent times, events can move fast, and the mandate may not be adaptable to all circumstances—and nor was it designed to be when it was conceived. The powers in the clause are designed to supplement the existing mechanisms, such as the mandate, to give the Secretary of State the ability, where he or she deems it appropriate and in the public interest, to provide direction and to intervene in relation to NHS England’s functions. Of course, the Department’s title is “Health and Social Care”, and while NHS England will rightly continue to be focused on the NHS, the Government must take a wider view—and this wider view may lead us, on occasion, to a different conclusion about the appropriate course of action from that held by NHS England colleagues.
There is already a strong and close working relationship between Ministers and NHS England. The clause helps to formalise that in a way that is more transparent for everyone to see, building in the normal expectations of ministerial decision making and accountability by requiring Ministers to issue directions in writing, and to ensure they are published and made in the public interest. Any decision to exercise this power will be premised and guided by general public law principles and broader statutory duties.
To ensure the NHS’s continued clinical and day-to-day operational independence, proposed new section 13ZD also sets out specific areas where the power of direction in section 13ZC cannot be used. The Secretary of State is unable to use this power to intervene in the appointment of individuals by NHS England, in individual clinical decisions or in relation to drugs or treatments that the National Institute for Health and Care Excellence has not recommended or issued guidance on.
We believe that clause 37 is crucial for ensuring that we have the right framework for national oversight and accountability of our health system, and of one of the largest arm’s length bodies, responsible for over £130 billion of public money. The clause ensures, in proposed new section 13ZE, that appropriate levers are in place—as there are for other arm’s length bodies—for Ministers to respond and take swift action if NHS England fails to carry out any of its functions. It also ensures, in proposed new section 13ZF, that Ministers have the levers they need to direct NHS England to provide information. Without it, we would be expanding the functions, responsibilities and powers of NHS England without ensuring that there are appropriate accountability arrangements in place for this large integrated body.
The changes that clause 37 introduced are proportionate, in our view. They reflect the evolution of NHS England in recent years, changes to the wider system and the appropriate expectations on Government to support, challenge and steer the system, while also leaving it free to determine operational matters.
Clause 62 amends the National Health Service Act 2006 by repealing the duty on the Secretary of State and NHS England to promote autonomy. The rationale for doing so comes is two parts. First, the response to the pandemic has further highlighted the importance of different parts of the health and care system working together in the best interests of public and patients. By repealing the duty to promote autonomy, the clause further enshrines integration and collaboration at the heart of the legislative framework underpinning the system.
The second reason for repealing that duty is to ensure compatibility with the duties elsewhere in the Bill on NHS organisations, including NHS England, to consider the effects of their decisions on the better health and wellbeing of everyone, equality of care for patients and the sustainable use of NHS resources. To avoid any conflict in duties, it is important to remove NHS England’s duty of autonomy, as these new duties require NHS England to co-operate and work closely with other partners, rather than autonomously. Repealing the duty of autonomy will also make it easier for NHS England to facilitate co-operation within the system—when commissioning services or issuing guidance, for example.
Neither the provisions in clause 37 nor those in clause 62, or indeed anywhere else in the Bill, do anything to change the nature of NHS England as an arm’s length body. I hope that I can reassure the hon. Member—I fear that I may not—that the removal of these duties does not mean that Ministers are about to start interfering in the NHS or in any other body exercising functions relating to the health service.
Integration is at the heart of the Bill. By creating integrated care boards and removing unnecessary bureaucracy that can get in the way of local organisations wanting to work together, we are putting more power and autonomy in the hands of local systems, and that is our intention here. We are seeking to strengthen local leadership and empower local organisations to make decisions about their populations. We believe that both clauses not only support that intention, but strengthen it, and I commend them to the Committee.
Alex Norris
The Minister rightly pointed out my mixed metaphor, so I will undertake to avoid metaphors in this contribution. It is hard not to feel like an undercard to the main event here—that is a simile, of course, rather than a metaphor, and I gave no such undertaking on similes.
I might surprise the Minister by agreeing with bits of what he said: we do not intend to divide the Committee on clause 37 and we do think that there is an important distinction between the powers in clauses 37 and 38, which I think will come out in the debate. However, if we went out to Parliament Square now and straw-polled people walking by, asking them who they thought was responsible for the NHS in England at a national level, I think we would wait a very long time before anyone gave any answer other than the Government and, by extension, the Secretary of State.
Alex Norris
And of course the Minister, through appropriate delegation, and we are all the better for it. The Minister can quote me on that—but not on a political leaflet, as that would be very challenging for me.
Covid has shown that the public think that the politicians they elect are accountable for the decisions taken in the interests of their health, however they might manifest in ordinary life, so I think the repeal of the duty to promote autonomy, set out in clause 62, probably follows inevitably from that. We want an expert-run health service that works together and follows the best available evidence and science, not one that is unaccountable and diverges from the interests and expectations of the public at large.
That leads me nicely to clause 37. It is possibly a tautology to say that if someone is held responsible for something, they ought to have responsibility for it, as the clause set outs. To put that bluntly, with more than £100 billion of spending—40% of the Government’s revenue budget—going into that area, people will expect political accountability. If NHS England is not seen to be acting in the public interest at the highest possible levels, there ought to be a mechanism, by exception, to correct that. It is the exceptional part that is really important.
That is defined negatively in the clause by what the Secretary of State may not do—for example, hiring or firing an individual, which I think is right, or directing the healthcare of a specific person. I do not think the Secretary of State would want to be in that position with important cases of individuals who are in the public sphere, or have the ability to act outside NICE guidelines on drugs or treatment, as happens in such cases. I do not think that is a good system, hard though it may be when prominent cases come to our attention.
That gives us a common-sense reading of what these clauses provide for the Secretary of State. Yes, the buck stops with the Secretary of State and his political colleagues as a collective if there are major failings in the health service or major failings of Government and of leadership, but the clause does not give Ministers carte blanche to pick and choose—undoubtedly with political pressures in mind—whether to involve themselves in the detailed running of the service. I think that will be covered in clause 38.
A concern raised by the Nuffield Trust in evidence was that there should be a stronger mechanism by which such decisions can be scrutinised. Will the Minister address that? I heard what he said about publication of information about the Secretary of State’s decisions, but why not provide for a parliamentary mechanism by which decisions could be scrutinised? That would ensure public confidence that there is no Executive overreach or direction at a low level of how our healthcare service operates, which I do not think would be at all desirable. I hope that the Minister will address that in his remarks.
Karin Smyth (Bristol South) (Lab)
I would like the Committee to take a moment to mourn the loss of the principle of autonomy as a guiding driver of the health service over some 20-plus years. That principle is part not just of the Lansley reforms, but of previous Labour reforms, and indeed of reforms by the Government before that. The idea was that the system would become more efficient and responsive with more autonomous units, rather than a great mass of health authorities, hospitals and systems that are rarely understood by local people, and that the competition of autonomous units would drive financial and service efficiency, for example. This is quite a moment, and I do not think we should just let it pass.
When I was a member of a primary care trust, which I may have shared earlier, our local region had “earned autonomy.” That meant that if we did certain things particularly well—bringing waiting times and waiting lists down, or fulfilling financial balance requirements, for example—the local team, board and chief executive would earn more autonomy to do more. In modern parlance, things became more permissive, and they were trusted to do something.
Justin Madders
I am a little confused, because my hon. Friend is talking about the end of autonomy, but everything we have heard from the Government is about how permissive the Bill is and how it will leave people free to make their own decisions. I must be missing the point somewhere, mustn’t I?
Karin Smyth
I am grateful to my hon. Friend for making that point, which we will come on to when we discuss the following clauses. If there is no autonomy, but we are trying to be permissive, we come back to the vexed issue that the Minister alluded to earlier: where the balance lies between national and local accountability. We will come to that in further clauses.
I will not long mourn the loss of autonomy—I am not sure it really worked—but it is a principle for people to locally manage the units. As I said in relation to financial management in a previous session, if it is very clear that a chief executive or a finance director has responsibility for their bottom line, that drives a certain amount of focus and responsibility. I find it a little extraordinary for the Conservative party to be promoting the lack of autonomy. I hope hon. Members will take a moment to reflect on the seismic change we now have in the direction of our public services and the next era of the NHS.
Edward Argar
There are a few points that I will seek to address. I am grateful to the hon. Member for Nottingham North for highlighting the accountability of the Secretary of State—he also highlighted me. I remind colleagues that in my ministerial capacity, as a junior Minister, I am in legal terms but an extension of my Secretary of State; all the powers are vested in him and I am but a legal extension of him. Colleagues may dwell on that as they wish, but possibly not too much.
The hon. Member for Nottingham North set it out well. If we went out into Parliament Square and asked three dozen people who they believe is accountable for the NHS and the delivery of health services in this country, they would say it was the Government, or possibly the Secretary of State or the Prime Minister. I think that is right, and that is why we must ensure that the accountability is reflected in the responsibility and the ability to exercise that responsibility and accountability over how the NHS operates.
On the promotion of autonomy, as the hon. Member for Nottingham North alluded to and as I set out, if we are seeking to promote integration and co-operation, as the Bill does, that therefore sits slightly ill with a duty to promote autonomy, and this is about how we reconcile those two matters in legislative language. He talked about a parliamentary mechanism in this context. I emphasise the need for the directions to be published in writing and to be in the public interest.
As we know, such documents are always able to be debated in the House. Were something to be done that he thought inappropriate, I can bet my bottom dollar that I would be standing at the Dispatch Box answering an urgent question from him 24 or 48 hours later. There are mechanisms in this House by which Ministers can be held to account for decisions they make. That is why I believe that this move aids transparency. Rather than informal conversations and discussions, as happen in any organisation, the clause will require that, where a disagreement occurs, there is a clear direction for it to be published transparently, for shadow Ministers and others in this House to question and challenge it, or to raise, within or outwith the House, their concerns in front of the public.
The hon. Member for Bristol South quite rightly alluded to how PCTs operated. Like her, I sat as a non-executive member of a PCT board. I remember those days. If I remember correctly, not only did she sit on a board; she also has extensive experience in running healthcare services as a senior leadership figure within the local NHS, so she knows of what she speaks.
I do not think that what we are seeing here is quite as the hon. Lady characterises—a huge change in the direction of our party’s policy or the direction of travel. We are putting in place a pragmatic and sensible measure, to reflect the focus now on a duty to co-operate, which a duty of autonomy sits slightly ill with, as I say, and to make sure that we have clear accountabilities. We recognise in theory and in legislation what is already deemed by the public to be there in reality, which is the accountability of the Secretary of State and the Government.
Question put and agreed to.
Clause 37 accordingly ordered to stand part of the Bill.
Clause 38
Reconfiguration of services: intervention powers
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 102, in schedule 6, page 180, line 12, at end insert—
“relevant Health Overview & Scrutiny Committee” means any Health Overview and Scrutiny Committee in an area to which the proposal for a reconfiguration of NHS services relates.”.
This amendment is consequential on Amendment 103.
Amendment 103, in schedule 6, page 180, line 41, at end insert—
“(3A) Before taking a decision under sub-paragraph (2)(a), the Secretary of State must—
(a) consult all relevant Health Overview & Scrutiny Committees, and
(b) have regard to, and publish, clinical advice from the Integrated Care Board’s Medical Director.”.
This amendment would require the Secretary of State to consult any relevant Health Overview and Scrutiny Committee (as defined by Amendment 102), and to have regard to and publish clinical advice from the ICB Medical Director, before intervening in local service reconfiguration.
Amendment 104, in schedule 6, page 180, line 43, at end insert—
“(aa) publish a statement demonstrating that the decision is in the public interest,”.
This amendment would require the Secretary of State to publish a statement demonstrating that any decision they have made on a reconfiguration proposal is in the public interest.
That schedule 6 be the Sixth schedule to the Bill.
Edward Argar
If I may, I will turn to the amendments first and then the substantive clause. I am grateful to hon. Members for tabling the amendments. I said that the previous clause was coming to the main business of the afternoon, but I now suspect that was but an hors d’oeuvre to the discussion we may have on this clause and this set of amendments.
Amendments 102 and 103 would require the Secretary of State to consult all relevant health overview and scrutiny committees before making a decision on a reconfiguration. Amendment 103 would also require the Secretary of State to have regard to, and publish, clinical advice from the ICB’s medical director. It is of course vital that local views are represented in any reconfiguration. However, although I understand the rationale behind these amendments, I do not think they are strictly necessary. The new power will not replace the important role that local scrutiny and engagement plays in service change decisions; we expect the vast majority of reconfiguration decisions to continue to be managed by the local system, and system players will be encouraged to resolve matters locally where possible.
The Secretary of State will continue to be advised by the Independent Reconfiguration Panel, which is being retained. The focus of the IRP is and will continue to be the patient and quality of care in the context of safe, sustainable and accessible services for local people. It has also provided the system with advice based on its experience to date around critical success factors.
If I may go down a slight rabbit hole here, I would like to put on the record my appreciation for the work of the IRP. Certainly during my tenure in this post, I have consulted it and seen its advice on a number of occasions, and I am grateful for the work its staff do, the speed with which they do it and the benefit I have gained from that advice in making decisions or advising the Secretary of State on particular decisions.
In practice, the Secretary of State will always need to seek appropriate advice from clinicians, local leaders or other experts before making any decision, and all decisions made using the powers inserted by clause 38 and schedule 6 must be published. This will ensure transparency and allow for proper scrutiny of the way the power is being used.
Schedule 6 also includes the requirement for NHS commissioning bodies, including integrated care boards, to give the Secretary of State any information or other assistance required to carry out any functions under the schedule. It is envisioned that the Secretary of State will obtain information from NHS commissioning bodies when making reconfiguration decisions. This will include any representations that an HOSC, stakeholder, patient group or any other interested party have made, if applicable.
All decision making on reconfigurations, at both local and ministerial level, will continue to be guided by the four tests laid out in existing guidance that reconfiguration should be assured against: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.
As such, we believe that clause 38 and the guidance that the Secretary of State is required to produce under the powers in schedule 6 will provide sufficient safeguards to ensure that the Secretary of State receives appropriate advice before using the powers in this clause. As a result of not accepting amendment 103, we will also resist amendment 102, which is consequential on amendment 103.
Amendment 104 would require the Secretary of State to publish, alongside any decision they have made under this provision, a statement demonstrating that the decision is in the public interest. The Secretary of State is accountable to Parliament for all his or her decisions. Ministers are expected, as a core principle of the constitution, to act in the public interest, and this is reflected in the ministerial code. In addition, the Secretary of State’s scrutiny and direction-making process on this and any other matter must already take into account the public law decision-making principles, all relevant information and their legal duties, including the public sector equality duty, that adhere to such decisions.
The Secretary of State is also under a number of duties set out in the National Health Service Act 2006, including a duty to promote a comprehensive health service, to secure continuous improvement in quality of services, and to have regard to the NHS constitution. As I have already set out, the Secretary of State will continue to be advised by the IRP, and will seek appropriate advice from clinicians, local leaders or other experts.
As for paragraph 4 of schedule 6, the Secretary of State already has a duty to publish any decision they make on a reconfiguration and to notify the NHS commissioning body of the decision. For those reasons, I urge the hon. Member for Nottingham North to withdraw his amendment—I suspect that I will be unsuccessful in that plea, but I make it none the less.
I will now address clause 38 and schedule 6. The clause inserts proposed new section 68A and proposed new schedule 10A into the National Health Service Act 2006. It also introduces schedule 6, which includes a new intervention power to allow the Secretary of State to call in a reconfiguration of NHS services at any stage of the process, without the need for a referral from a local authority. A reconfiguration of NHS services is a change in service provision that has an impact on the manner in which a service is delivered at the point at which the service is received by the user, or the range of health services available to individuals. That could be, for example, a change in where a mental health in-patient unit is based, building a new stroke unit, or restructuring a whole hospital trust.
The new intervention power will enable the Secretary of State to act as a scrutineer and decision maker for reconfigurations, to intervene where, for example, they can see a critical benefit or cost to taking one or other course of action, or to take action where there is significant cause for public concern. We do not expect or intend to use the power with any regularity, and where it is used, it will be done so transparently. As I have emphasised, the Secretary of State must publish any decisions made about reconfigurations.
Schedule 6 sets out the scope of the reconfiguration powers as they pertain to NHS commissioning bodies, NHS services, NHS trusts and foundation trusts. It introduces a new duty for the relevant NHS bodies to notify the Secretary of State of any proposed or likely reconfiguration. The Secretary of State will be able to take any decision that could have been taken by the NHS commissioning body. That includes the ability for the Secretary of State to decide whether a proposal should proceed, the results the NHS commissioning body should achieve, and the procedural steps that should be taken. As I set out earlier, decision making will continue to be guided by the four reconfigurations tests. The new power will not replace the important role that local scrutiny and engagement play in service change decisions.
As the shadow Minister set out, the public expect Ministers to be accountable for the health service, which includes reconfigurations of it. The clause ensures that decisions made in the NHS that affect all our constituents are subject to democratic oversight. Without it, the Secretary of State’s ability to intervene and take decisions will remain limited, often coming at the end of a long local process. As now, he would not be alerted to a potential change in services until the change became an issue and he would remain powerless to intervene without a formal referral by a local authority.
I am conscious that that existing arrangement satisfies few in Parliament, including Opposition Members, on the occasions when they make representations about the process. However, it will be for this debate to see whether Members feel that the proposed new arrangement satisfies them—I will not prejudge that for a minute, looking at the faces of the Opposition Members. I therefore commend clause 38 and schedule 6 to the Committee.
Justin Madders
I congratulate the Minister on his valiant attempts to defend the powers that he wishes the clause and schedule 6 to give his boss.
The Opposition are pretty realistic and do not think that the clause will survive the parliamentary process in its current form. It would save a lot of time if the Minister was to indicate now that he had taken note of the many concerns expressed and that things will change. However, as the clause remains on the face of the Bill, we will have to go through the long and important reasons why it will not be able to stand in its existing form. The Minister will continue to defend the indefensible until it no longer needs to be defended.
We have heard evidence as to why the powers in the clause are not needed and, indeed, why the Secretary of State would not want such powers. Again, we are trying to help the Minister and his Department out by pointing out some of the pitfalls. The clause really is the total antithesis of everything this Bill is supposed to be. The Minister has told us many times that he wants to take a permissive approach, but the truth, as exposed by this clause, is that being permissive is okay until it is not, and then we have the power grab, the micromanagement and the sound of bedpans dropping all the way up to the Secretary of State’s desk. That is the logical conclusion of the clause.
Chris Skidmore (Kingswood) (Con)
I want to speak generally to the clause and the schedule, rather than in support of any amendments. I thank the Minister for setting out the continued role of the IRP and the four tests that have been put in place. I am sure that all of us on the Committee have at some stage in our local communities faced a healthcare service reorganisation. They are very painful processes, as the hon. Member for Bristol South will recognise. We had a reconfiguration across both trusts in Bristol that began, I think, in around 2004 and has yet to be properly completed. They are incredibly painful processes that can leave local communities feeling disaffected and disempowered, whoever is taking the final decision.
We need to think carefully about the potential unintended consequences of the schedule as it stands. I have not tabled any amendments; I just want to raise potential concerns about the detail. In Bristol and south Gloucestershire, Cossham Hospital was provided to the local community by Handel Cossham, who was the Member of Parliament at the time for the east and south Bristol region. He was the only Member of Parliament who, I think, technically died in the Palace; he collapsed in the House of Commons Library and died of a heart attack. I think in those days they could not even claim that he had somehow survived.
Handel Cossham donated in his will land to the people of Kingswood, on which they built Cossham Hospital, named after him. Even before the NHS came into creation, therefore, Cossham Hospital was there, having been built in 1905. The local people of Kingswood, even though it sits in the Bristol East constituency now, felt very passionately that this was their hospital; it was not the NHS hospital. Yet there was a proposal to close Cossham Hospital, which was then reversed. In consequence, the decision was taken to close Frenchay Hospital in favour of a new hospital in Southmead. Frenchay Hospital was meant to become a community hospital, but a U-turn was taken by the healthcare authorities at the time—the clinical care commissioning groups and North Bristol Trust, which squabbled over who was in control because the land had been handed over from North Bristol to the CCG.
I benefited, when I was elected in 2010, from the “Save Cossham Hospital” campaign, which saw the very good Labour MP lose his seat. I faced battles when there were promises to put a minor injuries unit into Cossham Hospital and then there was another U-turn. Ultimately, no one has been held properly accountable, but the IRP published a report that demonstrated that North Bristol Trust had neglected its duty to communicate effectively with the public.
It is that element of communication with the public that I want to talk about in relation to schedule 6, because I have concerns. I agree with the Minister about removing the control of the health overview and scrutiny committees, because they became toxic platforms for councillors, who suddenly had to take decisions as local authority members. They did not know anything about them; all they knew was that their seats were at risk, so the committees were becoming highly politicised forums. People were turning up to the councils and demanding that councillors referred things to the IRP.
Perhaps the Minister can comment a bit more about the nature of who is doing the referral and who is contacting the Secretary of State, because the Secretary of State will not necessarily be aware of all the reconfiguration decisions. Who is the active agent who is making the referral to the Secretary of State? Will it be a councillor, a member of the public or a Member of Parliament? My worry is that when we get to election time, the Secretary of State becomes a lightning conductor, and this will electrify decisions. For new colleagues in marginal seats in the red wall, this could be one of the decisions that creates the dynamic by which the general election is fought on various reconfigurations. The Opposition will claim that it is the Secretary of State’s responsibility to deal with the matter and that he has let down local communities. That is the dynamic and toxic discussions that we have to avoid, if the provision comes into play.
I agree that the Secretary of State needs to have more information to hand and the ability to make decisions, but I am concerned about the definition in schedule 6, which states that
“‘reconfiguration of NHS services’ means a change in the arrangements made by an NHS commissioning body…that…has an impact on—
(a) the manner in which a service is delivered to individuals (at the point when the service is received by users), or
(b) the range of health services available to individuals.”
That is so broad that it could include the tiniest change. Mr Jones, a constituent of mine, might say, “Actually, this has impacted on my local provision of healthcare services for me. I want you to start a petition to the Secretary of State to change this.” I wonder whether there could be some conditionality placed within the definition that might touch on an overwhelming community interest, or something that might touch on the detriment of patient outcomes.
I believe that when we make reconfigurations, they are not necessarily done for financial reasons. They are done to deliver better patient outcomes, so we have to find a way for all political parties to demonstrate that when we put trust in professionals to take decisions, they are doing so because they recognise that there are ways in which reconfigurations can lead to better patient outcomes. We have to be able to move people in that journey. It is not just about the money when it comes to reconfigurations, and I understand that. As political leaders, it is worth supporting clinical decisions when they are the right ones for the benefit of patient outcomes, even if they are difficult decisions for us to take. Some reflection of that in the definition of “reconfiguration of NHS services” would be welcome.
Ultimately, it will come down to guidance, which is why the section on guidance is important. The Minister has mentioned guidance being published. Currently, paragraph 8 of schedule 6 only says:
“The Secretary of State must publish guidance for NHS commissioning bodies, NHS trusts and NHS foundation trusts.”
I think we would all really welcome that guidance being extended to the local authority’s health overview and scrutiny committee, so that it can understand what role it is playing within this fiery dynamic.
What we really need to do with the clause is ensure that members of the general public understand what the duties and responsibilities of the Secretary of State are to any reconfiguration, and that they are set out very clearly to start with. Once we start going down the journey of a petition being collected, it gathers steam and therefore becomes a campaign. Suddenly, rather than having the Department of Health and Social Care, we have a new Department called the Department of Health and Reconfiguration Services, which is what we need to avoid. For the sake of the public and the community, we have to be able to demonstrate that reconfigurations will happen—that is the nature of the NHS. Decisions need to be taken when the facts change and the clinical outcomes change, and I recognise that fact. However, we have seen flip-flopping in Bristol eroding public trust. We need to ensure that, from the outset, people understand why the Secretary of State has these powers and the conditions under which he can take decisions, working with the IRP. We would welcome guidance, potentially for Members of Parliament and local authority members, so they are able to have advance conversations when constituents come to them saying, “I want you now to refer this to the Secretary of State” or “I’ve got a petition of 10 people who want to refer this to the Secretary of State.” They will then know exactly the context in which they can consult the Departments.
Those are the only points I want to make. I am not here to support any of the amendments, although I support the clause. I wanted to reflect on things that might be added in order to break down the granularity of detail, provide wider community context and make sure the public understand where the Secretary of State sits in this potential conversation around reconfiguration.
Karin Smyth
It is a pleasure to follow the right hon. Member for Kingswood. I feel the need for us to write a book or a pamphlet about the planned reconfiguration of health services in Bristol from my time on the board. I agree with a lot of what he said about the Kingswood-Frenchay area, but I hold the reconfiguration up as a good example of wider consultation, clinical leadership and patient and public involvement.
Some of the messiness we got into reflected healthy discussion of the issues. As he said, we are still going through the process, but at the end of those long days we managed to build two very good, specialised hospitals, particularly around A&E services, and therefore close an A&E service. Although not a clinician, I had lots of work in the Frenchay area at the time and it was a terrible place to work and deliver clinical services, having been built as temporary wartime provision, although it was much loved by local people. That is something we might reflect on at another time. The process continues. We have just closed the consultation on stroke services, and other good services, including primary community care services, have come about as a result of the reconfiguration. Reducing a hospital base from three to two is a major exercise, but it did happen.
The points made by the right hon. Gentleman were well made, as were those made by my hon. Friend the Member for Ellesmere Port and Neston. We could play good cop, bad cop, because I am disappointed that the Minister is not taking the very helpful hands that I have offered to find more ways around this, rather than saying that we just want to see the whole lot come out. It will come out eventually—I think we all know that—but along the way let us put some helpful things in place.
My amendments deal with health overview and scrutiny committees and clinical advice. I will not press them to a vote, but I would like the Minister to address them. I think they might appear in similar form in other places, at other times, so what we say is important.
The Government need to account for where and how they are going to get their clinical advice. Reconfigurations, both large and small, are important to local people, as hon. Members have said. The Cossham example is a good one. Some of those buildings do not belong to the NHS. They belong to local communities and pre-date the NHS. People love buildings and their associations. As we embrace technology, we can see that people like buildings because they are something they can grab hold of and understand.
Clinicians—and clinical advice about change—are crucial in allowing and facilitating change. As with politicians, if there are three clinicians in the room then often there will not be one single answer. The issues about what we should be moving towards are often not black and white. The whole vexed issue around the tests and where clinical advice comes from is problematic for the Government and the Secretary of State.
As my hon. Friends have said, the national clinical advisory team did independent reviews, and then that disappeared. We have looked at clinical senates. The Lansley test, which has been alluded to, wanted clarity about a clinical evidence base. In order to provide such clarity, a lot of clinicians need to come together, across specialities and across primary and secondary care, to agree and to then go and talk to the public, to make people understand why and when they are putting forward their propositions.
The timing is interesting, because the test assumed the support of GP commissioners. In this new world, there is no clinical leadership of these new bodies; they are managerially led. Some of the managers might be clinicians, but when the tests were established—this was also true of primary care trusts—the previous bodies in their previous incarnations were largely clinically led. We may dispute whether that was in actuality, whether those people were acting as clinicians, what sort of clinicians they were, whether they were clinicians in the field of the service reconfiguration we were talking about and so on, but that is an important point in terms of trust with the general public.
The new bodies are not clinically led. In my amendment, I suggest the ICB medical director, but that will be a pretty tall order for the ICB medical director even in my amendments. They are also supposed genuinely to promote patient choice. We talked earlier about the removal of autonomy, and what we are seeking to do in many of our amendments to the Bill is to put back the voice of the patient somewhere in this permissive integration world.
The other test was generally to enjoy public, patient and local authority support. While poor old Lord Lansley is not getting much praise in these meetings, some sort of provision for tests with the public, local authorities and clinicians, recognising the complexity that has been outlined particularly well by the right hon. Member for Kingswood, still living through some of this, is well made.
I do not think the Secretary of State for Health and Social Care wants all this on his desk. In my time in this place I have watched with great interest, as I am sure we all have, as hon. Members across Cornwall, Devon, Dorset, Gloucestershire and all across the south-west have all risen at various times to bring up the issue of their community hospital, their A&E and various other services in their part of the country. Those issues are keenly felt and will all need consideration. Somebody—largely clinicians, and then other managerial people in those bodies—will have to sift out those processes.
What is alarming people, as we heard in evidence from our excellent witnesses—my hon. Friend the Member for Ellesmere Port and Neston outlined the key arguments—is that there is a gap. Who is filling it? How is it being filled? That is not just about process; it is about serious clinical engagement. That is why the Minister would be wise to pick up some of the helpful amendments that have been tabled, to alter this; otherwise it disappears completely. I think it was Nigel Edwards from the Nuffield Trust who said it is working pretty well at the moment.
We will all have our points in time where we disagree with things, and we will all want to bring in something else. That is partly our role as elected representatives, and I know the NHS does not like politics and politicians getting involved in these things sometimes, but it is the job of local representatives, whether local councillors or local Members of Parliament, to articulate on behalf of their constituents, to understand the debates and issues, to mediate them and certainly to challenge clinicians and managers of all types on the veracity of the proposals they put through.
The other thing I have said publicly is that sometimes the evidence put forward is not as robust as it should be. That external local scrutiny is well served by those of us who take a strong interest and ensure that the veracity of that information is solid. I have been able to go back to constituents—it is a brave politician who goes back to a constituent to say, “No, actually, I think we need to close that A&E,” but frankly, as we have seen from various reconfigurations across the country, at times that saves lives and is the right thing to do. Giving people locally the support to articulate that is also important.
Edward Argar
I fear we may not have consensus in Committee at this point, but none the less I will endeavour to answer some of the points raised. I am always grateful to the shadow Minister for his kind offers of help and assistance, and he will know that I always reflect carefully on the evidence we have heard and on the opinions of hon. Members on both sides of the House. I welcome his welcoming of the publication of the impact assessment in time for him to be able to quote it back at me. Finally, I thank him for his heartfelt and kindly offer of alternative approaches, given his concern for my workload were these proposals to be approved. I am touched on a number of levels by that, and equally by his suggestion that I and others have been engaged in the dark arts of spin—heaven forbid.
In the context of clause 38 and these amendments, right hon. and hon. Members, including my right hon. Friend the Member for Kingswood, have raised a number of important points that bear further reflection. As we have said throughout this process, the challenge with this Bill is striking the right balance between being permissive and ensuring accountability at a national level, and we believe this clause plays a key part in doing so. I disagree with the shadow Minister’s view—although I respect it—that the clause does not strike the right balance, and I do not believe that the powers set out in it are disproportionate, as he has suggested. He has highlighted the role of the IRP. I mentioned my gratitude for its work in my opening remarks, and I was very clear that that work will continue. The IRP will continue to give the valuable advice it has given thus far.
I do not believe that the notification requirements will prove unduly onerous: a notification can be a very simple process. To the shadow Minister’s point about timeliness, process and definitions, we are working very closely with the NHS and other partners to produce guidance that will set out clear expectations about how and when the powers will be used, and how they will be exercised. In his remarks, he touched on a concern that Ministers might be beset by lobbying from the public and others. I would argue that such lobbying would clearly point to greater public engagement with such matters and increased transparency, which are things that we might welcome. For fear of upsetting my hon. Friend the Whip, the Member for St Austell and Newquay, I will pass over the invitation that the shadow Minister and others have extended to my colleagues on the Government Benches to break the Whip. I saw the expression on my hon. Friend’s face when that was suggested, so I strongly discourage any of my right hon. or hon. Friends from contemplating that course of action. Even though a reshuffle has only just happened, there is always another one at some point.
The shadow Minister mentioned the Health Service Journal, which I enjoy reading. All I would say is that we continue to engage with a wide range of stakeholders, as we have done throughout the process. Indeed, I think that in her evidence, Dame Gill Morgan highlighted the collaborative nature of the genesis of this Bill. I intend to continue with an open and transparent approach, discussing with colleagues and engaging with them and others, because we know that we can always learn by listening.
Justin Madders
I am finding the Minister’s response very entertaining, but he really does need to tell us exactly what is wrong with the current system that this Bill is going to fix.
Edward Argar
I will come to the shadow Minister’s point, but I just want to get through the points he made earlier in his preamble. He mentioned the quote in the Health Service Journal article from a spokesperson for the Department of Health and Social Care, and I think that quote accurately reflects the nature of this Bill. I am grateful to those officials from the Department who ensured that the Health Service Journal got its quote.
I now turn to the substance of the shadow Minister’s argument and some of the gritter points that he, the hon. Member for Bristol South and others have alluded to. Fundamentally, he asked what challenge this Bill seeks to resolve. He asked a few other questions as well, which I will try to answer.
We believe that the Secretary of State should be able to intervene in reconfigurations for which they are ultimately accountable, and that this proposal will increase accountability to Parliament and the community by enabling intervention at an earlier stage. Too often, controversial proposals are referred at the very end of the process after a huge amount of work, effort and expenditure, rather than at an earlier stage when there is already a divergence of opinion in the local community. The Bill gives the Secretary of State an opportunity to take a view—based on advice and on the IRP’s four tests, which will continue to be the basis of that—and to get earlier intervention, where appropriate. That is one of the key reasons.
I will carry on, and the shadow Minister will nod if I am missing anything. He touched on local authority engagement, who can refer, whether there is a diminution in power—I think the hon. Member for Bristol South might have mentioned that—and what qualifies the Secretary of State to make those decisions. He also referred to local knowledge.
Karin Smyth
We could spend a lot of time on this, but I think the Minister is saying that this could happen if there is a dispute within the public at any stage—perhaps at the outline business case, perhaps at the initial raising at the ICB or perhaps at the floating of the idea. That is clearly nonsense, if I may say so. Will the guidance define what “any stage” means?
Edward Argar
We anticipate the guidance setting out what is proportionate, the criteria and the appropriate point at which an intervention can be considered. I come back to the point that too often, under the current arrangement, proposals come forward right at the end of the process, after huge amounts of expenditure, effort and time, only to be overturned—potentially at the very last moment—on the basis of the referral. Having a measured and proportionate intervention power at an earlier stage is the right approach to save a lot of angst and possibly money, although we do not anticipate that the power will need to be used on many occasions, because the vast majority of reconfigurations are broadly consensual, or reach a local consensus.
The shadow Minister alluded to local authority referrals, and the hon. Member for Bristol South has highlighted the importance of local authorities and local accountability in a number of previous speeches and interventions. The new call-in power will not replace the important role that local scrutiny and engagement play in service change decisions. Decision making on all reconfigurations, as I said, will continue to be bound by the four tests against which reconfiguration should be assured: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.
The IRP will continue to provide the independent clinical advice to inform the Secretary of State’s decision making. His scrutiny and direction-making process must take into account the public law decision-making principles, all relevant information and all legal duties, including the public sector equality duty.
In that context, the Secretary of State will also continue to be bound by his duty on quality of service. That includes promoting the comprehensive health service and securing continuous improvement in the quality of services provided. The new call-in power for reconfiguration will allow the Secretary of State to support effective change and to be more responsive to the concerns of the public—and of Members of Parliament as their representatives—at an earlier stage.
Justin Madders
Reflecting on the Minister’s comments about why the provision is needed, my understanding is that the power to give the Secretary of State the opportunity to intervene at an earlier stage means that, in effect, local health systems will not spend an awful lot of time and effort coming to decisions that will ultimately be overturned. I wonder whether the Minister can give us any more detail or any thoughts about why, in a system that was generally thought to be working well, a decision could go all the way through that process and, at the end of it, be deemed to be wrong.
Edward Argar
One particular example comes to mind, but given that it is a live one, I will not use it. However, if I semi-anonymise it, there are decisions that are made locally and followed through, and only at that last moment is the process challenged—for example, whether a consultation was done properly—so it triggers a potential referral to the IRP, which could see that process overturned. An earlier power to intervene and an earlier opportunity to engage could in many cases avoid that problem and lead to a smoother process.
Let me make a final point. I would expect most reconfiguration decisions to be managed by the local system, and system players will be encouraged to resolve matters locally where possible and not to require any referral to the Secretary of State. Where cases are highly contentious and require ministerial input, our proposals will allow the Secretary of State to intervene. He is accountable in Parliament for reconfigurations. The shadow Minister made the broader point that if we ask who is responsible for the NHS, people will say the Secretary of State, or potentially the Prime Minister. That is already there in people’s minds. It is right that we have commensurate powers in the Bill to enable the Secretary of State to properly discharge that function and accountability.
I remain touched by the hon. Gentleman’s kind concern about the volume of work I may end up having to do as a result of the measure. I do not quite share his concerns, but I am none the less touched by the thought.
I urge the hon. Member for Bristol South, perhaps in vain, not to press her amendment to a Division, and colleagues on the Committee to support the clause.
Question put, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 40 and 41 stand part.
That schedule 7 be the Seventh schedule to the Bill.
Clause 42 stand part.
Clauses 44 to 50 stand part.
Edward Argar
With your indulgence, Mr McCabe, and that of the Committee, I will start with clause 39, followed by clauses 40 and 41 and schedule 7, and then go through the remaining clauses in the group.
Clause 39 amends the Health and Social Care Act 2012 by repealing section 179, which abolishes NHS trusts in England. It is an uncommenced provision. The policy intention at the time was that all NHS trusts would become foundation trusts. However, since then the provider landscape has settled at around one third NHS trusts and two thirds NHS foundation trusts, and, as far as I am aware, no applications for change to a foundation trust are currently in flight. There is no intention to alter this landscape significantly and, as such, section 179 of the 2012 Act should be repealed. Doing so provides absolute legal clarity that the Secretary of State can create new NHS trusts under section 25 of the National Health Service Act 2006.
Given the ongoing pandemic, and with the NHS having to deal with the broader challenge of treating an ageing population with ever more complex needs, we seek to ensure flexibility by allowing the Secretary of State to set up new trusts for any purpose, to ensure alignment within an integrated system. The ability to create new trusts, where they are requested by a local area, enables the NHS to be structured to deliver the best outcomes for population health and to respond to emerging priorities. Our aim is to ensure that the system is flexible and adaptable in the future, and wherever possible to avoid the need for complex workarounds to deliver system priorities. Although section 179 was never commenced, we want to remove any potential legal uncertainty over the Secretary of State’s ability to create new NHS trusts. Clause 39 removes the lack of clarity around the Secretary of State’s ability to do so.
Clause 40 repeals paragraph 10 of schedule 4 to the 2006 Act. This paragraph allows the Secretary of State to appoint trustees for an NHS trust to hold property on trust. The clause removes the Secretary of State’s powers to appoint such trustees. In practice, these powers have only ever been used to appoint trustees to NHS charities. Historically, NHS charities were charities regulated under charity law provisions but were also linked to NHS bodies and bound by NHS legislation. This means that they were charitable trusts established under the 2006 Act and had as their trustee an NHS body, such as an NHS trust or foundation trust. The 2006 Act also allowed the Secretary of State to appoint trustees to NHS foundation trusts and NHS trusts, and to transfer property.
Since the publication of the Government’s response to the review of regulation and governance of NHS charities in 2014, it has been our policy for all NHS charities to move to independent status. Since then, all NHS charities have moved to independent status, including the 21 larger charities that had trustees appointed by the Secretary of State. Therefore, there are no NHS charities with trustees appointed by the Secretary of State, and all NHS charities are solely regulated by the Charity Commission. In light of the above, and as there is no further need for the Secretary of State for Health and Social Care to appoint trustees, clause 40 will remove such powers.
Clause 41 introduces schedule 7, which makes minor and consequential amendments relating to clauses 39 and 40 of the Bill. Clause 39 repeals section 179 of the Health and Social Care Act 2012, and clause 40 repeals paragraph 10 of schedule 4 to the National Health Service Act 2006 and removes the Secretary of State’s powers to appoint trustees. In order to implement the changes as a result of these clauses, schedule 7 makes consequential amendments to various other pieces of legislation, such as the Local Audit and Accountability Act 2014 and the NHS (Charitable Trusts Etc) Act 2016. This ensures that the changes made by the Bill in relation to clauses 39 and 40 are consistently represented throughout other pieces of legislation. These minor and consequential amendments are necessary to clarify the Secretary of State’s ability to create new NHS trusts and to remove the Secretary of State’s powers to appoint NHS trustees.
Clause 42 makes changes to the licensing regime for NHS trusts. The clause removes the exemption in the licensing regime for NHS trusts, meaning that all NHS trusts will require a licence from NHS England to operate. This reflects the intention that NHS England should manage both NHS trusts and foundation trusts, which already have to have licences, in similar ways. This has been NHS Improvement’s de facto practice for some time, and this amendment brings trusts within the scope of NHS England’s licensing and regulatory powers.
NHS England intends to use this as a means to manage all NHS providers more effectively and coherently, to ensure they are fulfilling their statutory duties and delivering high-quality, financially sustainable healthcare.
Alex Norris
It is a pleasure to follow the Minister’s admirably comprehensive coverage of the clauses, which I will try to meet in similar terms.
We recognise that the clauses address a number of technical changes to the status of NHS trusts and NHS foundation trusts in this country. We do not oppose them as we think they are consistent with the broader aims of the Bill: moving us from a world of competition to one of collaboration. I recognise that there is a great deal of transposition in the clauses, so very little will be different in substance, and that is why I will probe the Minister, who may well have pulled his punches with them. Why did he not go further?
In reality, the clauses, which are a significant part of the Bill, tidy up previous Acts but do not change enough of their substance. Nothing in the clauses—as with far too much in the Bill—will make anybody better, shorten waiting times, ensure safer staffing levels, address crumbling facilities, or do anything about the other myriad issues faced by the health service and Ministers. The Bill is in danger of creating the illusion of acting without really acting, like repainting a building and pretending it is a new hospital.
On clause 39, I listened carefully to what the Minister said about there being no plans to unsettle or change the provider landscape, meaning it is necessary to end the assumption that all NHS trusts will become foundation trusts. I agree with that basic principle because the debate has moved on significantly from that. It is less about a competition-based system and more about a system of collaboration. Indeed, as the Minister said, notably, there is a greater focus on the ICS as the unit of understanding in the community rather than the acute hospital.
As a result of that, however—this is not in the Bill —we will have two tiers, or two different sets of trusts, littering the landscape. We will entrench a system of trusts that are simultaneously autonomous and not, competitive and not, responsible for their own bottom lines and not, and free to spend their accumulated capital and not. That is a mess. If we tried to explain to a dispassionate observer why different trusts could do different things, we would not be able to. Were we designing a system from scratch, we would never design it like that. I would argue that the Bill is the closest we will come to designing a system from scratch, so I am surprised that that two-tier system has not been addressed in a more meaningful way. That would send a strong signal that NHS trusts and NHS foundation trusts are fully part—not semi-detached parts—of the NHS. They are public bodies and we expect them to act like public bodies.
On clause 40, I do not think I had anything to ask the Minister beyond the points that he made. Clause 41 deals with consequential amendments.
On clause 42, and at the risk of asking a daft question, although I do not think it is, but we will find out, what is the point of licensing trusts? Is this not just creating a bogus sense of distance from the centre, when actually the rest of the Bill is designed to consolidate NHS England as the regulator, the funder and the powerful operator? Why create this licensed distance between NHS England and its providers, other than the fact that it has been custom and practice for the past 10 to 20 years to do so? Is the licence really going to be worth the bother of printing out, or is it not just a legacy of a model of independence and composition that successive Acts have featured, but from which there is now a universal keenness to move on?
Edward Argar
I am grateful to the shadow Minister for his indication of broad support for our proposals. He is right: there is a significant degree of transposition and replication of what was there before, while recognising the new landscape. He asked why we did not go further; when we debated clause 38, he accused me of going too far. I suspect, from his perspective, that the question of balance has yet to be achieved, but I think we have struck the appropriate balance.
In his opening remarks, the shadow Minister said that while this is all useful and neat, it does not address some of the underlying challenges. I would argue that the Government have set out a very clear strategy for that in the NHS Funding Act 2020—I think I stood across from the shadow Minister for that one, which was a rather shorter piece of legislation—and, of course, the recent announcement by the Prime Minister, setting out the record additional funding going into the NHS.
On the specifics, I do not believe that foundation trusts mean a two-tier NHS. There are different models, and we are not proposing to stop the formation of foundation trusts—the hon. Member for Ellesmere Port and Neston has already enjoyed asking me a polite but pointed question in that regard. However, we are not going to compel it; we are not saying that that is the direction, and therefore we do not see the need for section 179. We are not saying that everyone must move in that direction. However, we will retain the ability for them to do so, should they wish.
The hon. Member for Nottingham North raised the issue of intervention, support and similar matters. There are different definitions of those concepts. For example, on the purpose of a default order, when one of those is issued, chairholders must immediately vacate their office. The order must
“provide for the appointment…of new members of the body and…contain such provisions as seem to the Secretary of State expedient for authorising any person to act in the place of the body pending the appointment.”
An intervention order may provide for the suspension or
“removal from office of all the members”
of the board,
“or those specified in the order, and for their replacement”.
An intervention is essentially quite a strong power. I would suggest that support takes a less prescriptive form and refers—as we would all understand the term—to support, advice or guidance. There is a difference in the level and severity of the interventions required.
On equivalent treatment in respect of foundation trusts and NHS trusts, one intention behind the merger of NHS England and NHS Improvement is to bring together the way we support providers, trusts and foundations so that there is a single model of support and one licensing approach. NHS England will—I suspect through guidance—clarify further how that will work in practice.
I take the points made by the shadow Minister. He perhaps sees these provisions as an opportunity to go further and address other issues that he perceives to be challenges for the system. We have deliberately sought to make this a transposition. It is technical, but we think these technical changes are important to ensure that NHS England retains the powers it needs to support, intervene and make sure that the system works. Although I will, as always, continue to reflect on the points he makes, I commend the clauses to the Committee.
Question put and agreed to.
Clause 39 accordingly ordered to stand part of the Bill.
Clauses 40 and 41 ordered to stand part of the Bill.
Schedule 7 agreed to.
Clause 42 ordered to stand part of the Bill.
Clause 43
NHS trusts: wider effect of decisions
Question proposed, That the clause stand part of the Bill.
Edward Argar
I hope I can reassure you, Mr McCabe, and the Committee that I do not intend to speak for anywhere near as long as I did on the previous group.
Edward Argar
I hear the cries of disappointment from the Opposition.
Clause 43 places a new duty on English NHS trusts, and clause 57 places a new duty on NHS foundation trusts, to have regard to the wider effects of their decisions. The duty, which was described in the NHS long-term plan as the triple aim, is mirrored for NHS England and the proposed integrated care boards. NHS England will be able to produce guidance on the duty that all bodies to which it applies must have regard. That duty is also given effect by clauses 4 and 19 in relation to other bodies, which we debated earlier.
As is indicated by the name, the duty has three limbs. First, NHS trusts and foundation trusts must consider the impact of decisions on the health, including mental health, and wellbeing of the people of England. Secondly, they must consider the impact on the quality of services provided or arranged by relevant NHS organisations, including their own. Thirdly, they must consider the sustainable use of NHS resources, including their own resources.
Decisions about particular individuals are excluded. It would not be practical or appropriate to apply the duty to decisions concerning services to be provided to any particular individual—for example, treatment decisions made by clinicians. The existing duties on those bodies encourage a focus on the interests of their own organisation and those who directly use their services. Although delivery of high-quality services remains critical, the new duty will complement other changes in the Bill to facilitate co-operative working and integration. It will encourage NHS organisations to continue to look at their communities beyond the people they directly provide services to and to consider collaborative, system-wide goals.
Following the merger of NHS England and NHS Improvement, NHS England will be responsible for setting and modifying the conditions contained in the licences of NHS providers. Clause 65 adds a new purpose for which NHS England may set or modify licence conditions: namely, that of ensuring that decisions relating to the provision of healthcare services for the NHS are made having regard to all their likely effects in relation to the three limbs of the triple aim.
Given that I have just discussed the triple aim in relation to clauses 43 and 57, I will not repeat the same arguments. As a consequence of this clause, NHS England will be able to set licence conditions aimed at ensuring that NHS trusts and foundation trusts comply with the new triple aim duty. Conditions relating to the triple aim in licences will ensure that the objectives of the new duty are considered alongside providers’ other duties and licence obligations. That in turn will encourage trusts and foundation trusts to consider the wider effects of their decisions and work on collaborative goals to the benefit of the whole system.
These clauses are essential in encouraging the components of our healthcare system to work together co-operatively and considerately, with an awareness of the wider effects of their decisions. I therefore commend them to the Committee.
Alex Norris
I, similarly, will not go on at great length. The clauses are consistent with the stated aim to move from competition to a culture of collaboration. It is therefore right that under clause 43, NHS trusts will have regard to the impacts of the decisions that they make on their neighbours, with particular reference to promoting the triple aim.
I want to press the point about what is meant by “relevant bodies” in proposed new subsection (4). The Bill states that it means NHS England, the integrated care board, NHS trusts and NHS foundation trusts. All of those, of course, make abundant sense. However, we are missing an opportunity to extend it more broadly to the health and social care family, within which the Bill is meant to promote integration. The obvious exclusion is local authorities.
In previous proceedings, the Minister chided me for jumping about in respect of whether he was going too far or not far enough. I am going to take the cheese on that. There is no inconsistency between saying that in one provision—for example, the powers of the Secretary of State—the Government are going too far, and in another—for example, the status of NHS trusts—they are not going far enough. Provided that those two things are not interdependent, of course the Government might be going too far on one thing and not far enough on another. I reserve the right to say that as I see it.
I might just go back to the Minister at this point on jumping around, because the Bill started as an integration Bill. It was going to be the great integration of health and social care, and what a moment this was going to be in British healthcare history—probably second only to 1948. Obviously, that fell apart straight away because there is not much about social care in the Bill—only two clauses out of 135. Then the Prime Minister said, “Don’t worry, we are going to come back with an integration White Paper in due course.” Presumably legislation would follow that. At that point, the Minister said that this was a paving Bill.
Alex Norris
Foundation is even lower than paving, so I am not sure that that is a recommending analysis. Then earlier today, the Minister said that of course integration could take many forms. It could be integration of many bodies, and in this case many bodies within the NHS could be integrated. I gently say that, if we are wondering what exactly we are integrating, the title of the legislation is the Health and Care Bill, so I would start with health and care. I think we are missing that opportunity.
The reason for local authorities not being on this list may well be that we cannot bind the NHS to other non-NHS bodies, but that makes my case rather than argues against it. It is therefore not an integration Bill; it is just an NHS Bill. We will come back—that is the point. I keep saying this for a reason. We will have to come back to address that point, because the reason we are considering primary legislation is that systems have outstripped the status of legislation on the statute book. However, if we do not go far enough to catch up with them, we will have to do so in the future. There is an aspiration to do that sort of integration not just within the NHS, but within the broader health and care family. I really think that while it is not too late, we ought to consider what more we could do to put local authorities into this conversation.
As for clause 57, it is welcome that these duties also apply to foundation trusts, but it again highlights the fact that we are going to get to a point where the difference between a foundation trust and other trusts will be a distinction without a difference. We really ought to think about revisiting that, and I hope we will get the chance to do so yet.
Finally, of course it makes sense to amend licences, even if it perhaps does not make sense to have licences. I hope that the Minister can respond in particular to the point about local authorities.
Edward Argar
I have always been clear that the Bill adopts an evolutionary rather than revolutionary approach to driving forward greater integration, not only within the NHS in a locality but between the NHS and local authorities. On multiple levels, this is a Bill about integration and partnership working, and of course one on which the Prime Minister, ambitious as he always is for this country, wishes to build and go further.
The shadow Minister asked some specific questions about local authorities. The reality is that there is a different evolution and genesis in our local government system and the social care that sits with it, compared with the NHS. Up until 1948, effectively we saw that both were local and place-based. The National Health Service Act 1946 and the establishment of the NHS in 1948 set the NHS on a different path, which essentially looked upwards. It was a national system, albeit place-based, and it was national in its accountabilities, whereas local government continues to be based around different accountabilities at a local level.
Although it is important that we do exactly what we are doing, as the Prime Minister continues to, which is to drive forward greater partnership working and integration, we have to recognise those different developmental paths and the challenges they pose. In that context, local authorities do have, as the shadow Minister knows from his time in local government, their own distinct duties and accountabilities. The triple aim should lead NHS bodies to engage with local authorities—for example, in considering the health and wellbeing of the people in England or in their area. It pushes and nudges the NHS to think more widely about how it engages.
Equally, it is important to note that there are other measures in the Bill, such as the ICBs and the partnerships, that bring together those two bodies with their distinct DNA. We want to make it easier for them to work together in partnership and to integrate further, but we do recognise those different accountabilities and approaches —one directly accountable through local councillors to a local community, and the other part of a national system. These measures, we believe, will drive the NHS to go further in having heed to those local factors. That may not fully answer the shadow Minister’s point, but I hope it goes some way to doing so. With that, I commend the clauses to the Committee.
Question put and agreed to.
Clause 43 accordingly ordered to stand part of the Bill.
Clauses 44 to 50 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Building Safety Bill (Eighth sitting)
(3 years, 3 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Department for Levelling Up, Housing and Communities (Christopher Pincher)
I beg to move amendment 17, in clause 30, page 22, line 2, at end insert—
“(4) The Welsh Ministers may by regulations define ‘building’ for the purposes of this section.
(5) The regulations may in particular provide that ‘building’ includes—
(a) any other structure or erection of any kind (whether temporary or permanent);
(b) any vehicle, vessel or other movable object of any kind, in such circumstances as may be specified.”
This amendment enables the Welsh Ministers to define “building” for the purposes of section 120I of the Building Act 1984 (inserted by this clause).
Christopher Pincher
The amendments relate to Welsh Government Ministers. They provide the Welsh Ministers with the necessary flexibility to define “building” for the purposes of proposed new section 120I of the Building Act 1984, to be inserted by clause 30 of the Bill. This is the same power as the Secretary of State has for England in new section 120D(4)(a) and (5). New section 120I contains a power for the Welsh Ministers to define “higher-risk building”. The additional power for the Welsh Ministers to define “building”, provided for by amendment 17, will ensure that Welsh Ministers can add clarity to the definition of “higher-risk building” as required.
Amendment 36 makes the power for the Welsh Ministers to define “higher-risk building” subject to the affirmative action procedure, but the power to define “building” under new section 120I(4) will be subject to the negative procedure, which mirrors the position in England. Amendment 37 disapplies for the purposes of new section 120I the definition of “building” that exists in section 121 of the 1984 Act. Again, this mirrors the position in England as regards new section 120D.
As the Committee may have gathered, these are important, although technical, amendments to ensure that Welsh Ministers have the necessary power to provide a clear definition of the types of structures that can be captured by the definition of “higher-risk building” and therefore subject to the more stringent building control regime provided for by part 3 of the Bill, which will be reached in due course.
Amendment 17 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Christopher Pincher
I said that the amendments are technical, and so they are, but as to the clause itself, it provides a definition for which buildings will be higher-risk buildings and therefore subject to the design and construction portion of the new, more stringent regulatory regime. It also provides for what must be done if a decision is taken to alter that definition in the future. For Wales, it provides the Welsh Ministers with the ability to define their own higher-risk buildings. To support the Committee’s scrutiny and, indeed, that of Parliament, we published, upon the Bill’s introduction, the draft Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations. Dame Judith Hackitt’s independent review recommended implementing the new regulatory regime for buildings of at least 10 storeys. However, the views of stakeholders were gathered and they advocated expanding the scope still further. That is why we are defining the height threshold for a higher-risk building in England as at least 18 metres in height or at least seven storeys. We are being ambitious, providing the certainty that the markets require with our threshold approach while maintaining the focus on the taller buildings that the independent review advocated.
We agree with the pre-legislative scrutiny report about including more detail in the Bill, which is why we now define the height threshold of the regime within primary legislation and in the Bill. There may be incidents or emerging evidence in future that indicate that the definition of higher-risk building may need to be altered. Consequently, we included the power in section 120D(6), and its use would be subject to the affirmative procedure in Parliament so that a Committee of the House—or indeed the whole House—would be able to discuss, debate and vote on the matter. However, any change must be proportionate. It must not slip into risk aversion. That is why the checks and balances outlined by sections 120E and 120F are necessary. We must understand the costs as well as the benefits. This is why any decision of expansion must consider the expert advice or recommendations of the Building Safety Regulator.
Taken together, sections 120D to 120H provide for a proportionate approach to defining higher-risk buildings and to the design and construction portion of the new regulatory regime. I commend the clause to the Committee.
Mike Amesbury (Weaver Vale) (Lab)
Again, we accept the provisions in the clause giving the Welsh Government the desired and important flexibility particularly for buildings that are at risk. Buildings at risk have caused considerable debate and the Minister has referred to the original recommendations by Dame Judith Hackitt. There has been lots of debate in the built environment and among key witnesses. I know that members of the Select Committee on Housing, Communities and Local Government have heard similar evidence advocating for a broader definition of what is at risk. Clearly, many residents and leaseholders are in buildings below 18 metres that are certainly at risk.
I referred earlier to the fire in a care home in Crewe, not far from my constituency in the north-west of England. It was a home for vulnerable people and was constructed out of interesting materials and the results were unfortunately all too plain to see. Thank the Lord, nobody lost their life, but they did lose their home and their possessions. They were definitely at risk. In Runcorn in the neighbouring constituency of my hon. Friend the Member for Halton (Derek Twigg), the Decks development has had a live application to the building safety fund. A number of buildings are 18 metres and above so they are in scope of the definition in the Bill, but some are below 18 metres and they are constructed with even more inflammable material. Again, they are very much at risk.
Selaine Saxby (North Devon) (Con)
It was Dame Judith Hackitt who initially suggested that the threshold be 30 metres. Does the hon, Gentleman agree that 18 metres or seven storeys is significantly more ambitious?
Mike Amesbury
Yes, but what I heard from the witnesses —the evidence is crystal clear—is that there are buildings, such as hospitals, that have vulnerable people. One thousand hospitals will not be within the scope of the Bill, because they are below 18 metres. According to the Department’s own figures, 13,200 care homes will not be classed as at risk under the current regulatory landscape.
The clause will provide that flexibility, which the Minister referred to. If there are thematic incidents, fires or failures related to building safety, the Secretary of State has the welcome flexibility of the regulator in the future. We certainly want the definition of risk on the record, as witnesses have requested throughout.
Shaun Bailey (West Bromwich West) (Con)
I shall be brief, as I am conscious of the fact that we have already touched on the clause.
The point on which I wish to comment, which was highlighted in the comments of the hon. Member for Amesbury, is the ability of the Secretary of State to liaise with the Building Safety Regulator, as provided in the clauses added to schedule 5 to the Building Act 1984. The key is the facility to recognise that circumstances change—specifications change, the industry changes. The clause gives the Department the flexibility holistically to utilise the Building Safety Regulator, ensuring that subsequent regulations reflect reality.
We have debated the 80 metres specification, but we heard during the evidence sessions that flexibility is necessary. There are many shades of grey in this space—it is not all black and white. The clause pretty much mandates the Secretary of State to have regard to the Building Safety Regulator’s advice and to take on board its recommendations. That is vital, because the way in which we have structured the BSR in the Bill thus far is for it to act not just as an enforcer but as an adviser too, and there will be individuals within the organisation who have the expertise and skill.
The clause provides the flexibility that we will need, and as we come to secondary legislation we will see how important that is going to be. As we build the legislative framework, it will be important that Ministers have the agility to take advice and react to the market. The market and the specifications now will not be the same in five years’ time or 10 years’ time. We must ensure that if things need to change we can act expeditiously. Clause 30 is the right clause. It provides that flexibility to my right hon. Friend the Minister and his officials and I therefore support it.
Christopher Pincher
I am grateful to my hon. Friend the Member for West Bromwich West and the hon. Member for Weaver Vale for their contributions.
My hon. Friend for West Bromwich West is quite right: we heard from witnesses that it is important to have an objective set of criteria when defining risk. I appreciate that there are different shades of opinion. We heard from Sir Ken Knight and Dan Daly, who are experts in their fields, suggesting that an objective threshold would be a sensible mechanism for adjudicating risk.
We chose high-rise residential buildings of at least 80 metres after engagement with stakeholders and judged that the risk to multiple households is greater when fire spreads in residences of that height. We are following the recommendation of Dame Judith’s committee to focus on residential buildings. We have responded to the concerns of stakeholders. That is why, rather than set a threshold at 10 storeys, we chose to set it at above 18 metres or seven storeys. The reason that it is and/or is to make sure that we mitigate the risk of gaming just below 18 metres. Adding the seven-storeys requirement makes it much more difficult for a regime to be gamed.
Theo Clarke (Stafford) (Con)
I agree with the Minister that 18 metres or seven storeys is a sensible starting point for the regime. I welcome that it is more ambitious than the 30 metres originally recommended by Dame Judith Hackitt. However, will he explain why he chose such a threshold, rather than a matrix of risks and specific factors?
Christopher Pincher
I am grateful to my hon. Friend for her intervention. I understand why some regard a matrix or a set of matrices to be a better mechanism to employ. The problem with a set of matrices is that they are subjective. It is possible that one assessor could rule that a building is in scope of the regime and another rule it or a similar building out of scope. That would create unnecessary confusion in the regime. It is much more sensible that we have an objective threshold that everyone understands, be they the experts on the gamekeeper’s side of the fence or those on the poacher’s side. Everyone understands what the rules are.
The hon. Members for Weaver Vale and for Brentford and Isleworth, who is no longer in her place, mentioned other potential buildings. I have explained how it is possible, through advice from the Building Safety Regulator, to expand the regime, but I simply reiterate my earlier point that some of those buildings, such as prisons, hotels and hostels, are subject to the Fire Safety Order. They tend to have multiple means of exit and signage appropriate to guests entering and leaving the building. They are governed by a different regime. The Ministry of Defence’s buildings have their own fire safety arrangements and the Crown has its own arrangements under the Building Act. Those provisions have not been introduced and enforced but, as this Bill goes through the House, we will consider whether the Building Act provisions that apply to Crown buildings should be put into force.
We are not blind to the fact that the regime can be refined and improved. As I say, that is one of the reasons why we want to use secondary legislation as a mechanism for delivering the Bill in the most effective way.
Mike Amesbury
I seek some reassurance, on a point that was brought up by the Association of British Insurers and others throughout the Bill’s passage so far, and during pre-legislative scrutiny. With regard to those experts, can the Minister reassure us that there is a sufficient pool of people who not only will be trained and available but, importantly, will get professional indemnity insurance to assess the builders?
Christopher Pincher
I think I said in previous remarks that the multidisciplinary teams that the Building Safety Regulator will employ presently have many, if not most, of the skills and experience necessary to execute the roles in the new regime, so we do not anticipate that a significant amount of further training will be required. With respect to professional indemnity insurance, however, the hon. Gentleman will know that the Government have made it clear that, in the final resort, they will provide a backed scheme to ensure that proper professional indemnity for risk assurors is provided. I hope that gives him some certainty.
I will close by restating the key function of clause 30, which is to provide a definition for which buildings will be considered higher risk and, therefore, which buildings will be subject to the design and construction portion of our new and more stringent regulatory regime. Importantly, it also provides for what must be done if a decision is taken to alter that definition in the future—that very clear, staged process, which will ensure that proper tests, proper consultation and proper cost-benefit analysis are undertaken in order to deliver an expanded regime, if that is required. With that, I commend the clause to the Committee.
Question put and agreed to.
Clause 30, as amended, accordingly ordered to stand part of the Bill.
Clause 31 ordered to stand part of the Bill.
Clause 32
Building regulations
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
Clause 32 provides the powers to set procedural requirements in building regulations, which, among other things, will include the procedures for a new building control route for the design, construction and refurbishment of higher-risk buildings, the mandatory occurrence reporting framework during the design and construction of those buildings, and the golden thread of information during design and construction. I will explain each of the paragraphs—there are quite a few of them—in turn.
Proposed new paragraphs 1A and 1B of the Building Safety Act 1984 provide for building regulations to set procedural requirements relating to work, particularly for applications for building control approval. They will provide the basis for the new gateway process for creating new higher-risk buildings, and for a new refurbishment process when carrying out certain building work on higher-risk buildings. We will also be able to put in place new procedures for building control applications to be made to local authorities. The powers provided under the paragraphs will enable building regulations to make provision about notices that must be given to building control authorities—for example, when work commences—the issue of certificates, and the effect of such certificates. These regulations will also make provision for consultation arrangements, such as when building control authorities need to consult fire and rescue authorities on fire safety measures relating to building work. They will also include timeframes for providing consultation responses. Regulations made under these powers can also set out the grounds for granting or refusing an application.
With regard to the gateways, these paragraphs will allow for building regulations to set out new prescribed documents that must be included in applications for building control approval alongside plans for higher-risk buildings. They will also allow building control authorities the ability to set requirements when granting applications for building control approval. For example, the powers taken in proposed new paragraph 1B of schedule 1 to the Building Act 1984 would allow for staged approval routes for higher-risk buildings to provide greater flexibility for more complex developments—as we know, there can be many varied and complex developments. Applicants will be able to submit their application in stages with permission from the regulator, and in those circumstances building control approval will be strictly limited to the approved stages of work. Applicants will then need to submit plans and documents for other stages of work for building control approval before work on those stages begins.
Brendan Clarke-Smith (Bassetlaw) (Con)
It is very good to see you in the Chair this afternoon, Mr Efford. The Minister is discussing the powers that have been strengthened for both the regulator and local authorities—something I certainly welcome—and, following on from that, the ability to set requirements when granting applications for building control approval. Could the Minister talk a little more about these gateways and explain in further detail what happens in them, particularly gateways 2 and 3?
Christopher Pincher
I am obliged to my hon. Friend. The gateways are a crucial means of ensuring the quality and consistency of work, so that poor work or work that does not meet sufficient standards is spotted and stopped. Gateway 2 will be a hard stop that replaces the present building control deposit of plans stage: a gateway 2 application will be submitted to the Building Safety Regulator for approval. It has to demonstrate building regulations compliance, including that plans should be realistic for the building in use and will deliver a building that is safe to occupy. It will be an offence to start building work without Building Safety Regulator approval. We will say more about those gateways in secondary legislation.
Gateway 3 replaces the current completion and final certificate stage of building work—that is, when building work is complete. Again, it will be a hard stop, whereby an application must be submitted to the Building Safety Regulator with building plans and information about the building. The Building Safety Regulator can and will carry out inspections, and if it is satisfied—as far as it can determine—that the building complies with the building regulations requirements, it will issue a completion certificate. These are quite stringent processes that, as I trust my hon. Friend will recognise, are powerful tools. In circumstances where building control approval is strictly limited to the approved stages of work, applicants will then need to submit their plans and documents for other stages of work for building control approval before work on those building stages can begin.
The powers that we have taken in proposed new paragraph 1B will also allow applicants to submit applications for building control approval with plans and any relevant prescribed documents they consider appropriate for refurbishment in higher-risk buildings. That will ensure that applicants are not subject to disproportionate requirements when proposing relatively minor refurbishments, which could be replacement windows or changes to the central heating or lighting system, for example. However, the regulator will be able to refuse the application if prescribed information is not provided on request. All these provisions together will strengthen the regulatory oversight of design and construction.
Theo Clarke
I welcome the Minister’s saying that there will be provisions to deliver the golden thread, which will be critical in helping to ensure that buildings are safe throughout their life, and I welcome the fact that new paragraphs 1C and 1D will contain requirements on the giving, obtaining and keeping of information and documents. Will this clause also ensure that developers will not be able to switch to cheaper and less safe materials during construction?
Christopher Pincher
I think it will—in fact I am sure it will—because it will require that, in design, construction and refurbishment, information that is needed to demonstrate compliance with specific building regulations is available. It will also require that information garnered through mandatory occurrence reporting, which we discussed in Committee last week, will be available, and there will be a clear legal requirement on duty holders to hand over that information. The power will also be used to require certain information about safety occurrences to be provided to the regulator. I will discuss that a little more in a moment.
New paragraph 1D also creates the power to make regulations to set out the information and documents that must be stored in the golden thread, and to set out standards that the golden thread must be held to. We know there is currently a lack of information about higher-risk buildings, which makes it difficult to design, construct and refurbish them safely. We are also aware that where there is that information, it is often not kept up to date, not accurate or not accessible. We believe that having accurate, up-to-date information is critical to ensuring that buildings are managed safely, and this new paragraph will ensure that the information is recorded and that it is accurate, kept up to date and accessible to those who need it.
Dame Judith’s review recommended that a golden thread be put in place for higher-risk buildings. We agree, and the recommendation is being executed, recognising that it is critical to ensuring that buildings are safe.
New paragraph 1E enables the implementation of a key recommendation of Dame Judith’s independent review: mandatory occurrence reporting, which I mentioned a moment ago, for higher-risk buildings going through the design and construction phases. Mandatory occurrence reporting is intended to provide a route by which valuable building safety intelligence and trends will reach the Building Safety Regulator and be shared with industry.
The effect of that proposed new paragraph is to enable regulations to be drawn up that require duty holders in design and construction to establish a mandatory occurrence reporting framework to facilitate the reporting of occurrences on site so that the duty holders, who have an obligation to report them to the regulator, become aware of occurrences in good time. Mandatory occurrence reporting will aid in driving intelligence-led enforcement on the part of the Building Safety Regulator, promoting safety-conscious culture change and improving safety standards and best practice across the built environment.
Proposed new paragraph 1F enables building regulations to prescribe the form and content of documents or information that must be given as part of a building control application. Those documents will be a key part of the new building control routes for higher-risk buildings. Proposed documents include a design-and-build approach document, a fire-and-emergency file and a construction control plan. The documents must demonstrate compliance with building regulation requirements and be realistic for the building in use—I made that point to my hon. Friend the Member for Bassetlaw. That will ensure the consistency and quality of building control applications for higher-risk buildings.
The proposed new paragraph also allows for building regulations to set out how documents and information must be given. For example, it may be necessary to submit documents to the Building Safety Regulator via an online portal. It will also enable certain building applications to be refused if a document is not provided to the building control authority on request.
In order to check compliance, building control authorities must be able to inspect and test work, equipment, services and fittings, and to take samples. New paragraph 1G provides powers for building regulations to make provision for that. Building regulations will also be able to prohibit work from being covered for a period to allow the building control authority to inspect the work and to provide for the building control authority to cut into or lay open the work. Related amendments are also being made to section 33 of the Building Act to enable a building control authority to require a person carrying out the work to carry out tests of the work.
New paragraph 1A, which we discussed earlier, will allow building regulations to set prescribed timetables according to which building control authorities will need to determine applications—for example, gateway 2 applications, change control applications, and gateway 3 applications. That will help prevent unnecessary delays.
New paragraph 1H will allow building control authorities to extend that timetable where necessary, with agreement from the applicant—for example, if a development in hand is particularly complex. That will provide greater flexibility than under the current regime.
New paragraph 1I enables the drafting of regulations to allow persons affected by decisions made under the Building Act, or building regulations, to appeal against them. The Government supports the recommendation of Dame Judith’s independent review that the regulator must be “fair and transparent”. Where developers want to challenge a decision by a building control authority, it is right that they can do so. This clause makes provision to create routes of appeal to the regulator and the tribunal in England, and to Welsh Ministers or a magistrates court in Wales, whichever is appropriate. It also makes provision to set up procedural and administrative arrangements.
Brendan Clarke-Smith
We have discussed appeals. As part of the process, it is important that we have a robust and accessible appeals process, which is easy for people to undertake. Does the Minister share my opinion that these appeals need to be conducted in a reasonable amount of time? They have a habit of dragging on for long periods. With something as important as this, does he agree that people should have an assurance that when they make an appeal it is not just accessible but that they can expect an answer within a reasonable time period, to correct whatever problem has arisen?
Christopher Pincher
I am obliged to my hon. Friend for raising the issue of appeals. We have said in regulations that if the time limit is not met between the regulator and the applicant, and if an extension is not agreed, then the applicant can submit an application to the Secretary of State for a decision. That is a last resort. Through these provisions, we want to ensure that decisions can be made swiftly and efficaciously, so that challenges that may be brought to the Building Safety Regulator by a developer are dealt with rapidly, and a safe development can be advanced as quickly as possible. These include grounds for appeal, and the period during which an appeal can be lodged are also included in this clause.
There are a number of related consequential amendments in draft schedule 5. These include repeals of sections 16, 17 and 31 of the Building Act, which will become redundant with the introduction of new applications for building control approval under paragraphs 1A and 1B in clause 32.
That includes repeals of paragraphs 2 to 5 of schedule 1 to the Building Act, which are directly replaced by the new paragraphs 1A to 1I in clause 32, and amendments of existing references in the Building Act to, for example, the deposit of plans to the
“making of applications for building control approval”.
These new powers apply in Wales as in England, so the Welsh Government will be able to amend its building regulations as necessary. I appreciate that these are technical and rather dry paragraphs, but they are important to the success of the Building Safety Regulator, its powers and the appeals mechanism. Therefore, I commend clause 32 to the Committee.
Mike Amesbury
I thank the Minister for his thorough and detailed examination of the clause. The independent review made several recommendations for stringent new building control procedures to increase the regulatory oversight of design, construction and refurbishment—if we take our minds back to Grenfell, that was a refurbished building—of higher-risk buildings and of building work subsequently carried out. One concern, which was echoed by the Select Committee, is that a lot of detail is again left to secondary legislation, as the Minister referred to. To draw upon the golden thread, as a means to explain to Members not just in Committee but beyond, does the Minister have an example of the golden thread from beginning to end? Has he done some scenario planning of the application of the hard stop? How does the new regime capture permitted development? How does it capture those refurbishments and those conversions of offices into residential buildings?
Shaun Bailey
I grateful for the opportunity to speak on clause 32 which although very technical, is none the less very important. I want to speak about mandatory occurrence reporting, because I think that is a key matter. In order to understand trends and where consistent issues are becoming a problem it is key that disasters such as Grenfell are not allowed to repeat. We need to spot problems early. That comes back to the broader point of collaboration and working together. This is a collaborative piece. To ensure that the legislation works for the future and that we have a market that truly works for everyone, we must ensure that information is shared. We must ensure that trends are spotted early. It is about treating the issue as a partnership between stakeholders. To have the BSR acting as the centre point and information gatherer will be key.
The clause needs to provide certainty, although we will need to see the secondary legislation that will derive from the Bill. We need to ensure that leaseholders and residents have certainty and that they know where they stand, but we have a market to meet, and we must build houses. We know that we have a housing shortage and that we need to construct more places for people to live. To do that, we must have a regime that works. We must know that, ultimately, those who use the regime and construct property understand the rules by which they play. Equally, the balance must be struck so that they cannot game the regime either. That is why there needs to clarity.
The hon. Member for Weaver Vale is right that we need to examine the detail in secondary legislation. We need to see what the structure of that will be. It is all well and good to say “we’ll prescribe this, and we’ll prescribe that” but we need to know what specific forms will look like, how people will fill them out, whether they will be usable in a commercial context or will that encourage an organisation, a builder, a company or whoever to circumvent the system, because they think, “Do you know what? It’s a little too complex for me to do, so let’s see how I can fiddle it around”? The wording of the clause goes some way to delivering this, but we need a system that says to builders and stakeholders, “Look, it is within your interests to play within the system and comply with the regulations, and to share the information as part of the mandatory occurrence reporting.”
We have spoken about the impact in Wales as well, and it is important that, ultimately, we have that consistency in England and Wales. The hon. Member for Weaver Vale will know that there is a lot of cross-border buying and selling, and we must ensure that there is consistency so that people know where they stand in terms of the regulations. I am sure that he has many building firms that will do work both in England and in Wales, so they will need that consistency to know exactly the rules within which they are playing. I hope that the Minister will be able to tell us about the conversations he has had with colleagues in Welsh Government to ensure that. That will be a real test of clause 32 and the subsequent secondary legislation, so that the marketplace that must fit within the regulatory framework knows where it stands. I come back to the point I made before, which is ultimately about ensuring that we can continue to have a market that builds houses, to address the situation that we have with local house building.
Ian Byrne (Liverpool, West Derby) (Lab)
I want to touch on a couple of things. Enforcement is key. We heard lots of evidence about the need for culture change. Enforcement gives us rules and regulations, which the sector needs, but we need to change the culture. Listening to the Minister’s response, I am at a loss to know where the enforcement will come from and how it will be funded. It would be good to get a real understanding of how this golden thread will be enforced. We listened to evidence from the Fire Brigades Union about how fire safety officers have been decimated. We know about local authority cuts. I would really like an understanding, on the record, of where the enforcement will be made and how it will be funded. We had rules, regulations and laws, but without enforcement we still had Grenfell. Hugely important moving forward is how the new set of regulations will be enforced to ensure that it is adhered to and we get the culture change that we desperately need.
Shaun Bailey
I thank the hon. Gentleman for his intervention; I am sure that there are some points that my right hon. Friend the Minister will pick up. I agree that enforcement is a really important part of this and has to be done properly. We discussed funding this morning. As my right hon. Friend indicated, there has been a funding uplift. As I said this morning, it will be on us to ensure that that works and is done in a proportionate way. I have no fear in saying that. It is our job to do that. Without being too repetitious, it is perhaps slightly frustrating, but the secondary legislation will be an important part of it, because that will show the meat of how the enforcement will operate.
It comes down to the operational delivery of all this. The clauses are very technical. They are there to lay the base framework. From my very limited time in this House, when we are passing legislation the big thing that we always have to think of is how it will work in practice. There are probably broader debates, particularly with clause 32, about what that will look like. The hon. Member for Liverpool, West Derby touched on cultural change. It is important that the clause acts as a catalyst for that. As I touched on, it is about ensuring that there is a framework by which construction firms and builders know to operate, that there is an ability to share that information, and that building regulations flow through to ensure that we know where we are and that a really stringent process is followed. We must also be able to see the information that is required—the safety reports and fire reports—to ensure that we have the golden thread and the pathway that we have discussed, to ensure that we have built a story of compliance and safety, and to ensure that if we have to review the pathway to the construction of a building we can see that it has followed the tests and that corners have not been cut.
Clause 32 provides that base framework, but I stress that the meat will come in secondary legislation. As always, my plea to the Minister is that we continue with the flexible approach that he has adopted so far in relation to this piece of legislation. It is about being adaptable. The clause gives us the framework, but we know that the market changes, pressures change and risks change. When we come to report on building regulations, we must ensure that, as we look at clause 32 in secondary legislation, it has the room for manoeuvre to react. If we have to ramp up the reporting mechanisms, we must be able to do so. Equally, they must be robust enough to manage that.
We must remember, and I know my right hon. Friend is completely aware of this, that it is the leaseholders and residents who are at the core of this. Clause 32 was described as dry and technical, but it is a linchpin clause because it sets the rules of the game, which will protect some of the most vulnerable residents and leaseholders—the people we have been sent here to stick up for. We will ensure they have that framework and that right of redress. It is an important clause and I support it. I am really interested to see the secondary legislation that follows and it has my full support.
Christopher Pincher
I am obliged to the Committee for considering the clause. I am grateful for the intervention by my hon. Friend the Member for West Bromwich West. He raised the question of cross-border co-operation between English authorities and the Welsh Government. I can assure him that my officials have been in close contact with the Welsh Government to ensure that provisions apply properly. Of course, because the devolutionary settlement came after the Building Act 1984, certain changes need to be made to the Act. There certainly has to be a recognition that the Building Safety Regulator does not apply in the same way in Wales as in England. The building control authority in Wales is the local authority—although a local authority can for the purposes of independence designate another local authority to act as the building control authority in a particular instance of a high-rise residential or in-scope building in their authority jurisdiction.
The hon. Member for Weaver Vale asked a number of questions about the golden thread. I agree that it is a hugely important element of the Bill and an important element to demonstrate trust and compliance to the regime. It is about giving information about a building that allows someone to understand the building. It also provides information to effectively manage the building. It needs to be created before building work starts and it must be kept updated throughout the design and construction process—for example where through the change control process, the plans for the building work are changed. That also needs to be captured in the golden thread.
When the building work is finally completed, the golden thread must be handed over to the person responsible for the occupied building, called the accountable person. The information required will have to demonstrate compliance with specified building regulations and information required through mandatory occurrence reporting. We will set out specific requirements for the golden thread in secondary legislation. The nature of the information and the documents that must be stored as part of the golden thread are potentially subject to change over time in accordance with technical developments in safety standards and safety practices. Some flexibility in the listed information and documents is required, and that is why we propose putting it into secondary legislation rather than putting it in the Bill.
I can give an assurance to the hon. Member for Liverpool, West Derby, who raised the issue of enforcement. We talked about that last week in Committee, and I pointed out the funding that has been made available to the Health and Safety Executive to help set up the shadow Building Safety Regulator. We have talked today about the fees and the charges that may be applied, as well as the spending review commitments we will make to the Building Safety Regulator.
Christopher Pincher
I will give way briefly, but I am sure that the hon. Gentleman, like me, will want to get on.
Mike Amesbury
I asked the Minister about permitted development and how that will be captured by the golden thread. It will be detailed in secondary legislation, as is mirrored throughout the Bill. I understand some of the practicalities around that, but given that this is a central aspect of improving the building safety landscape, surely the detail should be in the Bill. Look at permitted development. Will there be refurbishments from office to residential? Grenfell was a refurbishment. I would welcome the Minister’s comments on that matter.
Christopher Pincher
I am happy to look at the matter for the hon. Gentleman and make sure that we properly cover all eventualities in secondary legislation. I point out that with respect to permitted development rights, it is unlikely—although I would not say impossible—that buildings that fall into the scope of the currently defined regime will be built using permitted development rights. I suggest to him that such a building would very likely require planning permission using the normal routes.
I am very happy to make sure that we cover off those sorts of considerations when we look at secondary legislation. We need to make sure that it is sufficiently flexible to take account of future safety arrangements, future technical designations and future planning rules, which, as the hon. Gentleman will know, we are considering very shortly. With that, I commend the clause to the Committee.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Clause 33
Dutyholders and general duties
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
Clause 33 relates to amendments to schedule 1 to the Building Act 1984 to enable building regulations to require prescribed appointments and to impose duties on those appointed and other relevant persons.
We agree with recommendations 2.1 and 2.2 of Dame Judith’s review, which ask that key roles and responsibilities in the procurement, design and construction process are specified. Clause 33 contributes to their implementation. It is only right that those who commission building work and who participate in the design and construction process take responsibility for ensuring that building safety is considered throughout the project, thereby ensuring that residents are safe and, importantly, feel safe.
The amendments to the 1984 Act create a power that we will use to make regulations that will identify and place duties on those involved in the procurement, design, construction and refurbishment of all buildings. The duty holders will be those people or organisations who commission the building work and undertake the design and construction or refurbishment building work. In other words, they will be clients, principal designers, designers, principal contractors and contractors, and all other persons involved in the work.
These are the key roles that are most important in initiating, overseeing or influencing activity to ensure building regulations compliance throughout the procurement, design and construction phases. Duty holders will be required to actively consider and manage building safety risks throughout the process, to ensure that designs, if built, comply with building regulations requirements as well as the building work.
Draft regulations have been published alongside the Bill. The Committee may find the draft Building (Appointment of Persons, Industry Competence and Dutyholders) (England) Regulations 2021 useful for more detail. The draft regulations set out the framework of duty holders and their duties. The main duty holders will be the client, the principal designer and the principal contractor. However, everyone undertaking design or building work, including designers and contractors, will also have duties.
The duty holders will need to have systems in place to plan, manage and monitor the design work and building work, to ensure they co-operate and communicate with each other, and to co-ordinate their work. The regulations also require duty holders to have the relevant competence—the skills, knowledge, experience, behaviours, and organisational capability—to undertake work, and to ensure that those they appoint are also competent to carry out that work. We will discuss that in more detail when we come to consider clause 34.
The regulations made under clause 33 will hold to account all involved in building work, making them responsible for the work they do and the decisions they make, ensuring those buildings are safe for those who live and work in them. I commend clause 33 to the Committee.
Shaun Bailey
Clause 33 is just common sense, really. It is ultimately about ensuring that those people who are appointing people, or those organisations that are making appointments to do work, are doing so in a way that is right and safe. I am conscious that I should not stray on to clause 34, but it is about ensuring that they appoint people with the ability to do the work and to perform those basic duties that we would expect.
I am slightly surprised that we need clause 33, to be honest, because to me it is common sense that if we were going to appoint people to do a job, we would make sure they could do it properly in the first place. None the less, we have seen, and we have heard in the evidence, that it is needed. It is probably a sad indictment of the market and the industry we are dealing with that we need to specifically prescribe in legislation that people who are appointed to do the work can do so in the way they need to, and that we will require building regulations to specify what that looks like.
I turn to the general duties as specified in new paragraph 5B. A lot of this stuff would appear to be relatively straightforward; it is just about ensuring that people are undertaking the work in the right way. I will not make too many comments on industry competence, because I appreciate that that is addressed further on, but, broadly speaking, for many of these clauses it will be interesting to see the regulations that follow and how that is prescribed.
Shaun Bailey
That is a good question. What will be needed is a broader conversation with the industry, and the evidence from the Association of British Insurers was about that industry engagement. What we are trying to do with this legislation is to bring about cultural change, so that cultural change must be holistic. As part of that, we must be open to having those conversations with insurers and with all parts of the sector. I am just thinking about these duty holders, and the point raised by the hon. Gentleman is about remembering what the sector is.
Obviously, it is not just the firms that are building or constructing these developments: it is the insurers, the subcontractors and the people who provide the materials. The sector encompasses all those people as well, so how far do we extend these duties? Again, these are questions that we are going to have to deal with, perhaps through secondary legislation: how far do those appointments go? What do they look like? Who are we appointing? Who are we applying them to?
Those are all academic questions that I do not wish to tempt my right hon. Friend the Minister to answer today, because I appreciate that we will go into further detail about them, but I think that the point made by the hon. Member for Liverpool, West Derby triggers a further conversation that is definitely worth having. Broadly speaking, though, clause 33 is about doing what many of us would consider to be common sense, and for that reason—although it is quite surprising that we need it—I fully support it and hope that it becomes part of the Bill.
Christopher Pincher
To reiterate, the effect of clause 33 is that those who commission a building, design it, construct it, and may refurbish it will be required to make formal appointments, so that everybody knows what everybody else’s role in this is, and proper and effective enforcement action can be taken against them.
A principal designer has to be appointed, and the role of that designer is understood; a principal contractor is appointed, and the role of that contractor is understood. The new regulator will be able to hold the principal persons to account using the range of enforcement tools that we have discussed, and we have also discussed the mechanisms for funding them as effectively as possible. Local authority building control will also have a range of enforcement powers, so although this clause may be common sense—as my hon. Friend has suggested—it is an important mechanism for codifying building safety, while also making sure that there is sufficient flexibility in the law to take account of future changes in circumstances that the House of Commons may wish to rapidly respond to through secondary legislation, rather than writing all the law on the face of the Bill.
Although clause 33 is possibly common sense, and although it is yet another rather dry and technical clause, I reiterate that it holds everyone involved in building work accountable for the work they do. It makes them responsible for the work they do and the decisions they make, which will ultimately help to ensure that golden thread of information and the safety of buildings. As such, I commend it to the Committee.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Clause 34
Industry Competence
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
The Government want residents to have confidence that those working on their building are competent to do their job properly and in compliance with building regulations, in order to ensure safe and high-quality buildings. This is vital to underpinning our reforms of building safety. Building regulations currently have minimal provisions about how design and building work should be done. Our intention is to set out more specific requirements relating to the competence of persons doing any design or building work.
Clause 34 therefore amends the Building Act 1984—which, as we know, is 37 years old—creating powers to prescribe in building regulations the competence requirements relating to the principal designer and principal contractor, the appointed persons, and any other person. We intend to use this power to impose in building regulations a general duty on anyone doing design or building work to have the appropriate competence to do their job in a way that ensures compliance with building regulations. Building regulations may also impose duties on those appointing the principal designer, the principal contractor and any other person, to ensure that those whom they appoint meet the competence requirements.
Mark Logan (Bolton North East) (Con)
Will increasing confidence in the competence of duty holders be a vital part of restoring faith and confidence in the construction industry?
Christopher Pincher
Yes, I think it will be. We have seen a significant decline in confidence in the sector, and we have certainly seen a decline in trust. We believe that imposing competency requirements will contribute to the golden thread not just of information, but of trust, which we need to re-engender among residents living in in-scope buildings, and in the wider building sector more broadly. I agree with my hon. Friend, because I believe that it will help to reinvigorate trust.
The requirements will apply to all design and building work that is subject to building regulations—not just for higher-risk buildings—and to both organisations and individuals. For individuals, the competence requirements will relate to their skills, knowledge, experience and behaviours.
Shaun Bailey
My right hon. Friend is being generous in taking interventions. He touched on the skills piece for individuals. The running theme within the Bill is about co-operation and communication with different stakeholders. How important does he think it will be for the BSR to be engaged, particularly with further education providers, in order to ensure that the benchmarks that are set as a result of the clause can be met in the training that it provides to future members of the industry?
Christopher Pincher
I certainly think that trade bodies and professional organisations should develop suitable ways for their members to demonstrate their competence. I also want to ensure that the Building Safety Regulator has a broad reach within the understandable constraints of not losing or diluting its very important focus on high-rise and other in-scope residential buildings.
I will reflect on my hon. Friend’s point about reaching out to higher and further education providers, but if I may stretch the point a little, it is certainly the case that by working with our colleagues in BEIS and across other Government Departments, we are building a skill set in the construction industry—young people going into construction and becoming bricklayers or skill supervisors. We need to ensure that they have the wherewithal to build their careers, but we also need to ensure that their professional trade bodies are providing them with competence, and that that competence can be properly assessed by the Building Safety Regulator and its officials.
For organisations, the requirements will relate to the organisational capability—the ability of an organisation to carry out its functions properly under the building regulations. Where the principal designer or principal contractor is an organisation, subsection (3) enables building regulations to require the organisation to ensure that the individuals leading the work have the appropriate skills, knowledge, experience and behaviours to manage their functions. To provide more detail on how the competence requirements will apply, we have published draft regulations to sit alongside the Bill.
Selaine Saxby
Will my right hon. Friend make it clear that this new regime for driving up competence levels will not have a negative impact on industry capacity, particularly in areas such as mine—this might be slightly outside the scope of the Bill—where the sector already has issues with recruitment?
Christopher Pincher
I am obliged to my hon. Friend. We certainly do not want to see skills and capacity further stretched. I will give her one example of the stimulant action that the Government have taken to support the sector. Last November we announced funding just touching £700,000 to train up 2,000 external wall system 1 assessors. I believe that their training commenced in January this year, so they will be coming on stream to provide the sorts of services that are needed. We certainly want to ensure that, in that instance and others, we have appropriate capacity to do the work required.
In addition, the Government intend to provide statutory guidance in the form of an approved document to support duty holders in meeting these requirements. This is a short but important clause, and I commend it to the Committee.
Mike Amesbury
It is incredible that this is not part of the status quo, because we are talking about competence in the construction sector. Of course, this is a changing landscape, with everyone, as the Minister says, having the appropriate knowledge, skills and competence to carry out the new requirements of the regime. There is a lot of onus on the client and the principal contractor. Who assesses whether the principal contractor is competent? What does competent look like? Again, it seems that this may be outlined in guidance and secondary legislation. How do people know whether somebody is genuinely competent to construct or refurbish a higher-risk building? I would be interested to hear the Minister’s comments.
Shaun Bailey
I am mindful that just looking at this clause triggers a lot of thought processes. As the hon. Member for Weaver Vale has just said, we might have thought that this was already a given: that if we get someone to do a job, they should have the skills and qualifications needed to do it properly. It triggers some broader thought processes on how we embed these legislative and regulatory standards within the system more broadly.
I am grateful to my right hon. Friend the Minister for his response to the intervention on education. Clearly, as a result of this clause, we will have to embed this within the culture, which will require that stakeholder engagement. I was heartened to hear my right hon. Friend say that he would take that away and ponder it.
The key thing, as with all of this, is how it will operate in practice. The sentiment of the clause is the right one: in order to ensure that people living in high-rise buildings are safe, those buildings must be constructed by individuals who know what they are doing, and the onus must be placed in statute on the organisations constructing these buildings to ensure that the competence and skills base is there.
My hon. Friend the Member for North Devon raised an important point in her intervention about getting the balance right. I think this does get the balance right, in that it ensures that we can still recruit to the industry, so that a flow of workforce still comes into it, but things clearly have changed since 1984. My right hon. Friend the Minister articulated that by highlighting that the existing regulations are 37 years old. Just to put that in perspective for the Committee, that is slightly before I was born. I was born in 1992—I do not know whether that horrifies some Members.
I am the grandson of a builder, and it is clear that building sites have changed in 40 years. The expectations and complexity of the jobs that firms are now undertaking require the ability to know that the competencies are there. We now have a raft of qualifications, and different levels of experience and needs, as I have said in previous contributions—I am sure everyone has noted that meticulously. None the less, it is important. Things have changed and moved on. We are operating and trying to regulate an ever-changing marketplace that has new technologies coming on board and new materials coming into play, and we need the individuals who operate in this space to have the skillsets and ability to react to that.
The one thing that I would say—perhaps this will be addressed in secondary legislation—is that in my profession, we always had to show continuous professional development. We had to show that we had not just sat there after qualifying perhaps 10 years ago, because things had moved on.
Ian Byrne
On the issue of competence, last week we touched on training—the funding of training and who is going to do it. We will need lots and lots of people, and that is a huge opportunity for this country, but who will monitor the competence? Will it be accredited? Will there be an agency to accredit it? Again, this all links back to the evidence that we have been listening to over the past two weeks about culture change. This can start right at the very beginning of somebody’s career, and it can be hard-wired in. It would be good to get an understanding of who will oversee the competence, and how the training will be delivered and—I am going to say the magical word again—funded.
Shaun Bailey
The hon. Gentleman makes a really important point. I am sure he and I are both passionate advocates of technical and vocational education, and this clause says that we have to treat the industry with some respect. That means having in place accreditation structures that are properly recognised. I get what he says about funding, and I am sure that my right hon. Friend the Minister has heard his plea. I say to the hon. Gentleman—if you will indulge me, Mr Efford—that he has a sympathiser in me, and I am sure that my right hon. Friend the Minister will at some point have conversations with the Department for Education and the Treasury about how that looks. The hon. Gentleman is right. Ultimately, although this is a short clause, it leads to so many different things. That is the key thing. Ultimately, as he articulated well, if we are going to ask for this, we need to know what the accreditation models are and the FE providers need to know what the structures are for providing this training. All those conversations come out of clause 34.
Shaun Bailey
Of course, although I am not a member of the Privy Council just yet.
Mark Logan
My hon. Friend’s exchange with the hon. Member for Liverpool, West Derby got me thinking. I am interested to hear from the Minister in his closing remarks on the clause about the financial implications of ensuring that we have competency in the industry. What assessments has his Department, or indeed the Department for Education or the Treasury, made? In the longer term, what benefits does he see the clause giving to UK plc on the long-standing issue that the UK has had with productivity, vis-à-vis some of our peer countries in the G7 and G20, for example?
Shaun Bailey
I am not sure whether the question was to me or to the Minister, but I will give my opinion, as I am sure the Minister will give his.
From my perspective—you are being very indulgent, Mr Efford, so thank you—what clause 34 does for productivity is to push the point on accreditation and on being sure that people have qualifications, so that a young person thinking about where to go hears, “Come to this trade, because you will get skills, qualifications and accredited.” I know from my communities that a lot of the time it is about how something is pitched or framed. If we want to attract young people into jobs and skills, we have to say what they will get from it. If a young person can get accredited and feel, “You know what, I have a qualification, and can take this further. I can move forward and go different places with it”, that is one way to deal with the productivity issue, as my hon. Friend the Member for Bolton North East said in his intervention. There are many other ways as well.
I was trying to articulate a point on the role of the Building Safety Regulator in setting industry competence. We have said throughout our deliberations on the subject of safety that we cannot see the BSR only as the executioner who comes in at the end, when it has all gone wrong. It cannot do that; it has to be leading the way—that is the key bit. That comes back to the point that I made before—my hon. Friend doubled down on it for me with his intervention—which is about ensuring that the link-in with the different stakeholders allows us to implement what is going on in clause 34—to ensure that the training bars are there, the levels are in place and we know where we start. When we train up the next generation of people for the construction industry, they need a clear idea of the knowledge base that is necessary.
Shaun Bailey
I will make a probably revolutionary point: I might be a Conservative MP but, yes, trade unions have a part in this—110%. The discourse with the trade unions is beneficial. I, too, have benefited from positive relationships with my trade unions when necessary. The hon. Gentleman is absolutely right. Again, part of that is the holistic approach. That is the whole point of how the clause has been constructed. It allows us to be flexible and to have those ongoing conversations, which will be important in the implementation of the legislation. My right hon. Friend the Minister is listening intently and absorbing this—I am grateful to him for doing so—and he will pass it on to his officials, because to make the Bill effective we will have to be as broad brush as possible with engagement.
To conclude—I am sure many hon. Members are disappointed—clause 34 as drafted, as I said about clause 33, does something that is basic, which is that people who undertake a job of work should have the ability to do it. I hope I have articulated that in some way in my contribution, but as I have said, that will trigger a lot of further conversations. We need this to work. We need to ensure that the people undertaking the work on these high-risk developments—which we still need, because we have a housing shortage and we need to build more houses and more places for people to live—have the relevant qualifications. To that end, the secondary legislation, the guidance note, the approved document referred to by my right hon. Friend the Minister, and the competence standards being developed by the British Standards Institution, will all be important. We need to ensure that they are translated into a workable approach that brings together all the different stakeholders —we have discussed trade unions, further education providers and the industry more broadly—so that when 16, 17 or 18-year-olds decide to follow this profession as a career, they know what is expected of them. Speaking from my own experience, it can be odd when people do not know what the benchmark is.
Mark Logan
This might be a bit of a long shot, but if there is more competency among the young individuals going to firms, might that not lead to fewer cases of malpractice and, indeed, bankruptcy down the line? Some of my constituents in Bolton North East have had issues with builders who have gone out of business and then subsequently set up other companies. I would be interested to hear what my hon. Friend makes of that particular point.
Shaun Bailey
I shall answer briefly. I am not entirely sure whether clause 34 would address those issues. Malpractice is a business competency issue. In terms of the ability to undertake the work, clause 34 sets the base expectations, but I do not think it will solve all of that. To sum it up, clause 34 sets the base, and will, I think, trigger further conversations, similar to those we have had today. I am grateful to my right hon. Friend the Minister for being open to those conversations, which he has very much listened to. I certainly await the approved document and the BSI’s intervention with great interest. Thank you, Mr Efford, for indulging me today.
Christopher Pincher
Having listened to the debate, I feel that both Whips on duty may be concerned by the outbreak of political amity that seems to have gripped the Committee, with Liverpool extending its hand across the Chamber to shake the hand of West Bromwich West. It is a sight to behold and is possibly not to be seen again any time soon. The debate on this clause has been a useful one. It demonstrates the importance of getting competency standards properly understood and properly driven up.
The hon. Member for Weaver Vale said that it is amazing that we are talking about the issue of competency now. He is, of course, quite right. It is surprising that, with Governments of different stripes and colours over the last 37 years, none have acted in a comprehensive way to deliver the sorts of outcomes that Grenfell has taught us that we need.
1984 was a long time ago. None of us, I think, would want to now wear the clothes that we were wearing back then. Some of us could probably not even get into them. It is right, therefore, that we should revise the Building Act 1984 to meet the challenges of today and recognise that competency is something that we should address in this Bill. That is what we are doing.
We believe, with due respect to the hon. Member for Liverpool, West Derby, that industry must lead the way to improve the competency of those working on higher-risk buildings, and, with Government support, that is what industry has been doing. The competency steering group and its sub-working groups published a report in October of last year.
The Government, as my hon. Friend the Member for West Bromwich West has suggested, is sponsoring BSI to create a suite of national competency standards for high-risk buildings. They include core criteria for building safety in competence frameworks and a code of practice, which sets out key principles to be used by different sectors to develop their sector-specific competence frameworks. It also includes the competence standards for the principal designer and principal contractor.
As we heard in evidence and in the line-by-line scrutiny we undertook last week, the Health and Safety Executive is setting up an interim industry competence committee. That will be followed by the statutory industry competence committee within the Building Safety Regulator, to ensure that once the Bill is in force we support the industry to raise competency and contribute a pipeline of people for the new regulatory regime.
To answer some of the points raised by the hon. Member for Liverpool, West Derby, he is right that unions have an important role to play. We had a conversation a week or so ago, and I pointed out to him that the National House Building Council has opened a bricklaying school in my constituency, supported by Redrow. It cuts in half the time it takes for bricklayers to learn their skills, become competent at their profession and receive an appropriate qualification. That is an example of industry working together with third-party organisations to provide the skills, supported by the Government, to ensure that buildings are built properly and effectively.
As I said in my earlier remarks, building regulations currently have minimal provisions about how design and building work should be done. That is wrong and we wish to address that. It is our intention to deal with that through this clause, and I therefore commend it to the Committee.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35
Lapse of building control approval etc
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
This clause replaces section 32 of the Building Act 1984, that bell-bottom flare and platform-shoe Act that we need to reform in order to make it more competent. I do not mean to be flippant, but we need to make it more appropriate to the modern day. This clause also amends section 52 and schedule 4 of the Act, to simplify the process under which a building control approval given by a building control authority, or an initial notice issued by a registered building control approver, or a public body’s notice, lapses if work has not started after three years.
The changes will bring the Building Act in line with how unused planning permissions lapse automatically after three years if work has not started. Currently, if work has not started after three years, a local authority can issue a notice that any plans approval issued for that work has no effect, or to cancel any initial notice that has been issued for that work.
Rather than placing the onus on the local authority to identify and take proactive action to issue a notice that the building control approval has no effect, or to cancel the notice, the new section 32, and amended sections 52 and schedule 4, allow for the approval or notices to lapse automatically. This simplifies the system and saves the local authority the administration of having to issue the notice of cancellation.
Christopher Pincher
It looks as if my hon. Friend the Member for West Bromwich West is about to intervene, so I will pre-empt him by giving way.
Shaun Bailey
My right hon. Friend Minister might intend to touch on this—if so, I apologise for pre-empting him—but in the scenario of a multi-purpose development, could he clarify what would happen if a developer of builder had started work on one building in a multi-building development? Would that still lapse? I am conscious that that is a way in which the system might be gamed.
Christopher Pincher
If the buildings are connected, so to speak, they will be treated as one. The new provision also rules out any possibility of a developer seeking to game the situation by starting work on one building on a multi-building site and using that to allow the approved building control application, or its initial notice, to continue to have effect for the whole site, even if the site is not built out for many years. It is only for those individual buildings on which work has started that the approval or notice will not lapse; if work has not started, the approval or notice will lapse. This should have the benefit of encouraging sites to be built out more quickly as developers will want to avoid having to resubmit applications. The issue of build-out is raised by colleagues across the House in a wider context, and we may address it in that wider context in another place at another time. Under powers in the clause, we will define in building regulations when work can be considered to start. These amendments will apply in both England and Wales. They are important and sensible changes to simplify how the Act operates.
This is a small but important change, and I commend clause 35 to the Committee.
Mike Amesbury
As stated, it is about time that the scenario is brought up to date with the current planning regime. I would be interested in the Minister’s thoughts—this touches on the future conversations that we will undoubtedly have in this place—on whether, if the build-out has not occurred within three years, the response should be to say, “Use it or lose it”.
Christopher Pincher
Our approach—the House’s approach—should always be to make good and effective law. We are all concerned when permissions are granted, be they for tall buildings or smaller buildings, but build-out does not take place. There can be perfectly good and legitimate reasons for that, but there can be less good and less legitimate reasons. The challenge that we have in this Committee and in a broader context with respect to wider planning reform is to ensure that in encouraging build-out, we do not unintentionally create new ways in which those who wish to do so can game the system. Neither do we want unfairly to disadvantage small and medium-sized builders, and we certainly do not want to disadvantage self and custom-build contractors, or people adding an extension to their home.
We have to make sure that we get the regulations right. I think we have attempted to do that through the small change made in clause 35. I am very happy to work across the Floor more broadly, but hon. Members can be assured that we will attempt to do similarly when we bring forward our more substantive changes to planning reform in the future.
Question put and agreed to.
Clause 35 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned.— (Scott Mann.)
Building Safety Bill (Seventh sitting)
(3 years, 3 months ago)
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The Chair
Before we begin, I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted, except for the water that is provided. I encourage Members to wear masks when they are not speaking, in line with current Government guidance and that of the House of Commons Commission. Please give one another, and members of staff, space when seated and when entering and leaving the room. Hansard colleagues will be grateful if Members email their speaking notes to hansardnotes@parliament.uk.
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following:
That schedule 2 be the Second schedule to the Bill.
Clause 22 stand part.
The Minister of State, Department for Levelling Up, Housing and Communities (Christopher Pincher)
It is a pleasure to serve under your chairmanship, Mr Efford. I welcome the Committee back to its deliberations.
Clause 21 allows the Building Safety Regulator to authorise individuals to exercise powers on the regulator’s behalf. However, before making an authorisation, the regulator must be satisfied that the individual being authorised is suitably qualified to exercise that role. This power is designed to enable the effective functioning of the Building Safety Regulator’s functions in respect of higher-risk buildings.
Dame Judith Hackitt’s independent review found that the regulation of higher-risk buildings could be improved by bringing together Health and Safety Executive expertise, local authority building control expertise and fire safety expertise from fire and rescue services. As we have already discussed, clause 13 enables the Building Safety Regulator to secure the assistance of staff from local authorities and fire and rescue services in its work on higher-risk buildings.
This clause goes further and consolidates the independent review’s recommendation, allowing the regulator to authorise others, including officers of these bodies, to exercise powers on its behalf. Under its general powers, the Building Safety Regulator will also be able to secure expertise from the private sector to deliver building functions on higher-risk buildings. In certain circumstances, the regulator may want to authorise such individuals to exercise powers, and this clause enables that to be done. The regulator will be able to authorise such individuals only where they have been appropriately trained to exercise these powers.
As some individuals will have more competence and expertise than others, the Building Safety Regulator will have discretion to confer different sets of powers on different individuals. For example, one person might be authorised to make applications for search warrants because they have appropriate experience, whereas another might be authorised to do site visits and seize documents.
In practice, that could work as follows: the Building Safety Regulator may request assistance with building control matters from the local authority, which provides an appropriately trained building control expert to assist with the regulator. The building control expert could be given Building Safety Regulator powers to enter non-domestic premises with or without a warrant. However, the Building Safety Regulator may decide not to designate this individual with the power to enter domestic premises, on the grounds that they do not have the necessary experience and training to do so. Deciding to enter domestic premises requires a balance to be struck between a person’s right to privacy—the resident—and the public interest in making entry to obtain, for example, evidence of wrongdoing. Not all those working with the regulator will have the necessary experience and training to make such decisions.
The full list of powers available is set out in schedule 2, which I will now turn to in some further detail. With the introduction of new duties and new processes into the building control regime, authorised officers will play a significant role in ensuring compliance with the new regime. This schedule provides officers who have been authorised under clause 21 with a suite of powers to enable them to assist the regulator in carrying out its building functions. This includes powers of entry, inspection and collection of evidence that mirror existing powers used effectively under similar regulatory regimes, such as the Health and Safety at Work etc. Act 1974. These powers are designed to be flexible and to be useful in every situation that authorised officers may encounter.
To ensure proportionality, as with existing practice, warrants will be required to enter residential premises or any premises where it is expected to be necessary to use force to enter. If an application is made to a magistrate for a warrant to enter domestic premises, additional powers may be requested, where required. Those are powers, first, to use force to gain entry; secondly, to collect and take away evidence; or, thirdly, take other personnel—for example, experts—on to the premises.
Compliance with the requests of authorised officers will be integral in ensuring the effective functioning of the new regime and will avert potentially dangerous situations for residents. As such, authorised officers have been provided with the powers necessary to enforce compliance where required. Paragraph 8 of schedule 2 provides that failure to provide information upon request to authorised officers will be a criminal offence. Deliberately providing information to the regulator that is false or misleading, when required to provide information or in the other circumstances in the clause, is an offence under clause 23.
Shaun Bailey (West Bromwich West) (Con)
Does my hon. Friend agree that establishing criminal offences of obstructing the regulator’s work solidifies the regulator’s position, which is vital in ensuring residents’ safety?
Christopher Pincher
My hon. Friend is quite right: we must ensure that every player in the design, development and construction of in-scope buildings recognises the importance and powers of the regulator and the penalties that may apply should any attempt be made to obstruct or impersonate it. The offences will carry a maximum custodial sentence of up to two years to provide an effective deterrent to non-compliance. I hope that my hon. Friend recognises the power and veracity of the penalty.
I hope that members of the Committee will agree that this clause is key in enabling the regulator to carry out its functions effectively, drawing on the expertise and involvement of local authorities and fire and rescue services.
Clause 22 makes it a criminal offence to obstruct or to impersonate an authorised officer of the Building Safety Regulator. Under clause 21 and schedule 2, authorised officers will play a significant role in exercising powers on behalf of the regulator. This clause is designed to protect authorised officers by ensuring that they are not impeded and that they—and, by extension, the Building Safety Regulator—can go about their business of keeping residents safe.
Clause 22 does that by deterring and, if necessary, enabling the punishment of those who seek to obstruct or impersonate authorised officers—behaviour that could severely disrupt or sabotage critical building functions. The difference in penalties for obstruction and impersonation are proportionate to the expected gravity of each offence, reflecting the greater intent required to impersonate an authorised officer. The penalties mirror existing penalties for obstructing or impersonating a police officer and reflect similar provisions protecting staff of other regulatory bodies such as the Food Standards Agency and the Financial Conduct Authority.
The two clauses are crucial components of building the regime of the Building Safety Regulator and I commend them to the Committee.
Mike Amesbury (Weaver Vale) (Lab)
It is a pleasure to serve under your chairmanship, Mr Efford.
As the Minister rightly said in his introduction, clause 21 ensures that appropriately trained individuals secure the involvement of local authorities, key stakeholders and fire and rescue teams in working with the Health and Safety Executive and the regulator.
The current definition of at-risk buildings is those of 18 metres and above. I have said throughout proceedings on the Bill that the scope of “at risk” should be broadened, and we will debate that under later clauses.
We welcome the recommendations, which draw on the findings of the independent review conducted by Dame Judith Hackitt.
How will the regulator ensure that individuals are appropriately trained and qualified under the framework? An example arose yesterday on social media of a resident living in a block in Bournemouth. The block was signed off by a previous employee of the council but it has been riddled with fire safety issues that we in this room and beyond are all familiar with. The individual has now set up as a private contractor, free to assess so-called fire safety issues in other at-risk buildings.
Clause 22 is straightforward, and we agree with it. Although it is beyond the Minister’s remit, a £1,000 fine for impersonation seems little deterrent, given the amount of money involved in building construction. As the Minister said, current levels of fines under the justice system for impersonating police officers will apply.
Shaun Bailey
It is a pleasure to be back on a Committee with you, Mr Efford, and to see you in the Chair. I shall keep my comments brief because my right hon. Friend the Minister articulated most of the relevant points in his customary clear manner. I do not want to be repetitious.
Clause 21 is positive. It reinforces the non-siloed approach that we need to take to building safety. The Building Safety Regulator has the ability to work with different agencies and ensure it can meet its goals. The ability to gain entry to buildings and ensure compliance is important. We discussed the issue last week and it was clear that safety has to be at the heart of this. We must ensure that the mechanism safeguards residents.
We also discussed last week the need to ensure that the regulator is not beholden to anyone—that it is independent. I was heartened by the comments made last week by my right hon. Friend the Minister about the regulator always being the independent voice, especially in its engagement with third parties to deliver the objectives in clause 21.
Clause 22 deals with the criminal offence element. As I said in my earlier intervention, it reinforces the role of the Building Safety Regulator. It says to the industry and to stakeholders, “You have to take this seriously. You cannot stop the regulator doing what it needs to do to keep people safe.”
The introduction of a level 3 fine seems proportionate, but I implore the Minister to use a degree of flexibility. As circumstances change, things might need to become a bit more severe. I hope not. I hope that the Bill will lead to a sea change in the environment we have seen hitherto. The fact that we have put obstruction of the regulator on a statutory footing will reinforce that.
I fully support the clauses and wish them well.
Christopher Pincher
I am grateful to my hon. Friend the Member for West Bromwich West and concur with his sentiment that we must ensure that the Building Safety Regulator has the flexibility to do its job properly and the enforcement powers to ensure that all players across the in-scope sector recognise the importance and veracity of those powers.
As we move through the Committee’s deliberations we may disagree on matters of scope, but I hope that as we build the Bill—clause by clause and schedule by schedule—the House, of which this Committee forms a part, and the sector will recognise the powers that we are creating for the Building Safety Regulator and the importance of the law.
The hon. Member for Weaver Vale asked a couple of questions about clauses 21 and 22. He will know—he has heard me say it before in this Committee—that it is the responsibility of the Building Safety Regulator to build multidisciplinary teams that include local authority resources, fire and rescue service resources and those of others. We believe that the duty on them to co-operate will ensure the right level and that the right skills and expertise are available to the regulator.
We are working closely with the Health and Safety Executive to identify appropriate training arrangements for authorised officers. The powers available to authorised officers are very similar to existing powers available to local authority building control, the HSE and so on. We do not believe that new and further training and skills will be required, but I take on board the hon. Gentleman’s point about training.
The hon. Gentleman mentioned enforcement and penalties. We believe we have struck the right balance in the penalties that apply to the obstruction or impersonation of an authorised officer of the Building Safety Regulator. If he rereads the explanatory notes, he will see that impersonation of an enforcement officer acting on behalf of the Building Safety Regulator is subject to a fine not of £1,000, but to an unlimited fine. If someone were to obstruct the regulator or an enforcement officer, the fine is £1,000. We have created that differentiation because we want to make it clear that impersonating an enforcement officer is a much more grave offence than obstructing an officer, even though that is an important offence in itself.
Siobhan Baillie (Stroud) (Con)
I am interested in the point that the Minister is making and in how the penalties for obstructing and impersonating compare with those for obstructing and impersonating other officials.
Christopher Pincher
I am grateful to my hon. Friend for asking that question. For example, if an authorised officer of the Building Safety Regulator is obstructed, a level 3 fine of £1,000 may be levied. That compares with a similar fine for obstructing a police officer. However, given the nature of policing, the warrants held by police officers and the threats and difficulties that police forces can sometimes encounter, it is also possible for one month’s imprisonment to be imposed on an obstructer of a police officer. We have tried to make sure that the penalties are proportionate, and I trust that the Committee will agree that they are.
Having said that, I trust the Committee will see that clause 21 and schedule 2 enable the Building Safety Regulator to carry out its functions effectively, drawing on the expertise and involvement of local authorities and fire and rescue services. Clause 22, which we have just debated, enables the punishment of those who seek to obstruct or impersonate authorised officers, and I hope that the Committee will agree that these are good and proportionate clauses. I commend them to the Committee.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Schedule 2 agreed to.
Clause 22 ordered to stand part of the Bill.
Clause 23
Provision of false or misleading information to regulator
Question proposed,That the clausestandpart of the Bill.
Christopher Pincher
The Committee will see that there is a theme running through the clauses numbered 20-something. Clause 23 makes it an offence to provide false or misleading information to the Building Safety Regulator in circumstances specified in subsection (1). The Building Safety Regulator will have powers to make a number of individual regulatory decisions based on the information provided by duty holders. As such, the Building Safety Regulator’s decisions have a direct effect on the safety of residents in high-rise buildings. It is therefore essential that correct information is supplied to the regulator to ensure that the residents in the building are safe and that the proper and requisite requirements of building safety are adhered to. This power aims to deter the provision of any information that could impair the regulator’s decision-making capability.
The independent review recommended a stronger enforcement regime in line with the approach taken in the Health and Safety at Work etc. Act 1974. This offence carries a maximum penalty of an unlimited fine and/or two years imprisonment, which mirrors the maximum sentence for the similar offence in the Health and Safety at Work etc. Act. Again, that takes forward the recommendation in the independent review. The weighty custodial sentence in this provision seeks to provide a strong deterrent against the provision of false or misleading information. This is to preserve and promote the effective functioning of the Building Safety Regulator and the safety of the building and residents.
We will come on to clause 138, but it is worth referencing it in the context of clause 23. It will allow for any officer of the corporate body to be held responsible for the same offence if they participated in the offence in the ways set out in clause 138. However, it illustrates that there are similar and sufficient powers for the BSR to apply to corporate bodies, and that again mirrors the provisions in the Health and Safety at Work etc. Act. This goes above and beyond the current building safety enforcement regime and it creates a stronger incentive for those who are directing companies to provide accurate information to the BSR. I hope that the Committee will agree to the clause. I commend it to the Committee.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24>
Review by regulator of certain decisions made by it
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
I will speak first to clause 24. The Government support the independent review’s recommendation that the new regulatory system should have
“a clear and easy route of redress to achieve resolution in cases where there is disagreement”.
I suspect that, from time to time, there will be disagreements. We are committed to ensuring that, where disputes occur in relation to regulatory decisions, they are resolved as quickly as possible for all parties involved. Our fundamental and overriding objective is to make sure that buildings and the people in them are safe.
The Building Safety Regulator will make a significant number of regulatory decisions under the new legislation. The approach to any disputed decision will be two-staged: first, an internal review by the regulator and following that, if necessary, an appeal to the tribunal. It will be in both parties’ interest that an independent team within the regulator carry out an initial review of any disputed decision. This will ensure swifter resolution for both parties.
Selaine Saxby (North Devon) (Con)
The Minister has mentioned a two-tier approach, so will he clarify whether that will put lengthy delays into the whole process?
Christopher Pincher
I am obliged to my hon. Friend for asking that question. The very reason for having a two-stage process and an initial stage is to try to make sure that disputes that can be resolved quickly are resolved quickly and to minimise the number of disputes that go to the first-tier tribunal. That can be a more lengthy process. Our objective is to move as swiftly as we can through any disputes. We believe that will be for the public good.
As I have just said to my hon. Friend, clause 24 provides the legal basis for a person affected by the Building Safety Regulator’s decisions to request to have that decision internally reviewed. In the initial years of operation, we expect that there will be a substantial number of requests for review owing to the natural adjustment required by all industry actors to the new regulatory regime. We expect, and we intend, the Building Safety Regulator to make every effort to resolve disputes at the internal review stage. We believe that will be the swiftest way of achieving resolution. The right of appeal to the courts remains because individuals will be able to appeal against a decision made on review to the tribunal if they think it is unsatisfactory.
Brendan Clarke-Smith (Bassetlaw) (Con)
The Minister has mentioned appeals. Will he say more about what the Government are going to do to ensure that the regulator is transparent in those appeals and in the outcome of the reviews?
Christopher Pincher
We certainly want the system to be transparent and the outcome to be agreeable to both parties, so that things can be done as swiftly as possible. We certainly want to make sure that the right resources are made available to all parties to ensure that that can be done. I am grateful to my hon. Friend for highlighting the importance of swift and transparent resolution.
As I have said, the right of appeal to the courts remains and if I give an example of how the system may work in practice, it may assist the Committee and my hon. Friend the Member for Bassetlaw. Relevant duty holders may have submitted a full gateway-2 application with all its constituent parts. The Building Safety Regulator, however, finds some of these documents to be not compliant, so does not approve the application to enable construction to begin. The developer then lodges an appeal—an internal review—against the Building Safety Regulator’s decision within the period prescribed. The BSR then decides the most appropriate form of review and how comprehensive the review will be. If the developer is not content with the final decision of the regulator, they can appeal that decision to the first-tier tribunal. I might add that this clause is intended for certain types of regulatory decisions, such as the example of the refusal of a gateway application, but it does not include enforcement decisions, which will be appealable directly to the tribunal. The clause reflects our intention that, where disputes occur in relation to regulatory decisions, we want them to be resolved as rapidly as possible for all parties involved.
Where disputes regarding the regulator and its decisions occur, and given that the BSR will make a significant number of regulatory decisions, it is in all parties’ interests for them to be resolved in an expedient and expeditious manner. Clause 25 therefore specifies that a decision by the BSR, if disputed, must initially be reviewed by the regulator’s independent internal review procedure before an appeal can be lodged with the first-tier tribunal. The intention behind this clause mirrors that of clause 24, because it seeks to ensure swifter resolution for both the individual who has lodged the request and for the BSR by providing an alternative dispute resolution procedure. It is important that disputes are swiftly identified and rapidly resolved, we hope, to the satisfaction of all parties. We believe that the two clauses provide an expeditious set of methods, so I commend them to the Committee.
Mike Amesbury
Again, we welcome the ability to request a review and the provision for a first-tier tribunal, which will create the necessary expertise going forward. The detail of quite a lot of the provisions is left to secondary legislation, so will the Minister expand on some of that? Would he also provide some clarity on the persons directly impacted and an example of when the regulator would intervene because it is not happy with the work carried out by the developer? In what circumstances could the developer apply for a review?
Siobhan Baillie
It is a pleasure to serve under your chairmanship, Mr Efford. I am a lawyer, so I would say this, but I agree that it is super-important for disputes to be dealt with properly. That was a key plank of the Minister’s explanation of the clauses. I am also pleased that a right of appeal to the court remains, but I will be interested to hear from the Minister how the Government will ensure that the regulator reviews decisions and whether there has been any assessment of how long reviews can take. We know that the issues are incredibly complicated, so there should be some investigation into that now and an ability for the regulator to check their own homework and for us to do so too.
When a developer lodges an internal review against the Building Safety Regulator’s decision within the prescribed period, the explanatory notes to the Bill say:
“The Building Safety Regulator decides the most appropriate form of review and how comprehensive the review will be.”
If the developer is not content with the final decision of the BSR, it can appeal that decision to the first-tier tribunal and that is what we were discussing earlier. The thing that shone out for me when we heard from the witnesses, particularly those affected by building safety concerns in their own homes, was the lack of trust in a range of policies and the legislation. It is therefore incumbent on us all to create the trust so that those people are able to rely on what we are doing. We have talked about transparency in the dispute resolution process and that is obviously key, but I would like to know a little more about how we will ensure that good transparency runs through the disputes process.
Christopher Pincher
I am obliged to my hon. Friend the Member for Stroud and the hon. Member for Weaver Vale. We are clear that the process should be as collaborative as possible. We want it to be fair and transparent. When disputes arise, we envisage that the first stage of that dispute will be an informal discussion between the parties. That is normally part of the process that the HSE employs in other examples. If there is an internal review and if that is followed by an appeal to a first-tier tribunal, all those discussions and decision points will of course be publicly aired in the normal way.
What we want fundamentally to ensure is that the BSR has the flexibility to do its job effectively and to build casework and a casebook of knowledge and expertise that it can then use in cases as they develop. That is one of the reasons why—to answer the question from the hon. Member for Weaver Vale about secondary legislation—we are employing statutory instruments largely through the affirmative procedure. That will give the Commons in Committee and in the full House the ability to scrutinise, debate and vote on the issues. Fundamentally, it allows us as the Government, on the recommendations and advice of the BSR, to improve legislation rather than write it into the Bill and thus require further primary legislation should we find that events and examples arise to require that. We are trying to be flexible.
Daisy Cooper (St Albans) (LD)
It is a pleasure to serve under your chairmanship, Mr Efford. The Minister talked about internal discussions and internal reviews and, if necessary, going to the first-tier tribunal, which he said ordinarily happens under the HSE. How long might that process take? How long does it normally take under the HSE? Will he address the point made by the hon. Member for Stroud about the need to build trust into the system?
Christopher Pincher
I am grateful for the hon. Lady’s intervention. It is true to say that the first-tier tribunal element of any dispute resolution procedure can take months before a hearing is held. The tribunal is a busy organisation. It can, indeed, take a little longer, depending on the nature of the case, for a decision to be handed down. That is why informal discussion and decision between the appellant and the Building Safety Regulator are sensible in resolving smaller disputes, particularly in the early stages of the regulator’s existence when there are likely to be a number of disputes and a body of casework by which internal dispute resolution will be conducted. The two-tier mechanism is the right way of ensuring swift dispute resolution, enabling all parties to get on with their work.
Daisy Cooper
I thank the Minister for his patience on this point.
I note from the Minister’s use of language that it is “anticipated” that most cases will be dealt with informally at an early stage and that only exceptional cases will go to the first-tier tribunal. Can he assure the Committee that in the event of many cases going to tribunal and lots of leaseholders getting caught up in this lengthy, slow and bureaucratic process he will consider intervening to bring in other mechanisms to speed up the resolution of disputes?
Christopher Pincher
Without making any firm and final commitment to the hon. Lady, and as I said to the hon. Member for Weaver Vale, one of the reasons we are using secondary legislation in the Bill is to provide the Government, of whatever colour and stripe, and on the advice of experts such as the Building Safety Regulator, with the ability to make changes to the operation of the legislation as the terrain develops. As I said during our deliberations last week, we committed during the covid emergency to increase the resources of the Health and Safety Executive. It is a matter for my right hon. Friend the Chancellor to determine in the spending review the exact amount, but we have committed to ensuring that the BSR and associated bodies have the appropriate resources to do their work. We expect a material number of dispute cases to occur, at least initially as the regulator beds in. I shall bear in mind what the hon. Lady says.
I am grateful to the Committee for its questions and deliberation. Clause 24 aims to ensure that where disputes occur in relation to regulatory decisions, they can be resolved as quickly as possible, which is to the advantage of all parties involved.
Clause 25 ensures that disputed decisions must initially be reviewed by the regulator’s independent internal review procedure before an appeal can be lodged with the first-tier tribunal—again, to ensure that a degree of consistency and transparency runs through the BSR’s deliberations.
With those final remarks, I commend clauses 24 and 25 to the Committee.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Clause 25 ordered to stand part of the Bill.
Clause 26
Cooperation and information sharing
Question proposed, That the clause stand part of the Bill.
The Chair
With this, it will be convenient to discuss that schedule 3 be the Third schedule to the Bill.
Christopher Pincher
As the Committee will have heard me say earlier and, indeed, last week, the duty to co-operate is key to the approach that we are taking in the creation of the Building Safety Regulator and its powers.
At the centre of the Government’s strategy to implement our improvements to the building safety system is the setting up of the first national Building Safety Regulator. To deliver its functions effectively, it is vital that the Building Safety Regulator is empowered to work closely with other public bodies with responsibilities for building safety and standards and for dealing with residents’ concerns.
Clause 26 and schedule 3 will foster and enable that joined-up working in two ways. First, they will create statutory information-sharing gateways and duties to co-operate between the Building Safety Regulator and other public authorities that have statutory responsibilities for the safety and standard of buildings and for supporting residents. These powers will apply only to specific functions relevant to building safety and standards and supporting residents; they will never override data protection requirements.
To take a practical example, when regulating high-rise residential and other in-scope buildings, the Building Safety Regulator will typically set up a multidisciplinary team, including the local authority and the fire and rescue authority. The Bill creates legal information sharing gateways enabling the authorities expected to be represented in this multidisciplinary team to share intelligence about residents’ safety, and use it to co-ordinate their respective operational activity. It is entirely appropriate that this collaborative approach to regulation is supported by reciprocal duties to co-operate between the Building Safety Regulator and local authorities, and between the Building Safety Regulator and fire and rescue authorities. We are also taking this opportunity to provide legal clarity for local authorities and fire and rescue authorities so that they may share information about building safety and standards issues across all buildings.
Secondly, the Building Safety Regulator, certain ombudsmen and the Social Housing Regulator are all likely to receive numerous complaints and concerns from residents. The Government intend that these bodies should co-operate and work together to support residents. For example, if a resident of a high-rise residential building sends an urgent safety concern to an ombudsman to be investigated, these provisions enable the concern to be passed to the Building Safety Regulator as the body able to take action.
Brendan Clarke-Smith
The Minister mentions the duty to co-operate between the Building Safety Regulator and other regulators, and the information-sharing gateways. Will he tell us a little more about that, and why ombudsmen and the Building Safety Regulator will need to work together?
Christopher Pincher
The reason is that it is entirely possible that a resident who has concerns will send them to an ombudsman, even though the Building Safety Regulator is the appropriate repository of that concern.
Shaun Bailey
I am grateful to my hon. Friend for giving way; he is being incredibly generous in taking interventions. My hon. Friend the Member for Stroud and the hon. Member for St Albans mentioned ensuring efficiency in the broader process. Does my right hon. Friend the Minister agree that by enabling data sharing we can ensure that concerns and complaints are addressed by the appropriate person? More importantly, it brings expediency to the process so that, if necessary, intervention by the regulator can be timely and a resolution can be found.
Christopher Pincher
My hon. Friend is absolutely right. Underlying our approach is the need to ensure an efficient and expeditious method of information sharing, whereby resolution is achieved.
It is also possible that, with effective information sharing, it will be possible over time for the Building Safety Regulator to understand the data flows between concerned residents and itself. The regulator will understand why information goes to ombudsman A or ombudsman N rather than to the regulator, and that will enable it and its multidisciplinary agencies better to communicate to involved parties what the correct and therefore most expeditious route to data sharing should be. By sharing data, everything can occur more quickly and people can be better informed.
Schedule 3 contains regulation-making powers enabling the creation of limited further information sharing gateways and duties to co-operate. For example, if evidence necessitated a change to the scope of the higher-risk regime, such that it proved essential that the Building Safety Regulator co-operated and shared information with further regulators, it is appropriate that regulations enable this.
Theo Clarke (Stafford) (Con)
I am grateful to the Minister for taking my intervention. Schedule 3 clarifies information-sharing powers on building safety and standards between local authorities and fire and rescue services. Will he provide further information on how personal and confidential data is to be managed appropriately?
Christopher Pincher
We certainly do not want inappropriate data to be shared. As I said earlier, these powers and data-sharing rights relate specifically to the work in hand of the Building Safety Regulator. They do not override ordinary data privacy rules and requirements. We shall certainly—as this House will want to—monitor that that data is used appropriately.
Given the potential significance of new duties to co-operate and of information-sharing gateways, any regulations creating them will be subject to the affirmative procedure. In a Committee of the House—if necessary, on the Floor of the House—therefore, there will be an opportunity to debate and vote on them.
Placing duties to co-operate and powers to share information on a statutory footing will encourage collaborative working to improve building standards and to ensure resident safety. That will all be done as expeditiously and transparently as possible. I commend the clause to the Committee.
Mike Amesbury
We support the clause and the schedule. They are pragmatic, common sense and based on learned experience—the experience of those who were ringing alarm bells for a considerable number of months with regards to Grenfell and other tragedies before that. The evidence is crystal clear: people being passed from pillar to post and information being lost and in some cases hidden from key stakeholders. Strengthening the provisions and the regulatory regime is most welcome. In 2018, I noted, Kensington and Chelsea was again found wanting by the Information Commissioner—on withholding information about building safety in Grenfell. The Minister was right, as were others in all parts of the Committee, about building trust in the new regulatory regime. That is vital.
Shaun Bailey
I feel that my contribution might be slightly repetitive, given the broad agreement on the clause in Committee.
The hon. Member for Weaver Vale was right that the clause is pragmatic. He was spot on when he said it is about rebuilding trust in the processes. Like my hon. Friend the Member for Stroud, I trained as a lawyer and I know the frustration when bodies do not share information with one another. We have to remember—the hon. Member for St Albans picked up on this in her interventions—we are dealing with people who do not understand the systems, but will have to access them. After looking at the array of information, should someone send their concern or query to the wrong body—unaware that they had done so—we have to ensure that it is still actioned. We are dealing with situations and problems that impact on people’s lives: this is about the safety of individuals in their homes. Where that happens, we have to ensure that seamless sharing of information and co-operation between the agencies—the clause does that.
It is also right for those organisations to co-operate with one another. As we touched on last week in our deliberations, we cannot have a siloed approach. Organisations have to communicate and work together. We have to build a structure within the legislative framework that not just enables that, but to a degree ensures it happens and almost makes it the default that they have to share information, because that is the system in which they find themselves—so there is no way they can avoid doing so.
That being said, the proof of how this will work is in how it is delivered operationally. What will be vital for the regulator to do and for my right hon. Friend the Minister to work on is to ensure that the operational delivery works, that the systems are there to allow that to happen and that the communications are there, that agencies are talking to one another and we have computer systems that do not just fall down at the first moment, but can operate. Once the system becomes operational, I will be looking at how it functions.
I am heartened to see an emphasis on data privacy. We have to get the balance right. Ultimately, we are dealing with personal data. We still need to ensure the right of individuals to have their personal data safeguarded, and their right to remain anonymous, where necessary, is also important. We must ensure that data is dealt with appropriately.
It is right to handle the situation by putting a duty on the different stakeholders. The way we have had to deal with these horrendous issues has been through a multifaceted, multi-stakeholder approach, so we are going to have to build networks. As is often the case, when the networks are built, there is then pressure to ensure that operational delivery works.
I support the clause and am heartened to see what is in schedule 3. We have to ensure that the clause can deliver, and it will be for my right hon. Friend the Minister, his ministerial colleagues and the civil servants to ensure that can happen. If the clause delivers and we ensure that it works, we will have a seamless system that people trust, and people will know that if they have concerns, they will be addressed.
Ian Byrne (Liverpool, West Derby) (Lab)
It is a pleasure to serve under your chairmanship, Mr Efford. For me, this is about funding, as it was last week. We go back to delivery. As the hon. Gentleman says, this is absolutely and intrinsically about the safety of the people we are talking about, but without the funding for the organisations he mentioned—the fire authorities and the councils—it will fall down. Will the Minister ensure that the correct funding is ring-fenced for the organisations to be able to ensure the safety that is required for the people in the buildings?
Shaun Bailey
The hon. Gentleman touches on a really important point. I have a couple of points to address it. Last week, we heard from the Minister that there would be, broadly speaking, a new deal for funding. We also have to look at the procurement mechanisms that are used, in which I have a particular interest. They are really important and must be well scrutinised. We must use the procedures available in this place to ensure that that is done properly.
I was very heartened by what my right hon. Friend the Minister said last week on funding. As Members of this place, we have to ensure, in the ways we do as Back-Bench Members, that he follows through. I have found in the two years I have served as a Member of this place that funding is one thing, but making sure it is used effectively—not just properly—is another. One way to ensure that the organisations to which we say, “Right, build me a system,” can do that is to have the guidance in place, if, for example, we are talking about the systems that will have to be developed. The fire authorities’ primary function is to protect people. They are not whizz kids at building IT systems. We need to ensure that there is a method by which that could be done.
Equally, as I am sure the hon. Member for Liverpool, West Derby will agree, local authorities have many different duties. I think of my own local authority, Sandwell. It could have one department doing four things at the same time. They have to prioritise. They cannot be procuring systems at the same time as dealing with building safety. There has to be a way.
The clause has triggered a broader conversation. I want to stay within scope and I do not want to stray too far, but when we think about how we ensure co-operation, clause 26 highlights that there are broader discussions about ensuring that is done in the right way. I do not disagree with the sentiments expressed by the hon. Member for Liverpool, West Derby on funding. The Minister touched on that last week. Let us see how that goes, and scrutinise it. Ultimately, it is about processes working.
This is the right clause. Sharing data and information will be important, but it is about ensuring that that can be done properly and that the systems are there. I am absolutely sure that my right hon. Friend will do his best to ensure that that happens in the best way possible.
Christopher Pincher
I am grateful to my hon. Friend the Member for West Bromwich West and other members of the Committee for their contributions. As a former IT professional, I spent 18 years implementing IT systems, so I will certainly not commit to this Committee or beyond that all the IT that the HSE and its associated bodies may use will work optimally all of the time. However, we certainly want the Building Safety Regulator to work optimally all of the time.
My hon. Friend the Member for West Bromwich West mentioned the importance of the propriety of data and its use. We want to ensure that data and information can be shared effectively even if they are sometimes of a confidential nature where residents’ safety is concerned. The Bill allows certain public bodies to share information with the Building Safety Regulator, but it does not require them to do so. The ombudsman, of whichever source or nature, will be able to make decisions about what information to share based upon individual circumstances. When, for example, it appears that lives are at risk, we believe that it appropriate that the information could be shared with the Building Safety Regulator. That is why the shadow Building Safety Regulator in the Health and Safety Executive has already started to work with other public bodies to identify the sorts of detailed safeguards that will be required to ensure that personal information is appropriately protected, while issues that might pertain to risk to life are also fully understood so that data are properly and proportionately shared.
Shaun Bailey
I am incredibly grateful to my right hon. Friend; he is being generous in allowing me to intervene. Given his expertise as an IT specialist, does he not agree that one of the key things that we must do across Government when we implement these systems is take a lessons-learned approach? Will he assure me that he has looked in detail at some of the previous occasions when we have tried to implement such systems and that he will ensure that his officials will take away the lessons so that we can support the agencies in the most effective way possible as we set up the system?
Christopher Pincher
Once again, my hon. Friend flatters me in his description of my expertise. I have certainly had some experience of IT programmes in the context of Government that have gone awry. The national IT programme, Connecting for Health, is just one example. I certainly agree to keep a gimlet eye open on the way IT is deployed in this and other circumstances while still recognising the operational independence of the agency and the Building Safety Regulator.
My hon. Friend is right to ask for lessons learned. That segues nicely into the point made by the hon. Member for Weaver Vale when he talked about the importance of learned experience in the context of Grenfell. He is right. That is one of the reasons we want to make sure that the Building Safety Regulator and the associated multi-disciplinary teams have the flexibility to learn. Again, that is why we want to use effectively secondary legislation and regulations rather than primary legislation so that there is the flexibility to build the new authority.
The hon. Gentleman mentioned the challenges of withholding information, and I refer him back to clauses 22 and 23 when we dealt with that issue and made it very clear that withholding information is a grave offence that can be punishable by a fine. He is right also to stress the importance of trust and flexibility. Again, that is a reason why we want to build the multi-disciplinary teams so that the BSR can co-operate with other expert parties. That will help to build the confidence of residents in high-rise blocks as well as that of developers, large and small, and those involved in the construction industry that there is the appropriate degree of co-operation and trust.
Mike Amesbury
There are a number of live applications to the building safety fund, and this is a practical plea on behalf resident leaseholders that many in the Committee will be familiar with. The information on progress is not being shared, and that is a genuine building safety issue that causes considerable anxiety. It has been raised on the Floor of the House, and it is relevant to the discussion that we are having now. It is a practical plea that many residents and leaseholders up and down the country have raised.
Christopher Pincher
I shall expand a little on the scope of this debate to answer the hon. Gentleman very briefly. He will know that we have put aside £1 billion of public money for the building safety fund, and a significant amount has now been disbursed. If there are specific examples of challenges around information being shared or the speed of delivery being effective, I will be happy to look at them.
In summary, clause 26 and schedule 3 will empower the Building Safety Regulator to work closely with other public bodies with responsibilities for building safety and standards. They will encourage collaborative working to improve building standards and ensure residents’ safety.
I am very grateful for the contributions that we have heard from across the Committee but, before I conclude, I should refer to the hon. Member for Liverpool, West Derby who asked about resources. He will know from our deliberations last Thursday that I made it clear that we have increased the resources available to the Health and Safety Executive by 10% of its total budget during the covid emergency. We have also committed to make sure that the Building Safety Regulator is appropriately funded. That is a matter for the spending review, but we have also—he will have seen this as we have progressed through the Bill—put in place clauses that will allow the Building Safety Regulator to charge and levy fees on appropriate parties to ensure that cost can be recovered. I hope that will give him some assurance that we have at the forefront of our minds appropriate funding to ensure that the Building Safety Regulator can do its work.
I commend the clause to the Committee.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Schedule 3 agreed to.
Clause 27
Fees and Charges
Christopher Pincher
I beg to move amendment 7 in clause 27, page 14, line 24, after “fee” insert “or charge”.
The Chair
With this it will be convenient to consider Government amendment 8 and clause 27 stand part.
Christopher Pincher
Let me begin by speaking to amendments 7 and 8. They are minor and technical, and they align the language on the charging powers in clauses 27 and 56—the hon. Member for Liverpool, West Derby will be taking close note—by inserting additional references to charges alongside fees. We will say more about that in future. The intention is to avoid any unintended ambiguities or inconsistencies in the charging provisions created by the Bill. The context is that clause 27 contains important provisions enabling the Secretary of State to introduce regulations that enable the Building Safety Regulator to charge.
Charging powers are necessary to deliver Dame Judith’s recommendations in the independent review that the regulator should charge, and to put the regulator on a sound financial footing. The amendments ensure that there is no ambiguity that regulations under clause 27 can allow the Building Safety Regulator to make charges as well as levy fees. Charges are a slightly broader concept than fees, because fees typically relate to a service. Someone provides me with a service, so I pay them a fee. A charge could go wider by covering additional activities, such as regulatory interventions needed to bring the regulated party back into compliance with the regime. The recommendations of the independent review indicated that where possible, regulated parties should bear the cost when their behaviour results in additional regulatory activity. When the regulated parties have caused such activity, they should potentially bear the cost. We therefore want the Bill to allow charges that meet the recommendations of the independent review to be applied. Fees and charges provided for in regulations under clause 27 will of course remain within the bounds set by “Managing Public Money”.
Let me turn now to clause 27 itself. The Government are committed to ensuring that the Building Safety Regulator receives the funding required to enable it to deliver.
Christopher Pincher
The hon. Gentleman is attempting to lead me down a path that I suspect he will return to later in the Committee’s deliberations. As I said, we want to ensure that should a regulated party engage in behaviour that results in additional activity for the regulator, the regulator should be able to charge. I will confine my answer to that very specific set of grounds.
Mark Logan (Bolton North East) (Con)
It is great to serve under your chairmanship, Mr Efford. Will the Minister explain a little more how leaseholders will be protected from unfair charging in relation to regulator fees?
Christopher Pincher
Yes, of course. Let me be really clear—we will discuss the building safety charge specifically in future deliberations—that we certainly do not want such costs to be passed on to individual residents or leaseholders. The point of the clause is to ensure that where regulatory activity is required by the Building Safety Regulator as a result of an identified party’s actions, that identified party pays for the cost. That certainly should not be passed on to leaseholders or other residents.
Shaun Bailey
I am incredibly grateful to my right hon. Friend for giving way; his characteristic generosity is shining through. I do not wish to lead him astray, but I am conscious of the broader spirit of what we are debating. We have just deliberated over clauses that talk about fines and sanctions. Will my right hon. Friend consider using the funds raised from that, and ensuring that they can be fed through to the regulator? I am sure he will agree that when it comes to funding, a holistic approach is a good way to ensure that we can maximise the resources this vital regulator needs.
Christopher Pincher
I will make some remarks about that as I advance through my speech on clause 27, but we certainly want to make sure that the Building Safety Regulator can recover associated costs from the regulated parties involved.
The independent review recommended that the regulator for buildings in scope of the new and more stringent regulatory regime should fully recover its costs from those it regulates. The recommendation reflected that duty-holders who require the most intervention by the Building Safety Regulator should pay more. The principle of charging within the building safety regulatory system is not new. Local authorities can already charge for building control work under the Building Act 1984, as can approved inspectors. The Bill needs to enable the charging of fees by the Building Safety Regulator, both to implement the independent review’s recommendation and to put the Building Safety Regulator on a firm financial footing.
Brendan Clarke-Smith
May I say once again what a pleasure it is to serve under your chairmanship, Mr Efford? My right hon. Friend mentioned the independent review’s recommendation that the regulator for higher risk buildings be funded by this full-cost recovery approach. Can the Minister explain why the Building Safety Regulator is going to charge fees and how those fees compare with those of other regulators?
Christopher Pincher
The Building Safety Regulator will charge fees in the normal way, and there will be a mechanism to levy that charge on an identified party. It will be the identified party’s responsibility to pay in the normal way. The fees are consistent with the sorts of fees that are paid through other regulatory mechanisms that local authorities, for example, employ, too. That comes with the caveat that we want to ensure that full-cost recovery is achieved by the Building Safety Regulator, so the charges will rather depend what the costs are. I trust that if there are charges for additional regulatory activity on the part of the Building Safety Regulator, it is in the interests of the identified parties not to cause that additional regulatory activity. That is another means of ensuring that everybody behaves appropriately.
Clause 27, alongside clause 56, provides the legal basis for the charging of fees by the Building Safety Regulator. It enables the Secretary of State to make regulations authorising the Building Safety Regulator to charge fees and recover charges from those it regulates.
Christopher Pincher
As I wish to maintain my 100% record of interventions, I will give way on this occasion.
Christopher Pincher
We will discuss the building safety charge in later clauses. I will make it absolutely clear at that point how appropriate costs may be passed on to leaseholders, what the caps are and what it is not appropriate to pass on, such as the examples I am giving here.
Christopher Pincher
I am grateful to the hon. Lady.
The clause enables regulations to be drafted to allow fees to be charged for the Building Safety Regulator’s general functions in part 2 of this Bill, its functions regulating the higher-risk buildings in occupation and its functions under the Health and Safety at Work etc. Act 1974. The Government’s approach will ensure that fees and charges are appropriate. In line with the principles set out in “Managing Public Money”, the Building Safety Regulator will not make a profit on fees and charges for its regulatory activities. They are merely a means of cost recovery.
Setting out fees in secondary rather than primary legislation and allowing the Building Safety Regulator to put certain details in a charging scheme will ensure that fees can change over time. I hope that helps to address the questions that my hon. Friend the Member for Bassetlaw asked.
Initially, the Building Safety Regulator will have to use assumptions to develop fees, but once set up it is standard practice for a public body setting a fee for cost recovery to recalculate fees based on actual experience. This allows the regulator to learn from experience and change the way it charges fees over time to ensure they are both effective in recovering the appropriate amount of money, and proportionate and fair to those charged. Making provision for fees in regulations allows for regular scrutiny of proposed charges through consultation and, importantly, by Parliament. To deliver the recommendations of the independent review and put the Building Safety Regulator on a firm financial footing, we expect that the regulator will charge the accountable person for regulating their actions under part 4.
We will have an opportunity to debate all the issues about which costs the accountable person should fairly be capable of passing on to leaseholders when we come to part 4. However, I will briefly reassure the Committee that part 4 of the Bill ensures that any costs associated with enforcement action by the Building Safety Regulator or resulting from any negligent or unlawful act by the accountable person cannot be passed on to leaseholders through the building safety charge, so the potential costs we are talking about in the clause cannot be passed on to a leaseholder in that way.
That safeguard provides a financial incentive for the accountable person to do the right thing, as I indicated to my hon. Friend the Member for Bassetlaw, because the accountable person will bear the Building Safety Regulator’s costs when it has to tackle serious failures. The Government are working closely with the Health and Safety Executive to develop these proposals, building on its strong track record of successfully delivering cost recovery regimes—a track record that dates back to 1975, so it has some 46 years of experience.
The Health and Safety Executive rightly aims for the Building Safety Regulator to become a world leader in its field and to share best practice and expertise with international partners on a commercial basis. That is another means by which some funds can be raised. Subsection (6) enables the Secretary of State to approve commercial charging by the Building Safety Regulator. This power will be used only with the consent of the Secretary of State and in line with Government guidance on charging.
We believe the clause is vital to ensuring that the Building Safety Regulator has the funding required to enable it to do its critical work, that the accountable parties do the right thing and that any costs associated with these clauses are not passed on to leaseholders or residents through the building safety charge. I commend the clause and the amendments to the Committee.
Mike Amesbury
I thank the Minister. The amendments are a tidying-up and technical exercise that we quite naturally support. I heard what the Minister said about fees and charges, and obviously there have been a number of questions about those fees and charges potentially being passed on to leaseholder residents. I know that where there is a regulatory failure, and fees and charges are passed on to the accountable person, those cannot—I am seeking clarity on this one—be passed on to leaseholders. Is that the same for service charges as well?
Shaun Bailey
This might seem quite a technical clause and set of amendments, but it is an important one. I speak as the Member for the 14th most deprived borough in the country. I am conscious that we have to strike a balance, and I was quite reassured by what my right hon. Friend the Minister said.
Starting from the beginning, it is not uncommon for bodies to charge fees in respect of their activities, where necessary, and in particular bodies that exercise a function such as the regulator. In a way, clause 27 and the accompanying amendments are not uncommon in the nature of what we are discussing. The broader point, which has been made by Members on both sides of the Committee, is that we have to ensure proportionality. That was the key point made by the hon. Member for Weaver Vale.
We need to find a way to ensure that the regulator itself is financially stable and can carry out its work properly; it has to be able to undertake tasks that will be so important in keeping residents safe, and in ensuring that the industry knows it is being regulated and watched. A lot of the detail will be set out in secondary legislation, and it will be incumbent on all of us across the Committee to grasp the detail of that to ensure that it is done in the right way. I think of the leaseholders in my constituency who would not be able to afford ridiculous levels of service charge; it would not strike them as proportionate. However, there is clearly a balance to strike.
I listened to the intervention from the hon. Member for St Helens South and Whiston. She is a distinguished former council leader, and at some point she will have had to make decisions about what to charge for council services. It is difficult, when leading a public body, to decide how to balance those charges with the needs of the public. I do not envy anyone in that situation. Ultimately, we all agree that we want to deliver a public service in the way that has the least impact on the livelihoods of the people trying to use it. They are taxpayers too; they want to feel that they receive that public service when they pay their taxes.
Clearly, as my right hon. Friend the Minister has articulated, the key principle is ensuring that the regulator can carry on. What I am trying to express to my right hon. Friend—something that he has articulated in his contributions—is the need to be open-minded in terms of how that operates. We all accept that there has to be a fee-charging regime, but we have to ensure that it is proportionate and accepts the fact that the people at the right end of that are leaseholders and residents, and those are the people we are here to protect and serve. We need to make sure there is the right balance. I get the impression from the contributions made from across the Committee that there is acceptance that this has to be done. It is probably broadly agreed that the methods proposed in the clause are the way we need to do this but, as with much of our deliberation of the Bill thus far, the detail will come afterwards in the secondary legislation.
Christopher Pincher
I am grateful to my hon. Friend for his contribution and for the interest that the Committee has taken in this clause. The hon. Member for Weaver Vale asked about service charges, which are a well-established regime separate from the one that we are discussing here. I can reassure him on the question of costs. We recognise that the costs of the regulator will be a small fraction of the building safety charge and we will discuss that in greater detail under the appropriate clauses. To reiterate my earlier point, the Bill ensures that fees associated with breaches of the new regime can never be passed on to leaseholders. That is to ensure that the accountable person pays the costs of the wrongdoing and not the leaseholder. I hope that that is clear.
Clause 27 provides the legal basis for the charging of fees by the Building Safety Regulator, which is vital to ensuring that it has the funding required to enable it to deliver its critical work. Government amendments 7 and 8 ensure that there is no ambiguity about regulations under this clause allowing the Building Safety Regulator to make charges to identify parties as well as fees. I commend amendments 7 and 8, with clause 27, to the Committee.
Amendment 7 agreed to.
Amendment made: 8, in clause 27, page 14, line 25, leave out “to be or” and insert “or charge to be”.—(Christopher Pincher.)
Clause 27, as amended, ordered to stand part of the Bill.
Clause 28
Service of documents
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
Clauses 28 and 29 are quite short, and concern how documents will be validly served by the Building Safety Regulator. Clause 28 is a technical provision, setting out how documents will be validly served, whether physically or electronically, on and by the regulator, in connection with its functions under parts 2 and 4 of the Bill.
It may assist the Committee if I point out that service of documents under the Building Act 1984, as amended by part 3 of the Bill, is dealt with in section 94 of that Act. Section 94 is itself amended by paragraph 58 of schedule 5 to the Bill, to modernise it and take account of the regulator’s role as a building control authority. We are amending an amendment to another Bill. The effective provisions of clause 28 essentially mirror what is already in the Building Act, but updated to reflect changes in practice since 1984.
Turning briefly to clause 29, this provides key definitions used in part 2 of the Bill, and provides for a specific place within part 2 as a helpful index of the terms contained within it.
Christopher Pincher
Without pressing the Committee further, I shall conclude my remarks there and commend it to the Chamber. The hon. Lady may wish to make a speech.
The Chair
If you put it in the form of a speech, then I am sure the Minister will have the courtesy to respond to you.
Mike Amesbury
Again, we have moved on considerably since 1984. If we take our minds back to 1984—I notice that some probably cannot—we have since seen the development of emails and various other things. This certainly brings those provisions up to date, with the narrative descriptions contained in clause 29. I will give way to my hon. Friend and colleague.
Ruth Cadbury
I thank my hon. Friend, and it is a pleasure to serve under your chairmanship, Mr Efford. I wanted to pursue the question, which I raised with the Minister last week, on the definition of a residential building. Is it anywhere where one sleeps overnight—whether temporary, permanent, or one’s sole residential home? I listed a series of residential spaces that do not come under the definition of a normal tenancy or leasehold property, such as student accommodation, other forms of residential licences, hotels, guest houses, and so on. I wondered whether my hon. Friend the Member for Weaver Vale could pursue this with the Minister in his contribution, referring to subsections (1)(a) and (1)(b) of clause 29.
Mike Amesbury
I thank my colleague for her intervention. I am fairly confident that the Minister will oblige by furnishing her with an answer, if not now then soon.
Shaun Bailey
I am sure that many on the Committee are wondering what on Earth I could have to say about the service of documents. I would, of course, have given way to the hon. Member for Brentford and Isleworth. I was hoping to rise to put an important question to the Minister, but I am glad that the hon. Member for Weaver Vale was able to help the hon. Lady.
I know this is an incredibly technical clause, but I speak from some painful experiences around service of documents in my previous life. While it might seem straightforward and we look at the clause and think, “OK, fair enough. It is very prescribed and descriptive”, I must say that having explained how service of documents works to numerous people, that is not the case.
My right hon. Friend the Minister articulated incredibly well how it will function. On the face of it, it is straightforward. We look at subsection (2) on how documents may be given and think, “OK, that seems pretty straightforward to me”. I implore him—I hope I am not going astray, Mr Efford, but I am sure you will tell me if I am—that we must ensure this is communicated to the people who will be utilising it. These are people who may not have a lot of experience of how documents are served. They are not doing this all day, every day. From my past life, I know the pain of having people who do not have the experience and are trying to do this themselves, and it causes issue after issue.
One thing that may come out of this, which touches on some of my previous comments, is around the idea of data share and co-operation. Without sounding flippant, the documentation we served and the information that would be exchanged using the process will be an important part of a vital regulatory process. It is vital that we ensure that is communicated as clearly as possible and the individuals who use the processes laid out in clause 28 understand how that operates. I do not want to see circumstances where legitimate problems and concerns are delayed because of a misunderstanding or issue with the process.
I reiterate my concern that if we do not ensure the provisions of clause 28 are translated down in a usable way to individuals, we run the risk of processes we have built up to now and have deliberated in previous clauses not being as effective as we would like.
I am glad that the clause understands that times have moved on. Gone are the days when things were couriered round. Email has been revolutionary. I remember from my professional life having to run round to another firm’s office to serve stuff. I was the junior so I made tea and served documents.
I am happy to see an understanding that the provision can be amended under subsequent regulations too. We have to be conscious that time and technology moves on, and we must ensure the process can continue and still function as things progress. While this may seem to be a very technical clause—I hope I have answered the question as to why on Earth I am speaking on this particular point—it underpins the importance of this process. Ensuring that the service of documents is done in a clear way and that those who utilise the process, from the large corporations down to the individual, understand how it functions properly will be key to ensuring that everything we have done up until now functions appropriately. I am heartened by the Minister’s contribution and he was very clear. I am glad to see that, as with most clauses in the Bill, there is a degree of flexibility in clause 28, and it is a vital part of this important Bill.
Christopher Pincher
I am obliged to my hon. Friend the Member for West Bromwich West. Let me assure him that it is our intention through the clause to ensure that neither he nor anyone else has to jump on their moped and serve papers in a rather more 1984 way than they may ordinarily have to, given that now, as the hon. Member for Weaver Vale rightly identifies, email and modern methods of communication allow for a much more speedy and clear way of serving documents. We want to ensure that the law reflects that.
On the questions raised by the hon. Member for Brentford and Isleworth about in-scope buildings, I do not want to stray on to other amendments and clauses unduly, but let me to try to help her by reminding her of what I said last week. In-scope buildings are high-rise residential properties of seven storeys, or 18 metres, or more. Other in-scope buildings include care homes of the requisite threshold and student accommodation, for example, because we have said that such properties need to have two or more dwellings. She offered a list of other potential properties. I think she mentioned hotels, which are covered by the Regulatory Reform (Fire Safety) Order 2005, and which tend to have a number of entrances and exits, and fire doors. Equally, prisons are covered by the 2005 order. I think there are seven immigration centres in the country, and none of them meets the height threshold that we have set out.
We have tried in all circumstances to act in a proportionate way that follows the advice and direction given to us by the independent review and Dame Judith Hackitt’s 53 recommendations. That does not, of course, preclude future changes to the Building Safety Regulator’s responsibilities. We have outlined how that may be done, and I am sure that we will go on, in further clauses, to do more of that. I hope that gives the hon. Lady some clarity on her question, which she managed, if I may say—tongue in cheek—to shoehorn into this clause. It is a skill not unknown to many of our other colleagues. I think that you have been guilty of that, Mr Efford—or rather, you have demonstrated the skill—in another context.
I remind the Committee that the clause essentially mirrors one that is already in the Building Act 1984. It updates it to reflect the changes in practice, as well as technology, since 1984, while clause 29 defines key definitions used in part 2 of the Bill, which we will further come to. They are technical clauses, which have none the less generated some interesting and, if I may say so, skilful debate, and I commend them to the Committee.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
Clause 29 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned.—(Scott Mann.)
Nationality and Borders Bill (First sitting)
Tuesday 21st September 2021
(3 years, 3 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 September 2021 - (21 Sep 2021)
The Chair
Good morning, ladies and gentlemen. Before we begin, I have a couple of preliminary announcements. I encourage Members to wear masks when they are not speaking, in line with Government guidance and that of the House of Commons Commission. Please give each other and members of staff space when seated and when entering and leaving the room. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk. Any doubt about that, please ask the Clerk at the end. We must ensure that Hansard gets the notes. Please ensure that all your mobile phones are switched to silent. I remind Members that tea and coffee are not allowed in Committee. If you want to have coffee, you have to go outside the Committee Room. Date Time Witness Tuesday 21 September Until no later than 11.25 am British Red Cross Tuesday 21 September Until no later than 2.45 pm Immigration Services Union; Joint Council for the Welfare of Immigrants Tuesday 21 September Until no later than 3.15 pm Derbyshire Police Tuesday 21 September Until no later than 4.00 pm Kent County Council; Westminster Council Tuesday 21 September Until no later than 4.30 pm Fortinus Global Ltd Tuesday 21 September Until no later than 5.15 pm National Crime Agency Thursday 23 September Until no later than 12.15 pm Migration Watch Thursday 23 September Until no later than 12.45 pm The Hon George Brandis QC; High Commissioner for Australia to the United Kingdom Thursday 23 September Until no later than 2.30 pm United Nations High Commissioner for Refugees Thursday 23 September Until no later than 3.15 pm Siobhán Mullally, United Nations Special Rapporteur on Trafficking in Persons; Dame Sara Thornton, Independent Anti-Slavery Commissioner Thursday 23 September Until no later than 4.00 pm Refugee Council; Refugee Action; Women for Refugee Women Thursday 23 September Until no later than 5.00 pm EPCAT; European Network on Statelessness; Immigration Law Practitioners Association
Today, we will consider the programme motion on the amendment paper. We will then consider the motion to enable the reporting of written evidence for publication and the motion to allow us to deliberate in private about our questions before the oral sessions begin. In view of the time available, I would like to take those matters formally. I have discussed it with the Minister and he agrees. I call him to move the programme motion standing in his name, which was discussed yesterday by the Programming Sub-Committee.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 10.25 am on Tuesday 21 September) meet—
(a) at 2.00 pm on Tuesday 21 September;
(b) at 11.30 am and 2.00 pm on Thursday 23 September;
(c) at 9.25 am and 2.00 pm on Tuesday 19 October;
(d) at 11.30 am and 2.00 pm on Thursday 21 October;
(e) at 9.25 am and 2.00 pm on Tuesday 26 October;
(f) at 11.30 am and 2.00 pm on Thursday 28 October;
(g) at 9.25 am and 2.00 pm on Tuesday 2 November;
(h) at 11.30 am and 2.00 pm on Thursday 4 November;
2. the Committee shall hear oral evidence in accordance with the following Table:
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 8; Schedule 1; Clauses 9 to 21; Schedule 2; Clauses 22 to 26; Schedule 3; Clauses 27 to 39; Schedule 4; Clauses 40 and 41; Schedule 5; Clauses 42 to 71; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 4 November.—(Tom Pursglove.)
Bambos Charalambous (Enfield, Southgate) (Lab)
On a point of order, Sir Roger. On the initial list of witnesses there were some Home Office officials. On the present list, there are no Home Office officials, which makes it much harder for the Opposition to scrutinise the Bill. We had certain questions that we wished to pose to Home Office officials. I put it on the record that they were initially on the list of witnesses but are no longer there.
The Chair
That is not strictly a matter for the Chair; it is a matter for the usual channels. That should be discussed between the Government and Opposition Whips. I had better ask for the relevant parties to do that privately, and to have a conversation with you. It is not something, I am afraid, that I can adjudicate, but you have made your point. The opportunity to discuss it was at the Programming Sub-Committee yesterday, where it should properly have been raised. It was not raised on that occasion.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Further to that point of order, Sir Roger. I may have raised it had the Programming Sub-Committee started at the time it was supposed to start. I arrived yesterday a minute before the start time, and the sub-committee had finished its work. I was going to make the point that Government witnesses had disappeared. We have now lost a couple of hours, and the opportunity for other witnesses to give evidence. I wanted to put it on the record that I was disappointed not to be able to make that point yesterday.
The Chair
The sub-committee was quorate when it started yesterday. Members are expected to be there in a timely fashion. I think that I am right in saying that we started on the nose of the time at which we were supposed to start. I take your point, but again it is a matter for the usual channels, not the Chair.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Tom Pursglove.)
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Tom Pursglove.)
The Chair
We are now sitting in public, and proceedings are being broadcast. Before we start hearing from the witnesses, do any Members wish to make a declaration of interests in connection with this Bill? Then, as a matter of record, there are no declarations of interest.
Good morning, Mr Featonby. We will now hear oral evidence from Jon Featonby, who is the policy and advocacy manager for refugees and asylum at the British Red Cross. Before calling Mr Charalambous to ask the first question, I remind Members that questions should be limited to matters within the scope of the Bill, and that we have to stick to the timings in the programme motion that the Committee has agreed. As such, we have just under one hour for this session, until 11.25 am. Mr Featonby, I have introduced you, but could you please introduce yourself for the record?
Jon Featonby: I am Jon Featonby. I am the policy and advocacy manager for refugees and asylum at the British Red Cross.
The Chair
Thank you very much indeed for taking the trouble and the time to join us this morning.
Bambos Charalambous
Q
Jon Featonby: I will start off by saying that as the British Red Cross, we very much welcome this opportunity to give evidence to the Committee today, but the short answer to that question is that we do not think the Bill is going to meet those objectives at all. To build on that a bit, we take that from our role as the largest independent provider of advice and support to refugees and people seeking asylum in the UK. We work with around 30,000 people each year in all four countries of the UK, supporting people throughout the asylum process, from when they first enter it to when they get decisions, and in making decisions about what happens next. Through that work, we see that there are three key elements of an asylum system. First, it must be safe for people to access it; secondly, it must be fair and efficient and make decisions in a timely way and, thirdly, those people who are in the system, while they are in the system, should receive the advice and support they need.
At the moment, there are a number of challenges to that, as shown by the number of people taking dangerous journeys to reach the UK, the increasing backlog in asylum decision making and the length of time people are having to wait for a decision on their application. There are also challenges that local authorities, organisations such as our own and, importantly, people in the system face in terms of the support they receive, whether that is support with accommodation, mental health or other areas. We believe those should have been some of the priorities for both this piece of legislation and the new plan for immigration that runs alongside it.
That work is also informed by the people we work with. We run the VOICES Network, which is a group of people with lived experience of the asylum system. They were among those who gave evidence to the Government during the consultation on the new plan, and when we speak to them about this legislation, one of their key messages, as people who have made that dangerous journey, is that there is nothing in the Bill or in the new plan that would have changed the decisions they made.
We absolutely agree that there are too many people making those dangerous journeys; we want to see a reduction in the number of people making dangerous journeys in small boats across the channel as much as anybody else does, but we do not believe the measures in the Bill will do that.
Bambos Charalambous
Q
Jon Featonby: There is no simple answer to that; as the Home Secretary said on Second Reading, there is no silver bullet for many of these challenges. If there were, I am sure some country would already have come up with it. However, there are some key things that the Red Cross believes could be explored further.
The expansion of safe routes for people seeking protection is prime among those things. We welcome the Afghan citizens resettlement scheme announced recently. The UK has a good recent record of providing resettlement places, and we believe that on top of that Afghan resettlement scheme there is the need for a wider global scheme. There is the UK resettlement scheme, the successor to the Syrian resettlement programme, but there is no annual quota for that. On top of that 5,000 commitment for the Afghan scheme we would like to see an additional 5,000 for the global scheme.
We also call for refugee family reunion. One of the core bits of work that the Red Cross does in the UK is support refugees being reunited with their family members. As the new plan for immigration stated, family reunion is currently the largest safe route for people to get to the UK. Over the five years to 2019, 29,000 people arrived in the UK through refugee family reunion, compared with 25,000 through resettlement over the same period.
From what we see in our work supporting families, as much as that reunion is a moment of joy for so many people, there are other families whom the current rules do not allow to reunite. One of the prime examples is that the rules do not cater for adult dependent children. A parent in the UK who has refugee status can sponsor their parent, their partner or spouse and any children under the age of 18 to come and join them, but we see that often there are people whose child may have turned 18 or 19, potentially while they were in the asylum process, who face a difficult decision about whether they leave that child overseas, or just do not bring any of their family to come and join them.
We believe the Bill is an opportunity to expand the rules. One of our key concerns about the Bill, in clause 10 on the differential treatment of refugees, is that there is potential for family reunion to be limited, although the Bill does not quite state how.
Alongside those safe routes, we recognise that the UK cannot alone solve all those issues. However, it has a vital role to play internationally, ensuring that no matter where people are after they have been forced to flee their home, they can access protection systems, whether in the UK, France, Germany or close to the countries from which they first leave.
Bambos Charalambous
Q
Jon Featonby: The starting point for the British Red Cross is that people’s protection should be based on their protection needs, and not on how they have entered the UK. Clause 10 provides a power that would move away from that and treat people on the basis of how they arrive in the country. It is difficult to ascertain what some of the impact would be, because clause 10 just creates a power for that to be introduced later in the immigration rules. Certainly, our concern is that the list of the ways in which leave can be differentiated for those people recognised as refugees is an example list and non-exhaustive, and there is therefore scope within the immigration rules to follow for that differentiated treatment to be undertaken in a much wider way.
In terms of the impact of that differentiated treatment, which I am sure falls within the Bill’s aim to deter people from making dangerous journeys, we certainly do not believe that it will do that. From the people we work with, we know it is rare for people making those journeys—even if they have any element of choice over where they are going to end up—to have any clear idea about what their rights and entitlements will be when they arrive, so we do not believe it would deter dangerous journeys.
We also believe there would be negative impacts from some of the ways people’s leave will be differentiated. Some of that concern draws on the evidence from Australia, which has used temporary protection visas, similar to those that clause 10 would allow to be introduced, on and off for the past two decades. One of the key findings is that that has increased the insecurity people feel when they have that protection status. This is a group of people who will have been recognised as refugees by the UK Government, but one way they will be treated differently is that those who have arrived irregularly will only get temporary protection for maybe two and a half years, which will then be extendable at each point.
The lack of security around that has an impact on not only people’s mental health, but their prospects for integration and their ability to get jobs and rebuild their lives. Employers looking at that type of temporary leave are less likely, we believe, to employ that person, compared with somebody who might have indefinite leave to remain, as a refugee arriving under the resettlement programme would have.
I have already mentioned our concerns about the potential impact on family reunion. It is important to note that those people arriving in the UK through family reunion are predominantly women and children; 90% of all family reunion visas currently granted are to women and children. Limiting access to family reunion for the refugee in the UK is taking away a safe route for his—in most cases—wife and children to be able to come and join him. The evidence from Australia was that where that happened, it incentivised and increased the number of dangerous journeys being made by women and children, which is something the British Red Cross believes should absolutely be avoided.
One of the other potential routes for differentiation is giving those people granted refugee status no access to public funds. Most of the refugees we support struggle when they are first granted status, and one of the main groups of people we support across all our services in the UK is people who are destitute, at all stages of the asylum process. Around one third of the people we have supported in our destitution services over the past year are people with refugee status, and often that is because they fall into the gap between Home Office and local authority support when they are first granted status and the Home Office support ends.
Without giving people access to the social security and welfare system, you risk embedding some of that destitution at that point as well. Not only is that bad for those individuals, putting them at great risk, but it puts extra pressures on local authorities. We see that within our services at the moment.
Bambos Charalambous
Q
Jon Featonby: The issues with accommodation and the challenges the Home Office faces in providing it are well known and serious, and there is no simple solution to many of them. Some of the problems around the shortage of accommodation were caused by the covid pandemic. We welcome the Home Office’s move at the start of the pandemic not to evict people from asylum accommodation, but that obviously meant that fewer people were moving through the system.
Some of the challenges with the dispersal system and the shortage of housing are also caused by the increasing backlog in asylum decision making. There are now around 70,000 people waiting for an initial decision, the majority of whom have been waiting longer than six months. That includes people from places such as Syria, Afghanistan, Iraq and Eritrea, who will almost certainly go on to get refugee status, but the lack of throughput in the system has created that pressure. Several Members on this Committee represent areas that do great work hosting people through the dispersal system, but we do not think the Bill will do anything to help them.
The accommodation centres in clause 11 are part of the response to that pressure. As you rightly said, the Red Cross has raised concerns around some of the Ministry of Defence sites that have been used over the last year, and their suitability for people seeking asylum. In particular, we were operational in Penally Barracks in south Wales when that was open, and we continue to support people in Napier.
From our experience, we think that the best way to accommodate people while they are in the asylum system is within communities. They can feel a part of those communities and receive the support that they need. It is also beneficial for those communities, in terms of social cohesion. That relates to some of the negative impacts that we have seen, where people have been accommodated in some of the military barracks.
We also have some concerns about the way that clause 11 currently works. Reading the explanatory notes, what seems to be happening is that, rather than the Bill itself setting out the framework for an accommodation centre, it relies on the Nationality, Immigration and Asylum Act 2002. That legislation was passed almost 20 years ago during a very different time: asylum applications were far higher, the length of time that people waited for a decision was far shorter, and far fewer people were then getting positive decisions after going through that system.
The 2002 Act has quite a few concerning aspects, including not allowing children in accommodation centres to access local authority schools. We see that as being quite serious. It may well be that the idea behind the centres, and the Government’s proposed use of the centres, would include families or children being accommodated there, but that is not clear from what is currently in the Bill. The Bill does, however, change the 2002 Act around some of the limits on the length of time that people can stay in one of those accommodation centres. Currently, under the 2002 Act, somebody in an accommodation centre could only be accommodated there for up to six months. The Bill gives the Home Secretary the power to increase that length of time.
It is noteworthy that, in the recent special development order, which was laid before Parliament to extend the use of Napier Barracks by an additional five years, one of the ways in which the Home Office changed the operation of that site was to limit the length of time that somebody could stay there to 90 days. Therefore, we would certainly see that one of the safeguards around the use of accommodation centres would be to limit the length of time that somebody could stay there, rather than extending it.
The Chair
I must offer other Members the opportunity to ask questions. I will come back to you if there is time, Mr Charalambous.
Stuart C. McDonald
Q
Jon Featonby: There are 71 clauses and four schedules in this Bill. As far as we can see, from our reading of the Bill, there is one clause that directly targets people smugglers themselves. That is the clause extending the criminal sentence for somebody convicted of that to a life sentence. We absolutely welcome that tightening of people smuggling. We absolutely believe that one approach that the Government should continue to take is in targeting those people smugglers who take advantage of people trying to seek safety.
Our concern is about the other aspects of the Bill, which seem to be more about trying to deter people from making those dangerous journeys. As I said earlier, we do not believe that those clauses will have that impact.
Stuart C. McDonald
Q
Jon Featonby: It is not clear that they have had any impact. I suppose that you could rightly say that one of the things the Bill does through clause 14 is move the current inadmissibility rules, which are in the immigration rules, into primary legislation. Those have been in force since 1 January, replacing what was the Dublin system, which the UK was part of when it was a member of the European Union.
Since those rules were introduced, 4,500 notices of intent have been issued to individuals. When somebody first arrives in the UK’s asylum process, they are interviewed by a member of the Home Office at the initial stage. Then, if, for whatever reason—there are five potential reasons—the Home Office believes that that person’s asylum claim may be inadmissible in the UK’s asylum system, a notice of intent is issued to that person at that instance. At that point, the person’s asylum claim is still live, but it does not go any further. There are no interviews and it is not substantively considered by the Home Office. The guidance that was introduced by the change in rules then gives the Home Office six months to try to get a return agreement in place, or to look further at that person’s claim to try to work out whether that claim is inadmissible.
What we have not seen since the beginning of this year is a decrease in the number of people making dangerous journeys. It is not apparent to us that it has deterred people. However, because of that in-built six-month delay, it has further increased the delays that people already face while waiting for a decision on their asylum claims.
Stuart C. McDonald
Q
Jon Featonby: We pay tribute to the local authorities that are part of the dispersal scheme. We work very closely alongside them, and the ones that we work with are very proud of the roles that they play. However, we also recognise that the local authorities that support people are under quite a lot of pressure. There are not enough local authorities currently taking part in the dispersal system, and we encourage more to do so and believe that that should be a priority for the Home Office.
One of the problems with the increased delay, whether it is caused by the inadmissibility rules or by wider decision-making delays, is that people are left in limbo in the asylum system longer, unable to work and reliant on the Home Office for support. There is then a negative impact on people who do go on to get refugee status, on their ability to integrate and to stand on their own feet; they are more likely to have to rely on local authority support for a longer period.
Stuart C. McDonald
Q
Jon Featonby: It is well known, and it was mentioned in the equality impact assessment published at the beginning of the week, that the cost of the asylum system has increased significantly over the last year. While we are not aware of a breakdown of the drivers of that cost, it is likely that a lot of it has been driven by the increased pressure on asylum accommodation, and in particular the increased use of hotels over the last year or so. One of the quickest ways to reduce that cost would be to get people moving through the system much faster again—making those decisions and reducing the pressures on the accommodation system.
Because the Bill will not deter people or reduce the number of people entering the asylum system—if anything, it is just going to increase some of the delays in the system—there is a danger that it will increase the overall cost. It is unknown at the moment what the cost of the accommodation centres might be. A contract notice was issued in August saying that they will potentially accommodate up to 8,000 people, but there is very little known about the cost of that.
Stuart C. McDonald
I know colleagues will have other questions on provisions relating to the asylum system. Does the Red Cross want to speak about the provisions relating to modern slavery or statelessness?
Jon Featonby: One of the roles of the Red Cross in the UK is that we work alongside police forces when they undertake anti-trafficking raids to disrupt situations of exploitation; we are there to work alongside police forces and local authorities to support people at those points. We also support people who have gone through the national referral mechanism and been found to be survivors of modern slavery in terms of what happens next—to support them with their onward journeys.
The Modern Slavery Act 2015 was definitely a landmark change. It has very much changed the way the UK has responded—it has improved it. We know from our work with other Red Cross national societies around the world that the UK is now seen as an international leader through that legislation. We are concerned, though, that this is an immigration Bill that contains a large modern slavery element; there is a danger that part 4 moves away from protection as a first port of call in cases of modern slavery. In particular, when we set up reception centres at anti-trafficking raids, we found that the vast majority of people who are taken out of situations of exploitation do not enter the national referral mechanism. When we monitored 10 reception centres, 170 people were taken out of those situations and only four consented to go into the NRM. Some of the changes to the NRM contained in part 4 of the Bill may raise those barriers.
However, there is also an opportunity in the Bill to improve the treatment of people who come out of the national referral mechanism with a positive conclusive grounds decision. We welcome the commitment in the Bill to offer immigration status to some of the people with positive conclusive grounds decisions. When people get a positive conclusive grounds decision and the support that they received while they were in the NRM ends, one of the challenges that they face is that, if they do not have a secure immigration status, it is very difficult for them to get on with their lives—to make decisions about what happens next. It potentially also means that, if they are unable to work and access local authority support or welfare support, they are at risk of being re-exploited. We have made recommendations in the past that people should get that status.
We feel that those provisions can be strengthened to make it clearer that more people will be able to access that immigration leave. At the moment, if the Home Office believes that somebody would be able to receive protection in their country of nationality, they are not eligible for that grant of leave. Having seen the need in people who have gone through the NRM, we believe that it should pretty much be a universal offer of leave at that point. We would like to see the Bill strengthened in that way. I pay tribute to the work of Lord McColl and Sir Iain Duncan Smith in particular for their campaign around this in recent years.
Stuart C. McDonald
Q
The Chair
There are other Members who wish to ask questions, Mr McDonald. If there is time, I am happy to bring you back in. At present I have Jonathon Gullis, Paul Blomfield and Anne McLaughlin who are waiting to speak. Minister, would you like to come in now or wait?
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
I am happy to come in later.
Jonathan Gullis (Stoke-on-Trent North) (Con)
Q
Jon Featonby: That is one of the reasons why we are concerned about the clause. We come from a different viewpoint in that we believe that people’s rights and entitlements should be based not on how they entered the UK, but on their protection need. People who go through the asylum system and fall into group 2 in clause 10 are people whom the UK has recognised as being in need of international protection, and they have refugee status.
We work with and have conversations with people who have been through the process. Maybe they arrived in the UK on a small boat or through some other irregular means. They tell us that these changes would not have impacted the decisions they made. It is very unlikely that people have a clear idea about what the UK’s asylum system looks like and what their entitlements will be when they are in it or when they go on to get status. Some people have very little choice in the country they end up in. They may well not have started out being involved in the smuggling networks in France. It could have been much closer to the country from which they have fled. The smugglers have much more control over where people end up.
Where somebody feels safe is subjective to the individual. There are many reasons why people in France may be unable to avail themselves of the protection system there. It might be that, because of how they were living in France, they were not aware of how they could claim asylum or the route to do that. It may be that they were treated in some way along that journey that meant they felt unable to avail themselves of protection in France. It is also important to note that the vast majority of people who do make it to France in search of protection stay in France. France receives, generally, at least three times as many asylum applications as the UK.
We do not believe that the differential treatment will deter people, and there are challenges around the differential treatment in clause 10. Stoke is absolutely one of the places in the country that we work with and pay tribute to. Abi Brown, the leader of the council, speaks very eloquently about how proud she is of the council’s role. However, clause 10 will potentially make it harder for those local authorities who support people. If people continue to come to the UK, go through the asylum process and get status and are then unable to reunite with their family members or have insecurities around the length of time they are going to get status, and, crucially, if they are unable to access public funds, that impacts on their integration prospects and ability to support themselves. That may well increase the pressures on local authorities.
Jonathan Gullis
You mention that some people say that they would still choose to make the journey despite the Bill. Those who are willing to make the journey, of which over 70% are 18 to 30-year-old men on their own, have put thousands of pounds into the hands of people smugglers by their own choice. They are willing to keep funding a smuggling entity in order to try to access the UK, because they seem to think the UK is a better deal than mainland France, Italy or Greece, which are obviously all part of the European Union and have the same protections that the UK does—the European convention on human rights and such. Ultimately, does that not show that the system is broken and the legislation is needed? We do need to make sure that illegal economic migrants crossing the channel are treated differently from people from Afghanistan, for example, who have taken the safe and legal route we provided through Operation Pitting.
Jon Featonby: We disagree that they are illegal economic migrants. They are people who have protection needs. Obviously, if they have gone through clause 10 and they fall into that group too, they have gone through the asylum system and it has been found that they are refugees.
We absolutely agree that action needs to be taken to reduce the number of people making dangerous journeys. There are too many people putting their lives at risk crossing the English channel to get here. Our concern is that we do not believe that the provisions within this Bill will deter that. We think the Government would be better off approaching this by increasing some of the safe avenues for people.
Afghanistan is a good case in point. Obviously, we now have the Afghan citizens’ resettlement scheme alongside the relocation programmes. We have been working with families as they arrive at airports and hotels across the country, and we see their relief and joy. However, that is only ever going to go so far in meeting the needs of the number of people who are likely to be displaced from Afghanistan and other refugee-producing places and situations, and there will always be people who take irregular journeys in order to reach safety. From the point of view of the Red Cross, it it paramount that people are treated with the dignity and respect they deserve because of their protection needs, and that they are helped to rebuild their lives and to enjoy that protection, if they get that in the UK or anywhere else in the world.
Jonathan Gullis
Q
Does it not make sense that we would provide good-quality accommodation? I think Napier Barracks was fantastic accommodation. It provided safety and shelter, had hot running water and sanitation, and provided yoga as well. We have Napier Barracks and others like it that we can use. What do you think about doing what Denmark is doing, which I think is a fantastic idea, and taking people to another country, such as Rwanda, and processing them outside the United Kingdom? That will also help to deter people from making these dangerous journeys.
Jon Featonby: On the point about accommodation, we recognise the pressure that local authorities are under. Part of our concern around the Bill is that there is nothing in it that we think will encourage more local authorities to take part in dispersal, or reduce the number of people entering the asylum system. The number of people claiming asylum in the UK at the moment is not anywhere near the historic highs of the early 2000s. It has gone up slightly over the last couple of years, but it is still lower than at the height of the movement from Syria in 2015 and2016. We do not believe that there are too many people claiming asylum. The UK should be able to deal with the number of applications at the moment.
What we have seen over many years, predating the covid-19 pandemic, is a slow down in the rate of decision making. That leaves more people in the asylum support system for longer periods of time and increases the pressure on asylum accommodation. That is why I again reiterate the point about the focus on decision making and ensuring that the Home Office is resourced to make good-quality, quick decisions as an absolute priority.
The point around accommodation centres is an interesting one. From the people we work with, we certainly believe that Napier has had a negative impact on the people accommodated there. It has not provided the environment that many people who have been through traumatic experiences require. At Penally Barracks, there was a live firing range on site, which was retraumatising for many people.
The Chair
Order. Mr Gullis, this is an opportunity to ask questions not to make speeches. I have to accommodate as many Members as possible. If there is time, I will come back to you later.
Paul Blomfield (Sheffield Central) (Lab)
Q
Jon Featonby: The start of your question was a very good point, and yet as the Red Cross we are an auxiliary to Government for humanitarian purposes, as other national societies are to their Governments around the world. Regarding the things I have said today, Home Office officials have heard them from me several times before. We enjoy a good relationship with them and I hope they would reflect similarly back to us as well. We use the expertise from supporting people across the UK to reflect back what we see and to help the Home Office to meet some of the challenges it faces.
The precursor to the Bill was the new plan for immigration and the consultation on that. We took part in the formal consultation process and in some conversations with officials around that process. We also take part in frequent stakeholder meetings with the Home Office on a number of different areas, as well as having private dialogue.
Family reunion is one of the key areas for us. When the new plan for immigration was published, we welcomed the commitment to look at changing the rules around family reunion, to allow adults who had arrived through a safe route to sponsor their adult dependent children. We were disappointed then to see in the consultation response that that proposal has not been taken forward, but we continue to have dialogue with the Home Office around it, as well as on a report that we published towards the end of last year, which looked at the family reunion process itself and the safety of it for the family members outside the UK. We welcome the commitment within the consultation response to continue working with us in considering how those recommendations can be followed through.
Also, around the issue of the resettlement programme, we welcome the Afghan scheme, as I said, but we believe that there is more that can be done there and on family reunion, to make sure that more people are able to access safe routes rather than putting their lives at risk by taking desperate journeys.
Paul Blomfield
Q
Jon Featonby: At the moment, there is the Afghan resettlement scheme and the global resettlement scheme, which has an unset number. Family reunion may be potentially negatively impacted by the Bill.
Within the new plan, there is the commitment for the Home Secretary to be able to use an almost ad hoc discretionary power to be able to provide a safe route for people, and we very much welcome that. However, we believe that the Bill is an opportunity to go further, both on existing safe and legal routes, and to explore something like humanitarian visas, which would enable people to apply for asylum from outside the UK as well, because it is obviously noteworthy that the only way that someone can enter the UK asylum system is by being on UK soil.
Paul Blomfield
Q
Jon Featonby: On those elements, the view of the British Red Cross is that it will be quite hard to work out what the impact of some of those clauses will be without further detail about them becoming available. There is already a section 120 notice, which can be issued to people to make sure that they provide evidence as soon as possible within the asylum process, and there is a particular focus at appeal stage.
The Home Office has done great work over recent years in looking at some of the reasons why people do not necessarily provide all of their evidence early on in the process. There are particular groups that quite often will struggle to provide all of their evidence early on. For a woman who has been a victim of sexual, gender-based violence, for example, there are very good reasons and very strong evidence as to why she may not disclose all of the evidence very early on. When someone comes to make a decision on an individual’s asylum claim, a potential result of that individual not having disclosed some of the evidence is an impact on their credibility, and you could end up with people not being given protection even though they are really in need of it.
The Chair
I will call Ms McLaughlin, then the Minister, and then we will see how we are doing for time.
Anne McLaughlin (Glasgow North East) (SNP)
Q
Jon Featonby: As you rightly say, the British Red Cross is part of the Red Cross and Red Crescent global movement of 190 national societies around the world. Working with our international partners gives us that insight into what is happening globally.
We know that 75% of refugees are hosted by countries that border the ones that they fled, and 85% of refugees are hosted by some of the poorest countries in the world, so it is absolutely the case that most people who are displaced from their own countries stay within their regions. Almost everybody we work with wants to be able to return home at some point, which is why they stay as close to their home as they can for as long as possible. One of the other trends we have seen over the past decade is that the situations that produce refugees are lasting for longer, which means that people are living in those other countries for longer. That potentially results in more people looking to move on in order to be able to rebuild their lives.
The UK has about 35,000 to 40,000 asylum applications a year at the moment. Compared with other European countries, that puts us 17th in the number of applications per capita. We are fourth overall for the past year. Germany received four times as many asylum applications as the UK did last year. France received three times as many and Spain received twice as many.
Anne McLaughlin
Q
Jon Featonby: We are aware of that debate going on. I am also aware that the Committee is taking evidence from the United Nations High Commissioner for Refugees later in the week, which is, compared with the Red Cross, in a far better place to make comments on that.
From our point of view, that debate will probably rage on through the course of the Bill’s passage and after it becomes law, but it is important to remember where the idea of the refugee convention comes from. We can have a debate about article X or article Y of the convention and how this legislation fits or does not fit with them, but the convention was obviously born out of what happened during the second world war and built on international agreements before that. It is largely predicated on the idea that no one country can respond to global displacement on its own. To be able to do that and make sure the people who are displaced receive the protection they need, there needs to be an international framework based on solidarity and co-operation, and that is absolutely what the convention is part of. Obviously, the UK played a key role in its drafting.
One of our concerns about what is in the Bill, particularly around inadmissibility rules and reducing access to the UK’s protection system, is that what the UK says and does matters, so other countries look to the UK and take a lead from it. There is a potential negative impact. If the UK says, “We don’t believe that these people should be claiming asylum here”—not making a decision on their protection needs but just saying, “These people are inadmissible to our rules”—and they get pushed back to France, France could be within its rights to do the same, and you end up with a domino effect.
To return to what is happening in Afghanistan at the moment, one of the international community’s primary objectives should be to make sure that the countries bordering Afghanistan continue to keep their borders open so that the people who need to escape Afghanistan can do so. We saw that with the Syrian crisis and the role that Turkey, Lebanon and Jordan, in particular, played in the region. There is the danger that if countries such as the UK prevent access to their protection system, some of those countries can—almost quite rightly—turn around and say, “Why should we continue to keep our borders open?”
Rather than getting into the ins and outs of the convention, we believe that it is important for the UK to continue to show that leadership by offering protection, whether through the resettlement programmes, which are absolutely among the world’s best, or through continued access to a protection system and the asylum system in the UK.
The Chair
I will now call the Minister. Mr Anderson, if there is time after we hear from the Minister, we will try to fit you in.
Tom Pursglove
Q
Jon Featonby: It should be, and it is right that it is a priority. There are too many people trying to cross the channel. It is well known that it is the busiest shipping lane in the UK. It is not said enough, but tribute should be paid to Border Force and the Royal National Lifeboat Institution because we have not seen huge numbers of lives lost, especially compared with what we have seen in the Mediterranean.
We would certainly say that although people continue to make those journeys, the primary focus should be on ensuring that people’s lives continue to be saved and that the loss of life stays relatively low. However, it comes back to the fact that we do not think the Bill will deter people from putting their lives in the hands of people smugglers or, as we are increasingly seeing, taking to small boats—relying not on people smugglers but on very small and even less seaworthy crafts.
There is no easy way to tackle the problem. There is no one simple solution. However, some of it will come down to the increased provision of safe routes. The more safe routes there are, the less likely people will need to take dangerous journeys. Something that needs to be a part of the UK’s international co-operation, and something that it can play an increasingly important role in, is making sure that people have access to protection systems outside the UK.
It comes back to the point about understanding why people make those journeys in the first place. People do not get on those boats on the French shores lightly—it is clear what the risks are going to be when they are there. Understanding what leads someone to that point is vitally important, and I am not sure that the Bill reflects what people with that lived experience would tell us. Some of that will require continued work with our European partners, in particular, to make sure that people have access to information, as well as to their protection systems, in order to look at the reasons why somebody may not have claimed asylum in France, for example.
A vital point that came up in the equality impact assessment published earlier this week is that when states such as the UK look to put in extra measures to protect their borders and asylum systems, they must ensure that does not lead to inverse reactions, which will just lead to people making more dangerous journeys. That is certainly what we have seen over the last 10 to 15 years. The harder it has been for people to make journeys when one route is cut off, the more people are generally pushed to make more dangerous journeys. We should be dealing with the root causes of why people make those decisions in the first instance.
Tom Pursglove
Q
Jon Featonby: It is largely about the points I have just raised. The explanatory notes to the Bill talk about breaking the business model, and absolutely there are the enforcement procedures regarding the people smugglers themselves. We agree that that should continue to be a priority. However, we need to look at why people turn to people smugglers, and that is because of a lack of other alternatives, whether that is accessing protection systems or those other safe routes.
Tom Pursglove
Q
Jon Featonby: That is a very good point. We believe that the modern slavery response needs not only to provide protection for people coming out of situations of exploitation, but to enable those people to take part in prosecutions to tackle people who are exploiting others, whether in the UK or abroad.
The challenges that we see people quite often face are, first, at times a lack of trust in the police or whoever else it might be, but also—probably more importantly and more pertinent to the Bill—a lack of security about their immigration status. The people we work with, who predominantly do not have a secure immigration status in the UK, are thinking about where they are going to sleep that night, and how they are going to feed themselves and their family, rather than how they are going to help the police through this, or potentially how they will have to recount quite traumatic experiences to support those prosecutions.
That is why we support the measures in the Bill to try to give more people secure immigration status. We think that will make a big difference, but we absolutely encourage the Government to go slightly further to ensure that more people can avail themselves of that protection, which would have a beneficial impact on prosecutions as well.
Tom Pursglove
Q
Jon Featonby: Potentially. Some of it depends on how it is implemented. We would probably like to see some changes to that provision. I touched earlier on the work that the Red Cross does at reception centres to support people when they first leave those situations of exploitation. At that point, people come out, they are in these centres, the Red Cross may well be there, but it is probably the police, local authorities and increasingly immigration enforcement. There are very few opportunities for people to get legal advice at that point around what the NRM entails for them.
The provisions in the Bill on legal aid are welcome, but they are only for those people who have ongoing protection claims. Most people who come out of those situations of exploitation will not necessarily have an ongoing asylum claim. We would welcome the broadening of the provisions in the Bill to make sure that it covers everybody who may be thinking about entering the NRM, so that they are able to get legal advice, whether or not they have an ongoing human rights or asylum claim alongside it.
The Chair
Thank you. This will have to be one final question from Mr Anderson and one final answer.
Stuart Anderson (Wolverhampton South West) (Con)
Q
Jon Featonby: It is very difficult for me to highlight any positives. That is one of the things that we will continue to raise with parliamentarians and the Home Office, because we do not think the Bill meets those challenges. The Bill is an opportunity to meet some of the challenges, particularly around the move-on period for people when they get refugee status, to make sure that the move from Home Office support to local authority support is as smooth as possible. We hope that as the Bill progresses such issues will continue to be debated. We do not believe that the Bill, as currently drafted, will alleviate any of the current pressures that local authorities face.
Stuart Anderson
Q
Jon Featonby: No.
The Chair
I am afraid that brings us effectively to the end of the time allocated for this morning’s sitting. Mr Featonby, the Committee is indebted to you. Thank you very much for joining us. The Committee will meet again this afternoon. The doors will be locked, so Members may leave papers in the room if they wish to do so. You will continue to take oral evidence this afternoon. Please leave promptly and observe social distancing as you go out the exit door.
Ordered, That the debate be now adjourned.—(Craig Whittaker.)