Building Safety Bill (Ninth sitting)
(2 years, 7 months ago)
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The Chair
May I remind the Committee to switch electronic devices to silent and to email speaking notes to our Hansard colleagues at hansardnotes@parliament.uk? We begin today’s session with clause 36.
Question proposed, That the clause stand part of the Bill.
The Minister of State, Department for Levelling Up, Housing and Communities (Christopher Pincher)
It is once again a pleasure to serve under your chairmanship, and I welcome the Committee back to this final line-by-line scrutiny session before we go into recess again.
The Government are committed to ensuring that there is a stringent regulatory framework to enable the design and construction of better and high-quality homes while providing industry with the clarity and certainty that it needs. Dame Judith’s review found that unnecessary delays in the system must be minimised, and we wholeheartedly agree with that finding. The gateways and building control system have been designed to ensure appropriate consideration of building regulations compliance, including building safety, throughout design and construction.
Applicants in England are encouraged to work with the Building Safety Regulator to ensure that decisions are reached in good time or extensions are agreed, and the Building Safety Regulator will make decisions on a variety of matters relating to building control. They include deciding whether to approve or reject the following types of applications: gateway 2 building control applications, change control applications, gateway 3 applications and certain refurbishment applications. To provide industry with certainty for project and financial planning, the Building Safety Regulator will have prescribed periods in which to decide such applications.
Where further time is required—there may be occasions when that is necessary—extensions can be agreed between the regulator and the applicant. However, it is necessary to have an alternative route through which an applicant can get a decision on their application if the Building Safety Regulator has not issued a decision within the required timeframe and an extension has not been agreed, and clause 36 provides the legal basis for the Secretary of State, or a person appointed to act on their behalf, to make a decision on applications in England in such circumstances. We envisage that there will be very few applications that follow this path each year. Like applications decided by the Building Safety Regulator, there will be no set timeframe in which applicants can expect such a decision.
In Wales, failure by the building control authority to decide on an application relating to a higher-risk building will similarly allow the applicant to apply to the Welsh Ministers, or a person appointed by them, for a decision on the application. This is a means by which decisions can be expedited, and I commend the clause to the Committee.
Shaun Bailey (West Bromwich West) (Con)
This is a really important clause. My right hon. Friend was rather succinct in his comments, but he touched on the balancing of the environment with the Bill. As we talked about in our previous deliberations earlier this week, we want to ensure that we can still have the environment in place in order to continue to build, because we still need to build homes and ensure that there is an adequate process in place. The important part of the clause, which links to other clauses that we have debated so far, is about ensuring that there is an adequate process in place to ensure that there are no delays and that we have adequate building taking place in an expedient manner.
We also need to ensure that those who want to play according to the rules, as I discussed on Tuesday, know how to do that and can ultimately have their matters determined in an expedient manner. I am sure my right hon. Friend will touch on that in his remarks when he responds later, but I want to ensure that in the clause we maintain the balance between a proper determination to ensure safety for leaseholders and residents and an expedient manner to determine applications, which will be important.
I will not talk about the impact in Wales. I commented on that during our previous deliberations, but I fully support the clause, which strikes the right balance in the underlying tensions in the Bill. I look forward to hearing my right hon. Friend’s comments in due course.
Christopher Pincher
I am obliged to the Opposition for what appears to be their support for this fairly uncontentious and important clause. I am also obliged to my hon. Friend the Member for West Bromwich West for his contribution. He is right to say that we want to ensure that building can progress expeditiously and safely. That is why we have put in place sensible review points—the gateways and the hard stops that they provide for. It is also why we have included this clause in the Bill to ensure that where there are occasions—we do not envisage many—when the Building Safety Regulator has failed to issue a decision and no extension to the timeframe has been granted, there is a means by which the applicant can move to get a decision.
We have not specified a timeframe by which the Secretary of State or the person or body appointed by the Secretary of State will be obliged to make a decision because we anticipate that in those very few circumstances a decision might not have been made because of the complexity of the arrangements. That then allows the Secretary of State or the appointed body time and space to come to a conclusion.
Christopher Pincher
And on the word “conclusion” I will give way to my hon. Friend.
Shaun Bailey
I am grateful to my right hon. Friend. He said that there would not be specific timeframes in the Bill, but can he assure me that there will be ongoing monitoring? The one thing that the clause seeks to achieve is an expedient process, which previous clauses have done as well. Will he touch on how monitoring of the process will be implemented to ensure the aims of the clause are enacted?
Christopher Pincher
I am happy to do that. My hon. Friend pre-empts what I was going to say. In secondary legislation we will specify what we believe to be proportionate timescales in which the Building Safety Regulator will have to come to a decision on applications before them. That will place proper focus on the Building Safety Regulator and ensure that applicants get the focus and engagement that they deserve. We will ask the regulator to provide data, and the regulator will report on the number of applications that it receives and the outcome of each application, including the timeframe of each decision and whether extensions were agreed.
Over time, a body of information and evidence will be developed, which, apart from the secondary legislation statutory timeframes for adjudication that we will set, will enable the sector to see the average timeframes and outlier timeframes that the adjudications take and be able to make its decisions accordingly with respect to appeals to the Secretary of State or to the Secretary of State’s appointed appeals body.
We think that in practice the clause and its provisions will be used infrequently, but it is an important backstop, which is why we have included it. It provides, as I say, a legal basis for the Secretary of State, or a person appointed on their behalf, to make a decision on applications in England in such circumstances, and in Wales for Welsh Ministers to do similarly. I commend the clause to the Committee.
Question put and agreed to.
Clause 36 accordingly ordered to stand part of the Bill.
Clause 37
Compliance and stop notices
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
Dame Judith’s review found that the existing building safety enforcement regime is not fit for purpose. That is partly explained by the absence of powers for building control authorities to immediately halt dangerous or non-compliant work. That is why the Government are committed to strengthening enforcement powers for regulators to act against non-compliant building work. Clause 37 takes forward the review’s recommendation and provides more effective powers for building control authorities to ensure compliance with building regulations.
Compliance and stop notices are designed to tackle all forms of non-compliance with building regulations during the design and build stage of all buildings, irrespective of their risk level or intended use. Compliance notices will be available where there is, or is likely to be, a contravention of building regulations. Stop notices are intended to be used where a compliance notice is contravened, or where building regulations are likely to be contravened in such a way as to cause serious harm to people in or around the building.
Christopher Pincher
Not wishing to break my batting average, I will of course give way.
Brendan Clarke-Smith
What a pleasure it is to serve under your chairmanship, Mr Efford. It has to be welcome that we are strengthening the powers of the regulator and local authorities. As the Minister rightly says, these are vital tools for building control authorities, and there is currently no power available to stop non-compliant building work being continued or completed, which is clearly a concern. I am very keen that we do something about that. It is very important that it is tackled.
Will the Minister clarify, first, how the powers will change the bad behaviour that we have seen across the industry? We know that most people in the industry are responsible, but for those who are not, what will we do? How will this change that behaviour? Secondly, what enforcement powers will the Building Safety Regulator have for gateway 2 following on from this?
Christopher Pincher
I am obliged to my hon. Friend. On the new powers changing bad behaviour, what we want through the entirety of the Bill is to effect culture change. The clause on its own will not achieve that, but it is part of the cumulative weight of the Bill, which will over time effect culture change. We envision that the additional tools that we are providing to the Building Safety Regulator, and the statutory powers that will be provided, will contribute significantly to that culture change. Safety cases, more regulation of the building control sector, and the gateway assessments and the hard stops involved in them will all play their part in driving that culture change.
We also envision an escalating set of powers for the Building Safety Regulator, and as we move through the late 30-something and early 40-something clauses, I think I will be able to provide further illumination to the Committee on what those enhanced powers will be. Additionally, it will be an offence to start certain building work in higher-risk buildings without building control approval, and stop notices could be used to stop work that is being carried out without approval. We believe—I think this goes some way towards addressing my hon. Friend’s point—that these are critical tools for building control authorities, because as he says, there is currently no power available to stop non-compliant building work from being continued or completed.
Mike Amesbury
I should have said earlier, Mr Efford, that it is yet again a pleasure to serve under your chairmanship.
We welcome the increased regulation—the compliance and stop notices recommended by Dame Judith Hackitt in the independent review—but I have a couple of questions for the Minister. Will these powers given to the regulator apply to buildings that are 11 to 18 metres tall, and will compliant products be kitemarked for ease of inspection to ensure that they are compliant, or not?
Shaun Bailey
I should also have said in my previous contribution that it is a pleasure to see you back in the Chair today, Mr Efford, and I thank you for your indulgence during our previous deliberations. You are being very generous with your time in the Chair.
I have a few questions for my right hon. Friend the Minister as well, dovetailing with what the hon. Member for Weaver Vale just said. The one concern I have is about individuals who purchase their property pre-completion of construction—because that does happen in these settings too—and what protections we can devise for that. I have seen it happen before: people have put down a deposit or spent significant amounts of money on legal and transactional fees to get to a particular point. I heard what my right hon. Friend said, and I agree that we are talking about extreme cases of individuals who are flouting the rules or not following them, but my concern is that as we embed new sets of regulations, issues often become apparent quite commonly and quite quickly. I am sure that those of us who have been Members much longer than I have will have seen the array of issues that arise when new legislation comes into effect during its initial implementation.
My question to my right hon. Friend the Minister is whether he is open to a broader discussion about what we can do to avoid potential blockages in transactions as an unintended consequence of this. What we see is that people who are trying to let or purchase properties are left in limbo, with a back and forth for months on end, while stop notices are issued and remediation is done. Clause 37 seeks to ensure that remediation is taken, and, more importantly, that work in the initial process is compliant in the first place and we do not reach a situation where stop notices have to be issued.
Theo Clarke (Stafford) (Con)
I agree with my hon. Friend that clause 37 takes forward the important recommendations in the review to ensure that building control authorities are issuing compliance and stop notices in relation to the contravention of building regulations. Does he agree that the clause will also strengthen the powers for the regulator and local authorities?
Shaun Bailey
To answer my hon. Friend’s question, we need to go back to what Dame Judith Hackitt said. She found a fundamental flaw in the regulatory framework. Effectively, it was giving unscrupulous developers almost a free pass at times. It was not fit for purpose. I believe that clause 37 will achieve the aims that my hon. Friend has articulated.
I suppose this comes back to the point that the Bill is a balancing act. My central concern is about the vulnerable leaseholders at the heart of this—the people we expect to live in these developments. There are always two sides to the coin. We need to ensure that these leaseholders are not stung at the outset by developers who are not following the rules in the first place. I am trying to impress on my right hon. Friend the Minister that we need to ensure that those processes are in place and that they work with bodies. This comes back to what the hon. Member for Liverpool, West Derby articulated in our previous deliberations around resourcing and funding, and ensuring that our local authorities, building control authorities and the regulatory framework have the expertise. We are not just trying to pigeonhole things into one particular resource package.
I notice the reference to the appeals process in clause 37. I am sure colleagues have read it in as much depth as I have. It talks extensively about the appeals process. That requires our court system to be functioning in a way that allows the process to be as expedient as possible. I do apologise to my right hon. Friend the Minister; he has got a shopping list of asks from me on one clause. He probably thought it would be a little less demanding than this. I ask him to ensure that there are ongoing discussions between his Department and the Ministry of Justice about ensuring that this is implemented in an expedient way.
We need to ensure that there are stop notices for those that have put thousands of pounds into a development they are waiting for. I have constituents in similar situations who have written to me who are left out in the cold because a developer issued a stop notice that goes back and forth for months, because they have reserves of money where they can fight and fight, or it is backlogged in the courts for months. We know of the issues with backlogs in the courts in other areas. I will not test your indulgence, Mr Efford, by going down that route. I would be grateful if my right hon. Friend the Minister continued that dialogue with his colleagues across Government to ensure that the clause does not have unintended consequences that I am sure he does not want to see.
Brendan Clarke-Smith
As my hon. Friend has said, I think it is very important that when these rules are contravened action is taken and that that action is appropriate. I note from the clause that, as well as a criminal offence, there is a maximum penalty of up to two years’ imprisonment. One of my concerns has always been that there are other people in this chain—be that secretaries, directors, managers and so on. I notice that we will come to that when we consider clause 39. Does he agree that putting that criminal offence in there and being clear about what is happening when that is contravened strengthens the clause even further?
Shaun Bailey
I am grateful to my hon. Friend for his intervention. Dame Judith Hackitt’s review highlighted a shameful system. Putting in place a criminal offence shows that we will not and should not tolerate this shoddy behaviour any more, and nor should those individuals who have had to suffer the highest cost as a result of it. He is right in what he says in the spirit of his intervention. He listed the plethora of individuals who would be caught by this and I do not disagree that they should. People should not be able to hide behind the corporate veil and dodge liability. He is right that, in drafting the Bill, my right hon. Friend the Minister and his team have ensured that it is all-encapsulating. What we do not want to see—perhaps I am being optimistic, but I hope not—is individuals being able to dodge this.
Mike Amesbury
On a point of order, Mr Efford. For clarity, are we talking to clause 37 or clause 38, which is about offences?
The Chair
I am grateful for the point of order, but as far as I am concerned, the hon. Member for West Bromwich West is in order. He seems to be speaking to sections of the clause. I think you can take it as read, because I have not interrupted him, that he is in order.
Shaun Bailey
I am talking to clause 37. To help the hon. Member for Weaver Vale, I am responding to the intervention by my hon. Friend the Member for Bassetlaw. He asked a specific point about the categories of people caught by clause 37, so I am just expanding on that and explaining why it is right for those individuals. I am saying, just as my right hon. Friend the Minister pointed out in his opening comments—and I am sure that the hon. Member for Weaver Vale agrees with me—exactly why those individuals should be caught by the clause.
I was in the process of winding up my comments prior to that point of order. I fully support the clause, which brings out issues that my right hon. Friend the Minister needs to address. I do not want it to result in unintended consequences and I hope that he can give me a reassurance, to take back to leaseholders who have been caught out and, more broadly, to the industry, that there will be no delays. The clause is an important development in stop notices. It will enable our regulatory framework to act quickly to prevent serious situations from occurring and, I hope, prevent other scenarios from causing issues down the line. I want to be sure of that, so I press my right hon. Friend for a guarantee that he will do whatever he can to ensure that the process operates expediently and that it will have no unintended consequences.
Siobhan Baillie (Stroud) (Con)
It is a pleasure to be back before you so quickly this week, Mr Efford. I will be brief. I want to expand on the issue of the need for culture change. Hon. Members have already raised this and the Minister himself has said that the clause is part of the cumulative weight of the Bill to achieve a culture change. That is crucial. Not only is Dame Judith correct in her assessment and desire to see change, which has led to clause 37. The lay public would be genuinely shocked, if they had no experience of these worlds, to learn that there is currently no power available to prevent non-compliant building from creating these issues.
I welcome clause 37 and I am glad that the Government are addressing the issue. bringing matters forward. However, to really achieve culture change, there need to be prosecutions. We know that we are far off that at the moment. What discussions has the Minister had with stakeholders and others on the formulation of the regulator and the creation of clause 37? There is a real appetite not only to enforce the clause and the new, strengthened powers but to drive them through to prosecutions, which are the true deterrent and which will lead to change in the industry.
Christopher Pincher
I am obliged to the Committee for its deliberations on clause 37 and for the questions that have been asked of me. The hon. Member for Weaver Vale asked me two specific questions. First, will the measures in clause 37 also apply to buildings below 18 metres? The answer is yes. Perhaps I can explain further. I said that these powers are critical tools for building control authorities. The building control authority could be the Building Safety Regulator, for in-scope buildings, or local authorities, for other buildings. The Building Safety Regulator will use clause 37 for enforcement purposes on the buildings for which it is responsible, and local authorities can use the powers in the clause for buildings for which they may be responsible.
The hon. Gentleman asked me, secondly, about product compliance and kitemarking. In our witness sessions, we heard some evidence on the importance of having good product development and specification. There are clauses later in the Bill that address the question of product specifications, so we can have debates about those.
My hon. Friend the Member for West Bromwich West made a passionate speech, calling for a proper recognition that in-flight work and development have to be properly understood and recognised. He said that it is important that we do not unintentionally create bad or poor effects for players across the sector, particularly the residents of in-scope buildings. We are working with representatives across the building control system to effectively benchmark the existing regulatory capacity and to ensure that all the actors in the regime have the capabilities to abide by it and an understanding of the consequences if they do not. That is one of the reasons why we are using secondary legislation—to ensure that we are able to properly understand what it is that we need to implement in granular detail, having consulted stakeholders and taken on board comments from members of the Committee.
As I have indicated, we are also working very closely with the shadow regulator, the Health and Safety Executive and others to ensure that we transition to the new regime in such a way that we mitigate the effects of in-flight development. We do not want to endanger people in and around buildings that have been built unsafely, but to ensure that those buildings can be properly, safely and expeditiously built within the constraints of the new regulatory regime. We need to make sure that the transition is effectively executed.
My hon. Friend the Member for Stroud made the very important point that we need to ensure not only that the penalties in the Bill are understood but that prosecutions can effectively be brought. We have tried to ensure that through this and other clauses, and through discussions with officials and colleagues in the Ministry of Justice and in expert bodies, such as the HSE. That has helped us to build an approach that will ensure that there are sufficient and appropriate penalties, in an escalating manner, that the sector will understand and that can be applied successfully should they be necessary.
We want to give the Building Safety Regulator and local authorities the powers they need to do the jobs we are asking of them. With that, I commend clause 37 to the Committee.
Question put and agreed to.
Clause 37 accordingly ordered to stand part of the Bill.
Clause 38
Breach of building regulations
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
A breach of building regulations can have serious consequences for residents in occupied buildings We saw that four years ago in the Grenfell Tower fire and we have seen it on other occasions. The independent review found that
“where enforcement is…pursued, the penalties are so small as to be an ineffective deterrent.”
That is why, to repeat some of the points I made to my hon. Friend the Member for Stroud, the Government are committed to ensuring that where building regulations are contravened, building control authorities have the necessary powers to enforce the rules and offenders receive a proportionate penalty for their non-compliance.
Clause 38, alongside clause 37, will provide a stronger deterrent to those doing building work and, where necessary, stronger sanctions for building control authorities to use. At the moment, offenders can only receive unlimited fines for their contravention of the law. Even where directors or managers are complicit in their company’s wrongdoing, they are sheltered from the consequences, a point raised by my hon. Friend the Member for Bassetlaw.
The new custodial sentence we are introducing serves to reflect the gravity of breaching building regulations and, alongside clause 39, which we will discuss shortly, brings the threat of imprisonment to any director or manager of a company who is found to be complicit or negligent in an act of non-compliance. We intend for the higher custodial sentence to operate as an effective deterrent against negligent, reckless or dangerous behaviour.
Where previously prosecution under section 35 of the Building Act 1984 had to be brought within two years, making the offence triable in a Crown court removes the time limit altogether, enabling building control authorities to prosecute breaches of building regulations even when they come to light much later. There is no longer a two-year limit to court action.
This clause goes further and makes clear that the section 35 offence applies not only to breaches of the building regulations themselves, but to requirements imposed under building regulations, such as conditions imposed as part of building regulation approvals. The increased coverage will send a signal that no requirement under building regulations can be ignored without consequences.
As with other changes we have already discussed, this provision aims to encourage those involved in building work to do the right thing and to disincentivise substandard building work. To return briefly to a previous debate, in order to make this absolutely clear, whatever planning route a building is subject to, all relevant building work must comply with building regulation, whether it is on a higher-risk building or otherwise, and whether it benefits from permitted development rights or not. The hon. Member for Weaver Vale made that point in our previous sitting and alluded to it in his previous contribution.
In addition, the extension of the enforcement period under section 36 of the Building Act from one year to 10 years will provide another effective route through which building control authorities can enforce building regulations. This clause responds to the review’s recommendation that the sanctions available under the Building Act be enhanced to enable building control authorities to act effectively but proportionately whenever they encounter non-compliance. They will now have stronger powers to ensure that all buildings are designed and constructed in line with regulations. I commend the clause to the Committee.
Mike Amesbury
We welcome the stronger sanctions, given the gravity of the consequences and the context, which the Minister referred to, of the tragic events of Grenfell over four years ago.
Shaun Bailey
I, too, welcome the clause. I wish to raise a couple of points with the Minister about the defences under proposed new section 35(2) of the Building Act, relating to instances where duty holders believe wrongly that another duty holder has reported an incident. It will be
“A defence to the offence of failure to report where the person being prosecuted was not aware of the occurrence which gave rise to the requirement to report”.
I want to ensure that the scope of the defences is as tight as it can be. Clearly, there is a balance to be struck. We are fully aware that incidents happen; human failure can happen and we cannot eliminate that, so we have to take account of that within the regulatory framework, but we need to tighten the circumstances where this defence can be used. I am conscious that there is a risk that developers will see this as an opportunity to do some finger-pointing and say, “It wasn’t me. It was him,” or, “No, he missed that and I missed that.” I know that is not the intention behind the defences under clause 38, but can my right hon. Friend the Minister assure me that there will be appropriate guidance on implementation and enforcement of the provisions of clause 38, which is really important?
We have an obligation to follow through on what Dame Judith Hackitt noted in her report, particularly about the regulatory landscape. Ultimately, we do not want people who have not done right by the people we are trying to protect to find some way of getting round things. I know my right hon. Friend has worked hard to ensure that does not happen, but given that the broader point of the clause is to send out a message, particularly through custodial sentences, that breach of building regulations is serious—we are dealing with human life, as we saw with Grenfell—I want to get some reassurance from him that he will tighten that up.
I welcome the enforcement period extension. I think that is right. My right hon. Friend touched on that in his comments, so I do not need to repeat that. If he can give me those reassurances, I will be immensely grateful.
Christopher Pincher
I am obliged to you, Mr Efford, and my hon. Friend, who is quite within his rights to ask for reassurances.
I reiterate that clause 38 needs to be read in conjunction with clause 37. I made it clear that the current building safety enforcement regime is not fit for purpose; there are too many gaps and loopholes. With compliance notices and stop notices, clause 37 tightens the regime. Clause 38 is designed to ensure that in the event of contravention of such notices, the enforcement powers and penalties are that much greater. If my hon. Friend reads clause 37 in conjunction with clause 38, he will see that we are doing exactly that—tightening up the loopholes from compliance and imposing stronger and more effective penalties where there are contraventions.
Christopher Pincher
I will be more succinct in respect of this clause, because it follows on from clauses 37 and 38 and I referred briefly to it earlier.
Many of the persons with responsibilities under the Building Act 1984 are and will be corporate bodies, or “legal persons”, rather than individuals, who are known as “natural persons”. Any corporate body operates only through the actions of its employees, controlled by its managers and directors. As such, if there is an offence by a corporate body, there is likely to be some measure of personal failure by those in positions of seniority.
That liability is already provided for in a number of other pieces of legislation, including, most notably, the Health and Safety at Work etc. Act 1974. The end result is that directors, managers and other such persons are just as criminally responsible as the company at which they have either made decisions directly leading to an offence being committed, or been negligent in allowing an offence to occur.
Selaine Saxby (North Devon) (Con)
Will my right hon. Friend clarify how that will apply when there is only one director of a corporate body?
Christopher Pincher
I am not a lawyer by training, although involvement in the Bill has given me some legal background—not all of it as exciting as watching “Crown Court” on television. A corporate body and the director are separate legal entities, so normally two separate prosecutions would occur. However, in practice, both prosecutions would be conducted at the same time. If there were a conviction, it would be for the court and the judge to sentence the corporate body and the individual appropriately. Although the law says that they are two separate persons, the court action would take place in conjunction and the sentencing of both entities would be as the court decided. I hope that is helpful to my hon. Friend.
Christopher Pincher
My hon. Friend appears to be moving to intervene. I am conscious that I have failed to give way only once—to the hon. Member for Brentford and Isleworth—and that was by accident, so in order to keep up my almost perfect track record, I will allow my hon. Friend to intervene.
Shaun Bailey
I am immensely grateful to my right hon. Friend, who is characteristically very generous. I would be interested to hear how the clause would deal with developers that dissolve, disappear or fall into difficulties as a result of this. He has been assisting me with a matter in my constituency, where a developer dissolved and left the residents in a bit of limbo, so he knows all about that.
Christopher Pincher
My hon. Friend is stretching my legal knowledge, although not quite to breaking point.
Christopher Pincher
In the sense that we are discussing companies, if a company has dissolved by the point of prosecution, it cannot be prosecuted. However, to address my hon. Friend’s point, that does not preclude the liability of individual company directors or managers. They can be prosecuted individually, even if the corporate identity itself has passed into history and is beyond prosecution.
The potential for criminal liability of directors and managers reinforces the duty of those who direct the actions of companies to uphold and promote building safety throughout the operations of their companies. We consider that it is a key contributor to our stated purpose of embedding building safety at all levels of industry, contributing to residents both being and feeling safe in their homes.
Ruth Cadbury (Brentford and Isleworth) (Lab)
I thank the Minister for giving way. It is a pleasure to serve under you again, Mr Efford. I cannot see a problem with the objectives of the clause and we will not object to it, but it gives me the opportunity to ask about the issue of personal liability insurance. We are picking up that construction trade professionals in the UK are increasingly struggling to get appropriate insurance. Have the Government done an impact assessment on the issue of liability insurance and how that impacts construction professionals?
Christopher Pincher
I am obliged to the hon. Lady and I can ensure her that insurance, risk assurance and personal indemnity insurance, for example, are addressed in part 3, so I suspect that we will address those issues at greater length in the not-too-distant future.
In amending the Building Act 1984 through the clause, as well as increasing the maximum penalties under that Act, we are taking a significant step in ensuring that accountability for building safety lies with those responsible. I commend the clause—
Brendan Clarke-Smith
I am grateful to the Minister for being so generous with his time. My question relates to something that my hon. Friend the Member for West Bromwich West touched on during discussion of clause 37. There is a sort of cloak of corporate responsibility that people have hidden behind for far too long. It is almost like a game of pass the parcel when it comes to taking responsibility for some defects. Does my right hon. Friend agree that rather than enabling responsibility to be avoided, the clause widens the scope and makes sure we can focus minds? We will be increasing accountability rather than taking away from it.
Christopher Pincher
My hon. Friend is quite right. As I said earlier, corporate liability is already provided for in other pieces of legislation—the Health and Safety at Work etc. Act 1974, for example. By embedding this clause in the Bill we remind corporate players—directors, managers and other appropriate senior parties in businesses—of their responsibility, and that their businesses and they themselves can be prosecuted if the standard of work or the actions that they undertake fall below the standards required in the Bill, which then allows for criminal prosecution.
The clause will further engender and embed the culture change that we all desire, so that at some point in the not-too-distant future these sorts of court actions will become a thing of the past, because all players act in a responsible way to ensure that buildings are designed, built and managed safely. I commend the clause to the Committee.
Mike Amesbury
I thank the Minister and other members of the Committee for their contributions. The clause responds directly to the Grenfell residents’ voices, which is most welcome. We had a situation where developers, subcontractors and the Royal Borough of Kensington and Chelsea put in inferior products and cladding, despite the recommendations for that building. We have seen that sort of thing littered throughout the industry, as people have said. The clause will act as a very effective deterrent, drive the culture change that we have spoken about, and apply the tragic lessons learned in recent years.
Christopher Pincher
I am obliged to my hon. Friends the Members for West Bromwich West and for Bassetlaw for their contributions, and to the hon. Member for Weaver Vale for his recognition that once again the tragedy of Grenfell has opened our eyes to issues in the sector, the loopholes in compliance, and the paucity of penalties, which we are now collectively attempting to rectify. By agreeing to the clause we are taking a significant step in ensuring that accountability for building safety lies with those who are responsible for it—individuals, corporate bodies, or the individuals in senior positions who make up those corporate bodies. I commend the clause to the Committee.
Question put and agreed to.
Clause 39 accordingly ordered to stand part of the Bill.
The Chair
We now come to clause 30—[Interruption.] I am sorry; we now come to clause 40.
Clause 40
Revocation etc of certain provision made under section 2(2) of ECA 1972
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
I would be happy enough to speak to clause 30 again, Mr Efford, although I am not sure that that is the desire of the Committee. My eloquence and possibly my effluence covered all bases.
Clause 40 makes a technical but necessary provision to enable the revocation of out-of-date provisions in building regulations made under the European Communities Act 1972 as we modernise the regulations in years to come. Although the major part of the building regulations was made using powers in the Building Act 1984, a few provisions were made using the powers in the European Communities Act. That Act has now of course been repealed, so those powers are no longer available, meaning that at present the provisions made under the Act cannot be amended or revoked.
The building regulations will need to be updated in the light of the changes being made in the Bill. As part of that exercise, we will be looking to consolidate the significant number of amendments made to the regulations in recent years, to make the regulations easier to use for industry and building control bodies. We will need to be able to revoke the existing regulations and replace them with new ones, and without the powers provided by clause 40 we would be in an anomalous position, in that building regulations made under the European Communities Act could not be revoked, so we would not be able to undertake a comprehensive updating and consolidation.
Siobhan Baillie
Revoking anything can lead to fears of an inadvertent reduction in standards. Is my right hon. Friend satisfied that the clause and the work behind it will achieve exactly the opposite?
Christopher Pincher
This is no back-door attempt to reduce standards now or to introduce poorer standards in the future. It is simply a necessary technical means of allowing standards to be introduced by overriding a now defunct Act; otherwise, we would not be able to repeal or change standards and regulations relating to it. For example, our future homes standard and, indeed, the future buildings standard go way beyond anything that was required of us when we were a member of the European Union or that is required of us under the European Communities Act. I assure the Committee that this is a technical change—a necessary legal and technical change—and not an attempt to reduce standards by subterfuge. With that, I commend the clause to the Committee.
Mike Amesbury
I thank the Minister and other Members who have made contributions. As the Minister said, this is a technical but necessary clause. He referred to the future homes and future buildings standards, and I would like to explore the interplay between the Building Safety Regulator and those up-and-coming standards.
Christopher Pincher
The future homes standard, which we will consult on and will legislate on in 2023-24 to introduce in 2025, will require all buildings built from that point to be at least 75% more carbon efficient than buildings built under present regulations. Importantly, they will also be zero carbon rated, so they will not need to be retrofitted as we change the electricity grid. Those regulations will be in force from that point—clearly, they are not law yet—and all regulators will need to have regard to them and will need to issue appropriate guidance once those changes are enacted in law, so that local authorities, the Building Safety Regulator and product manufacturers understand what needs to be embedded in product creation and the design and management of buildings, subject to the law as it stands.
I will conclude—unless anybody else wishes to intervene; I do not think they do—by saying that this is a very technical clause that is very necessary to ensure that we have a regulation landscape that we can properly manage. I commend it to the Committee.
Question put and agreed to.
Clause 40 accordingly ordered to stand part of the Bill.
Clause 41
Regulation of building control profession
Christopher Pincher
I beg to move amendment 18, in clause 41, page 50, line 24, at end insert—
“(7) Section 91B of this Act (cooperation and sharing of information between Welsh Ministers and other authorities) applies as if references to the Welsh Ministers included references to a person to whom the Welsh Ministers have delegated functions under this section.”
This amendment provides that section 91B of the Building Act 1984 (inserted by Schedule 5 to the Bill) applies in relation to a person to whom functions are delegated under section 58Y as it applies in relation to the Welsh Ministers.
Christopher Pincher
This group of amendments deals with duties to co-operate and information-sharing powers between Welsh Ministers, fire and rescue authorities, local authorities and fire inspectors. Schedule 3, which we debated and disposed of on Tuesday, already contains very similar provisions for England. To reiterate, that schedule creates statutory information-sharing gateways and duties to co-operate between the Building Safety Regulator and other relevant public bodies. Furthermore, it allows local authorities and fire and rescue authorities to share information about building safety and standards and issues across all buildings, including buildings outside of the higher-risk regime regulated by the Building Safety Inspector.
Amendment 29 places duties to co-operate on Welsh Ministers and creates information-sharing powers for them, enabling them to work with other Welsh statutory bodies—fire and rescue authorities, fire inspectors, and local authorities. Sharing of information and co-operation are key elements in delivering the improvements that the Bill proposes. For Welsh Ministers, those duties and powers relate to their functions under part 2A of the Building Act 1984. Amendment 18 addresses the need for Welsh Ministers’ duty to co-operate and power to share information to be cascaded down where their functions in respect of building inspectors and/or building control approvers are delegated.
Amendment 25 removes the limitation on co-operation and information sharing between Welsh fire and rescue authorities, local authorities and fire inspectors, so that it is no longer restricted to higher-risk buildings only. Those bodies will work together across the whole range of buildings in Wales.
Amendments 24, 28 and 31 clarify that the duties to co-operate and powers to share information apply to Welsh fire and rescue authorities, as defined by amendment 33, and fire inspectors, defined by amendment 30. Amendment 34 mirrors clause 26, which we have already discussed and voted on. It confirms that information sharing under this provision must comply with the data protection legislation, so that people’s privacy rights are overridden only in certain specific circumstances. Amendments 23, 26, 27 and 32 make the consequential changes necessitated by the substantive amendments.
I am sure that Committee Members have followed all those amendments very closely, and I commend them to the Committee.
Mike Amesbury
Again, these are very technical but necessary amendments, which ultimately simplify and unify building control legislation, processes and procedures, and enforcement.
Christopher Pincher
I am grateful for the hon. Gentleman’s support. I commend the amendment to the Committee.
Government amendment 18 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Christopher Pincher
Dame Judith’s independent review raised serious concerns over the lack of a level playing field for approved inspectors and local authority building control. There were different statutory and non-statutory processes leading to incoherence, confusion and complexity in the system.
Clause 41 establishes a new registration and oversight regime to provide consistency across the public and private sector, and creates a new, unified building control profession. The new registration regime will raise standards in the sector and enhance public confidence by requiring a minimum level of demonstrated competence to provide building control services on different types of buildings. For the first time, individual building control professionals, whether in the public or private sector, will have to register with a regulatory authority. That is the Building Safety Regulator in England and the Welsh Ministers in Wales.
We intend for the registration process to involve the demonstration of competence against a shared framework. Registered professionals, who will be called “registered building inspectors”, will need to adhere to a common code of conduct. We will now be able to hold individuals accountable for professional misconduct or incompetence. That is the foundation for clause 43, in which we set out certain activities and functions that building control bodies can carry out only by using a registered inspector.
Together, these clauses will change the way building inspectors work with and for building control bodies, giving the consumer greater assurance that an experienced professional will be checking their building against regulations. We are introducing an updated registration regime for private sector building control bodies, currently known as approved inspectors. They will have to register with the regulatory authority to work as a registered building control approver and will be held to professional conduct rules. We are introducing sanctions and offences for misconduct to ensure that those organisations that supervise building works are held to high professional standards.
Clause 41 also allows the regulatory authority to delegate those registration functions to another body. We are introducing a new framework for the oversight of the performance of building control bodies, levelling the playing field for local authority building control and registered building control approvers. The regulatory authority will be able to set the operational standards defining the minimum performance standards that building control bodies must meet. It sets out the reporting requirements that will enable the regulator to collect information to assess and analyse the performance of building control bodies and make recommendations to drive up standards. It gives the regulatory authority investigatory powers when building control bodies breach the operating standards, and a series of escalating sanctions and enforcement measures to address poor performance issues.
Selaine Saxby
This is, obviously, a necessary and very technical clause, setting out a strong new regime of how we can improve competence levels and accountability in the building control sector. I wonder if he could clarify how the regulator will deal with poor performing building control bodies?
Christopher Pincher
We want to make sure that such a body has the right sanctions available to it. We want to give it a robust set of powers to investigate performance and, where appropriate, impose escalating sanctions. In the most serious cases, the powers will include the cancellation of the registration of the building control approvers. It will mean potentially the effective taking over of the function of a local authority building control by appointed officers from another local authority. We want to give the regulator the tools to ensure that building control bodies are improving safety and performance, driving up standards, and that, where they themselves are not performing, there is a means by which sanctions can be applied. Clause 41 is essential to creating a more robust and competent building control sector, and I commend it to the Committee.
Mike Amesbury
As the Minister says, this will raise the bar and raise the standards of building control throughout, as recommended by Dame Judith Hackitt and the review. It will do so through its process procedure and, very importantly, enforcement and deterrent. One of the concerns the Opposition raised with other clauses is the potential to have a two-track approach to building control with buildings below 18 metres. What assurances can the Minister give that that will not be the case and that standards will be raised in buildings that are below 18 metres, say, from 11 to 18 metres?
Shaun Bailey
I, too, welcome clause 41 and its effect on the Building Act. I want to raise a point with my right hon. Friend the Minister around clarity. We will effectively have two bodies in England and Wales that will deal with this. In England it is the regulator itself and in Wales it is Welsh Ministers. I would be grateful if he will confirm that he will ensure that his Department will keep that discussion ongoing. The importance of the clause, as with the rest of the Bill, is to ensure consistency. We talked in previous deliberations about cross-border work. We need to ensure that the professionals who would sit within this regime have consistency and are conducting work across the English-Welsh border to ensure that we keep the market going and continue to meet those home building targets.
I agree that the Bill is long overdue. As the hon. Member for Weaver Vale pointed out, it is about raising standards and ensuring that the profession knows what is expected of it. There is a broader point to be made on communication: making sure the points contained within clause 41 are communicated clearly, not just within the profession but more broadly. We have talked about how the impacts of making these regulatory and standards changes need to be communicated with the sector and with training providers, but they need to be communicated with the industry more broadly. If that is not done, we might have a situation in which people enter the industry without necessarily being clear about where they need to be. I would therefore ask the Minister to be sure that his Department continues to engage.
Considering the issues, the measure is long overdue. It is common sense and something that any other regulated profession would do. There is detail about the power to have investigations, and again we need to ensure that that system works and that the regulator is in place for that, in particular for proposed new section 58H—that system must flow properly. Sanctions, too, must be proportionate. The clause is a significant one, so I will not go into every single element of it, but will the Minister ensure that its implementation is reviewed and that we continue the discourse on it, notably on proposed new section 58I on sanctions for professional misconduct?
The regulator must ensure that it continues those discussions of what is appropriate. As we have touched on in other deliberations, circumstances change and things develop. I reiterate that to the Minister, and I ask him to ensure that his Department continues those communications, that the expectations of the industry are communicated and that under the mandate of clause 41 the regulator continues its conversations with Welsh Ministers, so that we can have consistency—that will be key, given its cross-border nature. We must ensure that the clause is implemented so it is how we want to see it work. I am sure he will, but I will be grateful for his reassurances.
Christopher Pincher
I am happy to give those reassurances to my hon. Friend. We will need to take care as we plan the transition to the new regime. I assure him that in our discussions with Ministers in Wales, with other Departments and with the Health and Safety Executive we are exploring appropriate transitional arrangements to ensure that the building control sector moves smoothly and safely from one uneven playing field to a more even one, in an orderly way, as I said.
The hon. Member for Weaver Vale asked about the new registration regime. In the clause, we are attempting to create the oversight and the regime that will provide consistency across the public and private sectors, creating a new unified building control profession for all buildings in the sector. The new regime will not only raise standards in the sector, but enhance public confidence by requiring a minimum level of demonstrated competence to provide building control services on different types of buildings. One can imagine that with a high-rise, higher-risk building, the competence levels that the Building Safety Regulator requires could be higher than or different from those for other buildings. We might come to that in later clauses.
In the meantime, I hope that the Committee will agree that the clause is vital to create a more robust and competent building control sector. I commend it—
Christopher Pincher
Or I will commend it shortly, after I have given way to the hon. Member for Brentford.
Ruth Cadbury
Brentford and Isleworth, to be precise, but I thank the Minister for being so generous in allowing my intervention. The submission from the Local Authority Building Control group welcomed this aspect of the legislation and the clause. It expressed one concern, which I am raising as a question, about CICAIR—Construction Industry Council Approved Inspectors Register—which is designated by the Secretary of State to register and provide the oversight of approved inspectors. Has the Minister taken on board its recommendation that immediate action is taken to strengthen the audit process of CICAIR to include the requirement for external independent technical auditing in advance of the Bill being enacted? It wants to do that in order to improve current performance and standards.
Christopher Pincher
I am happy to work with CICAIR. We work with it to ensure that, for example, registration fees are proportionate. We will set out more details of that later. Fundamentally, we want to ensure that the registration and regulatory oversight process is sensible. I am happy to have further discussions with it and my officials about any appropriate audit trail. I am sure that the Building Safety Regulator—presently in shadow, but as it builds its approach—will also want to have those sensible discussions.
I will accept no more interventions and conclude by saying that the clause is essential to create a more robust and competent building control sector. I commend it to the Committee.
Question put and agreed to.
Clause 41, as amended, ordered to stand part of the Bill.
The Chair
Before I call the Government Whip, may I say to Members that it is customary to stand in your place if you want to indicate to the Chair that you wish to speak? I am not an auctioneer. I was a London taxi driver, so I am good at spotting various gestures, but it would be helpful if you could stand in your place.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Nationality and Borders Bill (Third sitting)
Thursday 23rd September 2021
(2 years, 7 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 23 September 2021 - (23 Sep 2021)
The Chair
Good morning, ladies and gentlemen. Our first witness is unable to join us this morning. The sitting is suspended until our second witness arrives.
Sitting suspended.
Examination of Witness
The Hon. George Brandis QC gave evidence.
The Chair
We shall now take evidence from the Hon. George Brandis QC, high commissioner for Australia to the United Kingdom. We have until 12.45 pm for this session. Good morning, Sir, and thank you for joining us. Could you please identify yourself for the record?
George Brandis: Good morning, Mr Chairman. Good morning, ladies and gentlemen. My name is George Brandis and I am the high commissioner for Australia to the United Kingdom.
Bambos Charalambous (Enfield, Southgate) (Lab)
Q
George Brandis: Yes, I can tell you that. Operation Sovereign Borders was a policy introduced by the Government of Mr Tony Abbott, which was elected in September 2013, and administered under the leadership of the then Minister for Immigration and Border Protection, now the Prime Minister, Scott Morrison.
Perhaps it would be helpful if I gave the Committee a little context. The purpose of Operation Sovereign Borders was to address a problem that had grown increasingly acute in the previous years: the arrival or attempted arrival by boat—almost always ramshackle, small, unsafe boats—across the seas, particularly the Timor sea, to the north-west of Australia, of irregular maritime arrivals. In the years prior to Operation Sovereign Borders coming into effect, there had been more than 50,000 illegal arrivals to the north-western coast of Western Australia in 827 vessels. That is the number of people we know about who made the journey.
We also know that a large number of people who attempted to make that journey drowned. There will never be a reliable figure for what that number was, because we simply do not know how many there were, but because we have counted, sadly, from the corpses, we know of 1,204 people who drowned. Whether the actual number was a multiple of that, or many hundreds more, it is impossible to tell, but certainly more than 1,200 people drowned.
Operation Sovereign Borders was introduced to address that dreadful problem. The implementation phase lasted approximately nine months, during which the flow continued. However, as the policy began to take effect and be effective, that flow dwindled to a point where some nine months later, by July 2014, it had ceased completely. Since then, there has not been a single irregular maritime arrival on Australia’s shores, as far as we can tell.
Bambos Charalambous
Q
George Brandis: Primarily the southern shores of Indonesia.
Bambos Charalambous
Q
George Brandis: It is a great distance. I cannot give you the exact figure, but it is certainly more than 1,000 km.
Bambos Charalambous
Q
George Brandis: They were part of Operation Sovereign Borders. There were three elements to Operation Sovereign Borders: disruption and deterrence activities; turnarounds, where it was safe to turn the vessels around; and offshore processing. I will speak briefly to each of those elements.
With the co-operation of the Indonesian authorities, the people smugglers’ activities were disrupted at the points of embarkation on the southern shores of Indonesia, so it became more difficult for them to publicise and assemble the clientele to embark on these unsafe vessels. Generally, they were run-down fishing vessels.
The turnaround operation, which was conducted in international waters, repelled the vessels and returned them to the Indonesian shore, where it was safe to do so.
Regional processing, through a series of agreements that Australia made with Nauru and New Guinea in particular, meant that people who were not turned around and were taken onboard Australian vessels—they were rescued, in effect, because they could not be safely turned around—were processed offshore in countries where they were not at risk.
It is important to stress that Australia’s obligations under the 1951 refugee convention were complied with at all times, for several reasons. First, Indonesia in particular was a transit country for these people—none of them claimed to have been persecuted by the Indonesian Government. Secondly, the countries to which they were sent for regional processing were safe countries, where they were not exposed to the perils against which the refugee convention protects. Lastly, Australia observed its non-refoulement obligations at all times.
Bambos Charalambous
Q
George Brandis: There was litigation in New Guinea about the agreement between their Government and the Australian Government in relation to a particular processing centre on the New Guinea mainland. It is not my understanding that that affected the other processing centre within New Guinea, on Manus Island.
Bambos Charalambous
Q
George Brandis: I am not in a position to speak in relation to that, but I make the point that that is entirely a matter for the Government of New Guinea. From an Australian point of view, the legal and constitutional validity of the offshore processing arrangements were challenged in the High Court of Australia, which in the Australian system is the equivalent of your Supreme Court. The High Court ruled that under the regional processing agreements that existed between Nauru and Australia, and between New Guinea and Australia, the regional processing centres were not Australian centres; they were in no respect under the jurisdiction of the Commonwealth of Australia. They were centres operated by the Governments of Nauru and New Guinea respectively.
Bambos Charalambous
Q
George Brandis: I do not think that is correct. I think it would be correct to say that there was a complaint made by people who disagree with the policy to the United Nations Human Rights Council.
Bambos Charalambous
Q
George Brandis: I do not have those figures in front of me. Under the regional processing agreements that Australia entered into with Nauru and New Guinea, the establishment of those centres, which required capital works and so on, was contributed to by Australia.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Q
George Brandis: There were always more in Nauru than in New Guinea. Whether at the maximum point they reached as many as 3,000, I am not sure, but I would not be surprised if it was roughly that figure.
Stuart C. McDonald
Q
George Brandis: What happened, as I indicated in the timeline I outlined at the start of my evidence, is that from the introduction of the policy, beginning in September 2013, there was a period during which the effectiveness of the policy was tested by people smugglers. The numbers of people seeking to enter Australia in an irregular fashion continued and then dwindled to nothing by July 2014. Again, I do not have the figures in front of me, but I think it is generally true to say that in the early days of the policy the numbers were greater, obviously, than in subsequent years when the efficacy of the policy was established.
I wonder, Mr McDonald, whether I may make a broader point about this, because I know that this country is seeking to address a problem that has some resemblances but also important differences. The people who put these individuals, groups and families on boats were criminal gangs. People smuggling and people trafficking is a variety of organised crime. Organised crime is a business and, like every other business, it depends upon cash flow. The most important thing that Australia was able to do was drive the people smugglers out of business by depriving them of a product to sell and destroying their cash flow.
Stuart C. McDonald
Q
George Brandis: I respectfully disagree with you, Sir, and I say that having been both a member of the National Security Committee of Cabinet throughout that time and, in fact, the Attorney General who wrote the legal advice on the basis of which the policy was founded. With respect, it was not the Australian experience, and it would be artificial and wrong, to isolate one of those three elements—disruption and deterrence activities, pushbacks and offshore processing—as being more effective than the others. Rather, it is the case that they were a suite of policies that, operating together, had the effect of driving the people smugglers out of business.
Stuart C. McDonald
Q
George Brandis: Let me get that information for you—I cannot give you a date. It is certainly the case that, from the early days, the need for offshore processing significantly dwindled because of the efficacy of the policy.
Stuart C. McDonald
Q
George Brandis: Sir, I am not going to engage in rhetoric. The fact is that most Australians took the view, as did the Government and the Opposition, that the inhumanity was in letting thousands of people drown.
Stuart C. McDonald
Q
George Brandis: Sorry to interrupt, but if I have not made this clear already, it is absolutely not the case that one element of this policy was the effective element, and another element was not effective. The policy was a policy suite in which all three elements mattered.
Stuart C. McDonald
You have given your analysis of that. Obviously others disagree.
Stuart C. McDonald
Q
George Brandis: No, but because the distances involved are so different. Embarkations from the southern shores of Indonesia, across the Timor sea, were not in dinghies; they were largely in dilapidated wooden fishing boats.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Q
George Brandis: I remember that decision very well; it was an NSC decision and I remember the debate as if it were yesterday. I am very proud that Australia did that. Sir, let me answer your question in this way. What we have found in Australia—this is both the view of those who have studied the issue and empirically verified by many public opinion surveys—is that there is a very direct correlation between the public’s willingness to accept a big immigration programme, with a big humanitarian and refugee element, and public confidence that the Government are in control of the borders. When the public have that confidence, they back a big immigration programme. When that confidence is eroded, they are less enthusiastic about it.
That sentiment was captured by former Prime Minister Howard in words that became almost a mantra in Australian politics of the day. He said in 2004, “We will always fulfil our humanitarian obligations, but we will decide who comes into this country and the circumstances in which they come.” Australia is a big immigration nation. To give some figures, in the year in which the Syrian refugee programme was at its most ambitious, 2016-17, Australia accepted 21,968 refugees under our various humanitarian programmes. We also accepted, under our other immigration programmes—skilled migration; family reunions—183,608 people. More than 200,000 people came that year, of whom about 10% came under humanitarian and refugee programmes.
The numbers have gone up and down a bit. That was the biggest year because of the Syrian element, which was an additional element to the normal humanitarian and refugee programme. In the most recent year, 2019-20, we accepted 140,366 people—13,171 people under our humanitarian and refugee programme. The numbers over the last several years have fluctuated between more than 13,000 and almost 22,000 per year under our humanitarian and refugee programme. In most of those years that is per capita the most generous humanitarian and refugee programme in the world, second only to Canada.
Paul Blomfield (Sheffield Central) (Lab)
Q
George Brandis: I do not have the figures in front of me. I am not suggesting that it was not a programme that cost money to implement and administer. It was implemented and administered by foreign Governments: the Governments of Nauru and New Guinea. Nevertheless, a substantial proportion of the funding came from Australia. I am not disputing the figure that you give; you have done the research, sir. I do not have the financial figures, but may I take that question on notice and get them to you?
Paul Blomfield
Q
George Brandis: Please do not take from my silence that I am averring that it is right. Certainly, there was a not insignificant cost. I do not dispute that.
Paul Blomfield
Q
George Brandis: No, I do not think that is right. I have a disaggregated year-by-year figure on the offshoring. It certainly is right, as I said to your colleague before, that it was a front-end-loaded sort of policy, in the sense that once the people smugglers’ business had been destroyed and the boats stopped coming, the need for that leg of the policy diminished. But as for the date at which the last of the offshoring was undertaken, I am not in a position to tell you, other than to say that it was in the early part of the policy.
Paul Blomfield
Q
George Brandis: No, I do not.
Paul Blomfield
Q
George Brandis: I am not aware of the report to which you refer. I mean, let’s not beat around the bush here—this was a very controversial policy at the time. It became less controversial with the passage of time, for two reasons. One was that it worked. Secondly, the Opposition changed their position from opposition to the policy to support for it. However, a number of community organisations, universities and various institutions and faculties within universities continued to criticise the policies, which they are perfectly at liberty to do, and a lot of figures were thrown around. I am not familiar with the particular report to which you refer and therefore I cannot verify the data quoted within it.
Paul Blomfield
Q
George Brandis: The Kaldor Centre—
Paul Blomfield
Okay.
George Brandis: The Kaldor Centre is a centre established as an advocacy centre and a research centre to advance the interests of refugees, and it takes a particular point of view. I am not deprecating its statistical or academic rigour at all; I am merely pointing out that it approaches this debate with a particular advocacy point in mind.
The Chair
I am sorry. I said that had to be the last question. I have to try and get everybody in and there are a lot of Members. Minister.
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
Q
Your Excellency, looking back in the Australian context, is it reasonable to think, that if you had stood back and done nothing about this challenge the numbers of people crossing or seeking to cross would have increased, and on less seaworthy vessels?
George Brandis: I think that is an absolutely fair inference to draw, because in the years prior to the introduction of the policy, which was in September 2013, the numbers had escalated, so every year there were more than in the previous year. It almost inevitably follows, given that nothing else would have changed, that the number of those vessels that did not make it and the number of passengers who drowned would have escalated, too.
Tom Pursglove
Q
George Brandis: Well, as I have already said in my evidence, there were three legs, or three elements, to this policy and all of them were essential to it. I do not think you can disaggregate one from another.
Tom Pursglove
Q
George Brandis: It is very difficult to answer that question in a general way. The people-smuggling gangs who were the authors and beneficiaries of this activity were located in Indonesia, primarily. That is not to say that they may not have had connections in Australia, but they were primarily groups that operated within Indonesia, and there were many of them. I am not in a position to generalise from that proposition to what extent they had connections in other countries, including Australia.
Tom Pursglove
Q
George Brandis: As is evident from the statistics I quoted before, we accept an unusually large number of humanitarian and refugee immigration applications for a country of our size. We have an ambitious humanitarian and refugee programme, and we seek to process those applications swiftly and efficiently, but we do say, “You’ve got to come in the front door, and not put yourself in the hands of criminals and put yourself and your children at risk of drowning.”
Tom Pursglove
Q
George Brandis: There were logistical challenges, particularly the turn-back operations. It was very challenging for the maritime authorities to do that while at the same time ensuring that nobody’s safety was put at risk. That was one dimension to this, but it is a bit of a different problem because, as one of your colleagues pointed out, here these people come by dinghy. Almost all the people who were trying to come to Australia were coming in decrepit old timber fishing boats, which were much more fragile. That was the difference.
I am not here to instruct or encourage your Parliament on the right policy choice; I am merely here to respond to the questions you have asked me about how a particular set of measures worked for Australia. I have already observed that there are differences as well as similarities in the profile of the problems. However, I would say that undoubtedly the key to this is to put the people smugglers out of business. The way to put the people smugglers out of business is to demonstrate to their potential clientele that they are wasting their money. The way we did that in Australia, and it was a robust policy, was to persuade the potential clientele that, if they came in through the front door as genuine refugees, they would be embraced; but, if they put themselves in the hands of people smugglers, there was no way they would ever end up in Australia.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Q
George Brandis: A lot of work was done with the Governments. I was not directly involved in that work, so I am not in a position to speak with particularity in answer to your question, sir, but they were countries in our region that were willing to enter into regional processing agreements with Australia.
Neil Coyle
Q
George Brandis: I am not aware that there were any from either New Guinea or Nauru. Those two countries were never a locus or genesis of the problem.
The Chair
Order. I am sorry, and I must apologise to colleagues who have not been called, but it is a time-limited session—that is what the Committee voted for—and I have to draw it to a close. Commissioner, the Committee is deeply indebted to you; thank you very much for coming in.
Ordered, That further consideration be now adjourned. —(Craig Whittaker.)
Health and Care Bill (Eleventh sitting)
Thursday 23rd September 2021
(2 years, 7 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 23 September 2021 - (23 Sep 2021)
The Minister for Health (Edward Argar)
It is a pleasure to serve under your chairmanship once again, Mrs Murray. With your indulgence, I will speak to each of the clauses in turn.
Clause 51 amends section 88 of the Health and Social Care Act 2012. Section 88 requires that Monitor—or, in future, NHS England—treats an NHS trust that has become an NHS foundation trust as having made an application and met the criteria for a licence. The clause will require NHS England to apply that provision when that queue of NHS trusts waiting to become foundation trusts do so—[Laughter.] I hope the Committee will forgive my gentle reference to what the shadow Minister said last time. On a more serious note, the clause will also require NHS England to apply it when a foundation trust is created as a result of the merger of an existing foundation trust with an NHS trust or another foundation trust, or the separation of one foundation trust into two or more new foundation trusts.
Clause 51 clarifies the situation when new foundation trusts are created, merged or separated and ensures there is no unnecessary bureaucracy as a result. It is an important clarification for NHS England on how to exercise its licensing powers in such situations, should they arise.
We are investing record levels of capital expenditure into the NHS to help it build back better after the pandemic. We intend to set capital expenditure budgets at integrated care board level, and we expect providers to work with ICB partners to agree capital expenditure, in line with the ICB capital plan. To ensure that the interests of the wider system are taken into account at individual provider level, clause 52 provides a new power to allow NHS England to make an order imposing capital expenditure limits for NHS foundation trusts.
That narrow and reserved power will ensure that a limit can be set only for an individually named foundation trust for a specified period, and would automatically cease at the end of that period. The power relates solely to capital expenditure and not to revenue expenditure. NHS England must also consult the foundation trust before making the order. There will be clear transparency, as the order will be published.
In applying to an individual foundation trust in particular circumstances, the power stands in contrast to the capital limits that apply to all NHS trusts. The power is likely to be used where there is a clear risk of an ICB breaching its system capital envelope as a result of non-co-operation by that foundation trust, and when other ways of resolution have been unsuccessful.
NHS England must set out in guidance the circumstances in which it is likely to set a capital limit and how it will calculate it. NHS England intends to work closely with foundation trusts to develop that guidance. I want to make it clear to the Committee that the clauses are not intended in any way as an erosion of the autonomy enjoyed by foundation trusts. Unlike NHS trusts, foundation trusts will continue to have additional financial freedoms, such as the ability to borrow money from commercial lenders. However, the clause is crucial for managing NHS capital expenditure across a system and to ensure that all NHS providers operate within the ICB capital limits. Without that control, other NHS providers may have to reduce their capital spending to ensure that the NHS lives within its allotted capital resources and that resources are spent in a way that best delivers for patients and the taxpayer.
The provisions in clause 53 are largely a consequence of the merger of NHS England and Monitor, in this case reflecting Monitor’s oversight role in relation to foundation trusts. Subsection (1) gives foundation trusts greater flexibility in their forward plans. Paragraph (a) removes requirements currently in the National Health Service Act 2006 concerning the content of the forward plan. Paragraph (b) removes the requirements for the forward plan to be prepared by the foundation trust’s directors and for the directors to have regard to the views of the foundation trust’s governors when preparing the forward plan.
Foundation trusts will no longer be mandated to set out information in the forward planning documentation around non-health service activity and income. The clause also removes the requirement for governors to be mandated to determine whether the foundation trust’s forward plan interferes with the trust’s health service activity.
As the Committee will know by now, and as a consequence of the abolition of Monitor and its merger with NHS England, NHS England will formally become responsible for the support and oversight of foundation trusts, which includes taking on Monitor’s regulatory and intervention powers. That change will enable improved oversight and greater flexibility across the system. Provisions elsewhere in the Bill make the detailed changes, including formally giving NHS England responsibility for giving directions in relation to the content and form of foundation trust accounts. That includes specifying information to be included in the annual reports and accounts of foundation trusts.
The clause is simply part of transitioning the provider-based functions of Monitor into NHS England, ensuring continuity of oversight of foundation trusts’ accounting and forward planning. NHS England will be able to provide fundamental advice and guidance to foundation trusts in the exercise of their functions. Provisions elsewhere in the Bill will formally allow NHS England to monitor the performance of foundation trusts and to take steps to intervene where necessary, which may take the form of advice and support. As we discussed on a previous occasion, however, it may also involve NHS England requesting the trust to take action to remedy emerging issues. At the same time, the clause makes the requirements on annual plans more flexible, to reflect the direction of travel towards system-wide, rather than organisation-specific, planning.
I turn now to clause 54, which inserts proposed new section 47A into the National Health Service Act 2006 and allows an NHS FT to carry out its functions jointly with another person, should the foundation trust consider such arrangements to be appropriate. That would allow a foundation trust to exercise its healthcare delivery functions jointly with another foundation trust as part of a provider collaborative. The clause will make it easier for FTs to work with partners across the health system to develop integrated, seamless services in the best interests of patients.
Clause 55 amends sections 56, 56A and 56B of the 2006 Act, which relate to the merger, acquisition, separation and dissolution of NHS foundation trusts and NHS trusts. It removes the requirement that an application to acquire or merge an NHS FT with another NHS FT or an English NHS trust be supported by the Secretary of State if one of the parties is an NHS trust. NHS England will now consider each application, but the Secretary of State’s role has been strengthened, as he must now approve such applications. However, NHS England will consider the applications and provide advice. That is in keeping with the policy intention that the Secretary of State should have a strengthened accountability role for NHS foundation trusts, in the light of the transfer of Monitor and NHS Trust Development Authority functions to NHS England. NHS England replaces Monitor in the relevant sections of the NHS Act 2006.
Like Monitor, NHS England has a duty to grant the application to merge, acquire or separate if it is satisfied that the necessary steps have been taken to prepare for an acquisition or the dissolution and establishment of new trusts. Additionally, the clause adds a further requirement to each of the sections, which provides that NHS England must refuse an application if the Secretary of State does not approve it. That strengthens the role of the Secretary of State in the process, and it will be for NHS England to take note of the Secretary of State’s comments in taking forward its plans. The clause provides for enhanced oversight and places strategic decision making in the health system in the hands of NHS England, while also conferring a commensurate and important role on Ministers, in line with the direction of accountability set out in the Bill.
Clause 56 relates to the transitioning of the provider-based functions of Monitor and the NHS TDA into NHS England. That will allow NHS England to grant an application by an NHS foundation trust for dissolution. The clause confers the powers that rested with Monitor to transfer or provide for the transfer of property of an NHS foundation trust on its dissolution. Previously, on the dissolution of an NHS FT, Monitor had the power to transfer the property of the NHS FT to the Secretary of State. The clause amends that power so that, when making an order to dissolve an NHS foundation trust, NHS England now has the power to make an order to transfer, or provide for the transfer of, property and liabilities to another NHS FT, an NHS trust or the Secretary of State. The clause also includes a new duty for NHS England to include the transfer of any employees of a dissolved NHS FT in the transfer order.
Taken together, these clauses ensure that foundation trusts are able to play a central role in a more integrated and collaborative healthcare system. As part of that, the clauses also provide NHS England with the powers it will need to help support NHS FTs. I therefore commend clauses 51 to 56 to the Committee and propose that they stand part of the Bill.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to see you in the Chair this morning, Mrs Murray. I am glad you enjoyed Tuesday so much that you came back for another round. We will do our best to inform and entertain as we go along.
I am grateful to the Minister for setting out the Department’s position on the clauses. We really need to have another go, don’t we, at trying to understand the landscape for foundation trusts? I have already referred the Committee to the description of foundation trusts when they were first established, as vigorous, autonomous, business-like new organisations that would shake up the NHS and bring choice and competition into healthcare. As we know, there was no evidence that that model did any better than the previous standard trusts, once the high performers had been accounted for.
The Minister’s contention that the clauses do nothing to impinge on a foundation trust’s autonomy is quite the claim. The big change in the clauses is the stripping away of financial autonomy, as set out in clause 52, directly contradicting the many occasions when we have been told that the Bill is all about permissiveness, local decision making and accountability. In clause 55, we also see the Secretary of State giving himself yet more powers.
Clause 52(2) could, in effect, mean there was an indefinite block on foundation trusts using their own capital resources. Will there be any limitations on what is a broad power? I refer to the evidence from Dr Chaand Nagpaul, who touched on that:
“At the moment, we are seeing foundation trusts thinking about their budgets, community providers thinking about theirs, and general practice as well. There is not even collaboration between the community and the hospital. No foundation trust currently has the ability to say, for example, ‘We will go beyond our budget and invest in the community—it may actually reduce our hospital admissions.’ At the moment there is no structure or processes to enable collaboration even within the NHS.”—[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 93, Q120.]
Dr Nagpaul sets out very well the lack of clarity that we still have about how finances will work at a local level within an ICB, and clause 52 gives foundation trusts even less autonomy in that respect.
On that point, I noted with interest today yet another Health Service Journal article, which talked about how integrated care partnerships may not be up and running for some time after the ICB has been set up. That raises questions about what their role is going to be in helping to form those capital priorities for an integrated care system.
In other evidence, Richard Murray said:
“The bit that I think is really uncertain is how the big hospital schemes get picked. That is the bit that looks very different. Obviously, there is a manifesto commitment.”—
although we know that, in recent times, the Government have not been so keen to follow those commitments. He continued:
“There used to be a process by which it was determined whether providers could afford to repay—if they could do it through loans, or if there was a need system. That is now going off in a completely different place, and I think that is the bit that is not quite clear. How does that work within this system? Who gets to choose how those projects get picked, so to speak?”—[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 118, Q158.]
I appreciate that the point is slightly off-piste, but as we are talking about capital expenditure it is appropriate to raise it, and I am sure the Minister will take the opportunity in his response to set out that process in more detail. At the same time, can he set out in more detail what the guidance set out in proposed new section 42C would entail? Hopefully we will be able to set out some broad points in respect of that.
While we are on the Minister’s response, will he consider the broader point we made on Tuesday about foundation trusts’ focus on involvement of patients and the public and whether that needs to be strengthened across the board? He needs to think again about the whole question of accountability on ICBs.
To go back to the essential question, are foundation trusts now any different to plain, old-school NHS trusts? Is a foundation trust now a dodo? Is it extinct or on its way out? If an ambitious young chief executive of a trust were to approach the Minister and say they were thinking of putting in an application for foundation trust status, what would the Minister say to them about the benefits of such an application, both to their trust and to the wider healthcare system?
Edward Argar
I am grateful to the shadow Minister for his suggestion of a consolidation Act. I can tell just how much he enjoys the sessions we spend in Committee and how eager he is that, no sooner do we finish, than we are back in another Bill Committee together. In terms of his gentle gibe about reorganisation in another two years, there was roughly a two-year gap between the 1999, then the 2001, then the 2003 and then the 2006 reorganisations of the NHS under the previous Government. I fear this is something that affects Governments of all types.
Justin Madders
Indeed, but the point that we would make is that there was such a mess to clear up after 18 years of Conservative Government that we had to do a lot of reorganisations. If the Minister can state for the record that there will be no reorganisations within a specified timescale, we would all be delighted to hear that.
Edward Argar
We must always retain flexibility so that the legislative framework reflects the evolving nature of healthcare provision in this country and we can we deliver what all our constituents want us to.
The hon. Gentleman touched on the importance of licensing. The licence applies to anyone providing NHS services, including the independent sector. With the system oversight framework, it provides a tool that helps to ensure quality across all types of providers in a consistent way, hence the importance that we still attach to it.
At the heart of the hon. Gentleman’s speech were his points about foundation trusts, a 2004 innovation. The reason we are introducing these changes is that we recognise not only the ability of foundation trusts to be autonomous, but the need for them to collaborate and integrate. The aim is to create a framework that allows for local flexibility but brings together local services, recognising the synergies that need to exist between all healthcare providers in an area. With the ICB holding the ring, we get local flexibility, but we look at it the local system level rather than the individual provider level. I alluded to it jokingly, but as I promised in our last session I can confirm to him that I was correct that there are no current applications from NHS trusts to become foundation trusts. I said that I was relying on my memory, but I can confirm for the record that my memory was accurate.
The hon. Gentleman talked about the new hospitals programme and capital more broadly. While slightly stretching the scope of the debate, I think that is probably relevant because he was talking about capital, so I am happy to accept that—subject to your judgment, of course, Mrs Murray—as being in scope. In terms of investment in new hospitals, the bottom line is that this is capital provided by the Treasury—by central Government —to build new hospitals where they are most needed. He will have seen the criteria and the approach set out for the next eight schemes, which are currently being considered. An expression of interest is the first stage of that process. A number of criteria are set out—for example, are there safety issues? Is there an urgent need? Will this facilitate transformation and improve patient experience? The criteria are set out publicly.
The next stage, which will take place next year, is the whittling down of the applications to a shortlist and further consideration. I believe it is entirely right that, guided by advice from officials and local NHS systems, Ministers make those decisions, because it is central Government money that is being invested directly in the schemes, rather than the normal capital allocations from NHS England to local NHS systems that are decided at local system level. This is additional, over and above the normal capital allocations.
The hon. Gentleman mentioned proposed new section 42C and asked what it is envisaged the guidance will say, what it will cover, and how it will work. Essentially, we envisage it setting out how and when NHS England and NHS Improvement will exercise the powers—for example, where a foundation trust’s plans potentially put at risk the broader ICB plans for capital, unduly divert resources, or skew the capital allocation in a particular direction. We do not envisage their being used with any regularity, and hope that, as now, broadly, there is a collaborative approach. It is more informal now than envisaged under the provisions, but there is a collaborative approach.
In his broader remarks about the balance between autonomy and freedoms, the hon. Gentleman asked what I would tell a keen and ambitious NHS trust chief executive who was considering taking advantage of the spaces in the queue to become a foundation trust the advantages in doing so are. Essentially, I would say that they should consider what best reflects the local needs for their local healthcare system, because foundation trusts will of course retain freedoms around commercial borrowing and other existing freedoms. The powers that we are introducing act as a safeguard should they be used against the wider interest of the system. There are still advantages, but each NHS chief executive in that situation should consider carefully their own local circumstances and what is most effective in providing for their patients and service users.
My two final points go to what the hon. Gentleman said about the fear that the powers are significant and should be used only as the last resort, and his second point about whether there should be a greater willingness to allow NHS providers to decide how they spend their surpluses, rather than a regulator or central Government deciding. I might be paraphrasing, but I think those were his two key concerns. On his first point, the powers act as a safeguard to allow national-level intervention when local negotiation cannot resolve disputes. I have alluded to what we would use the guidance for, which is to add a bit of flesh to the bones. We think that is best set out in guidance rather than on the face of statute, as circumstances change over time and applying a narrow statutory test could hinder the aims of the clause, which would ensure that NHS spending overall is in the best interests of the public.
To the second point about whether it should be down to NHS providers and systems to determine how they spend surpluses or moneys that they have saved each year for a particular purpose, the hon. Gentleman is right that NHS trusts and foundation trusts operate as autonomous organisations that are legally responsible for maintaining their estates and providing healthcare services. That will continue, but only where there is a clear risk of a trust acting against the wider interest of the NHS system locally and an ICB would the controls be considered for application.
Justin Madders
The Minister is setting out the aims, but I am a little unsure what a foundation trust acting against the wider interest of the ICB would look like. Can he give us examples of where that might have happened?
Edward Argar
The hon. Gentleman tempts me to give a specific example. The reason we chose the flexibility of using guidance is that we cannot envisage every eventuality, so we will set out in guidance the process and approach. I will try to give him an illustrative example rather than a specific one, if he will allow me. If we have an ICB making collective decisions about where capital investment is most needed at a system level, and if we have a foundation trust with resources deciding to prioritise huge investment in one particular area, that might not necessarily reflect the broadly agreed local priorities in the ICB plan and the ICP plan for that area. I envisage such matters being resolved at an ICB level. I have certainly seen in this job and in a past life, as I suspect the hon. Member for Bristol South has, where informal resolution of these things is often the most effective way, so I would not envisage these powers being used often, but it is important that we have the flexibility that they bring. On that basis, I commend the clauses to the Committee.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Clauses 52 to 57 ordered to stand part of the Bill.
Clause 58
Transfer schemes between trusts
The Chair
With this it will be convenient to discuss the following:
Clause 59 stand part.
Government amendments 15 and 16.
That schedule 8 be the Eighth schedule to the Bill.
Edward Argar
As we have discussed, clauses 39 and 40 make it clear that the Secretary of State continues to have the ability to create new NHS trusts. Clause 58 is an integral part of ensuring that the NHS has the correct provider landscape necessary to deliver integrated care and to respond to emerging priorities.
The clause allows NHS England to make a transfer scheme relating to NHS trusts and NHS foundation trusts. Such a transfer scheme can provide for the transfer of property, rights, staff and liabilities from one NHS provider to another to ensure that the right resources can, when necessary, be transferred to support the delivery of services across the NHS.
NHS trusts and NHS FTs will be able to apply jointly to NHS England to make transfer schemes under the clause. NHS England, as the national regulator, may grant the application for the transfer scheme if it is satisfied that all necessary steps to prepare for the scheme have been undertaken. The process can ensure, for example, that all transfer schemes are in the best interests of patients and represent value for money for the taxpayer. Transfer schemes for NHS providers are crucial to ensuring that we have a flexible, adaptable provider landscape to deliver the best care to our patients.
Clause 59 introduces schedule 8 to the Bill, which amends chapter 5A of the National Health Service Act 2006, which relates to trust special administrators. Schedule 8 outlines the changes to the process and authorisation for the appointment of trust special administrators, including the reporting mechanisms.
A trust special administrator is appointed to take charge of the trust, at which point the trust board of directors—in the case of NHS foundation trusts, the governors—are suspended. Trust special administrators may be appointed by NHS England to exercise the functions of a chairman and directors of an NHS trust, or the governors, chairman and directors of a foundation trust, where that is necessary to secure sustainable and high-quality services and where other interventions to secure financial or clinical sustainability have been exhausted.
Schedule 8 co-outlines the changes to the process and authorisation for the appointment of trust special administrators, including the reporting mechanisms. The changes are part of transitioning the provider-based functions of Monitor and the NHS TDA into NHS England, and it does not represent a substantial change in policy approach. It also transfers delegated duties placed on the NHS TDA to NHS England in relation to the appointment of a trust special administrator to an NHS trust. It also transfers functions of Monitor to NHS England in relation to the appointment of a trust special administrator for NHS FTs.
The administrators are to be appointed by NHS England to make recommendations about actions to secure sustainable and high-quality services. NHS England must appoint a trust special administrator if required to do so by the Care Quality Commission. Otherwise, it may make the order to appoint only if it considers that to be in the interests of the health service and if the Secretary of State has given their approval.
The process remains broadly the same under schedule 8, giving NHS England the appropriate role in relation to NHS trusts and foundation trusts. However, one change I draw to the attention of the Committee is in relation to NHS trusts: both NHS England and the Secretary of State will receive the administrators’ report, which will state which action, if any, either is to take. The schedule confers a shared duty on NHS England and the Secretary of State to consult one another before taking any decision on action.
The provisions enable NHS England to discharge its responsibility for the support and oversight of NHS trusts and foundation trusts, including taking on Monitor and the NHS TDA’s regulatory and inspection powers in relation to such trusts. They provide transparency to the appointment process and its reporting mechanisms, and clarity to the system in securing and delivering sustainable and high-quality services when the trust providing them has been placed into administration. I commend the clauses and the schedule to the Committee.
Government amendment 15 will ensure that integrated care boards are consulted when the Care Quality Commission requires NHS England to make a trust special administration order and ensures that the process properly accounts for all future commissioning arrangements involving those boards. Proposed new section 65B(4)(b)(ii) introduced under paragraph 2 of schedule 8 retains the existing requirement for the Care Quality Commission to consult commissioners of services from the NHS trust in question. The commission considered that to be appropriate. However, it does not account for situations where, in future, an NHS trust may provide services in an integrated care board area without formally providing services to that integrated care board. For example, where an NHS trust ends up spanning two integrated care board areas, those boards may decide to have a lead commissioner of services from an NHS trust. The purpose of the amendment is to put beyond any doubt that any integrated care boards that might be impacted by a trust special administration order being triggered for an NHS trust should be consulted as part of the formal process.
Similarly, Government amendment 16 will ensure that integrated care boards are consulted when NHS England decides to make a trust special administration order and that the process properly accounts for all future commissioning arrangements involving ICBs. Proposed new section 65B(5)(b), introduced by paragraph 2 of schedule 8, retains the requirement for NHS England to consult commissioners of services from the NHS trust in question, if
“NHS England considers it appropriate”.
However, that again does not account for situations where, in future, an NHS trust may provide services in an ICB area without formally providing services to that ICB. For example, where an NHS trust may end up spanning two integrated care board areas, those boards may decide to have a lead commissioner of services from a trust. The purpose of the amendment is to put beyond any doubt that any integrated care boards that might be impacted by a trust special administration order being triggered for an NHS trust should be consulted as part of that formal process.
Amendments 15 and 16 ensure that the trust special administration process reflects the role the ICBs will play and the different levels of autonomy and status between different NHS trusts and foundation trusts under the present system, putting the need for calibration and consultation at the heart of the measure. For those reasons, I ask the Committee to support the amendments.
Alex Norris (Nottingham North) (Lab/Co-op)
It is a pleasure to serve with you in the Chair, Mrs Murray. There is not a tremendous amount to get excited about in these clauses and amendments, but I want to ask a couple of questions of the Minister.
On clause 58, it makes sense to provide for a time where there needs to be a transfer of property, rights or liabilities from one NHS trust or foundation trust to another. Indeed, I suspect that our conversations about boundaries in earlier parts of the Bill are far from finished. That may have a knock-on impact on providers, so we may see it used in the near future. On the powers reserved for NHS England to create transfer schemes, it is not greatly surprising that it is the ultimate arbiter of applications. That is consistent with the rest of the Bill.
I could not tempt the Minister to cover one point in the final grouping on Tuesday evening, and I hope he might expand on it now. Where are the integrated care boards in this? Surely they would have a significant view about changes to the providers, and possibly the splitting up of providers—the Minister mentioned cross-border trusts, and how that might be led with lead providers. It is not inconceivable that the integrated care boards might have significant views, so should there not at least be a sense that their views have been sought? If not, there ought to be support, which would probably be desirable. In the previous grouping, we covered the fact that that was also true for trusts entering special measures and for trusts becoming foundation trusts. Again, there was no sense of what the ICB’s role was. I do not think that the Minister mentioned that in his summing up. I hope that he might do so on this occasion.
I heard what the Minister said about Government amendments 15 and 16, which I have a lot more sympathy for. I raised this issue on Tuesday night. Where the Care Quality Commission and NHS England are involved in a trust failure situation, they should of course want the ICB to be a part of that process. I believe that the point the Minister made was that amendments 15 and 16 will amend the clause sufficiently to ensure that integrated care boards have their say in situations of failure. I hope he will clarify that ICBs in any such situation will get due consultation about what comes next.
I accept the Minister’s point that clause 59 does not represent a material change in direction or policy from where we are today, but instead tidies up who is responsible and deals with new arrangements for NHS England, as set out earlier in the Bill. Again, there is not much of a reference to the ICBs. Hopefully we get clarity that the point of the amendments is to put that back in. If so, obviously we would support that, but I would wonder why that has not happened in other places—both in this group and previous ones too.
The Minister will love how granular this inquiry is. I ask it for no other reason than out of a genuine desire to know the answer; I am not trying to catch anybody out. Schedule 8 replaces section 65KD of the National Health Service Act 2006. Proposed new section 65KD mentions ICBs—I think it was about the only reference to them in the schedule, before the Government tabled amendments 15 and 16—and provides for what happens should an ICB fail to discharge its functions. In that case, under proposed new subsection (5)(b),
“the Secretary of State may exercise the functions of NHS England under section 14Z59(2), (3)(a) and (5)(a)”,
which are introduced by the Bill.
Proposed new section 14Z59 is titled:
“Power to give directions to integrated care boards”.
At that point, the Secretary of State has taken over NHS England’s role and now acts as NHS England himself or herself. Can the Minister explain why that would be necessary? If we are saying that an ICB is part of a failure of circumstances, not discharging its functions properly, would not the first port of call traditionally be the centre—NHS England—to step in and provide support, or is there a judgment that the national leadership has failed too if the local leadership has failed, and therefore the Secretary of State must be the next link in the chain?
I am conscious that that is a granular query, but I think the provision departs from principles earlier in the Bill. It may well be that this is a very specific and niche example, in which case there is less to worry about, but I would like an explanation on that, and on where ICBs are in the grand processes around clause 58. When changes happen, what consultation does there have to be with them, and what support will they have?
Edward Argar
On the shadow Minister’s central question about where ICBs fit in, he is right that we envisage their being, as we have discussed throughout, central to decision making in their locality. He is right to highlight that, as drafted, there was the potential for them to be regarded as not front and centre, hence Government amendments 15 and 16, which we hope add clarity and add that ICBs will be consulted, for example, when a special administrator is being appointed. We wanted to include them as part of that process. I fully acknowledge that, as drafted, there was a degree of ambiguity. That is why the Government introduced the amendments. I do not like having to amend my own legislation, but I think it important that we do so here.
Alex Norris
The Minister should not be shy about that at all. It is good sign, and shows that, after publication, he is still reflecting on the Bill and improving it as we go along. That is a strength rather than a weakness. However, these are amendments to schedule 8. I am surprised that there are no counterpart amendments for clause 58 or to the group that we discussed previously, which included clauses 39 to 42 and clauses 44 to 50. Why was the judgment made not to amend those in a similar way?
Edward Argar
We took the view that in this case there are very obvious consequences. In normal circumstances, we envisage collaborative work with, and the involvement of, the ICB. I was very keen that we were explicit here. It could be argued, as I would have done, that the clauses did not prohibit such co-operation, but I wanted to be very specific, because the appointment of a special administrator and the actions likely to be taken in that context could have profound impacts on the system. I wanted to be absolutely explicit about the need to involve ICBs.
The hon. Gentleman asked a detailed and granular question about paragraph 15(4) of schedule 8, and the powers in proposed new subsection (5)(b). The key point is that we would envisage it going up through the chain of accountability—chain of command is wrong word—but it is important that we recognise, as we do with the Bill, that the Secretary of State has a role in that chain of accountability to the House, to the public and to others. That theme has run through a lot of the discussions of the legislation, so we therefore think it appropriate to include the Secretary of State in that subsection.
Question put and agreed to.
Clause 58 ordered to stand part of the Bill.
Clause 59 accordingly ordered to stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 61 stand part.
That schedule 9 be the Ninth schedule to the Bill.
Edward Argar
As the Committee knows, one intention of the Bill is to create more flexibility, alongside the promotion of greater local integration. The clauses help to allow local bodies to work together in different ways to deliver effective health services.
Clause 60 enables NHS organisations, and any other bodies that may be prescribed in regulations, to commission and arrange services collaboratively, not only with other NHS organisations but with local authorities, combined authorities and other bodies that could be specified in regulations. Existing NHS legislative mechanisms make it difficult for the health and care system to work collaboratively and flexibly across different organisations, forcing local systems to adopt complex workarounds to be able to take joint decisions and pool budgets. In that context, back in the day, when I served in a local authority, we used section 75 of the 2006 Act as one mechanism for doing that with the local primary care trust.
In practice, however, those arrangements can sometimes be cumbersome and difficult to manage, and can delay making vital decisions. The new provisions inserted by the clause into the NHS Act 2006 will enable NHS organisations and any other bodies that may be prescribed in regulations to delegate functions to, or jointly exercise functions with, other NHS organisations, local authorities, combined authorities and other bodies as specified in regulations. Where functions are exercised jointly, the provisions will also enable those organisations to pool funds and form joint committees, facilitating partnership working and joint decision making at place and system level.
To ensure that delegation or joint exercise of functions does not lead to reduced accountability for delivering services, we have proposed appropriate safeguards in the clause. The Secretary of State will be able to set out in regulations which functions can and cannot be delegated, impose conditions in relation to delegation or joint exercise of functions, and specify the extent of such arrangements, for example. Furthermore, the parties will be able to agree terms as to the scope of the delegation arrangement. NHS England will have the ability to issue statutory guidance in relation to functions that are being delegated or jointly exercised under the provisions. The relevant body, as defined in the provision, must have regard to such guidance.
The provisions will replace those in existing sections 13Z, 13ZB and 14Z3 of the NHS Act 2006, which provide for the delegation of joint exercise of NHS England’s functions. The clause also amends section 75 of the 2006 Act, which I just alluded to. That section details arrangements between NHS bodies and local authorities so that where a combined authority, for example, exercises an NHS function as part of arrangements under the new provisions, it can be treated as an NHS body. That is in line with how combined authorities are treated for other, similar joint working arrangements.
Clause 61 and schedule 9 focus on the delegation of functions. Clause 61 inserts a new section into the NHS Act 2006 that makes express the assumption that a general reference in the Act to a person’s functions includes any functions that they are exercising on behalf of another person. That means, for example, that a reference in the Act to the functions of NHS England should cover any public health functions of the Secretary of State that NHS England may be exercising on their behalf under section 7A arrangements. The practical effect of this would be, for example, that any general duties that apply when NHS England is exercising its functions would also apply when it was exercising delegated functions. Until now, delegated functions have not been dealt with consistently in our health legislation. While it is not feasible, notwithstanding the suggestion of the shadow Minister, the hon. Member for Ellesmere Port and Neston, to remedy this issue across all health legislation in one consolidating Bill, this clause seeks to produce a more consistent approach.
Schedule 9 contains amendments to the NHS Act 2006 and other legislation to reflect the broader approach taken by clause 61 to delegated functions. Clause 61 also enables regulation to be made to create further exceptions where necessary to ensure that delegated functions are not covered by a provision where this would be inappropriate. Clause 61 addresses an important but technical legal issue in the Bill and is essential for enabling consistent and clear interpretation of our legislation.
These clauses are essential for ensuring that NHS organisations can collaborate effectively with each other as well as with other partners in the system. I therefore commend clauses 60 and 61 and schedule 9 to the Committee.
Justin Madders
Members will be relieved to hear that I will not detain the Committee long on this. Clause 60 does what the NHS itself has decided it needs. Over the last six years, we have had various iterations of this integration process, joining things up around joint working, joint bodies and delegation. The provisions try to put all that in one place.
A recurring theme is clarity about the extent of crossovers between local authorities and the NHS. In that respect, proposed new section 65Z5 suggests that local authorities can carry out any function of an NHS body. Could the Minister say more about that? Does it mean that we could see local authorities commissioning—setting up GP surgeries in wellbeing centres? We are assuming that this is one-way and there is no reciprocal arrangement for the NHS to take on local authority functions, so that a foundation trust could not take on an arm’s length management organisation or some other local authority function as a tax-efficient way of avoiding certain liabilities. Could the Minister respond on that?
I also wonder about care trusts, which were the original integrated working teams with the NHS and local authorities. They are rarely mentioned and were largely regarded as unsuccessful. Is there any intention to favour such genuinely integrated bodies? They were used in one recent case by an integrated care provider to get around some of the prohibitions on new trusts. Can the Minister tell us anything about where care trusts now fit into the landscape?
Given the joint nature of the provision, I would like to know why the guidance was published only by NHS England. Should it not have been a joint effort by the NHS and the Local Government Association? Was the LGA consulted and involved in the preparation of the guidance? That perhaps exposes that this is really about the NHS, not about integration across the board. As we have heard today, the ICPs will roll up at some later point, perhaps exposing the reality that this is going to be an NHS-dominated process.
Finally, on the pooling of funds, is there any limit on that? Is that envisaged to be an occasional opportunity, or will it be a more significant step down a road of full funding? Will the Minister set out whether the direction of travel will be quite as dramatic as possibly suggested by the clause?
Edward Argar
I am grateful to the shadow Minister for his support for the clauses and for the, as ever, perfectly sensible questions he poses. I hope to reassure him that the intention behind the clauses is not to create tax-efficient organisations or anything like that; it is to create the most efficient organisations for the delivery of joined-up care. I alluded to section 75 of the 2006 Act, which is an example of what many local authorities are doing already.
On guidance, I hope to reassure the hon. Gentleman that, throughout the genesis of the legislation, we worked collaboratively with the Local Government Association, reflecting local authorities more broadly. As we develop guidance, I am clear that the NHS, NHS England and the Government will continue to work with the association to ensure that local government’s view is reflected in the drafting. A number of conversations have already taken place between officials and the LGA. Notwithstanding the debates we may have in this House or how the legislation emerges, I am clear that we will continue to work collaboratively throughout with all the partners involved, even in areas where we may disagree. We will always seek to work with them.
The hon. Gentleman expressed concerns—he will shake his head if I paraphrase him unfairly—about whether the legislation will allow for unlimited or unfettered delegation without checks and balances. Will we be able to transfer anything from an NHS trust to a local authority, or vice versa? The short answer is no. There will need to be a clear line of accountability between the body ultimately exercising the function and the delegating body. Safeguards ensure that any onward delegation is appropriate. That said, there may be circumstances in which a local authority would commission a particular healthcare service linked to other functions of the local authority delegated from the NHS. We would expect that clear accountability to be in place where that is done. We do not envisage the power being used regularly in that way, but there might be circumstances in which it would be.
Regulations may restrict what, where, when and how—and, indeed, to whom—delegations occur. The delegation agreement may also prevent further onward delegation of functions beyond a certain level. In addition—this goes back to the hon. Gentleman’s point about the LGA—NHS England will, I expect, issue statutory guidance on delegation and joint committees, which would include scenarios, case studies, model delegation agreements and similar to show how, in practice, we envisage this working. The guidance would be statutory, and I envisage it being developed in concert with local authorities, represented by the Local Government Association—that is probably the most effective way of doing that.
I hope that I have given the hon. Gentleman some reassurance that there is nothing sinister—for want of a better word—intended in the clauses; they are merely meant to make things easier for local NHS bodies and local authorities, in particular, to co-operate more. That goes back to the integration at the heart of—the thread that runs through—all the legislation.
Question put and agreed to.
Clause 60 accordingly ordered to stand part of the Bill.
Clause 61 ordered to stand part of the Bill.
Schedule 9 agreed to.
Clause 62 ordered to stand part of the Bill.
Edward Argar
Before I speak to clauses 63 and 64, I crave your indulgence, Mrs Murray: I should have said to the shadow Minister that the previous clauses were about delegation from the NHS to local authorities, not the other way around. I would just like to put that on the record for him, because he expressed a concern about that.
Clauses 63 and 64 have been included in the Bill to help support ICBs and ICPs and to enhance integration across the health and care system. Clause 63 allows NHS England to issue guidance about appointing an individual to roles simultaneously in NHS commissioners and NHS providers, or in relevant NHS bodies on the one hand, and local authorities or combined authorities on the other. We have seen a number of clinical commissioning group and local authority joint appointments that have supported integration and been successful, and we would be keen to see those continue.
The clause further sets a requirement for these NHS bodies to have regard to such guidance when considering making a joint appointment. Joint appointments between organisations can support aligned decision making, enhance leadership across organisations and improve the delivery of integrated care. However, we believe that greater clarity is required to support organisations in making appropriate joint appointments, to avoid conflicts of interest that can be difficult to manage. Before issuing any new or significantly revised guidance, NHS England would be required to consult with appropriate persons.
Clause 63 will allow NHS England to publish a clear set of criteria for organisations to consider when making joint appointments and ensure regard is given to such guidance. That will also provide a safeguard against any conflicts of interest that may arise in the process of making joint appointments.
Clause 64 amends sections 72 and 82 of the National Health Service Act 2006, which deal with the co-operation between NHS bodies and the co-operation between NHS bodies and local authorities respectively. The clause inserts a new power for the Secretary of State to make guidance related to the existing co-operation duties between NHS bodies and between NHS bodies and local authorities. While the existing co-operation duties in sections 72 and 82 relate to both English and Welsh NHS bodies and local authorities, the guidance relates only to England, and the requirement to have regard to guidance issued under this new power will apply only to English NHS bodies and English local authorities.
Our intention is not to produce a single piece of co-operation guidance, which would risk being too general or too wide-ranging to be effective. Rather, we are considering discrete pieces of guidance in specific areas such as delivery of alcohol and drugs services, sexual and reproductive health, or hospital discharge services, to encourage and facilitate co-operation and integration in their delivery.
The clause also amends section 96 of the Health and Social Care Act 2012, which concerns the setting of licensing conditions for providers of NHS services. The licence, as we touched on earlier today, was established in 2013 so that providers of NHS services must meet to help ensure that the health sector works for the benefit of patients. Currently, conditions can be set on co-operation, but these provisions can apply only in certain circumstances.
The clause goes further: it supports system integration, promotes greater co-operation by removing the limitation on setting licence conditions on co-operation, and expands the range of bodies with which co-operation can be required. That will strengthen and reinforce the requirements on providers to co-operate and further strengthens the ability for NHS providers to deliver the system plan.
Co-operation is central to the intentions and underpinnings of this Bill. New guidance and expanding the role co-operation plays in the licensing regime will give organisations greater clarity about the practical expectations for co-operation, help the NHS to build on the innovation, working relationships and positive behaviours that have been seen over the past year, and further embed these behaviours across the health and care system. I therefore commend these clauses to the Committee.
Justin Madders
I am sure the Minister will be unsurprised to learn that the Opposition are a little wary of the powers in clause 63. One person doing two jobs is never ideal. I make an honourable exception for the hon. Member for Vale of Clwyd, who, in his other role, plays an important part in contributing to the wellbeing of the nation. Such exceptions are rare, and we think that two jobs for one person is never a sustainable or long-term solution.
We draw a distinction between a secondment, which obviously means that the position is by definition time limited and allows the post-holder to return to their original position. It is often good for career development, and that kind of mobility and interchange between the NHS and local authorities may be a very positive development, particularly with ICBs. However, the idea that there can be a joint appointment of a commissioner and a provider sounds wholly contradictory. Although the Minister has tried to allay our concerns by referring to guidance, it is clear that an NHS body needs to only “have regard” to that guidance. The question remains: at what point does someone step in when there is a clear and detrimental conflict of interest? We will see what the Minister has to say, but it we may need to keep a very close eye on that.
Clause 64 is a rather less obvious power grab by the Secretary of State, but it is one all the same. Clearly, he is not satisfied with the extent of co-operation between NHS bodies, because the Secretary of State now wants to be able to tell them how to co-operate. The guidance is to be issued, and a duty is to be placed on NHS bodies to follow it, or else face the consequences. What of? It is good old-fashioned persuasion—the willingness to work together for the greater good. It is actually the case that the Secretary of State wants two goes at this, as there are further powers to issue guidance in respect of NHS bodies and local authorities, which currently have to co-operate in order to advance the health and wellbeing of people.
Surely it is the case that they are doing that already. I cannot think of any reason why they would not co-operate, but what would be the sanction if they do not? Can the Minister tell us who he thinks these errant councils are that are not co-operating? Between myself, my hon. Friend the Member for Nottingham North and the Minister himself, we must have over a quarter of a century of experience in local government, and I cannot think of any occasion when councils were anything other than co-operative with the NHS. That is my experience, but if the Minister can help fill in the gaps, I would be most obliged.
Edward Argar
The shadow Minister tempts me to name and shame. He may be tempting me in vain. He raised three key points. One was about one person doing two jobs. To paraphrase him, he asked how that would work and why it was appropriate. He also mentioned conflicts of interest and asked why it was necessary and appropriate for the Secretary of State should have these powers.
To his first point, the clause is about driving greater integration. During my time as a member of Westminster City Council many years ago, we had a joint appointment. Our director of public health, if I recall correctly, was also an NHS appointment and she sat in both organisations in the senior management structure. It was extremely effective. Conflicts of interest, as we would envisage here, were managed both within the system and in accordance with guidance and principles of appointments and appropriate governance. That worked extremely well. It was not so much one person doing two jobs, but where the job was needed and the job description fitted both organisations, it delivered a real synergy and better outcomes.
There are circumstances where it can work. I would not have envisaged it being used essentially so that one person has multiple roles and jobs, but there are occasions when there is a benefit from someone sitting jointly in two organisations to help drive that integration and shared understanding. We can create, as we are doing here, mechanisms and structures to help drive integration and co-operation, but as the hon. Member for Nottingham North will know, and as the hon. Member for Bristol South will know from her time in the NHS, we can have those structures, but ensuring that organisations work effectively often relies on individuals, personal relationships and the trust that builds up at that level.
Karin Smyth (Bristol South) (Lab)
My hon. Friend the Member for Ellesmere Port and Neston asked about care trusts, and the clause is partly designed for just that. The real problem with the clause and with joint appointments is that we already know that there are probably not enough senior, experienced people to go around to manage the difficult job of running a large hospital. The issue is ultimately about the focus on those hospitals and, indeed, on patient safety. The job of a chief executive of an NHS trust or foundation trust is an absolutely critical and quite busy one, but we are encouraging those people to take on an ICB leadership role, or joint roles in a local authority. We can either accept that those are large organisations that require particularly skilled people whom we pay properly, or we can simply merge the organisations. I would go for the former option. There are not enough of those people to go around. There is not enough variety of people. We are not encouraging the pipeline of talent, and we are not diversifying enough, and that is reflected in the NHS looking inward at itself. It is a big mistake to accept that we must have those joint appointments to bring the NHS together and make organisations collaborate.
Edward Argar
I am grateful to the hon. Lady, but those joint appointments have always gone on—they have existed for many years. The example I referred to was in about 2008 or 2009, and it worked extremely well, as both organisations benefited from that individual being a part of both. Our clauses seek to ensure that those joint appointments work well and effectively.
The hon. Member for Ellesmere Port and Neston asked why the powers sit with the Secretary of State rather than with the local NHS or NHS England. I am afraid that he will not tempt me into naming any particular local authorities or otherwise. The NHS is a critical part of our health and care system, but integration and co-operation need to go beyond the NHS itself, encompassing the role of local authorities in this space, which we all recognise. I hope that that co-operation will be consensual and voluntary, as the hon. Gentleman said, but it is important that the Secretary of State, with his accountability to this place and to the public, sits above that system. I would argue that he is in the best position to offer guidance on how that system can co-operate, and to help to resolve matters.
Justin Madders
One of the things that we have been told consistently is that integration and joint working are already well under way on the ground, and that the Bill is, in part, just putting a legislative seal on that work. If that is correct, why does the Secretary of State need those additional powers?
Edward Argar
Because we wish to take the opportunity to further drive forward the integration. The system has evolved, but we want to be more ambitious. The powers reflect the fact that the Secretary of State is able to take that wide perspective to most effectively see those two organisations coming together at a macro level—at the national level. That does not mean that I am denigrating in any way the evolution that is already occurring voluntarily in a whole range of areas around the country.
I sense that the hon. Gentleman is still unconvinced by joint appointments, so I will say a little more about them before I conclude, although I might still leave him unconvinced. There are already very few prohibitions on joint appointments, and we see an increasing number of them. In some cases, however, there could be a perception, or a reality, of a potential conflict of interest that could be difficult to manage or could lead to a perception of bias. We recognise that, which is why we have proposed the power to issue guidance to help organisations make the right joint appointments and to help them understand what factors to consider when deciding whether to proceed down the route of a joint appointment. The new powers for NHS England to issue guidance will ensure that there is a clear set of criteria against which to judge joint appointments when considering whether to make one. Bodies will have to have due regard to that guidance. I believe that the powers are proportionate.
Justin Madders
I am grateful to the Minister for giving way again. One of the critiques that we have developed —I hope that he has noticed—is that the Secretary of State has given himself an awful lot of powers and abilities to intervene. It seems highly incongruous that in the specific example of joint appointments, where there would be a clear role for the Secretary of State to intervene, he has not availed himself of the opportunity to do so.
Edward Argar
As with so much else in the Bill, we are trying to future-proof it. Indeed, the shadow Minister and others made the point in a different context. Where are the powers? What are the options if there is disagreement, a dispute or a conflict? While not anticipating conflict, we are seeking to ensure that the Secretary of State is able to issue guidance to resolve any conflict or issues that may arise in that context. It is a pragmatic and proportionate measure to ensure that any such risks can be managed.
Question put and agreed to.
Clause 63 accordingly ordered to stand part of the Bill.
Clauses 64 and 65 ordered to stand part of the Bill.
Clause 66
The NHS payment scheme
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 84, in schedule 10, page 197, line 17, at end insert—
“(1A) The NHS payment scheme must ensure that the price paid to any provider of services which is neither an NHS Trust nor an NHS Foundation Trust cannot be different from the price paid to an NHS Trust or NHS Foundation Trust.”
This amendment ensures payment to private providers can only be made at tariff price to prevent competition for services based on price.
Amendment 100, in schedule 10, page 197, line 17, at end insert—
“(1A) NHS England must obtain the agreement of the Secretary of State before publishing the NHS payment scheme.”
This amendment ensures that the NHS payment scheme, which sets out the prices to be paid for NHS services, is approved by the Secretary of State.
That schedule 10 be the Tenth schedule to the Bill.
Edward Argar
I express my gratitude—I may be less grateful when I sum up—to hon. Members for tabling the amendments, and for the discussion that we are going to have about the NHS payment scheme. The Bill replaces the national tariff with a new NHS payment scheme, with additional flexibilities to allow the NHS to deliver population-based funding and more integrated care approaches. The NHS payment scheme, which will set rules about how commissioners pay providers for services, will apply to all providers of NHS services, including NHS trusts and foundation trusts, the voluntary sector and the independent sector.
Amendment 84 aims to ensure that payment to private providers can be made only at tariff price. While we will not introduce competition on price, rather than quality, there may be scenarios where it is appropriate to pay non-NHS providers different prices from those paid to NHS providers, to take account of differences in the cost of providing those services—for example, different staffing costs or a different range of services provided. There may also be cases where the financial regimes of different providers make it appropriate to set different prices or pricing rules. When setting any prices, NHS England will aim to ensure that the prices payable represent a fair level of pay for the providers of those services, as well as fair pay between providers of similar services.
I reassure the Committee that we do not expect to see the rules being used to give a premium to private providers to encourage them to enter the market. We do not expect to pay the independent sector 11.2% greater than the NHS equivalent cost, as the King’s Fund briefing on independent sector treatment centres set out in 2009. Nor do we expect commissioners to pay for 100% of the contract value regardless of whether the activity reached the contracted level. Instead, the new payment scheme delivers what the NHS has asked for to implement its long-term plan. For that reason, we encourage Opposition Members not to press the amendment to a Division, but I may be pressing them in vain.
The Government will also, I am afraid, oppose amendment 100, which would require the NHS payment scheme to be approved by the Secretary of State. The NHS payment scheme will be published by NHS England, following consultation with relevant providers and commissioners, and, where relevant, the publication of an impact assessment. Integrated care boards and relevant providers will be able to make representations and formally object in response to consultations on the NHS payment scheme, as they can with the national tariff. Where the percentage of objections exceeds the prescribed threshold for either ICBs or relevant providers, or both, NHS England must further consult the representatives of the ICBs and providers that were objecting. NHS England may then publish a revised payment scheme, with another consultation for significant changes. It will also be able to publish the proposed scheme without amendment, but will be required to publish a notice stating that decision and setting out the reasons for it.
The Government are responsible for setting out overall funding for NHS England, who in turn will continue to be required to have regard to fair levels of reimbursement for providers in setting the details of the payment scheme. The Department and NHS England will continue to work closely together in the development of the NHS payment scheme, as we do with the national tariff. However, as a last resort, derived from clause 37 powers of direction, the Secretary of State will be able to require NHS England to share the NHS payment scheme before publication. The Secretary of State will also be able to direct NHS England not to publish a payment scheme without his approval, and about the contents of the payment scheme under his general powers of direction under clause 37.
Although we do not expect to need to use the powers of direction to intervene in this area, they can be used and will act as a further safeguard against unfair payment scheme provisions, as well as allowing for appropriate parliamentary accountability for funding flows in the NHS. The consultation requirements in schedule 10, and the general powers of direction, allow for sufficient Government oversight and accountability for the payment scheme, and further specific provisions would be inflexible and unnecessary. [Interruption.] I will shorten my remarks. [Hon. Members: “No!”] I am happy to go on and on, but I fear the Committee might wish me to conclude. In that context, I will highlight to the Committee that, as with the national tariff, fair levels of reimbursement are a key principle of the legal framework reflected in NHS England’s duty in subsection (6) of proposed new section 114A(6) to have regard to differences in providers’ costs and the different range of services that they provide for the purpose of securing that prices and the overall payment scheme result in a fair level of pay to different types of providers.
I will also highlight and draw to the Committee’s attention provisions in proposed new section 114C as inserted by schedule 10, which makes clear that, before publishing the payment scheme, NHS England must consult integrated care boards, relevant providers and any other person that NHS England thinks appropriate. It must also provide an impact assessment of the impact of the proposed scheme.
Karin Smyth
There is a lot of drawing up of complicated documents and costings and then a lot of complicated consultation and decisions on whether the Secretary of State will or will not decide whether he wants to be involved in looking at what the final solution is. Does the Minister have any idea of when we might see the final NHS payment system under the new arrangement?
Edward Argar
I would not prejudge the passage of the legislation and how the House might judge it, but I look forward to such a scheme being introduced expeditiously, if I may put it that way to the hon. Member. I hope I can also reassure the Committee in respect of amendment 107, which was not selected but raised issues pertinent to the clause more broadly. This is important. It is right that the amendment was not selected—I appreciate that it was not tabled by a member of the Committee—but it does highlight issues that we need to put on the record. I appreciate the impulse behind it.
Although NHS staff pay and conditions are outside the scope of the proposed payment scheme and are protected by provisions made elsewhere, unions and other representative bodies may wish to be reassured that their members are able to go to work in appropriately funded services. I hope I have given reassurance on that point and set out why I feel the amendment, although I am grateful that it was not selected, would be unnecessary, as the Bill already requires NHS England to consult with integrated care boards, relevant providers and any other person the NHS thinks appropriate before publishing a payment scheme. It must also publish an impact assessment of the proposed scheme, ensuring that any potential consultation is properly informed of the potential effects of the scheme. I appreciate that the amendment was not selected, but I put those points on the record as I can understand the intent behind the amendment and I wanted to offer those reassurances. I hope I can persuade Opposition Members not to press amendments 84 and 100 to a vote, but I may be unlucky in that respect.
Clause 66 introduces schedule 10, which amends the Health and Social Care Act 2012 by repealing the national tariff and replacing it with the new NHS payment scheme. The national tariff has for many years improved access to services and driven up quality across the NHS, but as we move towards a more integrated system focused on prevention, joint working and more care delivered in the community, we need to update the NHS pricing systems to reflect new ways of working since the tariff was introduced, and in the light of the covid-19 pandemic.
The new NHS payment scheme will build on the success of the tariff. It will support stronger collaboration than ever before, with shared incentives for commissioners and providers of services to improve quality of care and promote sustainable use of NHS resources. The scheme will move away from a wholly payment-by-activity approach to an approach that supports more joined-up ways of delivering services, with commissioners and providers working together to deliver the best quality care.
The new payment scheme will remove perverse incentives for patients to be treated in acute settings and allow more patients than ever before to be treated closer to home and in the community. It will allow NHS England to guide the health system, through the development of guide prices for entire care pathways, while ensuring that local systems have the necessary flexibility to deliver high-quality care and use NHS resources sustainably.
The payment scheme will specify rules that commissioners must follow when determining prices paid to providers of NHS-funded healthcare services. It will allow significant flexibility over the current pricing scheme, and allow rules to set prices, formulas and factors that must be considered when determining prices paid. It also allows for in-year modifications to the rules, to reflect changes in the costs of providing services.
Crucially, the scheme will also allow the NHS to set prices for public health services commissioned by the NHS, on behalf of the Secretary of State, such as maternity screening, to allow for seamless funding streams for episodes of care. These changes to increase the flexibility and reduce transactional bureaucracy associated with the current tariff are, we believe, crucial to integrating care and tackling the elective backlog. I therefore commend this clause and schedule to the committee.
Alex Norris
Clause 66 is exceptionally important, so I cannot promise the same brevity as the Minister. I think the rules work slightly differently on the hard stop on a Thursday than they do on a Tuesday.
Alex Norris
I am grateful for that clarification. If I am interrupted by colleagues in order to meet the conventional times, I will not take that as a kindness.
The clause governs how billions and billions of pounds will be spent every year, so it is surprising that it is so thin: three lines under clause 66 and a rather broad schedule 10. People could read into it whatever they want. My hon. Friend the Member for Bristol South made a good point that we could be in the business of filling that out for a very long period.
I am also surprised that the Minister is so reticent about the Secretary of State’s involvement and that this power is solely reserved for NHS England. We are not suggesting that the Secretary of State would want to set payment levels for specific treatments; but the Secretary of State, either today or in the future, may want some sort of say over what is being incentivised in the system and how that extraordinary purchasing power works in practice, whether that is about innovation, prevention or incentivising buying British, for example. That is something in which I would expect there to be some political interest.
The Minister talked about using clause 37, but that is a rather blunt tool. What we offer in amendment 100 is much lighter and much less drastic than using the clause 37 powers. If the Government will not accept our amendment, I am surprised that they have not introduced a similar one of their own. Perhaps they may yet do so.
The history of the tariff and payments bears an airing here, because it informs our future. It is an itinerant journey, which all Governments of the day, of different political persuasions, have their fingerprints on. This is not a partisan issue; it is about getting this right for the future. The purchaser-provider split in the ’90s and the development of various market and quasi-market systems was patchy and sporadic. That is a topic that has launched a thousand dissertations. Sometimes it feels like we aimed for payment by results, which is a noble cause, but in reality we can very easily get to payment by volume, and that is our challenge.
Going back even further than that, it was even less satisfactory. Traditionally, we had funding mechanisms that were very hard to understand and worked by adding a bit to the previous year’s allocations, and then really sophisticated people might make some downward adjustments for efficiencies and upward adjustments for assumed increases in activities. Inevitably, bits of the health service would get into trouble and would need bailing out, and new ideas would be dolloped out without much of a process. We have, to a certain extent, returned to that during covid. Block funding has given trusts one less thing to worry about. That was probably wise, but we would not want to do it forever.
The idea of the tariff was a variant of the 2012 Act. It could, I guess, incentivise competition on quality, but not really on price, as in a real market, as the Minister said. Prior to that, in the first decade of the century, the introduction of payment by results was one of the factors that allowed the longest successful period in the history of the NHS, which saw waiting lists come tumbling down—so much so that the demand for queue-busting private options evaporated and private providers became suppliers to the health service, rather than suppliers of private healthcare.
Payment by results, or pricing, can be a tool to tackle waiting lists. Given that Conservative Governments leave office with spiralling waiting lists, that is worth remembering for the future. Although that may be a discussion for another day, I want to ask the Minister whether he thinks NHS pricing is likely to be part of the recovery strategy. It is all well and good saying that this may take years and years to come to fruition, but what about now?
The historic decision back in the first decade of this century was that private providers should be paid the same as the cost of the NHS, so that there is no financial incentive to use the private sector. I think that is a wise principle, but it can and has been worked around. We have seen some very dodgy, spurious outsourcing of services, such as cleaning, which was an absolute disaster in Nottingham.
There are and have always been large swathes of the health services where payment by results or volume did not apply. One was mental health, where defining the product was far from easy, so it was very difficult to price. For many years, the mental health sector wanted to be part of this, but that never happened. That is much less of a priority for the sector now; it is just desperate for proper funding. It continues to struggle.
Of course, in such a system we will always have gaming and bureaucracy. Any system such as this gets gamed. Upcoding is one example, where the work that is billed for gets put into the highest-paying category. We have invoicing, chasing errors, and disputes over such coding, the actual volumes of work done and all the rest. That was hugely prevalent when payment by results first arrived for primary care trusts, and I think it is still with us in some form today. The cost of the market systems, data collection and processing is well above the cost of providing entirely necessary management information about cost and volumes.
Of course, that is not to make an argument for no prices at all. For decades, the NHS as a system did not really have any idea what anything cost. The accounts were not particularly well kept, and there were no data collection systems and staff doing analysis. As a result, the variations were huge, and that did not work in the interests of the system. I am arguing not for a no-cost regime, but for one that lands in a sensible place and does not become an industry in itself. At the moment, we have no idea, because what is on the face of the Bill is so broad, and the Minister is promising quite a long walk into the future with not a lot of certainty.
Many discussions about the long term plan, the formation of STPs—then accountable care systems, then integrated care systems, and now ICPs—and the rest have been about co-operation and collaboration, a return to non-market days, and a dilution of the commissioner-provider split, at least so far as NHS bodies are concerned. There will still be a strong current to say that there has to be some sort of tariff and benchmark as a guide, but some will say that there may be some sort of ability to vary as circumstances dictate—a kind of “Trust me, guv” arrangement whereby people of good will and common purpose can decide what is best, and that would be acceptable. To an extent, that flexibility is understandable if we are talking about the internal workings of an integrated, publicly provided NHS.
However, when we are talking about £10 billion more a year of contracts with private acute care providers, that is real money exiting the NHS bank account, so we need to be much more careful. That is where amendment 84 comes in: there has to be some sort of limitation on what private providers are paid. I was not at all convinced by the Minister’s explanation that there might be different costs, because of course there are different costs, the No. 1 cost being the need to derive profit from the contract. That is already a big cost. Of course, that can be met by compromising on quality or through downward pressure on what staff receive, but that is also a bad thing, so I did not think that was a particularly persuasive argument.
When it comes to all this money going out to private providers, there really ought to be some standardisation of the contract. If amendment 84 were accepted, we would have greater assurance that this is something done based on need, not cost or convenience. We would much rather invest in the NHS itself, taking away any perverse incentives to lean on the private sector as a resource pool and any risk of sweetheart deals due to our reliance on the good will of for-profit organisations.
In conclusion, we do not want the Secretary of State to price up a hip operation, but we do think there ought to be some interest in what our purchasing does in this country, to ensure that it is as good as possible. I do not think we should be using the blunt and brutal tools in clause 37, so I hope that the Minister will think again about amendment 100—if not now, then at a later point in proceedings.
Ordered, That the debate be now adjourned.—(Steve Double.)
Nationality and Borders Bill (Fourth sitting)
Thursday 23rd September 2021
(2 years, 7 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 23 September 2021 - (23 Sep 2021)
The Chair
We will now hear from Rossella Pagliuchi-Lor, United Nations High Commissioner for Refugees representative to the UK, and Elizabeth Ruddick, senior legal associate, both representing UNHCR UK. We have until 2.30 pm for this session. Will you please both introduce yourselves for the record?
Rossella Pagliuchi-Lor: Good afternoon to everyone. My name is Rossella Pagliuchi-Lor. I am the UNHCR representative to the United Kingdom.
Elizabeth Ruddick: Good afternoon. My name is Elizabeth Ruddick. I am a senior protection associate with the UNHCR in the United Kingdom.
Bambos Charalambous (Enfield, Southgate) (Lab)
Q
Rossella Pagliuchi-Lor: Thank you very much for this question, but I would like to start with a short statement, which will also cover that. It is, of course, one of the areas of particular interest and concern to us.
You know, of course, that UNHCR has already published two sets of opinions: one on the policy document and the other on the Bill. I want to start by saying that we actually support the broad intent—the broad aims—of this Bill: combating smuggling networks, having fairer and faster procedures, and facilitating the return of those who are found not to be in need of international protection. However, we believe that the Bill is unlikely to achieve those aims, and may further exacerbate some of the identified issues.
Our concerns revolve around three areas. The first concerns the breach of international law, as the Bill contravenes the UK’s obligations under the 1951 refugee convention. The Bill revolves around the notion that refugees are required to seek asylum in the first safe country they find. To be clear, that principle is not found in the refugee convention, and it is not a requirement in international law. It is also unworkable because it would further increase pressure on those few countries that find themselves at the frontier of a crisis. The risk, of course, is that they would be overwhelmed, and that might impact on both their capacity and their good will to provide protection and solutions.
The Bill, as it stands, will cause significant suffering to people who are guilty of nothing more than seeking asylum in the UK. It makes unauthorised arrival and presence in the UK a crime punishable by up to four years in jail, without the defences that are actually provided for by the 1951 convention. It would also keep refugees in a situation of enforced precarity for up to 10 years, with no access to public welfare unless destitute, and under threat of removal to another country, if that were possible. This is really going to create massive problems not only for these individuals at a personal level, but for their communities, local councils and the NHS.
Lastly, the system as described would exacerbate the current backlog and increase costs by making procedures longer. That will delay the integration of those who are eventually found to be refugees, and will hamper the return of those who are not found to be in need of protection. It will have a number of unintended negative consequences that will impact on the very aims that the Bill purports to pursue.
Bambos Charalambous
Q
Rossella Pagliuchi-Lor: Absolutely. As I said, there is no requirement in international law that refugees should seek asylum in the first safe country they find. We believe that there will be consequences if countries start reneging on or trying to diminish their responsibilities and commitments under the convention. There is a risk of triggering a race to the bottom. We have to perceive that every time we make it harder or try to discourage refugees from reaching our shores, we are diverting them to another country. It risks creating a chain in which refugees will find it harder and harder to find asylum anywhere. The international system is based on the good-faith application of the commitments that have been freely undertaken by states. When states do not fully embrace those commitments, the result is the erosion of international law. International law is nothing more than a contract between states, and it lives or dies by states’ willingness to comply with it.
Yes, we are very concerned, and we are concerned also because we are frankly in a position of constantly advocating for asylum and doing so with countries that have way more refugees than the UK. The element that has been lost in this discussion is that the UK, by reason of its geographical position and its relative distance from crisis countries, in fact receives a pretty small number of refugees. I am not suggesting that this is something you want, and there are certainly more than you would wish for, but in the big scheme of things it is a relatively small number. This is also true, by the way, of countries around you. The UK has a fairly stable number of asylum seekers in the range of 35,000 per year. France has just under 100,000 per year, with some variations. Germany has around 150,000, and Spain, Greece and Italy all receive more applications than the UK. Of course, I am not even mentioning countries closer to the crisis. Let us not forget that 73% of all refugees and asylum seekers remain in countries neighbouring their own, and that about 85% or 86% remain in developing or middle-income countries. I would like to encourage you to look at this matter in perspective. The channel crisis is certainly a challenge, but I think it has to be looked at in a broader perspective of a global challenge for all countries with respect to displacement.
Bambos Charalambous
Q
Rossella Pagliuchi-Lor: Turkey at the moment has the largest number of refugees, as you know. We are talking about upward of 4 million or maybe even more. At one stage, Lebanon had one Syrian refugee for every four people; a huge percentage of its population were refugees. If you are talking about Afghanistan, there is a registered population of Afghan refugees of 780,000 in Iran, plus probably 1.5 million—maybe more—who are non-registered. Likewise, Pakistan has, between registered and unregistered, well above 2 million people. It has, I think, 1.4 million registered and maybe quite as many unregistered. So you are talking about numbers that are, frankly, enormous, relative to the numbers who come to Europe and, even more so, to the ones who come to the UK.
Bambos Charalambous
Q
Rossella Pagliuchi-Lor: There have been attempts by other countries, and of course the case that comes to mind is Denmark, which has been in the media, particularly in relation to the question of returns of Syrians. But I would like really to focus on the UK, rather than on other countries, if you will allow me. First, obviously there are principles that are applicable across the board. Obviously, we are asking all countries to act in a manner that is consistent with their international obligations. I think that we tend to forget that situations are sometimes different in terms of the practical applications. I know that you had the Australian high commissioner here this morning, even though I did not listen to his presentation. But of course the situation in Australia is very different from the situation in the UK. In any case, I would strongly recommend you not to follow that example, frankly.
Bambos Charalambous
Q
Rossella Pagliuchi-Lor: Yes and no. Having resettlement schemes and other legal pathways, such as a well-functioning and perhaps slightly more generous family reunion mechanism, will certainly allow certain people to come legally where they might otherwise have been tempted to do so irregularly. However, the reality is that resettlement programmes—even a generous and well-run resettlement programme such as the VPRS—are really a bit of a drop in the bucket. You have to consider that, in any given year, we manage to resettle a fraction of 1% of the refugees who would be in need of resettlement. There is really a vast disproportion. That is why we say that resettlement is extremely valuable, is a life-saving mechanism—and we really commend the UK for its efforts in this sense—but is not an offset for granting asylum.
Bambos Charalambous
I know other colleagues wish to come in, so I will leave my questioning there. Thank you very much.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Q
Rossella Pagliuchi-Lor: Thank you for this question, because it allows me actually to address what I believe is generally a bit of a misconception about spontaneous arrivals. Certainly—of course—the UNHCR has a system to identify the most vulnerable, but as I said, we only manage to submit a very small percentage of those we have identified, so the system definitely does not cover the needs. But the individuals who come here should not be regarded necessarily as wealthy people who have the means to come here. Typically, the vast, overwhelming, majority of those who move irregularly do so having gathered all the resources of themselves and their families. Homes are sold. Whole families are literally impoverished to gather the money that is required for somebody to make this trip. One of the reasons these trips can last weeks, months, or occasionally even longer, is that sometimes they have to stop in an intermediate place, such as Libya, to gather more money. We should not think of these people as being privileged and wealthy, and therefore having the luxury of travelling irregularly. The reality is quite different; these are journeys of desperation in most cases.
Mr Goodwill
Q
Rossella Pagliuchi-Lor: I cannot talk about the statement by the Minister about the Boko Haram area, but I can tell you that, first, “middle class” means something different in different countries. Secondly, the people you see applying for refugee status here are not necessarily members of the middle classes. There is a much wider range. I suggest that if someone is truly wealthy, they might be able to come by plane. That is the most expensive kind of irregular journey because it would mean purchasing a passport and a ticket.
Anne McLaughlin (Glasgow North East) (SNP)
Q
Rossella Pagliuchi-Lor: Of course.
Anne McLaughlin
Q
Rossella Pagliuchi-Lor: Thank you very much for that question. Being or not being a refugee has nothing to do with economic status. Refugees can be poor, middle class, or very wealthy. What makes a person a refugee is a well-founded fear of persecution for one of the five reasons established in the convention. Since we are talking about this in the Bill, the manner of a person’s arrival also has no bearing on this whatsoever. A refugee is a refugee is a refugee. If you are a refugee, you are entitled to certain things. That is really the bottom line.
On the criminalisation of those who may be assisting people to move across borders, there is an important difference to be made between those who do so for gain—the smuggler; we all know that there are criminal networks preying on people’s despair, and we commend the Government for their robust action in pursuing these people and bringing them to justice; that is a relief—and those who provide assistance to people in difficulty. They could be organisations rescuing asylum seekers and migrants at sea, for example. That is a completely different kettle of fish, and we definitely believe that it should not be penalised. The difference is between gain and humanitarian purpose.
Anne McLaughlin
Q
Rossella Pagliuchi-Lor: I do not. Perhaps Elizabeth does. Otherwise, I can of course let you know
Elizabeth Ruddick: In Canada, there was an attempt to prosecute refugees who had been abandoned by the smugglers and were steering a boat to safety. They were prosecuted for facilitating each other’s safe arrival. That was found to be a violation of the convention, because if you criminalise refugees assisting each other to survive during the course of their journey, you are criminalising seeking asylum.
Anne McLaughlin
Q
My other question involves the raging debates we have here all the time, which has come down to, “Yes, it does”, or, “No, it doesn’t”. People who are refugees seeking protection do not have to seek protection in the first country that they come to. We say that all the time, but we have debates with our colleagues who say, “Yes, they do. If they don’t, they are not refugees.” You say, “No, they don’t.” Will you explain that more?
Rossella Pagliuchi-Lor: The answer is, unequivocally, no. Refugees are not required to seek asylum in the first country, full stop. The manner of travel has no bearing on refugee status—none at all. That said, it does not translate into an unfettered right for people to choose where they want to seek asylum.
What is important to consider here—it has a bearing on your situation—is that UNHCR encourages countries to enter into agreements that allow them to transfer responsibilities for asylum seekers in a manner that ensures that every individual has access to a fair procedure, to decent and appropriate reception and, if found to be a refugee, a viable integration path. They do so by sharing responsibility in such a way that protection space is expanded rather than decreased.
One of the specifics of your Bill is that it makes extensive use of so-called inadmissibility in a situation in which there is no agreement that would allow the UK to transfer these people to another safe country in which it would make sense for them to be assessed. The UK, as you know, was part of the Dublin scheme, which is not perfect by any means but was at least a mechanism that established certain rules allowing states to share responsibility and to decide who should be assessed where.
At the moment, you do not have any such agreement with the EU, so a bit of a strange situation is realising itself. Since the entry into force of the changes to the initial rules, I understand that about 4,500 individuals have been notified of their possible inadmissibility. Seven of them have been found inadmissible, but I do not think that anyone has been returned to anywhere, because this has simply created a very long queue leading to nowhere. It is fundamental to the good management of the international refugee system that there should be strong collaboration between states. I hope that clarifies things.
Anne McLaughlin
That really does help. I have one more brief question. Would you say that you are an authority on the refugee convention?
Rossella Pagliuchi-Lor: The UNHCR is the established guardian of the 1951 convention. Our statute is an annex to a General Assembly resolution. The duty of states to collaborate with UNHCR is enshrined in article 35 of the 1951 convention, so yes.
Duncan Baker (North Norfolk) (Con)
When you spoke first, you said that the Bill would not carry out its intentions. To pick up on that, many parts of the Bill have similarities to the Australian model, which was implemented in 2014. As we know, that was very successful —no migrants were crossing after about nine months of that policy coming in. You said that there were differences from the situation that arose in Australia. I get that, there are differences between them and us, but there are also a great deal of similarities. In your eyes, what are the differences that would make this legislation so unsuccessful?
Rossella Pagliuchi-Lor: Let me just take a step back on Australia. The Australian approach was essentially based on offshoring and externalisation, and on turning around the boats. The offshoring and externalisation did not have any impact on the boats, but it did have a terrible, terrible impact on the people who got caught in it. If you read reports of what happened on Nauru and Manus island and so on, there were very high levels of violence, sexual violence against women and children and suicides. Children were found to be the most traumatised that most practitioners had ever seen. Children were essentially withdrawing into themselves and becoming entirely irresponsive to external stimuli. There were also suicides and self-harm. You really need to ask yourselves whether that situation is something you would like to associate your country with, to be entirely frank.
The Chair
I am sorry to interrupt when you are giving such good testimony, but quite a few people want to ask questions and I would like to get them in if I could. We will take Jonathan Gullis, then Paul Blomfield, and then the Minister. Apologies.
Jonathan Gullis (Stoke-on-Trent North) (Con)
Q
Rossella Pagliuchi-Lor: Sorry?
Jonathan Gullis
In the constituency I serve, the residents are livid with the situation in the English Channel. We are more than happy to do our fair share on a global perspective—we have seen that with Afghanistan and Syria—but illegal economic migrants crossing the Channel is totally unacceptable. Do you not think that having a system in place that says that if you enter this country illegally, that will have an impact on your application, that will help to deter people and make them understand that it will harm their opportunity to get permanent residency in this country?
Rossella Pagliuchi-Lor: No, I do not. I think that the reasons why people come are not likely to be affected by what you are saying. Most of the people who arrive here are found to be genuine refugees, not illegal immigrants, by the Government and by your procedures. The fact that they came as they came has got nothing to do with whether or not they are refugees.
The best way of ensuring that the system works is by having a very fast, fair and efficient procedure, because that allows you to move quickly and determine who is a refugee and can stay, and who is not a refugee and needs to be returned, if they have no other legitimate reasons to remain. That can be done if it is done quickly, not if it happens five or 10 years down the line. The Home Office is working now on procedures that will allow it to deliver much faster and, we think, better quality judgments. That would help to deter those who might be trying their luck and at the same time provide protection for those who need proper security.
The Chair
Sorry, Jonathan; can I just bring in Paul Blomfield? Paul, I am then going to have to interrupt you to get the Minister in.
Paul Blomfield (Sheffield Central) (Lab)
Q
Rossella Pagliuchi-Lor: I will. One of the important elements is that if you have a system, there have to be consequences to that system. It does not make any sense to have a system that determines who is a refugee and who is not, and then the results go nowhere. I know that it is difficult to arrange for returns—there are a number of issues and they need a great deal of partnerships internationally—but it is a fact that if somebody is properly looked at in a proper procedure and then found not in need of international protection, it is a lot easier if that happens closer to the time than after a few years, when they have had time to establish a family and when perhaps the whole question of identification is getting a little more vague. It is a fact that good case management increases the chances of people returning, and it increases the chances of people returning voluntarily, too.
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
Q
Rossella Pagliuchi-Lor: Granted, you will never have a silver bullet that solves all of your issues until and unless people no longer feel the need to seek asylum elsewhere. However, as I said, I think that a fast and fair procedure is your best defence, alongside strong agreements with the European Union on the allocation of responsibility for asylum seekers. That is by far the best way of dissuading people who might sometimes be hopping around countries to choose a jurisdiction or who are just giving it a shot—people whom your colleague referred to as illegal immigrants. There are some who could masquerade as asylum seekers; there is no question about that.
The Chair
Order. I am sorry, but that brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank our witnesses for their evidence.
Examination of Witnesses
Siobhán Mullally and Dame Sara Thornton gave evidence.
The Chair
We will now hear from Siobhán Mullally, United Nations Special Rapporteur on Trafficking in Persons, and Dame Sara Thornton, the Independent Anti-Slavery Commissioner. We have until 3.15 pm, so slightly longer than the last session. Would the witnesses please introduce themselves for the record?
Dame Sara Thornton: Good afternoon. I am Sara Thornton, the Independent Anti-Slavery Commissioner for the United Kingdom.
Siobhán Mullally: Good afternoon. I am Siobhán Mullally, Special Rapporteur on Trafficking in Persons, especially women and children.
Holly Lynch (Halifax) (Lab)
Q
Dame Sara Thornton: It is not for me to have a view on most of the provisions, but part 4 and its impact on modern slavery is my particular focus. One of my concerns about the Bill is the unintended consequences, in particular of clause 51, on disqualification from protection. That is probably my gravest concern about unintended consequences.
In my view, we currently prosecute far too few traffickers and criminals for those offences, and I am concerned that the Bill could unintentionally undermine that. I say that because in defining the public order exemption, the bar has been set low and the net has been cast wide—whichever phrase you want to use. It has the potential to reduce support for a considerable number of victims of modern slavery through the national referral mechanism, which matters because, if victims are not supported through the national referral mechanism, they are put in a very difficult position in terms of supporting police investigations and prosecutions. That is my concern.
I was trying to be helpful and think what it is about clause 51 that is a particular problem. Clause 51(3) defines the public order exemptions; I have been looking at paragraphs (b) and (f) in particular. Paragraph (b) is where the list of offences is from schedule 4 of the Modern Slavery Act 2015. That list was passed by Parliament six years ago for a very different purpose. It was about which offences were excluded from the protection of the statutory defence. The first question I have had is about whether we are actually going to use that list for a very different purpose.
The second issue is clause 51(3)(f), where the definition of a foreign criminal from the UK Borders Act 2007 is used. Again, that is a very low bar because all it requires is for somebody to be sentenced for 12 months, and sentenced not just in the United Kingdom but anywhere in the world. My concern is that it sets quite a low bar. I have been speaking to colleagues in law enforcement and from charities that provide support for witnesses, and their concern is many people who have given witness evidence in the Crown court would be caught by this, and they would not necessarily be provided with support in the NRM. That is my concern. My other suggestion might be considering an amendment saying that if a victim is supporting a police investigation or a prosecution, then perhaps they should be exempted from this provision.
Holly Lynch
Q
Dame Sara Thornton: I do not think it is necessarily incompatible. My main point is that clause 51(3)(b) uses the schedule 4 list of offences passed by Parliament in schedule 4 of the Modern Slavery Act for quite a different purpose. I would hope that somebody has spent some considerable time thinking, “If we use this for a purpose other than that for which it was intended, can we model the consequences?” At the moment, the number of prosecutions is in the hundreds per year. My concern is that if we remove support from victims and witnesses, we will reduce that even more.
Holly Lynch
Q
Siobhán Mullally: Thank you very much for your question. My role as UN special rapporteur on trafficking in persons is to ensure that the highest standards are met in terms of protecting the human rights of victims of trafficking, as well as combating impunity for trafficking in persons by ensuring effective investigations and prosecutions. That is critical to a human rights-based approach because we need to combat impunity, ensure accountability and protect victims of trafficking.
The protection of victims enables us to be effective in investigations and prosecutions. As it stands, with my mandate as UN special rapporteur on trafficking in persons, I have specific concerns around clauses 46 to 51 in particular as not complying with international law, international human rights law and with the state’s positive obligations to identify, assist and protect victims of trafficking without discrimination. That in itself will hinder effective investigations and prosecutions and hinder the goal of combating impunity for trafficking in persons and ensuring accountability.
I have very specific concerns about those provisions in relation to the state’s positive obligations under the European convention on human rights, in particular articles 4 and 6, and under the Council of Europe convention on action against trafficking in human beings, as well as very specific concerns in relation to the rights of child victims of trafficking, as protected under the UN convention on the rights of the child and many other human rights instruments.
I can talk a little bit more about those specific concerns, but as it stands I would have concerns that the Bill does not comply with the state’s obligations under international human rights law.
Holly Lynch
Q
Dame Sara Thornton: Last year in 2020, nearly half of the potential victims referred into the NRM were children, but in this part 4 on modern slavery there is only one mention of children. I have some specific suggestions: on clause 53, which is about the granting of limited leave, there were real concerns about the way that the requirement to consider the best interest of a child appears to be ignored. The best interests of a child goes back to the UN convention on the rights of a child; it is in the Children Act 1989, and it is also in the European convention against trafficking, that decisions should be taken in the best interests of the child. Looking at clause 53, and thinking about where there is a positive conclusive grounds decision that the child has been trafficked, and that they were under 17 at the time they were referred into the NRM, there really should be a presumption for the Secretary of State that leave to remain is given in the child’s best interests.
Clause 53 is one example. I am now going out of part 4 into clauses 14 and 15. The equality impact assessment published by the Government last week committed to mitigating the adverse impact on unaccompanied asylum seeking children by exempting them from the inadmissibility process. I do not think that is anywhere in the Bill. I think that it is important that something that has been identified as a problem for children is considered in legislation.
There are two other areas: in clauses 46 and 47, which are about the traffic information notices, there is no comment about whether they would apply to children. It would be really good to have clarity about whether children are going to be given these traffic information notices and asked to respond in a set period. Lastly, I have just covered clause 51 and the exemptions from protection; again, it is not clear whether those would apply to children. I think experts in the rights of children would argue that there are several international legal frameworks that suggest this is not appropriate and not in the children’s best interests.
Holly Lynch
Q
Siobhán Mullally: First and foremost, it is for the best interests of the child to be the primary consideration when addressing the rights of children under all aspects of the legislation. The convention on the rights of the child is almost universally ratified, and that is a core principle of the convention.
To go back to clauses 46 and 47, in particular: with regard to both adult and child victims of trafficking, there is no attention given to the impact of trauma on victims of trafficking. It is well recognised that this can lead to delays in disclosure of information. The impact that the experience of trafficking has on the disclosure of information and the reporting of the harms that have been endured has also been documented in the case law of the European Court of Human Rights—for example, in Elia in Greece, and Essen in Croatia. That is even more heightened with children.
In the recent judgement of V.C.L. and A.N. v. the United Kingdom, the European Court of Human Rights emphasised again that it is a positive obligation on the state to identify and ensure assistance and protection to victims of trafficking. It is not an obligation on the victim to self-identify or report, and certainly not within any specific timeframe. It is a positive obligation on the state. As the European Court of Human Rights said in V.C.L. and A.N. v. the United Kingdom—with regard to the two Vietnamese boys in that case who were in an even more vulnerable situation—because of children’s vulnerability, they have a right to international protection. It is critical that that informs all elements of the Bill. I am picking out those two because they have a specific impact, in terms of recognising the impact of the experience of trauma on a victim of trafficking. It is a core commitment of the United Kingdom to combat the trafficking of persons, and modern slavery, both at home and abroad. It is critical that we see best practices being incorporated here.
Holly Lynch
Thank you very much, I will leave it there, unless there is time at the end.
Paul Blomfield
Q
Dame Sara Thornton: There are two schools of thought on this. Many in the sector will argue that the current, very low bar is appropriate, but I know colleagues in law enforcement think it is too high. The Bill is suggesting that we use the wording in the European convention against trafficking, or reasonable grounds to believe that an individual is a victim of modern slavery and human trafficking. On balance, I think that is appropriate.
Reasonable grounds is a pretty low threshold that people understand. It is more than a hunch or a suspicion, but it is not as much as a balance of probabilities. There needs to be some sort of objective information to base that reasonable grounds decision on. The obvious thing to say is that the guidance given to staff in the competent authority will be key, but it is not an unreasonable proposal—not least because the current legislation in Scotland and Northern Ireland uses the word “is” and, as far as I understand, the competent authority uses the same test across the United Kingdom. I do not think it will make that much difference, and to be consistent with the European convention is a reasonable proposal.
Siobhán Mullally: A concern here would be the possible impact of changing the threshold in terms of potential victims of trafficking accessing support and assistance and in processes of identification. Is it likely to have a negative impact? Is it likely to increase difficulties in identifying victims and referring them in a timely way for assistance and protection? That would be a concern if it is a regressive measure from where we are now; in terms of human rights law, you want to ensure non-regression in the protection of human rights of victims of trafficking.
I have concerns about the impact of that and whether it will increase the difficulty of timely and early identification of victims, because early identification is critical to ensuring effective access to protection. There is a question about how it will be implemented in practice and what the fallout will be in its implementation.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Q
Dame Sara Thornton: That links to a comment I made in my correspondence with the Home Secretary. If the penalty for illegally entering the country is increased to four years, we could have a situation where, as a matter of course, if somebody had been prosecuted for that they would not be able to access the NRM. It is a risk that probably exists more on paper than in reality, because most of the time immigration enforcement does not use the law to prosecute; it tends to use administrative processes.
Stuart C. McDonald
Q
Siobhán Mullally: As I said, clauses 46 and 47 pose serious difficulties with regard to both adults and children in terms of the state’s compliance with international human rights law on the protection of victims, because of the particular difficulties a victim of trafficking may have not only in disclosing information, but even in identifying as a victim of trafficking. It is not the obligation of the victim to self-identify, but we know that where the context is new, where there may be a distrust or lack of familiarity with officials within a state, where there may be language barriers or delays in accessing legal assistance, or where there may be fears of reprisals for the victims or their families, that can lead to delays.
The European Court of Human Rights has repeatedly addressed that in terms of not properly taking account of the delays that can occur, the inconsistencies that may arise and the trauma that is endured by victims. That is not appropriate in terms of ensuring the fullest protection of the rights of victims of trafficking.
Stuart C. McDonald
Q
Dame Sara Thornton: Briefly. Siobhán has explained the issue of trauma, what we know about its impact on the brain, the way it affects memory and the way people recall with inconsistencies. We know that in practice that is very often the case with victims, and until they form trusting relationships you do not get a narrative that starts at the beginning and ends at the end; it is very piecemeal. As people trust and become more open, they might disclose more. That is a really big consideration. If we are not careful, these two clauses disregard that. Secondly, I have come across cases where victims are more able to disclose labour exploitation, for example, but it might take several years for them to disclose the most awful sexual exploitation because they may be embarrassed or ashamed about it. That is a concern. Also, of course, we know that some victims just do not identify as victims. They do not see that the awful things that they have endured mean that they are, in fact, victims.
I have been thinking about whether any amendments could acknowledge this issue about trauma. We have slavery and trafficking care standards, which are all about trauma-informed care. Is there a potential amendment that says that when you are doing this process it has to be done with those sorts of standards and principles in mind?
Similarly, the Bill does not talk at all about how long people might be given to respond to a trafficking information notice. Again, I would be really worried if that were just a matter of a few days. Colleagues have looked at arrangements in some asylum cases. It may be 20 days. I think this might be more complex, so you might think about 30 days. Is it worth thinking about putting in the Bill what sort of time period might be appropriate?
Lastly, colleagues have suggested that you might even want to define in the Bill what might be a good reason for disclosure, because at the moment it is left very much open. It could be open to guidance, but one aspect would be to list—whether it is trauma, mistrust of authority, or a threat from traffickers—all the sorts of reasons that could cause late disclosure, and perhaps, as I say, have them in legislation rather than just relying on guidance.
Stuart C. McDonald
Q
Dame Sara Thornton: I will start with the second first. The earlier witnesses gave evidence about the two-tier approach. The concern would be that that creates vulnerability for people who are in this country in that situation because they have fewer protections, and no recourse to public funds unless they are destitute. I know from my work that people in that situation are driven by desperation to take exploitative work. It is a real concern that it could create vulnerability, which criminals and traffickers would exploit.
On the second point, I referred to material that was in a House of Commons Library report that suggested that when you look at the reasons why people choose or choose not to come to a country, there are many other factors that they consider. There is better evidence that they consider other factors than the nature of the law and the situation when they get there—the policy and practice of the country. My concern would be that you risk making more people vulnerable, because they live lives of precarity anyway, with a hope that this will deter. I completely understand the Government’s position that this is a very dangerous way for people to come to this country and we need to stop it, but I am concerned about the extent to which there is evidence that suggests that it might be effective, given that I think it could increase vulnerability.
Stuart C. McDonald
Q
Siobhán Mullally: Again, it is disappointing to see that reduction in the recovery period. It is a regressive measure in terms of current standards and protections, so I would have concerns that it is moving backwards the human rights protections of victims of trafficking. There have been previous examples of regressive measures, in terms of attempts to reduce assistance levels to victims of trafficking. Again, it breaches the principle of non-regression in human rights protections, so I would have concerns around that and the longer-term impact, in terms of ensuring effective protection of victims of trafficking and trying to break the cycle of re-trafficking and vulnerability to exploitation.
Dame Sara Thornton: I really welcome the fact that it is going to be in statute, because it was not in statute in the Modern Slavery Act 2015. I acknowledge that the current guidance is 45 days and that this is only 30 days, but 30 days is what is set out in the European convention. The other thing that is worth saying—I do not know whether Members are aware of this—is that the wait from reasonable grounds to conclusive grounds is very, very long. In 2020, the average was 465 days. We have a big debate about 45 days versus 30, but the reality is that when I meet victims and survivors, most of them have a sense of waiting a very, very long time. They are being provided with support, but they feel that their lives are on hold.
I have a couple of other thoughts about the time period. Of course, if people are being supported for a long time, there is some benefit to that, but there is also a disadvantage, particularly when cases are related to criminal proceedings, the courts are waiting for decisions and the system is grinding very slowly. One particular issue might seem very tactical and technical, which maybe it is, but it is important. One of the weaknesses of the current national referral mechanism is that, historically, all the decisions have been taken by the Home Office—the competent authority. I think a lot of the decisions about whether somebody has been trafficked are best taken locally by local safeguarding partners, and I am really pleased to say that the Home Office established a pilot early this year in 10 local authority areas, whereby local safeguarding boards are making those decisions. You have the right people around the table, and they have a much fuller picture of what has been going on.
Those pilots are going very well. One of the things they are able to do is that, when they meet to discuss what has happened to a child, they are able to take both the reasonable grounds and conclusive grounds decisions at the same meeting—you might imagine how that speeds things up. I would not want anything in the legislation to undermine the really good best practice that is currently being developed, which means that decisions about children’s trafficking are being made locally by the people who are best qualified to do them, and it is happening so much more speedily. I would hope that the Bill does not undermine that good practice.
Stuart C. McDonald
Q
Dame Sara Thornton: If it was the case that that meant that people were getting just 30 days’ support, it would have a negative impact. If you think about providing people with counselling and helping with their medical support and legal advice—a whole range of things— 30 days is not very long. I am just saying the reality in the UK at the moment is that it is taking so much longer that the difference between 45 and 30 is less significant.
Stuart C. McDonald
Q
Dame Sara Thornton: The period between the new plan for immigration in March and the publication of the Bill in July was very short. We are aware that groups involved in asylum were much more involved in the consultation process than some of the groups that support victims of slavery and trafficking. It is too late now, but it would have been good to see more involvement of survivor groups particularly, so that people could give their views about what this would mean on a personal level, from that survivor perspective.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Q
Dame Sara Thornton: This Bill specifically refers to a minimum of 30 days between the reasonable grounds decision and the conclusive grounds decision, and what I am saying is that, in these pilots, with some cases—not in all cases, but in some cases—the decisions are being taken on the same day, and I would not want that to be undermined. Presumably you would have to say, “Well, today we will make the reasonable grounds decision. We have got to come back after 30 days and make the conclusive grounds decision.” Actually, they are able to do both at the same time.
Of course, it matters a lot for children to get these decisions made, particularly when quite a lot of these cases are cases of child criminal exploitation and there are related proceedings in the courts. So it also helps the courts. As you know, there is an issue with backlogs in courts, so the more those decisions can be made in an effective and efficient fashion, the more that helps the courts, as well as being in the best interests of the child, in my view.
Neil Coyle
Q
Dame Sara Thornton: This is taken from the equality impact assessment, which I think was published on Friday last week and which talked about the Government continuing to mitigate adverse impacts on vulnerable people. One of the examples given is that it says the Government will mitigate the risk of adverse impacts on unaccompanied asylum-seeking children by exempting them from the inadmissibility process, which I think is set out in clauses 14 and 15. So that was a very specific issue referred to in the equality impact assessment. I do not think there is any kind of read-across to the Bill at the moment.
Neil Coyle
Q
Siobhán Mullally: Yes, certainly. I will make a written submission, but those are well-established cases from the European Court of Human Rights: L.E. v. Greece, and S.M. v. Croatia. Then, of course, there is V.C.L. and A.N. v. the United Kingdom—the judgment on that was final earlier this year. They are all quite specifically relevant in terms of clause 51, in particular the implications on non-punishment, victims of trafficking, rights of access to the courts and right to a fair trial. V.C.L. and A.N. v. the United Kingdom found the state to be in violation of articles 4 and 6 of the European convention on human rights, read in conjunction with the Council of Europe’s convention on action against trafficking.
L.E. v. Greece and S.M. v. Croatia are particularly important with regard to recognising the trauma endured by victims of trafficking for purposes of sexual exploitation and the need for that to be taken account of in terms of identification processes, referrals for assistance and protection by the state; and recognising that it is a positive obligation on the state, as stated again in the V.C.L. judgment by the court, to ensure effective protection.
Neil Coyle
Q
Siobhán Mullally: I think that part 4, as it is currently drafted, is not in compliance, as I said, with international law. It is not in compliance with the state’s obligations under the ECHR, the Council of Europe’s convention on action against trafficking or the UN’s protocol to prevent, suppress and punish trafficking in persons, especially women and children—the Palermo protocol.
So I think that that part of the Bill, in particular, raises very serious questions and concerns. In particular, I would point to clause 51 but also to other clauses—clauses 46 to 51. Other provisions in the Bill raise other concerns. I am speaking particularly about those areas, because they raise very specific concerns in relation to my mandate on trafficking in persons, especially women and children.
Holly Lynch
Q
Dame Sara Thornton: This has become quite a topic of discussion in law enforcement. The problem has been that practice has varied from force to force as to whether missing person reports were completed or whether there was a report to immigration enforcement. I know that some interim guidance has been put out by the National Police Chiefs’ Council setting out what needs to happen, but to give you an example from June this year, about 140—I think—Vietnamese migrants who had come across in small boats were put in hotels in a variety of cities across the UK, and within 24 hours they had all disappeared. My view is that that was because they were clearly under the control of traffickers. They got sucked into the asylum system; that would not be the plan of the traffickers. As I say, they were gone in 24 hours. The reason I am aware that there has been some debate is that the forces were all then saying, “What’s going to be our response? What should we be doing in terms of investigating what has happened?”
One of the difficulties, if I may, is that when people go missing in that situation, we have no biometric data on them, so it is very difficult to ever work out whether you have found those people or not, with all the issues of language and difficulty with names and dates of birth. It is a live and current operational issue at the moment.
Holly Lynch
Thank you. Ms Mullally?
Siobhán Mullally: The state has very specific obligations to protect victims and potential victims of trafficking, and there are very specific provisions under the Council of Europe convention on action against trafficking in human beings with regard to missing children, whether those are foreign nationals or not. Internal trafficking is a very serious concern that is often not recognised sufficiently in many jurisdictions, not exclusively the United Kingdom.
A concern was raised previously by the Council of Europe group of experts on action against trafficking, the treaty monitoring body under the convention on action against trafficking, about children going missing in the UK—particularly unaccompanied, separated asylum-seeking children, but also child victims of trafficking internally. Of course, there are very serious obligations on the state to provide protection to all children without discrimination.
One concern with regard to the trafficking context can be that sometimes the child victims and adult victims go outside of the ordinary protection mechanisms and are not treated with the same urgency that they ought to be, but there are very specific obligations on the state to try to respond effectively and in a timely way to prevent that, and to ensure protection.
Tom Pursglove
Q
Dame Sara Thornton: Thank you, Minister, and I very much welcome the new staff who are being recruited into the single competent authority, because I have raised the need to speed up decision making with your predecessors on many occasions.
The biggest cause of difficulty, I think, is the increased numbers. Although 2020 was similar to 2019, with about 10,600 referrals into the NRM, that number has doubled in three or four years, so there is substantial pressure. The other thing that is happening, as I mentioned earlier on, is child criminal exploitation and the cases of children. Those decisions need to be made quickly, because there are often related proceedings. Having been to the single competent authority and spoken to the staff, what tends to happen is that all those priorities keep going to the top of the pile and then there are an awful lot of cases in the backlog. On the whole, it has been about increased demand, and the resources just have not been able to keep up with it. So I welcome the fact that there are new staff. It will take a while for them to be trained and to be competent, but that is a good thing.
The second thing, which is identified in a report I published last year, is that one of the difficulties for the decision makers in that competent authority is that they do not always have all the information. They have some information, but they are often having to make decisions on partial information. They might have asked local authorities, they might have asked police forces or they might have asked Border Force. They do not always get the replies and therefore they are having to do the best in difficult circumstances. Staff have been under huge pressure and I hope we can begin to bring those averages down and bring the weight down.
Tom Pursglove
Q
Dame Sara Thornton: There are difficulties. Colleagues might be aware that the process is that you have first responders, who are police officers, members of Border Force, immigration enforcement and local authority staff, who have the ability to refer a potential victim into the national referral mechanism. One of the difficulties, and it is constantly reported on, is that the staff who are doing that do not understand how the national referral mechanism works. They do not understand enough to give good advice. So report after report recommends that there needs to be more training of first responders, and the Home Office recently published some more training.
I am getting to the position now where I wonder whether it is a sensible to expect that every police officer should be able to deal with this—every member of Border Force, every member of a local authority—and whether you might want to have specially trained points of contact who deal with it. If you think about it, even though the numbers have been going up, most police officers in the course of a year will never deal with these situations. I do think there is an issue about that, and we need to think very seriously about the model we have for first responders.
Tom Pursglove
Q
Dame Sara Thornton: I think that people who smuggle fellow human beings, or indeed traffic them, are committing a most heinous crime. Think about the 39 people who lost their lives in Essex two years ago. Whether they were smuggled or trafficked is a matter much debated, but the callous way that those criminals treated those victims, in my view, needs the harshest punishment. The only thing I would say is that, as a former police officer, I am on the whole in favour of harsh punishments, but you have life sentence as an option from the Modern Slavery Act 2015 for slavery and trafficking. It has never been used. So there is the point that, I guess, it has a deterrent effect, but there is also an issue about whether, if those powers exist, they really need to be used to be a really effective deterrent.
The Chair
I see no further questioners. I thank the witnesses for their evidence. We will move on to the next panel.
Examination of Witnesses
Lisa Doyle, Mariam Kemple-Hardy, Priscilla Dudhia and Alphonsine Kabagabo gave evidence.
The Chair
Welcome, everybody. We will now hear from Lisa Doyle, executive director of advocacy and engagement at the Refugee Council and Mariam Kemple-Hardy, head of campaigns at Refugee Action, both of whom are appearing in person. We will also hear from Priscilla Dudhia, advocacy co-ordinator at Women for Refugee Women, and Alphonsine Kabagabo, director of Women for Refugee Women, who are both joining us remotely via Zoom. Given that this panel is split between physical and video link contributions, it is especially important that Members direct their questions at specific witnesses to avoid confusion. We have until 4 pm for this session. Please could the witnesses introduce themselves for the record? Can we start with the witnesses who are present in the room?
Lisa Doyle: I am Lisa Doyle, director of advocacy and engagement at Refugee Council.
Mariam Kemple-Hardy: Hi, I am Mariam Kemple-Hardy, head of campaigns at Refugee Action.
Alphonsine Kabagabo: Hi, I am Alphonsine Kabagabo, and I am the director of Women for Refugee Women.
Priscilla Dudhia: Hello, I am Priscilla Dudhia, policy co-ordinator, also from Women for Refugee Women.
Bambos Charalambous
Q
Lisa Doyle: In our opinion, it does not meet those aims. Previous witnesses you have heard from in the last few days have also said this. There is little evidence that putting deterrents in place actually stops people arriving in the UK. People are pushed into situations where they seek safety. Research that we have conducted, and that the Home Office conducted a while ago, showed that people often did not have information about the rights and entitlements they would be greeted with in the UK.
Because there are not enough safe and regular routes for people to come to the UK, they are forced to rely on smugglers and others to reach here, and they get different types of information. The deterrents do not work. There is not evidence that they work. Our concern with lots of the provisions in the Bill is that they seek to punish or disadvantage or make vulnerable people even more vulnerable, rather than giving them the protection they need.
Mariam Kemple-Hardy: Thank you very much for having me today. I want to say that I will be giving evidence based not just on the work that Refugee Action do as a service provider. Over July and August we held a series of focus groups with refugees and people in the asylum system to consult with them on what they thought the impact of the legislation would be.
First, at Refugee Action we have really welcomed the warm words of the Government recently in response to the Afghanistan crisis. They have said that they want to give a warm welcome to refugees fleeing that horror, and we welcome that. However, that warm rhetoric is not matched by the harsh reality that we see in this Bill.
As Lisa has said, the Bill is about punishment. It is not about protection. We understand there are two key objectives of this legislation, the first being to make a fairer asylum system and the second being to deter people from making dangerous crossings. We believe the legislation fails on both counts.
When it comes to making a fairer asylum system, what we actually see is this legislation creating a deeply unfair system, where, for the first time ever in UK law, refugees will be judged based on how they enter the country, not on their protection needs.
Secondly, when it comes to deterring dangerous journeys, this legislation is likely, as per the Government’s own equality impact assessment last week, to make people take even more dangerous routes. Far from breaking the business model of people smugglers, this legislation plays into that business model. If you make it harder to enter the country, smugglers can charge more and encourage people to take even more dangerous routes. We are likely to see more people losing their lives as a result of this.
The key disrupter to that business model is providing safe routes to safety, but we do not see anything said about that in this legislation. There is nothing to increase refugee resettlement, nothing to increase access to family reunion and nothing about humanitarian visas. It is all about punishment. It is not about protection.
Alphonsine Kabagabo: Thank you for giving us this opportunity. We will be focusing on the impact of this Bill on women, because we represent that area. We are an organisation that supports women to safety in the UK and defends their rights. As other people have already said, this new Bill will have a great impact on women.
As you know, quite a lot of women in our network have survived gender-based violence. They have been traumatised through being raped, being forced into marriage, being forced into sexual exploitation or through FGM. For them to access a safe route has got to be an option for me, because it is not a choice. It is an issue that they cannot avoid. This Bill makes it even harder for those victims to access safety.
We are also concerned about some of the detail, such as providing evidence when you arrive, as soon as possible. Women who have been traumatised, because they have been violated, raped and all that, cannot provide that evidence straight away. They need time to heal, to be protected, to access mental health support. They need time to understand the system, so that is retraumatising them even more.
We are also very concerned because there is even a clause about being a member of a particular social group, and gender is not one of the groups. That really will absolutely affect some of the women we are fighting for. We were also surprised that the Bill is at odds with the Government policy on violence against women and girls, which proposes to support survivors of gender-based violence. Instead of offering safety and support, this new Bill will actively harm and traumatise women. So, I will say that, but my colleague Priscilla might want to add something. Over to you, Priscilla.
Priscilla Dudhia: That was fantastic—nothing to add.
Bambos Charalambous
Q
Lisa Doyle: In terms of the two-tier system, it seems incomprehensible that you would treat somebody differently based on their mode of arrival, not because of their protection needs. You could have a perverse situation with next door neighbours from Afghanistan, with one fortunately finding their way on to the formal resettlement route and the other being forced to take the decision to make a dangerous journey, then, on reaching UK shores, getting a different level of protection and rights than their next door neighbour, even though they are fleeing the same persecution and threats. People’s protection needs are not based on how they travel, how much money they have or what their identity is—in terms of whether men might be more prone to travel or not. People make decisions, when they are forced to rely on smugglers, about who they will prioritise to send to a country, and then hope that they can apply, through refugee family reunion, for others to join them afterwards. Having differential treatment based on mode of arrival seems grossly unfair.
Mariam Kemple-Hardy: I agree with everything Lisa has just said. Afghanistan is a really instructive example. In August, the whole world witnessed what it is like when a country enfolds itself in crisis—how chaotic it is. We saw how few and how precious those places on those planes were.
It is fantastic that the Government have committed to taking in 20,000 refugees from Afghanistan over the next two years, but we know that that is a drop in the ocean. We saw people clinging to the sides of planes. That is how desperate they are to reach safety. Although we welcome the fact that the Government have said that they will take in 20,000 Afghan refugees, we are very concerned about what will happen to the 20,001st Afghan refugee who arrives after this legislation. That Afghan refugee, as Lisa says, will be fleeing the same horror, but they will be treated as a second class of refugee.
When we spoke to our focus groups, they said that if they were to get this second-class version of refugee protection, their life would be one of “You can’t. You can’t. You can’t.” They said, “Look, this temporary protection is no protection at all.” They thought that, with very unstable immigration status, all the building blocks of rebuilding your life—being able to access a job, to rent somewhere, to send your children to university—would be far, far beyond them. As a result of that, we believe that this whole concept of temporary protection is, as I said, no protection at all. It is a system of punishment, not protection.
Bambos Charalambous
Q
Priscilla Dudhia: Without repeating what has already been said, we would like to highlight that, as well as distinguishing between refugees based on their mode of arrival, the Bill also distinguishes between refugees based on the point at which they claim asylum and punishes those who have not claimed asylum “without delay”.
As an organisation that, as Alphonsine highlighted, supports a large network of women who have survived the most horrific cases of sexual and gender-based violence, we are concerned about the fact that women who had survived that violence would be punished by this. We know that women who have experienced that kind of violence have issues in disclosing that.
Those issues are well acknowledged in Home Office policy. That policy talks about the barriers that feelings of shame and guilt can create, the stigma that comes with sexual violence and the fear that some women might have of reprisals from community and family members. That same policy goes on to say that late disclosure should not automatically prejudice a woman’s credibility. In clause 10, we have a direct contravention of that acknowledgement of the very real challenges that women who have fled gender-based violence face in sharing their experiences.
Alongside that, there are other situations in which women might not be able to claim asylum at the earliest opportunity. For instance, many of the women to whom we have spoken in our network had no idea that they could claim refugee protection on the basis of the gender-based violence that they have faced. There are other women who have fled violence and did not intend to stay in the UK for a long time—who came here on a visa, wanting to escape persecution but with the intention of going back—but later discovered that, “Actually, no, there is a grave threat to my safety still, and I need to stay.”
I would like briefly to share the story of one such woman, called Agnes, who is a refugee from a west African country. Agnes fled political persecution. She fled her country—she was in danger—and eventually decided to go to the UK, where her daughter was studying. She was the only family member that she could be with. She wanted to return, but once she was here she realised that political opponents were still being targeted. A lady for whom Agnes was working as an assistant was in prison at the time when Agnes was in the UK, and she realised that it was not safe for her to go back.
Agnes said that she was expecting to go back home quickly, but she could not: “When I realised my visa was going to expire, I went to Croydon to ask what to do to apply for asylum, and that is what I did.” Unfortunately for Agnes, she was locked up in detention, which she found hugely traumatising given her previous experience of incarceration. Her claim was refused at the initial stage and on appeal, and she had to lodge a fresh claim. Today Agnes has refugee status and we are immensely honoured to say that she is part of our team at Women for Refugee Women, where she works as a detention campaign spokesperson. I say all this to highlight that there may be legitimate reasons why vulnerable women are not able to claim right away, and we do not think that it is acceptable to be punishing them.
Bambos Charalambous
Q
Lisa Doyle: At the Refugee Council we are really concerned about having large-scale accommodation centres set up where people are kept away from communities that, should they get refugee status, they would want to be able to integrate into, so they will have little contact with friends, neighbours and volunteers. Those kinds of things are a real worry. The dispersal policy as it works now is that people are housed within communities. There are little details about the accommodation centres, and we are aware that the Home Office has started to tender out for those, but a lot of the detail on that is privileged to those who want to bid. We want to know who would be put into those centres. Napier Barracks is a really good case of looking at suitability for people. We know that with covid there were particular risks, and independent inspectorates showed that parts of Napier were not fit for human habitation.
In terms of vulnerability, the Home Office has alluded to the fact that it would not necessarily put vulnerable people into large-scale accommodation centres, but it does not have a very good track record of identifying vulnerable people at an early stage. Many people were removed from Napier because of their vulnerabilities, because non-governmental organisations and charities took legal cases against the Home Office and then the Home Office removed them. The safeguards are not there. If people are outside communities, there is not oversight and that will really damage people’s chances to integrate and rebuild their lives should they get refugee status.
Mariam Kemple-Hardy: The first thing to say is that asylum accommodation has been in crisis for years. In the last 12 months, five of our clients have had the ceilings where they live fall on them. The two-year-old toddler of one of our clients was hospitalised because their head was split open. We have had whole families having to live in just one room. We have had people stuck in hotels for years. There is a crisis of accommodation. However, what we see in the Bill is that it doubles down on that injustice that we see.
When it comes to accommodation centres, we are against them on a point of principle and also because of the practice at Napier and Penally Barracks over the last 12 months. When it comes to the point of principle, as Lisa says, the idea of segregating part of our society and othering them is something that we disagree with. It takes people away from the communities that they want to integrate into; it takes them away from the healthcare that they may need to access—they are very traumatised people who have particular mental health and physical needs in many instances; and it takes them away from opportunities to get education and so on. On a point of principle, we are very much against that practice. However, in terms of actual practice, over the last year in Napier and Penally Barracks, we have seen appalling situations where people have tried to take their own lives. We saw, at the height of the pandemic, people being forced to live with 28 other strangers in dormitories. In Napier Barracks, there was an outbreak when 197 people tested positive for covid-19. Traumatised people in Penally Barracks were next to an active firing range. In terms of the way this has been put into practice, we are deeply concerned about the plans.
I want to make two quick final points about the how the legislation is currently drafted. First, the legislation would give the Home Secretary the ability to extend the maximum amount of time that someone can be in an accommodation centre. At the moment, the maximum is six months. The Bill does not say how long someone could be in the accommodation centre—arguably, it could be unlimited.
Secondly, the Bill also allows people in those conditions to be put under residence conditions, such as being told that they were not able to leave that accommodation for a certain period of time during a day. We are seeing the potential for unlimited de facto detention as a result of the Bill. Someone in our focus group said, “Let’s be honest; it’s not a camp, it’s a prison. Let’s call a spade a spade”. This is not something that we want to see in our refugee protection system.
The Chair
I am terribly sorry to our witnesses on Zoom, but I would like to get some more questions in, if that is okay. I call Jonathan Gullis.
Jonathan Gullis
Q
Mariam Kemple-Hardy: I heard the UNHCR give comprehensive evidence earlier, and I think the points that they made about the need or not to apply for asylum in the first safe country of entry were clear and unequivocal. In addition, I do not think it is up to me, you or anyone else to decide what is safe for someone.
I will give you an example of someone we spoke to. They are from South America, and they fled to the UK, but they had to take a flight to Spain first before moving to the UK. Many of us in the room would say that Spain is a safe country, but that individual was fleeing gang violence, and the gang had extensive networks in Spain, so it was absolutely not a safe country for him. He is deeply concerned about the impact the legislation could have on his claim for asylum in the UK.
Jonathan Gullis
Q
Mariam Kemple-Hardy: First, the number of safe routes to this country is vanishingly small. As I said, it is shocking that there is not a word in the legislation that actually increases safe routes to safety. There is nothing about family reunion, refugee resettlement and so on.
However, on the issue of channel crossings—thank you for raising it—we at Refugee Action do not want to see people crossing the channel. It is dangerous and we do not want to see it at all. However, we notice that the rhetoric around this particular debate often focuses on the question of how we can keep people out, not how we can keep people safe. If we were to ask the question, “How do we keep people safe?”, there are very clear policy solutions. As I say, it is about family reunion, refugee resettlement and so on, but there is nothing at all in the legislation—nothing—to increase safe routes.
Jonathan Gullis
Q
Mariam Kemple-Hardy: As I said earlier, the evidence is clear that if you make it harder and harder to enter a country, that does not break the business model of the people smugglers. As the Government’s own equality impact assessment stated last week, it actually plays into that business model, because you enable them to charge higher prices and people are more likely to go by much riskier routes. In terms of being a deterrent, that is not going to be effective. The most radical way to disrupt this business model is to focus on how we keep people safe, and that is about increasing access to safe routes. In terms of offshoring, I am not sure if Lisa wanted to add anything.
The Chair
I am ever so sorry, but owing to the shortness of time, rather than go to another member of the panel, I would like to get someone to ask a question. I would like to give Alphonsine and Priscilla their first go at answering. I call Robert Goodwill.
Mr Goodwill
Q
Alphonsine Kabagabo: We certainly welcome a system that will let more women in and will give them the choice to be brought to safety in a safe way—we absolutely welcome that—but that is what we do not see. We do not see those opportunities being available today. We do not see the opportunities being available for the women we work with to reach a safe country in a safe way—even for men, although I do not have those figures. We have women who crossed the Sahara to come here, seeking safety. I will let my colleague add to that.
As someone who has experienced being a refugee, when I was stuck, I would have taken any route. When I was in Rwanda during the genocide, I would have taken any route to get to safety. No one offered me that safe route. The Belgians and the French came to rescue expatriates, not Rwandan people. That is the problem. The problem is that those routes are not available to us.
Mr Goodwill
Q
Priscilla Dudhia: As my colleagues have already said, the way to deter these gangs and so on is to create more safe and legal routes—to expand the global resettlement scheme; to set a number; to prioritise women who have survived sexual and gender-based violence; to expand family reunification laws, but is also to look towards other routes. My connection cut out for a bit earlier, so apologies if I am repeating what has already been said. We strongly urge the Government to explore humanitarian visas. Right now, there is no asylum visa. We think that all that would minimise the risk of people taking dangerous journeys. As Alphonsine has already highlighted, safe and legal routes are not available to everyone, unfortunately. We must not shut the door on vulnerable women who cannot avail themselves of the routes for reasons that are entirely beyond their control.
Looking to the situation in Afghanistan, for instance, the two-tier system would lead to immense cruelty and absurd results. You could have a female Afghan journalist who is really vulnerable and gets on the resettlement scheme, and then female Afghan journalist B, who is just as vulnerable, but for whatever reasons cannot access the resettlement scheme and has to quickly uproot herself from danger. We have heard reports from civil society organisations about Afghan women being targeted. Because of the way she has journeyed—because of the irregular route she has taken—she is punished. Yes, we need to create routes, but we cannot punish women like that. What is our asylum system if those are the consequences that ensue for vulnerable women?
The Chair
Thank you. I would like to bring in a representative from the SNP now, because they are yet to ask any questions.
Anne McLaughlin
Q
Lisa Doyle: Certainly by expanding the safe routes that we have been talking about. A question was asked earlier about women and children. If the Government are serious about prioritising vulnerable women and children, the proposals to limit family reunion rights will run counter to that, because 90% of people who join people on family reunion are women and children.
We have an issue with decision making being too slow. At the Home Affairs Committee yesterday, the Home Office said that the average waiting time is a year now. We all want quick, efficient and accurate decisions, which would mean that anyone entering the UK would have their claim assessed quickly, and that would flow through the system and reduce the pressure on asylum accommodation. Putting more decision makers into the Home Office would certainly help. Improvements in the quality of accommodation and an expansion of safe routes would be a good investment for Britain to play its role in the international protection system.
Anne McLaughlin
Q
Mariam Kemple-Hardy: Sure. I am afraid I cannot speak about resignation syndrome. However, on mental health, I have mentioned that there are a few crises in the asylum system, but one of them is definitely a mental health crisis. When we work with and speak to refugees in the asylum system right now, they talk about the impact of the system—not just the accommodation, but the system overall. One person, who has been waiting almost three years for a decision on her claim, said, “It has destroyed me psychologically as a person.”
We have a system in which people are left in limbo for years. While they are waiting, they are not allowed to work—in effect, they are banned from working. They have to live on £5.69 a day—effectively, state-sponsored poverty. People tell us that they feel that they have lost all purpose. They feel that their experience of the asylum system is almost like a mental war, a complete retraumatising. These people have made it here, trying to seek safety, after going through a very traumatic process.
As I said, however, this legislation will only double down on that injustice. It will build an additional six months’ wait into the process, if someone is inadmissible. If their claim is deemed inadmissible and they have to wait six months to see if the Government will support them, it is unlikely that they will. Then, after six months, they enter the asylum system.
We would like to see policies in legislation that are sensible and humane. For example—I will say one final thing on the right to work—you mentioned how much money the legislation might cost the Home Office. Actually, those sensible policies we believe would save the Home Office a huge amount of money and would really help people in that psychological limbo while they wait for their asylum claim to be processed. If people were given the right to work, we estimate that it would save the Home Office about £100 million per year, and actually 71% of the public fully support giving people seeking asylum the right to work. However, we do not see such policies in this legislation. Instead, we see policies to punish and not to protect.
Paul Howell (Sedgefield) (Con)
Q
How can they be concerned? How do they get that information? I do not see that the information that they are getting about the Bill will be a motivator, because it all seems to be about push—about getting away from where you are—as opposed to any thoughts even about what they will find when they get here. I cannot square that circle—what knowledge refugees actually have about our place when they set off, other than, “It’s a nice place to go to.”
Mariam Kemple-Hardy: Absolutely. I watched those evidence sessions. I heard, I think, Zoe Gardner and Jon Featonby talking about the misinformation that people get as well. Actually, many people have said that they are more likely to get misinformation from, for example, smuggling gangs that are trying to get them to take these dangerous routes, rather than understanding the ins and outs of the most recent legislation in Parliament.
The people we have spoken to in the asylum system are talking about the legislation they are seeing and the asylum system they are experiencing once they are here. Before they left to come here, many people have explained that they knew very little about how to claim asylum in the UK. It was only when they arrived here that they understood what it would mean. As you say, it is all about the push factor. People explained to us, when they needed to leave, they needed to leave—they did not have any time to sit down, to do the research. One person was living in a refugee camp and thought that only four countries in the world would provide asylum.
One thing that the focus group said was that they felt the legislation fundamentally misunderstands the concept of what being a refugee is, as though it is a choice and you can choose where to go and how to get there. For them it was not a choice. It was not a choice to come to the UK, because the UK was where they believed they were going for safety. One person said, “This is where I felt I was going to be welcomed and where I was going to be free,” because they have language ties and family here, and things like that. That is why the UK is the place of the safety for them. They are not shopping around and saying, “Okay, it’s a nice place.” It is the place of safety for them.
The key thing to try to square the circle—I am not sure that I have—is that people have very limited access to information in that chaotic moment of trying to leave, as we saw in Afghanistan. People come here, and many have said—I think it is quite sad, looking at the legislation—that they believed that the UK was a beacon of human rights that would protect them. That is why they are here. They are then devastated to learn of the plans, and by how they have been treated in the asylum system so far. As I say, the plans will simply double down on the injustice that we already see.
Alphonsine Kabagabo: Can I confirm what you just said, Mariam? Some people choose to come here also because of historical connection and the language. If you have been colonised by the UK, you feel safe to come to a country where you have a historical tie. When I was a refugee, I went to Belgium. I speak French, so I felt safe there. If I am in Belgium, I feel that is where I need to be. We need to understand that we are talking about people here, not numbers—people who are trying not only to survive, but to rebuild life, and rebuilding life sometimes means thinking, “Where do I have a chance to rebuild life—not just to be a refugee, but to be a person again?”. That is what I want to emphasise.
Paul Howell
I get that, but my concern is how to get the message back around to the beginning. The refugees who get here and can therefore get messages back to people where they came from—is that not the most efficient method of getting anything true back to those people, as opposed to the noise they get from people smugglers and so on? That message should be that the best way to come is the safe route. If they come across the channel they will run into all sorts of problems, and therefore we want to motivate them to go the safe way, rather than any other way.
The Chair
I am sorry, but I want to get another question in. Neil, do you want to ask your question? That will probably be the last one—both questions can be answered together.
Neil Coyle
Q
Mariam Kemple-Hardy: The first question asked how we can get information to people that they should take the safe routes instead. My very quick and simple answer is that there is a vanishingly small number of safe routes, so that question is completely irrelevant for most people. If you want to know how to help people to take more safe routes, the answer is to create more safe routes. Nothing in the Bill creates more safe routes.
To the second question, we have for a long time been calling for the Government to announce a regular annual global commitment to refugee resettlement. We have been calling for the Government to resettle 10,000 refugees from around the world on an annual basis. We believe that is absolutely possible, and the United Nations High Commissioner for Refugees has said in the past that it is absolutely feasible. We would like to see the Government take the legislation and do what they have set out in their rhetoric by creating safe routes to safety.
There are other different types of routes—I believe the British Red Cross spoke in particular about family reunion—but we would like to see one key thing that the Government could do relatively easily. We previously took in 5,000 Syrian refugees each year. Let us up our ambition, meet the ambitions of global Britain and say, “Yes, we will take in 10,000 refugees from around the world.” It was great to see the announcement of the Afghan resettlement scheme, but that answers only today’s crisis. We want to see a resettlement programme that addresses not only the crisis of today, but the crises of tomorrow.
The Chair
We have a couple of minutes. Do any other witnesses want to say something briefly?
Lisa Doyle: May I just add to that? I agree that resettlement needs expansion. Refugee family reunion is a really good safe route; it is used by tens of thousands of people, 90% of whom are women and children. The Bill seeks to reduce the rights to refugee family reunion, rather than expand them. Priscilla also mentioned a humanitarian visa that would allow people to travel to the UK to claim asylum. They would still have their asylum claim looked at, but they could formally and legally get on a plane and come to the UK—you have to be physically present in the UK to claim asylum, so that would be helpful.
However, no matter how many safe routes are opened, you should not be closing down routes for people who need to enter irregularly. That is in the convention, as was just highlighted very strongly by the UNHCR. There will be categorisations and formal processes and criteria that people will have to meet for all of the safe routes, and not everyone will be covered yet. There will still be people who fall outside of those who have protection needs, and we should honour those.
Craig Whittaker (Calder Valley) (Con)
Q
Lisa Doyle: We do not want people to drown and die to get here.
Craig Whittaker
Q
Lisa Doyle: We should not be punishing people who feel they are forced to travel irregularly to enter a country. There is a precedent in international law to do that. All the evidence in previous days has said that if you build your walls higher, the people smugglers become more and more sophisticated and have to take—
Craig Whittaker
Q
Lisa Doyle: Of course I would not want to see people drown. What I am saying is that there will always be a need for people to enter countries and to seek safety not on formal safe routes, because formal safe routes are not broad enough to encompass everybody. The reality is that people are desperate. They need to move and they want to rebuild their lives.
The Chair
Thank you. I am afraid that brings us to the end of the time allotted for the Committee to ask questions. I thank our witnesses on behalf of the Committee for their evidence.
Examination of Witnesses
Patricia Durr, Patricia Cabral and Adrian Berry gave evidence.
The Chair
Q
Patricia Durr: Hello. My name is Patricia Durr. I am the chief executive of ECPAT UK. We are a child rights and anti-trafficking charity working directly with child victims and those at risk, and advocating for their rights to protection and care.
Patricia Cabral: Good afternoon. I am Patricia Cabral, the legal policy officer at the European Network on Statelessness. We are a civil society alliance working to protect stateless people, and to reduce statelessness throughout Europe. We have more than 170 members across Europe in 41 countries, including the UK. There are 45 of us in the UK.
Adrian Berry: Hello. I am Adrian Berry, patron of the Immigration Law Practitioners Association. We represent barristers, solicitors and other immigration advisers who work in the field of migration policy to secure just and equitable immigration law and practice.
Holly Lynch
Q
Patricia Durr: Thank you for the opportunity to give evidence to the Committee. One of our concerns has been what little attention has been paid to child victims in consideration of the measures in the Bill. We welcome the focus in the earlier evidence session with Dame Sara Thornton and Siobhán Mullally, and some of the questions from the Committee on that. One of our key concerns is that the measures in part 4 of the Bill will affect all child victims of trafficking, including British national children, who currently form the majority of those who are referred into the national referral mechanism; yet it is being dealt with within an immigration context. For us, consideration of child victims of trafficking and modern slavery is a child protection matter solely.
We are also concerned that the measures in the Bill will be detrimental to unaccompanied children, who we know are at particular risk of exploitation, abuse and trafficking. We know that increasing numbers of children are being identified as victims; yet the barriers are huge. We support some of the stated intentions of providing more support for child victims, but this measure seems to be increasing vulnerability and increasing punishment of children who are already too often criminalised for their own exploitation.
We also think that the Bill is not compatible with the UK’s current obligations towards children, principally the Council of Europe convention on action against trafficking in human beings and the UN convention on the rights of the child, and that all decisions about children, including that of immigration leave, must be taken with their best interest as the primary consideration. They must not face discrimination due to their immigration status, nor must they be disqualified from protection in the UK. There should be a safeguarding response to all children.
We are concerned about all the clauses in part 4 of the Bill, but we have particular concerns about identification, the conclusive grounds provisions, the recovery period, which will potentially have an impact on child victims, and the disqualification from protection, as well as the leave to remain provision in clause 53. We think there is an opportunity to improve and strengthen that in terms of particular provision for children, whereas there is nothing in there now that meets the international legal standard for children.
Holly Lynch
Q
Patricia Durr: We need to bear in mind that the biggest single form of exploitation of children who are being referred is criminal exploitation, and to a large extent some of that is about increased awareness and better identification of children and young people. We are not sure yet what impact covid may have had on some of that; we know that the numbers of adults went down, maybe as a result of the access into work environments where they are being exploited. There may be some of that, but there is a broad understanding that there is an increase in exploitative behaviour towards children.
Holly Lynch
Q
Patricia Durr: We are really concerned about that, because the definition of the threat to public order is not appropriately drawn. It is so broad that, as you say, a significant number of child victims would potentially be disqualified from that protection. The consequences for children and young people are huge. As we have said, criminal exploitation is the most commonly reported form of modern slavery for potential child victims, and a significant number of those cases are for drug-related offences, including some of the so-called county lines crimes, which may carry custodial sentences of more than 12 months, which this provision brings in. Those children would be disqualified from protection if they were identified on appeal for serving custodial sentences.
We also know that data on arrests of children aged 10 to 17 for drug-related offences show that more children are arrested for possession with intent to supply class A drugs. We are also concerned about the terrorism subsections of clause 51, which will exclude child victims exploited by non-state armed groups from accessing protection. The international legal framework on the use of children in armed conflict defines this form of exploitation as the worst form of child labour, and exclusion of children recruited by armed groups on public order grounds will significantly hinder their ability to be safeguarded from harm and to access support and protection. We draw particular attention to the impact it will have, not only on migrant children. It may include the identification of children domestically, such as those in Northern Ireland who are recruited into paramilitarism.
Holly Lynch
Q
Patricia Durr: Yes. It is a principle set out in international—and also our domestic—law that children should not be punished for their own exploitation and abuse. That non-punishment of trafficked children was recently judged in the European Court of Human Rights. I think Siobhán Mullally mentioned this case of V.C.L. and A.N., two Vietnamese teenagers who were criminalised and not identified as child victims of slavery. Yes, we are very concerned about this clause. We think that child victims should not be included within its remit.
Holly Lynch
Q
Adrian Berry: It is certainly appropriate for people to receive legal advice. The key element in that regard is whether or not people have public funds in order to secure the appropriate advice, and whether there is adequate funding for that. Yes, we would support that at all stages. Of course, it does not correct any of the defects in strengthening the tests for making a reasonable grounds decision or changing a standard of proof in respect of conclusive grounds decisions. What it does do is enable people to assert their rights, so it is a basic jumping-off point.
Holly Lynch
Q
Adrian Berry: Yes, of course. As you know, there is a whole series of notices, including in relation to trafficking, which increasingly assimilate it to the asylum process where you get punished for producing evidence or material after an arbitrary cut-off date. There is no safeguard in the Bill for when that cut-off date is—it could be too soon, before you have had an opportunity to recover, to produce the information and receive support. Legal aid is one way of enabling people to properly frame their case at the earliest possible opportunity. The use of notices throughout the Bill, whether trafficking, asylum or priority removal notices, is a subject of serious concern in terms of procedural fairness and ensuring convention compliance, whether that is the trafficking convention or the refugee convention.
Stuart C. McDonald
Q
Patricia Cabral: Thank you for the question. Clause 9 proposes to amend and restrict a vital safeguard in British nationality law that was initially introduced with the aim of preventing and reducing childhood statelessness. It is important to note that the UK has international obligations in this area, so the existing safeguard implements those international obligations by enabling a child who was born in the UK and has always been stateless to acquire British citizenship after five years of residing here. We are concerned that the amendment proposed by clause 9 restricts children’s ability to access that safeguard and acquire British citizenship. It is not in line with the UK’s international obligations, and it clearly risks leaving even more children in the UK stateless and in limbo throughout their childhood.
In the last year, we developed a project to understand the issue of childhood statelessness specifically in the UK, so we have gathered some evidence about the barriers these children are facing and who the stateless children in the UK are. Perhaps it would be useful for us to share some of our findings in this area. I will just note that the stateless children in the UK are mainly children who are currently affected by statelessness because their parents belong to a recognised stateless community—for example, the Kuwaiti Bidoon, Rohingya, Palestinian or Kurdish populations—but many of them are also children in care, especially where they have a migrant background. There may be issues with acquiring parental consent if it is required for the child to access nationality, because the documentation may be missing. Children in care are at particular risk of statelessness, because there is a general lack of awareness from local authorities about nationality issues. There may also be children of Roma families or children affected by domestic abuse, trafficking or other forms of exploitation. We are generally talking about children who are already vulnerable and marginalised, and who are also stateless.
We should also bear in mind that clause 9 would amend the provision that applies only to children who were born in the UK and who have lived here for at least five years. We are talking about children who were born here, who grew up here and who really feel that they belong in the UK. They do not know any other country, they feel British and they wonder where else they belong, if not in the UK. We have received some statements from children who grew up in the UK without British nationality, and it really has an impact on them. They describe feelings of alienation, a loss of self-confidence and the challenges to their identity. We have heard from a child who told us that she could not join her class on a trip to France, and she felt that the situation was really insecure and that it was not safe for her to make close friendships. We can only imagine the emotional burdens of this.
We can see how children feel the impact of being stateless, but they really do not understand why they are stateless, and they feel disempowered to change this. That is because the power to change this is really with the UK authorities—for them to grant nationality and a sense of belonging to the UK. Therefore, that starts with simply not amending the existing safeguards that are in line with international law, so clause 9 of the Bill should simply be dropped.
Stuart C. McDonald
Q
Adrian Berry: There are two things to say. First, there is a real problem with the efficacy of this provision. At the moment, you can apply for registration under this route only when you reach the age of five. But at the age of 10, any child, regardless of whether they have a nationality, can apply for registration as a British citizen under a different provision—section 1 of the British Nationality Act 1981. This is a provision on the face of the Bill that is designed to capture children between the ages of five and 10, because you have another route once you reach the age of 10. The question needs to be asked: what is the point of doing that? You have to have some compelling advice about the cohort aged between five and 10 in order to do it, and there is no evidence at all that that particular cohort of people are the subject of concern. There is no data adduced to show that there is any abuse of the current provision in schedule 2 to the British Nationality Act 1981, which deals with stateless children. There is no reason why you would just leave a child stateless between the ages of five and 10, knowing that there is another provision in law once they reach the age of 10. There is no gain by using this provision. On the question of—[Inaudible.]—simply that the provisions become more available.
Stuart C. McDonald
Q
Adrian Berry: Yes. Clauses 1 to 8 are good stuff, as far as they go. They correct—[Inaudible.]—on the grounds of sex discrimination, discrimination on the grounds of illegitimacy, and historical unfairness in relation to people who might have been prejudicially treated in the Windrush scandal. There is not much not to like about that. There are some omissions. They cure prejudices against people who would be British citizens and overseas territory citizens today, but they ignore the people who would be British overseas citizens today. You will know that their concern is directly because they have no ability to come to the UK, but they still have British nationality. So there is more work to do, but so far, so good, and there are some welcome developments in clauses 1 to 8.
Stuart C. McDonald
Q
Adrian Berry: If you apply for a visit visa, you are making a representation that you intend to return to your country of origin. At some point, unless you claim on arrival when you land, you may be declared an illegal entrant under existing provisions. The problem with clauses 37 and 38 is that they criminalise arrival and assisting arrival in the UK. So it is the crime of arrival or assisting arrival, if you want to think about it like that. What that does is that applies to asylum seekers. So you say, “Of course, we are not impeding the efficacy of the refugee convention”. In the explanatory notes the Home Office says that, but in practice it is. If you criminalise arrival, that is precisely what you are doing. You cannot see those provisions separately from clause 12, which prohibits you from claiming asylum in UK territorial waters.
When you fit them all together, you have the criminal offence of arrival: you do not have to have entered the UK, you are still on a vessel. You are in UK territorial waters because you are on your way to the UK and you cannot claim asylum there. However, the maritime enforcement powers, which the Home Office gives itself under schedule 3, allow it not only to board your vessel and not take your asylum claim, but require you to go back to the port from which you came and require you to leave UK territorial waters. If you look at the package—criminal offence, not being able to claim asylum, and power to board your vessel and require you to leave—not only might that put you at risk in your insecure vessel, but it just shuts you out from the refugee convention. It is a full-scale assault on being able to claim territorial asylum in the UK.
Stuart C. McDonald
Q
Adrian Berry: Yes. The whole point of the refugee convention is not about resettlement; it is about people making it to the territory and processing and determining their claims. That is why you have the prohibition on penalties in article 31. It is all about coming to the UK to claim asylum and being a refugee on an irregular route. If you shut that out, all that is left is sur place claims, as they are called, where you are on the territory, as you suggest.
Paul Howell
Q
Patricia Durr: We are waiting for more information about the age assessment, given the placeholder clauses in the Bill. I guess our biggest concern is about children being treated as adults. I know that the Committee has expressed some concern about adults being treated as children, but we need to consider that the greater risk is that children are being pushed into adult systems through inappropriate age assessments. Obviously, it is a concern all round, but that is the greatest concern, I think, because the consequences of the adultification of children who are then also criminalised are huge. In any provision for children and young people in this country, we should have in place very strong, robust safeguarding measures that provide better protection for children and young people there than would be provided for a child in adult provision. That is the way I would consider that.
We are concerned that age assessment should remain within a safeguarding framework and remain with professionals who are skilled in children’s development and care. I think the British Medical Association has given written evidence to the Committee to disavow the idea that there is a scientific method or approach to age assessment. It is obviously about professional judgment by skilled professionals—in this case, social workers—who have a better understanding of child development.
Paul Howell
I agree that it is a difficult one either way—children to adult or adult to children. It is just a question of where the boundaries sit and making sure we get those in the right place.
Bambos Charalambous
Q
Adrian Berry: This is an attempt to be prescriptive on the way in which, first, the Home Office and, secondly, judges will assess credibility in a range of situations in relation to claims on human rights grounds and asylum claims. It is not the first time that we have had credibility clauses put into Bills to tell judges what their job is and how to approach witness evidence. Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 tried to do that, and now we see a range of these provisions spattered across the Bill. The problem is that they always set early cut-off dates for providing evidence and then say, “Well, if you provide the evidence late, you’re penalised on credibility.” But the obvious question is this: what is the instrumental connection? If the evidence is good and proves that you are in need of international protection, why is your credibility damaged? You have done what you are supposed to do, and the UK obligations are engaged.
It attempts, effectively, to usurp the judicial function, to take it away from judges, who are expert at assessing past facts of what has happened in foreign countries, foreign laws and protection risks, and to say, “Well, here we’re going to discipline the task for you, regardless of the merit of the application, and penalise a person who may have difficulty getting evidence, who may be traumatised by their journey to the UK and who may lack funding to get things properly translated or to commission expert reports.” It says to them, “We’re going to penalise you, regardless of the merits of your claim, because we have set an early cut-off date and you haven’t met it.” It is introducing yet one more hurdle. It has not worked before, under the 2004 Act, and it is unlikely to work in this Act.
Bambos Charalambous
Q
Adrian Berry: Severe, in fact. If you look at the provision for priority removal notices and expedited appeals, there are some serious concerns. If you introduce a claim for asylum and you provide evidence after the cut-off date given, in a priority removal notice you are given what is called an expedited appeal. That begins in the upper tribunal. Your first punishment is that you lose your right of appeal and hearing in the first-tier tribunal. The second punishment—much more serious—is the return of the ouster clause. It is that the upper tribunal hearing is final; there is no onward appeal to the Court of Appeal. That is something that was first tried in clause 11 of the 2004 asylum and immigration Bill, before it became the 2004 Act. And it is wrong—one first-instance appeal on human rights grounds or asylum grounds in the upper tribunal. Mistakes happen. They need to be corrected. There would be a reason for the Court of Appeal to be available, and thereafter the Supreme Court. And there is no vice in allowing that, because of course the appeal tests, for permission to appeal, are tightly controlled and policed by judges making permission decisions. An expedited appeal leaves you with one shot—no rights of appeal. It has serious implications for the rule of law that the first-instance tribunal decision cannot be reviewed.
Bambos Charalambous
Q
Adrian Berry: There are three things. First, there is no need for them. We already have three ways of controlling advocates in court. First, there are case management powers in the tribunal system to regulate conduct of a case. Secondly, under section 29 of the Tribunals, Courts and Enforcement Act 2007, there is a wasted costs and unreasonable costs jurisdiction, which is applied in the tribunals. Thirdly, there is the ability of tribunals and courts to refer practitioners who are considered to have behaved improperly or negligently to their regulatory bodies, such as the Solicitors Regulation Authority. We already have all those constraints.
Adding in charges, which would be paid to the state, rather than being costs between the parties, and making provisions for unreasonable costs orders, is absolutely unnecessary. There is not any evidence in the explanatory notes as to why that needs to be done, because there is no evidence of any deficiencies in the existing three mechanisms that I have outlined. It will chill the ability of other people to take difficult points on behalf of vulnerable people.
Bambos Charalambous
Q
Adrian Berry: Maritime enforcement provisions butt up against the United Nations convention on the law of the sea and its article 98 duty of rescue. That is a part of customary international law. If you are at sea as master of a ship and see someone at risk of losing their life because they are in an insecure vessel or are in distress and they ask for assistance, you are obligated to help them. That is the basic position. This provision not only creates powers to allow Home Office vessels to leave UK territorial waters and enter international and foreign waters, but it enables them to stop, board and then divert vessels away from the UK and back to foreign ports.
That creates a situation where there may be a risk to life and limb, because these vessels are often very insecure. Although Home Office staff may not board them, in circling them and trying to press them back, they are making those lives insecure. There may be a question of extraterritorial jurisdiction under the Human Rights Act 1998 for such behaviour. It also risks their lives. It cuts across the duty of rescue, which applies not just to the Royal National Lifeboat Institution or to merchant vessels; it also applies to those very Home Office vessels. They, too, are subject to the duty of rescue, regardless of the fact that they are trying to hustle asylum seekers back out of UK territorial waters.
Bambos Charalambous
Q
Adrian Berry: Yes, that is clause 38, which removes the “for gain” provision from assisting an asylum seeker to enter the United Kingdom. That could prejudice a prosecution that is brought on people who are involved in search-and-rescue operations, which is also part of the UN Convention on the Law of the Sea, by the way. In addition, an asylum seeker who might be piloting an unsecured vessel across the channel could be prosecuted, even though they too are an asylum seeker. There is no article 31—of the refugee convention—defence to that criminal charge, and it would undoubtedly be a penalty, because it would be frustrating the operation of the refugee convention, in terms of the UK’s obligations under that.
Bambos Charalambous
Q
Adrian Berry: Judges are not necessarily meant to laugh in court, but the question is: what is the purpose of it? When we were in the European Union and had the common European asylum system, we had a system of common standards, so the refugee qualification directive specified the way in which refugee convention terms were to be applied, because we needed to have common methods and systems throughout the European Union. We have left, as we all know, and the status quo ante ought to apply, where we just apply the refugee convention as determined by our courts and the provisions thereunder.
This specification in primary legislation is unnecessary. These terms are well understood. The only attempt here is to change the settled law, including from the highest judicial courts—the previous judicial House of Lords, now the Supreme Court—and other decisions of binding authorities. We see an attempt to change the standard of proof for the assessment of past facts in refugee cases from “reasonable chance” to “the balance of probability”. That cuts straight across binding authority in this jurisdiction in the case of Karanakaran v. Secretary of State for the Home Department. We see an attempt to revise the definition of “particular social group” so that the two tests are now cumulative rather than the alternative. Again, that cuts across binding authority. It is an attempt to write out the settled view of the courts on the interpretation of the United Kingdom’s international obligation, where the UK courts’ interpretation is consistent with international practice and the terms as defined in the Bill are not.
Bambos Charalambous
Q
Adrian Berry: No, not at all. If you want to end smuggling routes, you have to open safe and legal routes to claim asylum in the UK, which may mean humanitarian corridors. It may mean bringing people to the UK to claim asylum rather than allowing them to be exploited by smugglers and traffickers. It may mean improving and having a fast and fair procedure in the United Kingdom that allows claims to be determined swiftly and robustly. The main reason why there is a smuggling industry is that there are no safe and legal routes, and therefore one can make a profit out of these vulnerable people.
Tom Pursglove
Q
Adrian Berry: I do not think it provides clarity to take away the ability to properly prepare a protection claim. What you need are proper resources and proper funding in order for that claim to be properly advanced, and then you need a robust determination mechanism to assess it. The difficulties relate to gathering evidence, taking witness statements from people who have been traumatised in their home country and traumatised by their journey, and obtaining other evidence in terms of other witnesses of fact and expert evidence in a case. These things take a little bit of time, and the existing procedure creaks even without accelerating the procedures. So long as people are treated with dignity and the resources are available, determinations will be made that are good and do not require challenge. That alone would foreshorten the procedure.
Tom Pursglove
Q
Adrian Berry: Foreign national offenders are a completely separate issue. We are talking about asylum, and the Bill is focused on protection claims in the section that we are concerned with. It is very important not to confuse foreign national offenders with people who are claiming asylum.
Tom Pursglove
To be clear, I am talking about the Bill as a whole.
Adrian Berry: Yes, and the Bill as a whole contains provisions on asylum, not extra removal provisions, so I was talking about the Bill as a whole as well. You already have everything you need. We are almost returning to the stage where immigration Bills happen every couple of years, attempting to address problems that had apparently been solved by earlier immigration Bills. The Home Office has a vast array of powers at its disposal. What is needed is that it properly uses them.
The Chair
Are there any other questions? Mr McDonald, I stopped you on a question. Would you like to carry on?
Stuart C. McDonald
Q
Adrian Berry: It is extremely problematic, and not just because it is deprecated in other jurisdictions, but because it makes the judge’s task so much harder—they have to have a split personality. They have to weigh some of the evidence—including the question of whether the person has a refugee convention reason, such as a political opinion or membership of a particular social group—on the balance of probability standard, and then they have to assess the question of what happened in the past on that standard. Then they have to evaluate future risk, which is intimately bound up with how you have been treated in the past, on the lower civil standard of reasonable degree of likelihood.
It is a charter for errors of law creeping into decision making and for onward appeals. It will almost certainly lead to more onward appeals, which will lengthen the process. It will add to costs and uncertainty, and ultimately it will leave people without protection, when there is a commonly understood threshold test, with the reasonable degree of likelihood across the piece, whether it is past facts or future risk, that has applied in this country and other common law jurisdictions and is endorsed by the United Nations High Commissioner for Refugees.
Stuart C. McDonald
Q
Patricia Cabral: Yes, there are a number of issues with statelessness in the UK anyway, but with this Bill we want to focus on clause 9, in particular. Our research shows that children who are brought up stateless in the UK already face a number of significant issues in acquiring British citizenship. There is a lack of legal advice and quality legal support. Legal aid is not always available. There are a number of challenges in evidencing and proving statelessness. There are already all these barriers for children trying to acquire British nationality, which might be the only nationality available to them.
What we are really aiming for today is just to make sure we do not create even more barriers for these children, and that we remove clause 9 to ensure that we do not amend any of the existing safeguards. Paragraph 3 of schedule 2 to the British Nationality Act 1981 is in compliance with international law—the 1961 convention on the rejection of statelessness and the convention on the rights of the child. We simply do not need to touch those safeguards or make this amendment.
Holly Lynch
Q
Patricia Durr: We have talked about how children’s rights are exercised by the provisions in the Bill. A children’s rights impact statement would really have assisted consideration of some of the measures, by setting out which children’s rights are invoked and how they are impacted. It is something the Committee on the Rights of the Child has asked the UK Government to do systematically. It is safe to say that the length of the consultation period was not sufficient.
We were quite surprised that the part 4 provisions are being included in this asylum and immigration Bill, particularly given that there is currently a review of the modern slavery strategy. On the lack of consultation, certainly from our perspective, what implications might there be for child victims of trafficking? Their experience of waiting in limbo, and the lack of provision for leave to remain as recognised child victims of trafficking, rather than through asylum provisions within the immigration rules are certainly a huge concern for the young people we work with, and that would come through very strongly from them. It was that combination: why these provisions in this Bill, and the lack of engagement with children and young people—from our perspective—but also, survivors of trafficking and exploitation more broadly.
Holly Lynch
Q
Patricia Cabral: I think that would be preferable, given that we have got a review of the whole of the modern slavery strategy. What we do not want to risk is the progress that has been made, and the good provisions that have been made, through the UK’s modern slavery strategy, potentially getting rolled back. That is the big concern. What we should be doing is improving things. I would support looking at the provisions around modern slavery and trafficking as safeguarding matters, rather than immigration matters. Obviously, there are enforcement matters related, but there is confusion. I draw the Committee’s attention to the Government’s 2014 review, by Jeremy Oppenheim, which led to revisions of the national referral mechanism to separate immigration decisions from matters of modern slavery. The provisions in part 4 are rolling that back quite considerably.
Tom Pursglove
Q
Adrian Berry: I do not know whether the other witnesses have had experience of age assessment trials—I have. This Committee cannot scrutinise that clause in the Bill, because all you have put in it is a placeholder clause, with the detail said to be coming later on. We are not in a position to scrutinise it, and I cannot tell you what it says, because you had not finished the Bill before publishing.
Age assessment trials are trials; although they take place within a judicial review context, they are full trials with witnesses, and over time the courts have developed a system for case managing those trials. The difficulties that arise would arise in any context. In other words, it is very difficult to tell how old someone is. It is a process that requires expert evidence and the gathering of timelines and the chronologies of people’s journeys, and their explanations. That would take time in any context. Until we see the detail of what you propose, the age assessment provision simply cannot be assessed. We hope you bring forward the actual clause by Report.
Anne McLaughlin
Q
Patricia Durr: We did not submit the FOI, but the response back indicated that that information is not available, so evidence of widespread abuse does not exist as far as we know.
Anne McLaughlin
Perhaps the Minister will get it for us for the next meeting. Thank you very much.
The Chair
If there are no further questions from Members, I thank the witnesses for their evidence. That brings us to the end of our oral evidence sessions. The Committee will meet again after the recess on Tuesday 19 October at 9.25 am to commence line-by-line consideration of the Bill.
Ordered, That further consideration be now adjourned. —(Craig Whittaker.)
Building Safety Bill (Tenth sitting)
(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
Before we begin, I remind Members that we have quite a lot of the Bill still to get through—we have only reached clause 42 of 147—and that points should be made succinctly where possible. I am sure the Committee will want to give due scrutiny to all of the Bill and the various new clauses that have been tabled. The explanatory notes to the Bill have been published, so I say gently to the Minister that he should not feel the need to recite them.
One Member has caught my eye and asked whether it is okay to remove his jacket. I am quite relaxed about that; if people want to remove their jackets, they can.
Clause 42
Transfer of approved inspectors’ functions to registered building control approvers
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss that schedule 4 be the Fourth schedule to the Bill.
The Minister of State, Department for Levelling Up, Housing and Communities (Christopher Pincher)
I am obliged to you, Mr Efford, for offering me the opportunity to speak to clause 42. I am mindful of the points that you have just made about the importance of succinctness. Given that this is a relatively technical and uncontroversial clause, while reserving my right to speak as I feel appropriate to other clauses, I propose to move it formally. [Interruption.]
The Chair
I have made a request that people stand in their place if they want to speak. I call Mike Amesbury.
Mike Amesbury (Weaver Vale) (Lab)
I concur with the Minister.
Question put and agreed to.
Clause 42 accordingly ordered to stand part of the Bill.
Schedule 4 agreed to.
Clause 43
Functions exercisable only through, or with advice of, registered building inspectors
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
Once again, this being a relatively straightforward and uncontroversial clause, I propose to move it formally.
Question put and agreed to.
Clause 43 accordingly ordered to stand part of the Bill.
Clause 44
Default powers of appropriate national authority
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
I will speak a little to this clause, because I think it bears some scrutiny. The Government are committed to driving up the standard of building control. Clause 44 strengthens the powers in relation to failing local authorities by giving the Secretary of State a new power in England to make an order to transfer building control functions of a failing local authority to another local authority. Currently, the Secretary of State only has the power to transfer the functions of a failing local authority to himself.
The clause should be read in conjunction with clause 41, and in particular proposed new section 58Z7 of the Building Act 1984, under which the regulator will be able to recommend that the Secretary of State makes an order to transfer the functions of a failing local authority building control department. Where such a department has consistently failed to meet the required standards and that is putting the safety of persons in or about buildings at risk, the Secretary of State could, for example, transfer only the management of the building control function to another local authority. That would mean that senior officers or managers from another authority would manage the failing building control department to return it to full compliance. Once the performance issues of the failing authority have been addressed, the Secretary of State will consult the regulator and revoke the order, returning the building control function to the local authority.
The clause makes a number of consequential and clarificatory amendments to sections 116 to 118 of the 1984 Act, including amending section 118 of the Act to allow for the variation or revocation of an order by the appropriate national authority to return the transferred functions to the original local authority. The Secretary of State must first consult the Building Safety Regulator and make additional provisions to deal with the transfer and discharge of any liabilities through the revoking or new order.
The amendments in clause 44 are important for improving the competence of building control teams, and I commend the clause to the Committee.
Mike Amesbury
I will be brief in my remarks to the Minister. I am just looking for some clarity and reassurance. The Executive and the Secretary of State obviously hold a lot of power here. What checks and balances will be built in, regardless of the political complexion of the Secretary of State?
Christopher Pincher
Just to clarify, the present law allows the Secretary of State to transfer only to himself the power to take on the functions of a failing local authority. In terms of checks and balances, what we are trying to do is allow the Secretary of State greater discretion to transfer to another appropriate local authority the authority to discharge those functions on behalf of the failing local authority while it is brought back into competence. The effect is to ensure that another local authority—possibly one that is closer to the one that has failed or is similar in terms of the housing stock, and that has a greater degree of historical success in dealing with such issues—can perform the role of the local authority.
As I said in my concluding remarks, we have also ensured that any liabilities—in other words, any costs incurred by the local authority that is taking on the responsibility—can be properly recovered by that local authority, so that it is not out of pocket as a result of taking on those responsibilities. I am pleased that the hon. Gentleman and his colleagues appear to support the clause, and I commend it to the Committee.
Question put and agreed to.
Clause 44 accordingly ordered to stand part of the Bill.
Clauses 45 and 46 ordered to stand part of the Bill.
Clause 47
Insurance
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
I know that this clause is of some interest to members of the Committee, so I shall make some remarks and then address any questions or debating points in my concluding remarks.
The clause relates to the legal requirements for insurance for private sector building control professionals. When the private sector competitive element was introduced in 1984, a requirement was included in the Building Act of that year for approved inspectors to have “adequate insurance” from a Government-approved scheme in relation to the work that they supervise. The Bill maintains the double protection of requiring adequate insurance from a Government-approved insurance scheme. We believe that that is a sensible protection for approved inspectors, consumers and the construction sector.
The Bill also maintains the current requirement for approved inspectors to prove that they have insurance before they can obtain permission to start work on a new project—also known as the initial notice process. However, there have been difficulties in the past with a limited number of approved insurance schemes and no set definition of what constitutes the adequate insurance required. The problem worsened when it coincided with much wider insurance market changes, especially in 2019, and a reduction in the level of risk that insurers were prepared to accept. That led to cases of approved inspectors being unable to obtain insurance cover and, therefore, to operate. The number of approved inspectors involved was already small, but the effects on ongoing projects and local authorities that had to pick up the work were noticeable.
The Bill makes two main changes to reform and address that situation while keeping the fundamental requirement for insurance for approved inspectors. The first is a duty to prepare and publish guidance on what is adequate insurance cover. The second is the ability for the Secretary of State to designate bodies to undertake the functions both of joined-up guidance and of approving insurance schemes.
Selaine Saxby (North Devon) (Con)
Who might the Government approve to do that work on their behalf? Will it be part of the Building Safety Regulator’s role?
Christopher Pincher
Over the next few weeks and months we will assess all potential organisations that might undertake that role. They will need to demonstrate expertise and capability, to determine whether they can meet the high standards set by any prospective building control insurance scheme. We will pursue an answer to that question over the next several weeks and months. I will be happy to update the House as we progress through that process.
Ms Marie Rimmer (St Helens South and Whiston) (Lab)
Sadly, the construction industry does not enjoy a lot of confidence, which is no surprise, mainly because of the fires we have had. Professional indemnity is very difficult to get; far more questions are being asked to obtain it. The Association of British Insurers has been very involved with the Government and is broadly very supportive of the Bill—it is the right step and will improve the building industry and commercial and residential premises. However, the ABI has made a number of significant comments about using modern methods of construction
“to ensure these buildings are built and maintained in a way which enables them to access affordable insurance for the lifetime of the property.”
It has also called on the Government to develop
“a publicly accessible database of buildings developed using Modern Methods of Construction which provides information on the materials used, methods of construction and relevant standards or certification”
and to mandate
“the installation of high integrity fire alarms in all new developments to address the high number”—
Ms Rimmer
I do not consider that the Bill will address all the insurance problems. I am concerned that we may end up in a situation where we do not get the buildings done, because of the insurance problem. I do not believe that we can do everything in the timescale to enable the construction of the homes that we need—
The Chair
Order. Can I say gently that we have not had much deliberation in this Committee, so I am loth to shut this down, but rather than making a long intervention, the hon. Lady should make a speech. I am sure the Minister will answer your points equally well whether you make a speech or an intervention. We cannot have interventions of that length. I assume the hon. Lady is finished.
Christopher Pincher
I am obliged to the hon. Lady. I understand the point that she makes, which does bear 30 seconds of explanation. We are working with the modern methods of construction expert Mark Farmer to find ways of standardising the modern methods of construction sector. The off-site construction standards mechanisms that have been developed over the last few years to respond to that new marketplace give lenders and insurers adequate protections and assurances. Her point speaks to the wider issue that, in an evolving building terrain, where new methods of construction are being constantly developed, it is right that we have a flexible building safety regime to respond to those concerns. That is one of the reasons why, rather than placing lots of regulations and requirements in the Bill, we are using secondary legislation and regulations to respond to that evolving terrain. I think that modern methods of construction will be one of the areas in which the terrain responds.
Ms Rimmer
I should not apologise, because I need to make a point. There is too much dependence on secondary legislation, and we do not have sight of it. When will it be introduced? I like to make informed decisions, but I am not able to when there is this constant reference to future regulations and secondary legislation. When I get to read about the regulations, it says that they are subject to or delegated to statutory instruments, so I am going from the Bill to secondary legislation and then to statutory instruments. Will they be affirmative or negative? I do not feel in a position where I am able to make an informed decision.
Christopher Pincher
I am grateful to the hon. Lady. I would say, somewhat reflecting what Justin Bates said in evidence a couple of weeks ago, that we could put a great deal in the Bill—in primary legislation—but that would make the law exceptionally unwieldy and unresponsive to the developing terrain of building assurance, building safety and methods of construction. As Mr Bates pointed out, it would also mean that we would have to sit here from now until some time in 2022 for line-by-line consideration of the clauses in the primary legislation. Secondary legislation allows us to be flexible and respond to the changing terrain, while also giving Parliament an appropriate degree of scrutiny and control.
Daisy Cooper (St Albans) (LD)
It is a pleasure to serve under your chairmanship, Mr Efford. Given that the Government intend to use secondary legislation to such a large extent, does the Minister accept that it is vital that all stakeholders, particularly leaseholders affected by the legislation, have sufficient time to scrutinise it?
Christopher Pincher
The hon. Lady makes a fair point. She will know that we often consult on secondary legislation before laying the regulations, so that there is time for the community, in its widest context, to give feedback on that legislation. Whether the regulations are subject to the affirmative or negative procedure, there is ample opportunity for Parliament and the House of Commons to consider them, have a say and scrutinise that secondary legislation, either in a Committee such as this for the affirmative procedure, or with the entire Chamber praying against regulations subject to the negative procedure.
We have already published secondary legislation and a number of factsheets to support the primary legislation. We will continue to do so throughout the parliamentary process, which, I remind the hon. Lady, is likely to be longer rather than shorter; this Committee stage will be followed by Report. There will be ample opportunity for the Committee and the House to look at the legislation and the regulations and to comment and vote on them.
The insurance market for approved inspectors is intricate and some bodies have specialist insurance expertise in this area. The power in clause 47 will enable the Secretary of State to appoint specialist bodies to undertake this important and complex work, as the hon. Member for St Helens South and Whiston alluded to, where the Government think that appropriate. I commend the clause to the Committee.
Mike Amesbury
I thank the Minister and other Members for their helpful contributions. As has been said, insurance, particularly professional indemnity insurance, has caused considerable debate and angst, not only for the professionals involved, but about the future role of the accountable person and those involved in building control. The ABI and AXA refer to that in their submissions.
Members have spoken about secondary legislation. The market has to respond to this measure, and that is why more detail would have been helpful. The Minister’s comments on consulting key stakeholders are constructive and reassuring. I assume that the ABI will be one of those stakeholders, and those discussions may be taking place not quite as we speak but over the next few weeks—I hope that that is the case. Ultimately, this is about ensuring that the clause and the new SIs provide adequate cover and deliver the culture change that we all want.
Shaun Bailey (West Bromwich West) (Con)
I will keep my comments brief. I want to touch on whether primary legislation is the appropriate place to set out the specification.
I fully appreciate and do not disagree with the comments that have been made on the need to see the detail. I completely agree with the comments of members across the Committee about the need to consult and to ensure that stakeholders are appropriately engaged. If we put this in primary legislation, I think there might be a slight unintended consequence of pigeonholing it too far.
My interpretation of the ABI’s evidence is that there is a need to ensure that appropriate stakeholder feedback is reflected in regulation. In other areas, it is not uncommon for insurance mechanisms such as those in clause 47 to be delegated to secondary legislation, because it allows time for that engagement and the pulling together of stakeholders. It also allows for drilling down into the detail, because that secondary legislation can focus specifically on those really important points. As my right hon. Friend the Minister has said, it is appropriate to delegate to secondary legislation, but I also agree with the points raised by the hon. Member for St Helens South and Whiston. There is concern in the industry, as we have heard, particularly about incidences of fire and the inability to obtain appropriate insurance. Clause 47 seeks to remediate that and to interlink that more widely, so that we can have the safety we have been talking about and the cultural change that the hon. Member for Weaver Vale mentioned a moment ago.
This is an important but technical debate on whether primary or secondary legislation is the appropriate place for the requirements in clause 47. Broadly speaking, I think my right hon. Friend is right, but I say to him again, and this has been echoed across the Committee, that Members are seeking to ensure the broadest level of engagement with different stakeholders as this progresses. That will be important in ensuring that the subsequent legislation that feeds off clause 47 reflects accurately what we are trying to bring about and, ultimately, that the clause achieves its aims.
Ruth Cadbury (Brentford and Isleworth) (Lab)
I share the concerns about what is happening to the insurance industry in the context of building safety. I also share the concerns raised by my hon. Friend the Member for St Helens South and Whiston about the Bill’s reliance on secondary legislation for so many elements, including insurance.
I want to highlight a couple of issues that the insurance industry has raised with us. We have had submissions from AXA—one of the biggest insurers in the country—and from the Association of British Insurers, which says that it is
“concerned that significant detail is left to secondary legislation.”
The ABI has raised specific concerns about the availability and affordability of cover for fire safety works, an issue that is already hitting a number of professionals in the construction industry. It is concerned about the confusion over the definition of the accountable person and the building safety manager roles, and how that impacts on their ability to obtain professional indemnity insurance. It wants more detail so that there is no “potential for confusion”. The ABI is also concerned about the
“legal position where there may be multiple APs responsible for a building”,
and it is seeking
“a better understanding of the liabilities that flow”
from the issues of underwriting PI insurance, and particularly how those liabilities are split between the two roles.
The ABI goes on to say that
“the current market conditions make it a sub-optimal time”
—I love the term “sub-optimal”; it basically means “a rubbish time”—
“to be launching any kind of new regulatory framework requiring mandatory PI cover.”
Of course, we all want everyone involved to have adequate insurance cover in some form or another.
Brendan Clarke-Smith (Bassetlaw) (Con)
I appreciate a lot of the hon. Member’s points and I share concerns about the very difficult situation. Does she agree, however, that if the legislation is too prescriptive, we could end up restricting the industry and as a result make it more difficult for it to adjust to what are actually asking it to do?
Ruth Cadbury
The hon. Member makes a good point. The problem with insurance is that it can dominate discussions about public policy because issues arise that are not covered by the original legislation and regulations. If something does not go ahead—we have seen tabloid headlines like, “Council stops children going on a school trip”—it is often not because it has been proscribed but because of the insurers. It has nothing to do with the council. We must understand the crucial relationship between the private sector and the insurance sector. The Government must be careful that any legislation on safety, such as this Bill, does not have unintended consequences.
In conclusion, the ABI wrote in its submission that
“there is no ‘silver bullet’ solution to the problem of the cost of insurance for un-remediated high-rise residential buildings…However, market-led intervention by itself will not ‘solve’ the problem—there is likely to be a need for the Government to intervene to provide support for the relatively small number of buildings that are simply too risky for the market to insure at prices that are affordable to the majority of leaseholders.”
Is that something that the Government are considering? The last thing we want is to go from the current situation of having many unsafe new homes, to one where we have no new homes.
Christopher Pincher
I am obliged to the Committee for its consideration of the clause. Before addressing the points that have been raised, let me reiterate that we believe that the reforms in the Bill, and particularly in this clause, by creating a requirement to publish guidelines in the future and providing the Government with the power to secure the involvement of specialist bodies in assessing what the insurance guidelines and approved schemes should be, provide clarity to assurers and the insurance market. I can assure the Committee that my noble Friend Lord Greenhalgh has held a series of discussions with the insurance sector over the last year. Indeed, today he began a series of much more detailed bilateral discussions with the sector to make sure that the insurance provision is appropriate and available.
Before I address the points made by the hon. Member for Brentford and Isleworth, let me address one of the points made by my hon. Friend the Member for West Bromwich West about secondary legislation in the context of this clause. Although I understand the points that Members across the House, and not just in this Committee, express about secondary legislation, we must remember that if there is to be further Government legislation in the financial affairs space—in risk assurance or lending, for example—that could have a consequential effect on the regulations that apply to the insurance market with respect to building safety if we write those regulations into the Bill. Because of changes and other legislation that may come from other Departments, it is much safer for us to put our consequential arrangements in secondary legislation, which allows the Government the flexibility to respond more quickly and allows the House to scrutinise those changes.
I turn to the compelling contribution by the hon. Member for Brentford and Isleworth. I recognise that she raised some questions about the relative roles and responsibilities of the accountable person versus the responsible person, and the way in which the Regulatory Reform (Fire Safety) Order 2005, the Fire Safety Act 2021 and this Bill, when it becomes an Act, will operate. We will certainly ensure, though guidance, that those understandings are clear. That is one of the reasons why, for example, we have specified that where there are potentially multiple accountable persons, there will be a principal accountable person. That should, I hope, give the insurance sector and other players in the market some clear direction and guidance as to who is responsible for what, and their relative responsibilities.
The hon. Lady also mentioned the difficulties with risk assessors, for example, getting assurance and insurance. We recognise that. One might say that the insurance sector has been rather sclerotic, but that is one of the reasons why we have worked closely with it, and one of the reasons why my right hon. Friend the Member for Newark (Robert Jenrick) made it clear when he was Secretary of State that we will provide for public indemnity insurance for EWS1 a Government-backed backstop where the market is not able to provide insurance for those inspectors that require it.
We have tried to ensure that we have sufficient flexibility in the clause to respond to the changing terrain of the insurance market and of building safety, and that we have provided, through other means, adequate resources and adequate assurances to the market that the Government are there to help where necessary. Having said that, I commend the clause to the Committee.
Question put and agreed to.
Clause 47 accordingly ordered to stand part of the Bill.
Clause 48
Plans certificates
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
Clause 48 aims to bring the process for checking plans when work is supervised by a registered building control approver more into line with the process when local authorities are the building control body—another example of our trying to level the terrain. Currently, section 50 of the Building Act 1984 enables an approved inspector, or registered building control approver as they will be called in the future, at the request of a person intending to carry out building work, to issue a plans certificate to the local authority. That can be issued if they have inspected plans of work covered by an initial notice, and are satisfied that if the work is carried out in accordance with the plans the work will comply with building regulations’ requirements.
At the moment, plans certificates are voluntary, and we know that only a small proportion of initial notices are accompanied by plans certificates. In contrast, where a local authority is the building control body, plans of building work have to be deposited for building work to be carried out on a building subject to the Regulatory Reform (Fire Safety) Order 2005. These plans have to be approved or rejected by the local authority.
Although approved inspectors or registered building control approvers will undoubtedly do a diligent job in checking plans, it is right that we seek to bring the processes more into line with each other. That will ensure greater transparency, bolster assurance that plans have been properly checked, and avoid any suggestion that those carrying out building work may get an easier ride depending on whether they use an approved inspector or registered building control approver, or a local authority. This will also provide a better basis for consultation between registered building control approvers and fire and rescue authorities on the fire safety aspects of plans.
We consulted last year on the principle of making plans certificates mandatory in specified circumstances. There was strong support for that, and clause 48 provides the framework for doing so. The clause inserts proposed new subsections (1A), (1B), (1C) and (1D) into section 50 of the Building Act 1984. They set out that if certain conditions are met, and the person carrying out the work so requests, a registered building control approver must issue a plans certificate and that these must be provided in the prescribed form.
Clause 48(2)(c) inserts proposed new section 50(7A) into the Building Act 1984. It enables building regulations to prescribe circumstances in which a plans certificate must be issued, and the consequences if a plans certificate is not issued.
Christopher Pincher
I will just finish this part and then I will give way to my hon. Friend, who I know is champing at the bit.
We can prescribe, for example, that plans certificates must be issued for buildings covered by the Regulatory Reform (Fire Safety) Order 2005.
Siobhan Baillie
The Minister may be coming to this, but it would help my learning and understanding if he could clarify why we are not mandating plans certificates for all building works. It would be helpful to have a few more examples of where there will be mandated plans.
The Chair
Order. Before the Minister responds, I gently point out again that I was reading his speech from the explanatory notes as he made those points. Will he point out to his officials that we do not need them to provide him with notes from the explanatory notes, which are already in the public domain, to read out here in Committee?
Christopher Pincher
I am grateful to you, Mr Efford. There are certain legal reasons why I say to the Committee what is in the explanatory notes. It helps the Committee to understand and ensures that those listening to my words also understand the way we intend to upgrade the law.
My hon. Friend the Member for Stroud asked why we do not mandate certificates for all building work. We think that it is a disproportionate response to expect plans for small-scale building work to be deposited with an approved local authority, and the same principle essentially applies for plans certificates. We need to make sure that proportion is maintained at all times.
I will reiterate the key function of the clause in order to help the Committee and to help you, Mr Efford, in guiding our deliberations. I am grateful to the Clerks for their ever-mindful guidance. The clause provides the framework for us to make important changes to the way in which plans certificates are issued. I hope the Committee will agree that it should stand part of the Bill.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
Clauses 49 and 50 ordered to stand part of the Bill.
Clause 51
Information gathering
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
I will try to be brief. Clause 51 relates to local authorities gathering information about particular projects supervised by registered building control approvers where that project has become the responsibility of the local authority. Under the current system, approved inspectors are under no explicit duty to provide information about their casework to a local authority; only the owner of the building can be asked to provide information. There can be problems where an approved inspector ceases to operate or leaves a project unfinished, or indeed both.
In such cases, either the local authority or a new approved inspector will pick up the building control function, but it can struggle to obtain the information on the work completed thus far. In practice, that can result in delays to projects and a risk that building work continues without adequate oversight. It also means a stop-start approach to building control enforcement and more work for the local authorities trying to access that information, which are sometimes unsuccessful.
The changes introduced by the clause require registered building control approvers—or former ones, if they have ceased operating—to provide local authorities with information relating to their building work. Failure of the registered building control approver to comply with a request made by a local authority will be a criminal offence, which is newly provided for in the Bill. Registered building control approvers will also be under a duty to provide copies of that information to their clients.
Together, the measures will ensure a smooth transfer of information from registered building control approvers to local authorities where there is a change of building control provider.
Selaine Saxby
I come from somewhere with multi-tier authorities and a very small district council which is responsible for planning. Should we be concerned about the measures being burdensome for local authorities?
Christopher Pincher
I am obliged to my hon. Friend. We always apply the new burdens doctrine when applying new responsibilities to local authorities, and I am sure that will be the case here.
Christopher Pincher
As he is on his feet and complying with your adjudication that one should stand to intervene, Mr Efford, I shall give way to the hon. Member for Liverpool, West Derby.
Ian Byrne
Thank you, Mr Efford; it is pleasure to know that there is a fellow taxi driver in the room. I didn’t realise you were an ex-cabbie—that makes two of us.
On the issue of local authorities, and the point that the hon. Member for North Devon has just raised, will the Minister ensure that local authorities actually have the funding to ensure that what he is outlining can work within this system?
Christopher Pincher
The hon. Gentleman makes a fair point. As I say, when we apply new responsibilities to local authorities, it is usual practice to apply the new burdens doctrine and thereby determine what further support local authorities might require. Incidentally, last year local authorities received their best funding settlement in 10 years. The Government are committed, through the spending review process, to ensure that this Building Safety Bill, the regulations that flow from it and the organisations and officers created by it are also adequately funded. Having made that point to the hon. Gentleman and the Committee, I commend the clause to the Committee.
Mike Amesbury
Briefly, I am sure these clauses are welcome; information sharing will be vital to the new landscape of building safety. The introduction of an electronic portal—I might refer to the Minister’s previous profession and experience in IT—will result in greater systems efficiency, but will require some investment in hardware, systems, development and training. Could the Minister touch on that?
Shaun Bailey
I will keep my comments brief, to keep in line with the culture across the Committee so far. To complement what the hon. Member for Weaver Vale just said, I had hoped to intervene on my right hon. Friend the Minister’s point about consistency of process. The portal in clause 52 is welcome, but the back-office processes required to ensure that that is usable and feasible will clearly be important. We have been discussing this duty to share information throughout the Bill, but it is particularly highlighted by clauses 51 and 52. Clearly, for that to succeed, we must be able to ensure that it can be done in the way that we would require.
The point that I really want to press on my right hon. Friend the Minister is that we should ensure that we have that consistency of approach. Perhaps he could reassure us that his Department will work with local authorities to ensure that, in respect of these clauses, we can get that consistency? As hon. Members have said, operational delivery is the one thing that this might fall down on. I am also heartened to hear what he said on the funding point, but, as this progresses, it may need a somewhat flexible approach.
Christopher Pincher
I certainly do not want to prescribe how a portal might be built. That is not for a Government Minister to do—certainly not for one who is a former IT consultant. To respond to my hon. Friend and to the hon. Member for Weaver Vale, we will work closely with the Building Safety Regulator to determine how a national portal will be established and maintained. We will bring forward further information in due course; we are working closely with the shadow regulator, and will inform the House when we have more information about how the portal will operate.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Clause 52 ordered to stand part of the Bill.
Clause 53
Functions under Part 3 of Building Act 1984
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
Again, this is a little technical, but it bears some description. The clause provides powers for the Secretary of State, by regulations, to allocate responsibilities for functions provided to local authorities in part III of the Building Act 1984 between the Building Safety Regulator and local authorities. Part III of the Act places a number of functions on local authorities in relation to buildings, including the ability to issue a notice to the building owner to require work to be undertaken on the building on matters such as drainage, sanitary conveniences, provision of food storage and means of escape—a variety of requirements.
Part III of the Act also provides functions for local authorities in relation to demolitions of buildings, but there is a potential overlap for the Bill in respect of in-scope buildings. This is between some of the functions placed on local authorities under part III and the regulator’s role for in-scope buildings, both in occupation and as a building control authority, under part I of the Act. To avoid any confusion and any potential duplication of the regulations, we will be able to allocate formally to the regulator functions under part III for in-scope buildings, using regulations under the clause.
Alternatively, those functions may continue to rest with the local authority or be available to both the regulator and the local authority. It will be important that where the local authority retains responsibility for certain matters under part III, it informs the regulator if it intends to exercise the relevant functions, so that there is effective co-ordination between the two. The clause provides for regulations to require a local authority to notify the Building Safety Regulator if it intends to exercise one of the part III functions, and vice versa.
Christopher Pincher
I see the hon. Lady is on her feet, so I shall give way.
Rachel Hopkins
It is a pleasure to serve under your chairship, Mr Efford. I am interested in part III of the Building Act 1984, which talks about means of escape. How will personal emergency evacuation plans be co-ordinated under this measure? I would be grateful if the Minister could explain further on that point.
Christopher Pincher
I am obliged to the hon. Lady, and that is something that we will work through with the Health and Safety Executive and BSR as they work together to build up their specific competencies and responsibilities. That will become increasingly clear as the BSR beds in and builds out.
We will consult local authorities in developing any regulations. As they are subject to the affirmative procedure, Parliament will of course have to approve them.
Ruth Cadbury
I was not sure when it was best to ask this question, so I will ask it now. It is a genuine question that I do not know the answer to. The hon. Member for North Devon rightly raised the concern of small districts. “Saddled” is the wrong word, but they will have increased responsibilities, require increased technical knowledge, and have a wider range of responsibilities. There is also the crossover with their other responsibilities mentioned in the clause. Many authorities, particularly small ones, share functions, departments and teams across more than one authority. Does the Bill take account of that—for instance, where an authority does not have its own building control team or one of the other safety teams, but shares it with another authority? Has the Bill taken this issue into account?
Christopher Pincher
I am obliged to the hon. Lady. Yes, I believe it has. As we know, local authorities share services and a variety of functions, some of which are statutory. They are able to share those functions across geographies and still execute their statutory responsibilities, and I do not foresee any issue here. She is quite right to say that smaller authorities often have challenges with resources that do a multiplicity of things. One of the reasons why we want in the Bill to see the development of multidisciplinary teams—the Building Safety Regulator and its functions, fire and rescue services, local authorities —is to ensure that even smaller authorities that have in-scope buildings are able to use those multidisciplinary teams to do the work that the Building Safety Regulator will require of them.
I hope that Members will agree that these regulations serve an important purpose and will support the clause. I commend the clause to the Committee.
Mike Amesbury
I have just one brief question—and a plea. Again, they refer to personal emergency evacuation plans, or PEEPs, and a submission from the Leaseholder Disability Action Group, or Clad Dag, which I know the Minister is familiar with. In earlier clauses that we have considered, we spoke about the importance of residents’ panels in shaping the current landscape, and of ensuring that disabled people are a key voice on those panels. So I would be interested to hear the Minister’s observations on that point, briefly.
Christopher Pincher
I am obliged to the hon. Gentleman. I think that we heard in evidence from the Health and Safety Executive that the shadow regulator is already doing work to—using that awful phrase—reach out to various communities and groups, to make sure that the residents’ panel, when it is fully constituted, is also fully representative.
With respect to people with disabilities, I do not believe that anything in the Bill cuts across or undermines disability rights or legislation.
With that, I commend the clause to the Committee.
Question put and agreed to.
Clause 53 accordingly ordered to stand part of the Bill.
Clause 54
Minor and Consequential Amendments
Question proposed, That the clause stand part of the Bill.
The Chair
With this, it will be convenient to discuss the following: Government amendments 22, 35 and 38.
That schedule 5 be the Fifth schedule to the Bill.
Government amendments 20 and 21.
Christopher Pincher
As these are Government amendments, I should probably speak to them, at least briefly.
These amendments provide Welsh Ministers with the power to commence certain provisions of the Bill in relation to Wales, as well as transferring to Welsh Ministers the power to commence certain uncommenced provisions of the Building Act 1984.
In broad terms, amendment 20 amends the commencement power in clause 146 of the Bill to ensure that only Welsh Ministers have the power to commence provisions that apply only in Wales; only the Secretary of State has the power to commence provisions that apply only in England; that Welsh Ministers have the power to commence in relation to Wales provisions that apply in England and Wales, with some minor exceptions; that the Secretary of State has the power to commence in relation to England provisions that apply in England and Wales; and that the Secretary of State retains the power to commence provisions that apply in England and Wales but which we consider are not within the legislative competence of the Senedd.
Amendment 22 ensures that in relation to buildings in Wales where enforcement action has been taken under section 36 of the 1984 Act, there is clarification that the power to seek an injunction for rectification or removal of work in breach of the building relations is not prejudiced, and it applies to the Counsel General. It is a technical amendment; it does not transfer or confer any new powers on the Counsel General. It is merely a clarification.
I turn very briefly to schedule 5. As well as the substantive changes to the 1984 Act set out in clauses in part 3 of the Bill, a number of minor and consequential amendments to the Act are set out in schedule 5. These changes include those needed to reflect the new terminology used in part 3, such as building control authorities or applications for building control approval. They also include changes to reflect the fact that certain functions previously exercised by the Secretary of State will now be exercised by the Building Safety Regulator.
These are all necessary changes to ensure that the Building Act 1984, and other pieces of legislation, fully reflect the changes made in the Bill, enabling the legislation to work effectively. I commend these amendments to the Committee.
The Chair
With this it will be convenient to consider that schedule 6 be the Sixth schedule to the Bill.
Christopher Pincher
Briefly, clause 55 relates to changes to appeals under the Building Act 1984. We propose to move certain appeals, which are currently heard by the Secretary of State, to the regulator. These appeals relate to the use of certain materials, the refusal to relax building regulations, and a registered building control approver’s refusal to give a plans certificate. The regulator will oversee the performance of building control bodies in England, so it follows that appeals of local authorities and registered building control approver decisions will now sit with the Building Safety Regulator.
Clause 55 also moves appeals of various building matters from the magistrates court to the property first-tier tribunal. We believe this will create a high level of expertise within the first-tier tribunal, and we intend to establish a specialist unit within it. Cases on important matters, such as the use of products and fire and safety risk assessments, will be heard by that first-tier tribunal specialist unit. Over time, a body of case law and precedent will emerge, leading to increasingly informed and rapid rulings. The full details of this clause are found in schedule 6.
Schedule 6 contains amendments to the Building Act 1984 that relate to appeals and other determinations. I have previously mentioned that appeals and determinations under the Act in England will now be undertaken by the Building Safety Regulator or first-tier tribunal. We want to align the appeals procedure for all building control decisions in England to sit ultimately with that tribunal, and to accommodate the Building Safety Regulator’s position as a new building control authority with oversight of building control bodies.
Paragraphs 2 to 8 move appeals on the use of certain materials, refusal of relaxation of building regulations and refusal by a registered building control approver to give a plan certificate from the Secretary of State to the regulator. Paragraphs 9 to 28 transfer functions from the magistrates court to the tribunal in England, along with minor and consequential related amendments. Finally, paragraph 30 creates new provisions for appeals where it is disputed whether proposed work is higher-risk building work. That is to say that a person who intends to carry out the work can appeal a local authority’s view that their building is in the scope of the higher-risk regime. These are, again, technical but important items, and I commend them to the Committee.
Shaun Bailey
I will keep my comments brief. I appreciate that this is a technical clause, as my right hon. Friend has articulated well, but I will make a few brief points. Broadly speaking, I support the clause. It is right that we have people with the expertise to determine appeals. We must ensure that that is done in a way that provides public confidence, so people know that appeals have had due process.
As someone who has interacted with these systems in the past, may I make a plea to my right hon. Friend? It is all well and good setting up systems such as this, but can we please ensure the process works? It may be hindered if we put things into new bodies and new units in the judicial system, and then people have the frustration of going through the rigmarole of processes that do not work or dealing with Her Majesty’s Courts and Tribunals Service systems that may not function to the best of their ability. We want to ensure public and industry confidence that when an appeal is made, it will be dealt with in an appropriate, timely and cost-effective manner, and the rules and regulations will be followed.
I concur with my right hon. Friend when he says that he hopes a body of precedent and case law will build up in this area. Clearly, there is existing precedent, which I hope judges who are learned in this area will pick up on. He has had a shopping list of requests from me today, but I ask him to ensure that there is appropriate guidance and real engagement between the Department, the Ministry of Justice and the judges who will sit within this tribunal. It is important that there is consistency in the process, and that it ultimately instils confidence.
Whenever we set up an appeals process such as this one, it is vital that we ensure that it can work. The clause has my full support. It is right to ensure that these technical appeals are dealt with by people who have the right skillset and knowledge, but let us ensure that the process works so that the really good intentions behind clause 55 are realised as we would expect.
Christopher Pincher
My hon. Friend has provided me and my officials with not so much a shopping basket as a shopping trolley of requests. Perhaps an Ocado delivery will arrive at the Department for Levelling Up, Housing and Communities very soon.
I will clarify my remarks to help my hon. Friend, because he is quite right. When I said that over time a body of case law and precedent would emerge, I should have said that over time a further body of case law and further precedent, built upon what already exists, will emerge, and that will lead to increasingly informed rulings. Having listened to you and your rulings, Mr Efford, I now commend this clause to the Committee.
Question put and agreed to.
Clause 55 accordingly ordered to stand part of the Bill.
Schedule 6 agreed to.
Clause 56
Fees and charges
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
I will try to ensure that I keep my teeth in as I whistle through the s’s in clause 56.
We are committed to ensuring that the Building Safety Regulator receives the funding required to enable it to deliver. Members of the Committee have made that point in discussion of the previous clauses. Dame Judith’s 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 safety regulator should pay more. The Bill needs to enable the Building Safety Regulator to charge fees, both to implement the recommendation of the independent review and to put the Building Safety Regulator on a firm financial footing. The power could also be used to charge for other Building Safety Regulator functions under the Building Act, such as registering building inspectors and building control approvals.
In a previous debate on clause 27 on the power to charge regulator fees, the Committee was rightly interested in any effects on leaseholders. We expect that the power under clause 56 would be used to charge fees for building control during the design and construction of new high-rise residential buildings, just as building control is charged for currently. Leaseholders will not directly bear the cost of such fees. However, the purchase price for a new home may reflect the costs of construction, including any regulatory costs, as is the case now. We do not intend that the leaseholder bear directly the costs of these particular fees.
For building control during refurbishments, the position remains as it is now. Building control fees can be passed on only if the terms of the lease allow—of course, different leases have different terms. This is a complicated area, and I remind the Committee that although the position on building control fees is broadly unchanged from current practice, we are introducing a new regulatory regime in occupation under part 4, for which the regulator may charge fees under clause 27.
For costs under part 4, there are specific provisions that deal with the effects on leaseholders under the building safety charter. The charge includes the costs of delivering a defined set of safety measures, to ensure that leaseholders and residents feel safe in their homes. The charge includes regulator fees specifically associated with the activities covered by the building safety charge, such as checks on the safety case to ensure the building is being managed safely. The building safety charge provisions also contain strong safeguards for leaseholders that prevent fees resulting from enforcement action by the Building Safety Regulator or from any negligent or unlawful act by the accountable person being passed on to leaseholders.
This clause also provides powers for regulations to extend the scope of current local authority building control charging schemes. Currently, local authorities can charge for specified building control activities, as set out in the Building (Local Authority Charges) Regulations 2010, namely checking plans, inspecting work, dealing with building notices, dealing with reversions from approved inspectors and dealing with requests for regularisations. Local authorities can also charge for advice given in relation to any of those activities. However, local authorities carry out a number of other functions under the Building Act that are not in the scope of the current charges regulations.
We want to give local authorities the opportunity to recover more of their costs. Therefore, clause 56 provides wider powers for regulations to set fees and charges in relation to any local authority function under the Building Act. It enables the regulations to prescribe what fees should be set and that local authorities can set out their charges in schemes established in accordance with principles set out in the regulations. This is in line with the approach in the current regulations, which enable local authorities to set out charging schemes and principles that those schemes must follow. The clause also enables Welsh Ministers to charge for their functions under part 2A of the Building Act in Wales.
Mike Amesbury
After how many days will the building safety charge be payable, and how much will it be? That is vital, obviously, to resident leaseholders. On the finer detail of the scope, will the charge be levied on buildings from 11 to 18 metres, and on those that are18 metres-plus?
Christopher Pincher
With respect to the last point, the charge will be levied on buildings in the scope of this Bill—this regime. We have said that the charges will not be more than a certain amount, but clearly, charges can change over time, so it would not be appropriate for me to say what a specific building safety charge ought to be. On how long it will take to pay, that is certainly something that we will want to work through with the Building Safety Regulator and we will specify in secondary legislation.
Question put and agreed to.
Clause 56 accordingly ordered to stand part of the Bill.
Clause 57
Levy on applications for building control approval in respect of higher-risk buildings
Rachel Hopkins
I beg to move amendment 9, in clause 57, page 78, line 12, at end insert—
“(4A) The regulations must exempt applications or specified descriptions of relevant applications made by or on behalf of registered social landlords for the provision of social housing as defined by the Housing and Regeneration Act 2008.”
This amendment would seek to remove the levy as introduced by Clause 57 from social housing.
Rachel Hopkins
It is appropriate that I mention my entry in the Register of Members’ Financial Interests; I am a vice-president of the Local Government Association.
I welcome the opportunity to move this amendment. The Minister will recognise my deep interest in housing and in ensuring that everyone can live in a good-quality, secure, safe home that they can afford to live in. The amendment would place in the Bill, rather than in regulations, an exemption for social housing from the levy introduced by the clause.
The levy is designed to meet building safety expenditure. That expenditure is not the ongoing cost of the new building safety regime, which is met through the building safety charge; it is designed to cover the cost of Government support for the remediation of unsafe cladding. That support is provided to leaseholders in buildings with unsafe cladding systems, either through the Building Safety Fund or through a system of low-cost loans for buildings under 18 metres, the details of which are yet to be announced.
For the most part, that support is not available to social landlords, other than to alleviate costs that they may otherwise have to pass on to leaseholders. With the exception of buildings with aluminium composite material cladding, social landlords have been denied access to those funds. For councils, remediation costs therefore fall on the housing revenue account and must be recouped either through rent increases or by diverting funds away from improvements to council housing or the provision of new council housing.
In contrast to many private developers and freeholders, social and council housing providers were the quickest to react post Grenfell. Analysis has shown that housing associations have paid six times more than developers to remediate dangerous cladding. According to G15, the group of London’s largest housing associations, overall, associations have set aside nearly £3 billion for historical remediation costs, far more than the half a billion pounds that the private sector has provided.
Ruth Cadbury
My hon. Friend is making really powerful points. I have a number of blocks in my constituency managed by housing associations, but they were generally built by volume house builders, and the housing associations are having to deal with the costs that she mentions. Ultimately, as she says, those costs are falling on leaseholders, many of whom are shared owners and people on fixed incomes, and on the future social tenants of the housing association, because the costs impact the association’s capital programme. Does she agree that that means a slowdown in what is already a very slow social housing new build programme, and concerns about other repairs and capital works to existing social rent homes in the portfolios of the housing associations?
Rachel Hopkins
I thank my hon. Friend for making those key points so well. I will reiterate them: the Local Government Association and housing associations have warned that building safety costs will put at risk their ability to build much more affordable housing, as she pointed out. The required subsidy per affordable home currently sits at approximately £50,000; £3 million spent on remediation costs would mean 58,000 fewer homes over the next 10 years. Shelter also estimates that we need 90,000 new social homes a year to fix our housing crisis, and that does not go into what is needed to get social homes to a decent standard or reach our net zero targets, which the Minister will know we discussed in the Housing, Communities and Local Government Committee earlier this week.
The Local Government Association—or should I say the Conservative-led Local Government Association—stated in its written evidence:
“Imposing the developer levy on councils would leave council tenants paying for the failings of private developers. If the Levy is imposed on social providers, their ability to deliver the improvements and additions to the housing stock that the Government requires will be put at risk.”
Daisy Cooper
Has the hon. Lady received any estimates of the cost of the levy for social providers? If not, does she agree that it might be helpful if the Minister could tell us what estimates the Government have made?
Rachel Hopkins
I thank the hon. Lady for her important contributions. There are different levels, because this is such a complex area, but research that the LGA commissioned, which just looked at the total cost to deliver compliance with the high safety standards, the installation of sprinklers and compartmentation across the entire housing revenue account council housing stock, would be more than £8 billion over a 10-year period, with the majority of the investment taking place in the first five years.
There is so much at stake here that will have an impact on social housing and the likelihood of being able to build good social housing. The conclusion is that the levy, if imposed on councils and social landlords, will increase the cost of building or refurbishing social housing, or increase the rents, yet the benefits to funds will not be available to the tenants who would otherwise have benefited from lower rents or better housing.
Finally, imposing the levy on councils means council tenants will be subsidising the failings of private developers and paying the costs of both remediating council housing and private housing. I am pleased to move this amendment; I hope the Minister will accept it, and I look forward to hearing his comments.
Christopher Pincher
I am grateful to the hon. Lady for her amendment. In parenthesis, let me say that the Government are committed to increasing affordable housing and socially rented homes as a component of that. She will know, as an articulate and committed member of the HCLG Committee, that we have made available in the present 2021 to 2026 cycle more than £12 billion, £11.5 billion of which is new money, to build some 180,000 new homes, economic conditions permitting, of which 32,000, or double the number in the present cycle, will be for social rent. We have also made it easier for councils and local authorities to build social homes if they wish, but I will not go into the detail of that, because it is a separate matter and does not apply to this clause.
I had a conversation only last night with the Financial Secretary to the Treasury on our approach to the levy and exemptions, and I am pleased to inform the hon. Member for Luton South that we have already proposed —not as a direct result of that conversation, but more broadly—an exemption from the levy for affordable housing as a whole. That includes social housing, as well as housing for rent or sale at least 20% below market value, shared ownership and rent to buy. We recognise that applying a levy to affordable housing, which includes social housing, would increase the cost of developing affordable housing and is likely to be a disincentive to supply.
We presently have a public consultation in flight, seeking views and evidence on how the exemption would work in practice. The consultation will conclude on 15 October. We would not want to pre-empt the outcome of that consultation, although I think the hon. Member for Luton South can see the way our thoughts are progressing, but neither do we want to write such a matter on to the face of the Bill, because we think that it is more appropriate in secondary legislation. We are consulting on it and we do want to ensure that the exemption applies, so I hope that she will agree that her amendment is unnecessary and therefore withdraw it.
Ian Byrne
It is really good to hear the Minister talk about social housing, because when the Housing, Communities and Local Government Committee has taken evidence on this we have heard only about affordable housing; we could not get the social housing element drawn out. Just to clarify, will social housing associations be exempt from the charge?
Christopher Pincher
Our proposal is that social housing be exempted from the levy. We are consulting on how to do it, but that is our proposal, so the Committee can see the flight trajectory that the Government are on. I therefore hope that the hon. Member for Luton South, when she has an opportunity to make her views plain, will withdraw her amendment.
Shaun Bailey
I very much concur with the sentiment behind the amendment, as someone who is very passionate about social housing, as my right hon. Friend knows. Will he ensure that the consultation is as broad as possible, because social housing providers, as I am sure we all know, come in many different forms—it is a complex landscape? Can he reassure me that we will see the broadest possible consultation, to ensure that this works as effectively as possible?
Christopher Pincher
I am happy to give my hon. Friend that assurance. We consult a wide variety of statutory stakeholders, but we do not include only the usual suspects in Government consultations, so it is possible for anybody to respond. We usually expect a wide variety of inputs, in order that we may reach a sensible conclusion. I therefore hope that the hon. Member for Luton South will agree to withdraw her amendment.
Mr Efford, is it your wish that I should speak to clause 57 itself before we decide on the amendment?
Christopher Pincher
Then I shall do so.
Clause 57 introduces powers to create a levy on developers who seek regulatory permission to build certain high-rise residential buildings at the gateway 2 stage of the new building safety regime. This building safety levy will be used for the purposes of meeting the Government’s building safety expenditure, such as providing assistance for the purpose of removing unsafe cladding. Residential developers who construct new high-rise buildings will gain from the restoration of confidence in the housing market, so it is right that they should help fund the significant costs associated with fixing buildings when they are unsafe.
The Government have already set up a £1 billion safety fund, with grants to help leaseholders pay for the removal and replacement of unsafe non-ACM cladding on their high-rise buildings. That is in addition to the £600 million for replacement of ACM cladding, bringing the total remediation funding to £1.6 billion. An additional £3.5 billion was announced in February 2021, so we are now providing over £5 billion, plus a waking watch fund, to support in-scope high-rise buildings to be remediated.
Mike Amesbury
I thank the Minister and my hon. Friend the Member for Luton South, and I welcome the direction of travel, which demonstrates how this place can work most effectively for the good of the affordable housing sector as a whole.
On clause 57, the principle of the levy is most welcome. Campaigners up and down the country have been pushing for a levy—sometimes under the polluter pays principle. There is a history of failure and deregulation in the construction industry, and resident leaseholders are certainly not responsible for the mess. Then we get to some of the details. The principle of polluter pays is a good thing. Looking at the evidence from the Select Committee—we have colleagues present who are key members of that—the cost of remediation is estimated to be some £15 billion. The Minister referred to conversations with his good friends in the Treasury, who are referring to a levy of £2 billion—a fraction of that.
On the scope of the levy, I understand some of the practicalities of gateway 2, but to whom will that money be directed to provide support? Will it be by way of grants? I notice another reference in clause 57 to the provision of loans, but loans to who? The principle is good and we welcome a levy, but it is nowhere near sufficient to deal with the building safety scandal, which is exactly what it is. We urge the Minister to look again at the size and scope of that with his good friends in the Treasury. Of course, voices outside this place will continue over and over and get louder and louder until justice is done.
On other potential exclusions, looking at the Department—I am not on top of its new name, by the way, so excuse me—
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Eddie Hughes)
The Department for Levelling Up, Housing and Communities.
Mike Amesbury
It just rolls off the tongue, doesn’t it? According to the Government’s own figures, 274 hospitals of 18 metres and above are in scope at the moment, as well as 10 care homes. For the hospitals, that will affect capital spending in other Departments. I am sure that we all have ambitions to get renewed hospital facilities in our constituencies via capital spending. Drawing on the previous amendment, I am sure that that is something that Ministers are strongly considering. Of course, the Opposition—or Members across the piece, actually—would urge them to look at those exclusions.
Shaun Bailey
I am really pleased to speak both to the clause and to the amendment tabled by the hon. Member for Luton South. As someone who probably would not be here were it not for social housing, I completely agree with the sentiment behind her amendment and with most, if not all, of what she said about the need to build more social housing, and in particular, her point about improving the quality of existing stock. I am sure that the biggest issue we both deal with is the quality of the existing stock in which people currently live. I do not disagree with the sentiment behind the amendment, which seeks to enable social housing providers to retain their limited resources—I am sure she would agree that they need more—to improve their stock.
I am heartened to hear from my right hon. Friend the Minister about the positivity that appears to be coming from Her Majesty’s Treasury on this matter. It is fantastic to hear that those deliberations and conversations have been positive. I will probably not articulate it very well—apologies, this is a bit personal for me—but I am really pleased to hear that. It is important, and I was probably struggling with the issue a bit given my background and experiences. I am glad to hear that the Treasury have heard that point, and I thank the hon. Lady for tabling the amendment.
The clause is the right move in respect of developers and the levy. As Dame Judith Hackitt pointed out, we will ultimately ensure that our system works and is financially robust. As the hon. Member for Weaver Vale pointed out in his contribution, the regulations will be the meat of the legislation. I note the exemptions listed. I listened with real interest to the point the hon. Gentleman made about hospitals and care homes. Many of us, across the piece, can have discussions about that and perhaps work on it. We have talked about unintended consequences all day, and what we do not want to see is any sort of inhibition of the Government’s agenda of building more hospitals, improving social care, and doing what we know needs to be done in our communities. The hon. Gentleman made an important point. I do not necessarily expect an answer from my right hon. Friend the Minister today; I appreciate that the conversations are ongoing, and I am sure he agrees that they are important.
We have heard some well-articulated speeches, and it is always a bit of a nightmare speaking after them because we tend to say what everyone else has said. To keep my comments as brief and to the point as possible, the sentiment behind the hon. Lady’s amendment is absolutely spot on, and I am really heartened to hear the response from my right hon. Friend the Minister. The levy is right, but we will need to scrutinise the accompanying regulations, particularly on exemptions, which I will consider with interest. The principle underpinning clause 57 is right and has my wholehearted support.
Rachel Hopkins
I am grateful to the Minister for his comments. On the basis of his assurances about the outcome of the consultation, the direction of travel that he indicated, and the fact that we will keep a close eye on the progress of that consultation, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Health and Care Bill (Twelfth sitting)
Thursday 23rd September 2021
(2 years, 7 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 23 September 2021 - (23 Sep 2021)
The Committee divided: - Ayes: 4 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 8 - Question accordingly negatived.
The Chair
With this it will be convenient to discuss the following:
Amendment 84, in schedule 10, page 197, line 17, at end insert—
“(1A) The NHS payment scheme must ensure that the price paid to any provider of services which is neither an NHS Trust nor an NHS Foundation Trust cannot be different from the price paid to an NHS Trust or NHS Foundation Trust.”
This amendment ensures payment to private providers can only be made at tariff price to prevent competition for services based on price.
Amendment 100, in schedule 10, page 197, line 17, at end insert—
“(1A) NHS England must obtain the agreement of the Secretary of State before publishing the NHS payment scheme.”
This amendment ensures that the NHS payment scheme, which sets out the prices to be paid for NHS services, is approved by the Secretary of State.
That schedule 10 be the Tenth schedule to the Bill.
Karin Smyth (Bristol South) (Lab)
It is a pleasure to see you in the Chair this afternoon, Mr McCabe. You missed the start of an exciting debate about the NHS payment system; I am sure you are grateful not to miss the end of it.
The complexities of NHS funding are hardly mentioned in the Bill, and some hon. Members may think thank goodness for that, but I urge them to take a bit more account of clause 66—as my hon. Friend the Member for Nottingham North has said, it is a short one—because we are talking about over £100 billion of taxpayers’ money, rising to 40% of the Government’s annual spend. It is particularly important that we understand how and where that money is spent and to be assured that it is spent effectively and efficiently.
In large part because of the data collection journey that it has been on for some 20 or 30 years, we know that the NHS is the most efficient system we could have, as has been reviewed in numerous reports during that time. We have ways of looking at variations across the country and across a city such as my own, and that can only be a good thing. There are people—I am not suggesting there are any in this Committee Room—who think the NHS is a continuous money pit, is inefficient and could be operated better in another way, and part of understanding that argument is to understand the data and the way in which the money is spent, particularly the costings.
As I said in my earlier intervention on the Minister, about the process that has now been embarked on of producing a payment system, this clause is really important and really quite concerning. We have no idea when this payment system is going to be available.
The Minister for Health (Edward Argar)
Before the hon. Lady asks more questions, I may be able to reassure her by adding to what I said this morning as I have now discussed this further. I said “expeditiously”; I am willing to go further on the Floor of the Committee Room now and say that I would expect the scheme—I may be creating a hostage to fortune—to be published in the course of 2022. I hope that gives her a little reassurance; she will now hold me to that.
Karin Smyth
There is an army of accountants out there suddenly looking at their abacuses and speeding up the work they are doing.
My hon. Friend the Member for Nottingham North mentioned coding. The basis on which we know how much things cost—we can then compare things, look at efficiency and so on—is coding. We know there has been some up-coding over the years, but we also know that it took a large effort to train up and try to reward coders, who are often the lowest of admin staff, to recognise how important they are to the system.
Part of that was a drive for competition, payment by results in foundation trusts and so on, but it seems that that is all going to be swept aside by the Bill in the interests of co-operation—that is another word for collaboration, which is something we all support. I do think that running through this Bill is a problem of throwing the baby out with the bathwater. In the 1970s and early 1980s, the NHS really had no idea what things cost and what value they brought. We had no way of objectively understanding how scarce resources were being allocated. In a publicly funded system, that should worry us all, particularly as we in Parliament are the guardians of the public’s money.
We can argue about how much money will be saved by not having the current system. I am not sure that much money will be saved by abolishing the current system, although the Minister may be able to assure us about this point today. I gently advise the Minister and the Secretary of State to take a great deal of interest in this and consider how the NHS will produce such a system in 16 or 17 months at the maximum, as we have just heard. The data on which the system is predicated—the collection of that data, and the use of it to inform clinical and managerial practice—will continue, but, without the incentives around competition and price and the competing agenda of recovery and the management of large hospitals in particular, it will be quite a tall order.
The Secretary of State and the Minister might want to look at the issue in a bit more detail. The Minister outlined quite a complicated process about how we will get to this scheme and a lot of consultation. Although I am all for democracy, as we embark on our conference season the Minister might want to consider at some point why a scheme should go out to quite so much review and consultation by the providers in the system.
Perhaps I could say something here about how the issue affects our local system. When we start to iron it all out and see the impact assessment on the impact—classic NHS terminology—on our local communities, there will be, for want of a better phrase, a bun fight in all our local communities. Again, as my hon. Friend the Member for Nottingham North outlined earlier, when we talk about payment by results it is, of course, acute sector trusts that are the major drivers. Mental health, learning disabilities, community services, and GP services are outwith some of that funding scheme.
Many providers then wanted to come on to the system because they felt that it was more rewarding financially and better for their bottom line. The fact that those services are outwith the scheme remains a problem. I can see why the Government want to change that, but it is not quite as simple as they might want to make out. My hon. Friend has talked much about whether we start competing on price, but now that we know that competition on price is not being permitted, that does throw out a lot of other issues, particularly those around the procurement system.
With regard to amendment 84, the Minister made reference to independent sector treatment centres and incentives for getting the private sector in under previous Governments. We can all banter about the politics of that, but the key task for the Labour Government was to incentivise and change practice in a monolithic system, to drive down waiting lists and times. The question that I leave hanging for the Minister is, given the movement to a new payment system, how will the patient voice, waiting times and waiting lists be managed and incentivised in a central block payment system, which is what I think we are looking at?
Furthermore, with regard to our amendment, the private sector, having no responsibility for education, training and the large crumbling estate, should be able to offer any kind of services at a lower price than the NHS by any logic of efficient running. Ensuring that it is not offered more is the very minimum that we should be demanding. Given that the private sector should have a lower-cost base than the public sector, perhaps it should offer a cheaper price.
Does the Minister have a view on whether paying by results will be anywhere in the new system? Are we to continue following the changes made during covid, by which I mean the block grant system, which allows for baseline costs, a bit of variation for the population, and perhaps some deduction for efficiency and top-ups for various programmes—a bit like the old days when we mysteriously drew down pots of money from the centre for various programmes across the country? What is the balance between that block funding, payment by results and programme funding? Will there be an assessment of the impact of this change, particularly on reducing lengths of stay, as a measure of efficiency in the system, or on reduced waiting times and waits for diagnostics?
It would be good to nail down a few of these key principles in the Bill. The Secretary of State should really approve any scheme and give Parliament a look in; we should understand, as local representatives, what the impact is on our local system and whether we are gaining or losing money, or whether this is just £100 billion-plus going into a central pot and then seeing what happens—that cannot be sustainable.
Private providers should certainly have no say in the rule-setting, as this is a public service; if it is not a market, it is not a market. We are going to be able to debate this only when we know what it is. Given that the Minister has given a big push to the abacuses across the country, with a deadline of somewhere in 2022, for a Bill that we are expecting to put into a new system for April 2022, this situation is not satisfactory for us as representatives. There must be some way—perhaps this will be debated when the Bill leaves this place—for us to understand the broad principles and criteria. We know that there is going to be guidance from NHS England, but if it is going out for consultation, re-consultation and re-consultation, then redrafting and at some point the Secretary of State is going to see it, at some point Parliament should have a say or have a look at that and we, as local representatives, should understand what the impact is on our local communities.
We should also understand what the impact is on the balance between the acute sector, and the community and primary sector—and mental health and learning disability services. Another real concern about the Bill, which I will keep referring back to, is the cartel between the acute trusts and this new integrated care board, and the cutting out now of GP primary care commissioners, and the rolling back on the aims of the primary care trusts to switch the movement of the NHS to be focused not just on the money and where the big money is being spent, but on the service for patients and the public.
The crucial point for the Government will be: how are they going to use the financial mechanisms that exist to recover the backlog and put the NHS back on an equal footing? We have been asked to pay more for the new part of social care as well. As we continue to ask our constituents, the taxpayers, to pay more for what is a good, efficient service that does use its money well—we know that and we want to keep knowing that—how are we going to be able to persuade them of that in the future if we have this amorphous block allocation of money and no incentive to keep focused on efficiency and, in particular, on data collection?
Edward Argar
It is a pleasure, once again, Mr McCabe, to serve under your chairmanship. I fear I may not persuade Opposition Members not to press amendment 100—but you never know, so I will try my luck. The hon. Lady made a number of points and I responded to one when she kindly took an intervention; the only caveat I should add is that that, as she has alluded to, is subject to the passage of this legislation. I would not wish to pre-judge the mood of this House. With that in mind, the aim would be to publish in 2022, in time for the start of the 2023-24 financial year, to allow those systems to do the work they need to do.
The shadow Minister, the hon. Member for Nottingham North, asked, “Why use clause 37?” I think he was referring to the clause rather than me as being a “blunt instrument”—well, I will charitably assume that he was. The reason is simply that the setting up of the payment scheme is an operational issue, and in practice—I will turn in a moment to the strategic, broad points the hon. Lady made—we would not expect to intervene in the day-to-day running of the NHS as a matter of course. However, the hon. Lady is right to say that the payment scheme and the mechanism for payments is a powerful incentive to shape activity and how the NHS operates. I can reassure her, I hope, in one respect: I will certainly take a close interest, within the bounds of appropriateness, as will be set out in the Bill and the guidance underpinning it, in what the payment schemes look like. She is right in terms of the impact. She is also right—again, this could be career limiting; I hope the Whip does not note this down—to highlight some of the levers and mechanisms that the previous Prime Minister, Tony Blair, used in the early 2000s to make sure the money that he was investing in the NHS was driven through system and producing results.
The Chair
Mr Norris, before we go to the vote I want to give you an opportunity to respond, particularly on the amendments, so we can be clear about what you are up to.
Alex Norris (Nottingham North) (Lab/Co-op)
I will give a quick indication, if that is okay, Mr McCabe. I take what the Minister has said about amendment 100, and I hope that he will continue to reflect on it. At many points, the Bill reserves specific powers to the Secretary of State, but if we do not need to do so, because the Government can just use clause 37, why on earth would we ever do that? I actually think this would be a very suitable place to do it, but on that basis, I will not press amendment 100. I would like to push amendment 84 to a vote.
Question put and agreed to.
Clause 66 accordingly ordered to stand part of the Bill.
Schedule 10
The NHS payment scheme
Amendment proposed: 84, in schedule 10,page 197, line 17, at end insert—
“(1A) The NHS payment scheme must ensure that the price paid to any provider of services which is neither an NHS Trust nor an NHS Foundation Trust cannot be different from the price paid to an NHS Trust or NHS Foundation Trust.”—(Alex Norris.)
This amendment ensures payment to private providers can only be made at tariff price to prevent competition for services based on price.
Karin Smyth
I beg to move amendment 93, in clause 67, page 60, line 15, at end insert—
“(1AA) The regulations must make provision—
(a) for anyone with a diagnosis of terminal illness to be offered a conversation about their holistic needs, wishes and preferences for the end of their life, including addressing support for their mental and physical health and wellbeing, financial and practical support, and support for their social relationships,
(b) that where that individual lacks capacity for such a conversation, it is offered to another relevant person, and
(c) that for the purposes of section 12ZB a relevant authority must have regard to the needs and preferences recorded in such conversations in making decisions about the procurement of services.”
This amendment ensures that the scope of the regulations as to patient choice includes those at the end of life.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
That schedule 11 be the Eleventh schedule to the Bill.
Karin Smyth
I will not push my amendment to a vote, but I seek responses from the Minister. I want to highlight the issue that we touched on earlier, and I am grateful for his comments, about how end-of-life and palliative care are the responsibilities of these new bodies.
This particularly relates to coming out of the pandemic, but even before the pandemic we had numerous reports from the Royal College of Physicians, the Care Quality Commission, the health service ombudsman and Compassion in Dying about how people approaching the end of life do not feel supported to make the decisions they are faced with, are not always given an honest prognosis and do not know what options or choices they have. I think the issue of patient choice is very important in this clause, and I feel very strongly about it. I think this could generally be stronger in the Bill, but I will particularly highlight what is in my own amendment.
Amendment 93 would enable dying people to have conversations about what matters most to them, which is the first step to ensuring that they are at the centre of any decision making about their own care and treatment, and it starts the advance care planning process. I have been fortunate in that I have had three children, and I talked through my birth plans and my choices for the whole experience very carefully. It was presented to me as part of the process of giving birth. It does not always go well, as we know—we had a baby loss event today in Parliament, which many of us could not be part of.
The principle of choice at fundamental points in people’s lives as a patient is one we have embedded in the health service. Co-production of care for most incidents that we face is a fundamental part of clinical practice. Only at the point when people are most vulnerable, at the end of life, is the principle of advance care planning and co-production in their choices and prognosis something we are still not prepared to contemplate in the health service. It really is as basic as that. If I can make those choices about when I am giving birth, we should be able to make those choices when we are on the pathway of the end of our lives.
The evidence on advance care planning in order to support people on where and how they die is well made. This is about promoting earlier access to palliative care, communication, reducing conflict, helping families understand what is ahead and making the person less likely to have to go through rushed accident and emergency and distressing journeys into hospital. There is a need to start supporting advance care planning, and I would welcome the Minister’s comments on where the Government now think they are on that.
A key part of this amendment is proposed new paragraph (c), on authorities and new ICBs having
“regard to the needs and preferences recorded in such conversations in making decisions about the procurement of services.”
The full value of advance care planning can be realised only when individual care preferences are reflected in actual treatment decisions. Again, that is about empowering patients, something that I hope Members from across the House support.
Alex Norris
This is an important clause and an important amendment. We have said on many occasions that we want a model that promotes collaboration, rather than competition, but in doing so it is important that we do not create 42 closed shops, where a patient has little agency over their care. That will not feel right for those individuals and it risks weakening a culture of the pursuit of excellence and the best standards of care. Therefore, enshrining choice for citizens actually becomes more important in a collaborative system, so it is right that this is being addressed.
The Minister might not have a reply immediately on this, but he might be able to work with one from his officials about reports overnight in Nottingham, where there is no choice now over someone’s cancer care and such care is being “rationed”—that was the word used—because of workforce shortages. That is exceptionally alarming and will lead to some dreadful outcomes for people in our city. I hope there could be a follow-up letter about what is being done to switch those services back on immediately.
Turning back to the Bill, it is right that NHS England would have the power to investigate cases and direct an ICB as to how to rectify failure. It is good that there is a provision whereby investigations can be averted by an undertaking from an ICB to rectify the failure directly; that feels like the right level to start at. I am keen to understand from the Minister how he expects a person to enter the system and enter into that mechanism. Are they likely to be expected to contact NHS England directly to trigger an investigation or will there be a local process at an ICB level first before escalation? It would seem reasonable that we should exhaust local options before escalating to the regulator. If that is so, what prescription will there be, perhaps in guidance, if not in the Bill, for the form that that takes, so that an ICB that is not engaging positively with an individual cannot act like a blocker to elevating that? Perhaps we could consider bringing in a trusted third party at a local level—for example, Healthwatch would very well placed.
We saw in written evidence concerns that the current plans might not go far enough. The National Community Hearing Association said in its evidence:
“Existing rights to patient choice do not go far enough and typically only apply to primary care and consultant-led services. Giving patients more choice and control over their care for non-consultant-led services, especially for long-term conditions such as adult hearing loss, results in better health outcomes and helps tackle health inequalities. We would ask the Committee to press the case for the regulations to be made under this power to expand a patient’s right to choice. Regulations can do this by enabling patients to choose an NHS community provider for their hearing care where clinically appropriate. Currently only 50% of NHS regions in England offer patients this choice, resulting in inequalities in access to care.”
I wonder whether the Minister has considered that and could perhaps give us his reflection on the matter.
Edward Argar
Before I turn to the substance of my contribution, let me say that I am not aware of the specifics of the issue that the hon. Member for Nottingham North raised, but if he writes to me, I will pass it on to my officials and see whether I can look into it for him.
I am grateful to the hon. Member for Bristol South for bringing this important discussion on end-of-life care before the Committee today through her amendment. Amendment 93 would add a provision to the regulation-making powers in relation to patient choice, requiring that any regulations made under the power must make provision so that anyone with a diagnosis of terminal illness is offered a conversation about their holistic needs and their wishes and preferences for the end of their life. This would include addressing support for their mental and physical health, wellbeing, financial and practical matters and social relationships.
Such regulations would require that, where that individual lacks capacity for such a conversation, it is offered to another relevant person, and that a relevant authority must have regard to the needs and preferences recorded in such conversations in making decisions about the procurement of services.
It is of course incredibly important that anyone at the end of their life, whether or not they have been diagnosed with a terminal illness, has the opportunity to discuss their needs, wishes and preferences for their future care, so that they can be fully taken into account. There is already ongoing work across the health and care system to support this aim, including a commitment within the NHS long-term plan to provide more personalised care at the end of life. There is also a recently updated quality statement within the National Institute for Health and Care Excellence on advance care planning.
Furthermore, the ministerial oversight group, which was recently established following the CQC’s review of “do not attempt cardiopulmonary resuscitation” decisions during the covid-19 pandemic, is also developing a set of universal principles for advance care planning to further support health and care professionals in having appropriate and timely discussions with individuals at the end of life. I hope that the reassurance that I was able to offer the hon. Member for Bristol South in our discussion on a previous clause did help.
At this moment, I will pause briefly to join the hon. Member for Nottingham North and others in paying tribute to the work of Marie Curie, which does amazing work day in, day out. Through its work on this, it has helped to raise, in the context of the Bill, the profile of this issue.
I should also say to the hon. Gentleman that I recall his work, when we were relatively new Members in this place, on the TUC’s Dying to Work campaign. I have considerable sympathy with the campaign, and I pay tribute to him for his work back in the days when I was a Back Bencher and able to engage more directly with campaigns. I also pay tribute to the TUC for its work in this area, because it is extremely important. I hope that he will forgive me if I do not stray into other Departments’ policy remits, but the issues that he was bringing to the fore were important ones and that continues to be the case, so it is right that I acknowledge his work.
We know that patient choice is a powerful tool for improving patients’ experience of care, and we intend to ensure that effective provisions to promote patient choice remain. I do not feel that it is appropriate for it to be written into primary legislation. I am grateful that the hon. Member for Bristol South said she does not intend to press the amendment, but she makes her point.
Karin Smyth
I am grateful to the Minister for his response. He mentioned the ministerial oversight group on advanced care planning. Would he be able to indicate when we will hear from that review—if not now, perhaps in writing?
Edward Argar
I am happy to write to the hon. Lady to communicate that information to her.
We know how important patient choice is, and not just in terms of individual choice, although it is of course vital in that context, but also in helping drive the system to continuously improve. We take the view that it should be determined through regulations. We have chosen that approach to allow the legislation to be flexible and to reflect changing priorities and new policies in relation to patients’ rights to choice.
The shadow Minister raised the process and mechanism for complaints. The individual would in the first instance complain to the ICB, as the commissioner and main body providing and co-ordinating health services in their locality. If they are not satisfied with that, they could then escalate that complaint to NHS England. It is not straight to the top, as we all know through our casework. We recognise and advise our constituents to go through the complaints process, and only at the final stage does it reach Ministers and NHS England or ombudsmen or other national bodies. That would be our approach.
Regulations on patient choice have previously been made under section 75 of the Health and Social Care Act 2012. Opposition Members will of course be deeply saddened that that section is being repealed by the Bill, including its procurement elements. In so doing, the Bill also revokes the regulations covering patient choice, so clause 67 ensures that patient’s rights to choice continue to be protected.
The clause adds similar powers, including those relating to guidance and enforcement of the standing rules, into the National Health Service Act 2006, and introduces a requirement for the Secretary of State to make regulations on patient choice. The power to make guidance and enforcement of patient choice will be held by NHS England, following the planned merger with NHS Improvement, with the complaints process that I set out earlier. The clause will give NHS England powers, which NHS Improvement currently holds, to resolve any breaches of patient choice.
There is currently a wide range of choices that people should expect to be offered in the NHS services they use—for example, choosing a GP and GP practice and choosing where to go for your appointment as an outpatient—and the clause will allow for those and other aspects of patient choice to be preserved. The clause will make sure that, under the new model, bodies that arrange NHS services are required to protect, promote and facilitate the important right of patients to make choices about who provides those services.
We know that patient choice is an incredibly powerful tool for improving patients’ experiences of care. The clause will ensure that effective provisions to promote patient choice remain, will strengthen existing choice rights and will continue to make them a requirement of the decision-making bodies that commission healthcare services. Without the clause, patients’ right to choice would be removed along with section 75’s removal. NHS bodies would not be under duties to protect and promote patient choice. Clause 67 reinserts the right and inserts schedule 11.
Schedule 11 provides further details of the powers given to NHS England to resolve any breaches of the patient choice requirements imposed on an ICB. It requires NHS England to publish a procedure outlining how it will resolve failures of an integrated care board to comply with patient choice, and lays out the reporting and appeals process. It also allows NHS England to treat inaccurate, misleading or incorrect information from an ICB as failure to comply, which will, I hope, encourage the full and accurate engagement of an ICB in addressing a failure.
People should expect to be offered a wide range of choices, as I have alluded to, and the clause and schedule will allow for that. NHS England will be able to ensure that ICBs are required to protect, promote and facilitate that important and powerful right. We know how important that is for individuals and for driving the right behaviours in the system and to improving care.
Mary Robinson (Cheadle) (Con)
I am grateful to the Minister for highlighting this issue with such importance. We know that patient choice is vital when a person gets to those end-of-life stages and has a terminal illness. Could I request that consideration is also given to timeliness around choice-making? For some people, particularly those suffering with motor neurone disease, their disease can move quite swiftly, so timeliness in those conversations is important. I would be grateful if consideration could be given to that, and I am heartened by what I hear from the Minister.
Edward Argar
My hon. Friend is absolutely right about timeliness, both from the system, in initiating those conversations, and as something that all of us need to pay heed to as individuals. Before the pandemic and before she stood down at the 2019 election, I held an event in my constituency with the former right hon. Member for Loughborough, Baroness Morgan of Cotes, about thinking and making choices early and preparing ourselves for getting older—things like preparing a will and powers of attorney. All too often, for very understandable psychological reasons, many of us do not want to think about such things, because they are an intimation of mortality. However, it is important that as individuals and as a system and a society we think and plan early, because it can make such a huge difference to the quality of our older years or the end-of-life period.
Therefore, if I may, Mr McCabe, I commend clause 67 and schedule 11 to the Committee.
Karin Smyth
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 67 ordered to stand part of the Bill.
Schedule 11 agreed to.
Clause 68
Procurement relations
Justin Madders (Ellesmere Port and Neston) (Lab)
I beg to move amendment 95, in clause 68, page 61, line 32, leave out “health care services” and insert “services required”.
The Chair
With this it will be convenient to discuss the following:
Amendment 99, in clause 68, page 61, line 35, at end insert—
“(1A) The regulations must provide that no contract for the provision of the services specified in subsection (1)(a) and subsection (1)(b) may be awarded other than to a relevant authority unless a formal competitive tendering process provided for by the regulations has been followed.”
Amendment 96, in clause 68, page 62, line 1, at end insert—
“(3A) The regulations must—
(a) include the power for integrated care boards to continue to commission the services provided by an NHS trust or Foundation Trust without any requirement for any re-tendering process,
(b) require that, prior to commencing any formal procurement process for a service provided by an NHS provider, where the contract value exceeds a threshold set by the relevant integrated care partnership, the integrated care board must conduct a public consultation and publish the business case for opening the service to a competitive tender process,
(c) require an assessment to be made of alternative ways of providing a service using NHS providers before a contract with a non-NHS provider may be extended or renewed,
(d) be based on the assumption that the NHS is the preferred provider of services, and
(e) require providers to pay staff in line with NHS rates of pay and to provide terms and conditions of employment at least equivalent to NHS terms and conditions.
(3B) NHS England must publish a report each year on the proportion of contracts subject to the regulations which are awarded to each of NHS, third sector, local authority and independent sector providers.
(3C) NHS England and each integrated care board must publish a plan every three years on reducing the provision of NHS services by private providers and increasing the capacity of NHS providers to provide those services.
(3D) Integrated care boards must publish, in full and without any recourse to commercial confidentiality, all—
(a) bids received for contracts,
(b) contracts signed, and
(c) reports of routine contract management.”
New clause 12—NHS as the preferred provider of NHS contracts—
“(1) The NHS is the preferred provider of NHS contracts.
(2) NHS contracts must be provided by NHS suppliers unless the NHS supplier is unable to fulfil the terms of that contract.
(3) Where the NHS is unable to fulfil the terms of a contract, a competitive tender must be held to identify an alternative provider.
(4) For the purposes of this section—
(a) ‘alternative provider’ means private companies and independent sector treatment centres, and
(b) general practice and GP-led community services are NHS suppliers.”
This new clause would establish NHS suppliers of services as the preferred providers of NHS contracts. Independent sector providers could hold NHS contracts after winning a competitive tender.
Justin Madders
It is a pleasure to see you in the Chair this afternoon, Mr McCabe. We have arrived back at the start: the need to end the bureaucratic, expensive and ultimately corrosive requirement for compulsory competitive tendering for health services, which led the drive from NHS England and its former chief executive to first ignore the Lansley Act and ultimately push for its repeal. It turned out that trying to implement the requirements of that Act gave rise to all the problems the Opposition foresaw a decade ago.
Has the Minister seen any impact assessment of the benefits to the NHS of removing the requirements? Is he able to give us a total amount of the cost to the NHS of this folly over the past decade? Is he able to quantify exactly how much public money has been spent on lawyers and consultants going through all the hoops that were laid down by Lansley? I am not just talking about the extra work in putting the contracts out to tender in the first place, never mind the millions that will have been spent on defending and justifying decisions taken from disappointed bidders, which is a big part of it as well. Let us not forget that, as a result of that legislation, we had the obscene spectacle of the NHS being sued by Virgin Care. That certainly was not one of the benefits trailed by the Government of the time back in 2012.
Karin Smyth
I thank my hon. Friend for a fantastically thorough, comprehensive and damming indictment on everything that has come before and for some warnings about what may face us. I rise because I do not want to let the moment go without saying goodbye to section 75. It is what brought me into Parliament, having worked collaboratively in the local system at that time developing clinical commissioning. There was broad agreement before the 2010 election on the direction of travel, which was completely upturned by the coalition Government and the fault lies at the doors of both parties.
The destruction is a warning, though. I am looking around the room, Mr McCabe; I think that nobody on this Bill Committee was a Member of Parliament at that time, apart from your good self. I may be wrong about that, but it might be the case. What I experienced working in that service was the horror that Parliament could produce something that had been so widely warned about and that would be so disastrous. There was not a single ounce of support beyond the political agreement that the coalition formed at that time, which got them into this terrible position, even with the pause, that could not be rowed back. That is something that has helped me as a parliamentarian: what we do here—how we are sometimes invited to vote by the Whips, the scrutiny we give to legislation and the judgment we have to use as individuals—is really important.
Every time we go into the voting Lobby or review legislation, we should all give serious thought to the processes in this place—I understand them now, but did not then—that led to that terrible legislation being passed. We should find better ways to climb off the perch when something has gone as far, and as disastrously, as that legislation did.
There is debate about political interference or accountability—whatever we call it—when it comes to the NHS; as I have said before, the huge amounts of money that parts of the public sector now consume means we should operationalise quite a lot of that. We have heard a lot of that from the Minister over the course of this Bill.
Ultimately, what we have been asked to do is get rid of something we can all agree to get rid of. However, as my hon. Friend the Member for Ellesmere Port and Neston said, we have little idea of what will replace it, and crucially—the theme we keep coming back to: how are the patient and public voice empowered in the new system and how is the local external scrutiny and accountability in the new system? Again, I refer the Minister to my helpful amendment about a good governance commission.
However, the situation does not bode well because, as the pandemic has shown us, when backs are against the wall contracts can be put forward, friends and family can be added to major bodies, and organisations that play by the rules and go through due process can be completely marginalised. That has tainted the Government and all of us as politicians, and we need to get away from it.
Finally, the disaster of the reforms—the Lansley Act—was not only about the public waste, time and opportunity devoted to them; the warnings about pandemics were there at the same time, in 2010 and 2011 reports. The system was not developed and not focused on to how to prepare for the pandemic that we have now endured. That is the cost of management time and focus that was put into this sort of outsourcing, regulations and procurement, and trying to understand them. It was not focused on patient outcomes as they presented or on futureproofing the system. That is why we were not prepared.
We can all dance on the grave of the Lansley reforms today, with this Bill, which is a good thing. However, I am afraid that there is deep concern about what follows. Those reforms should be a lesson to all of us about the consequences of the very grave decisions that we make in this place.
Jo Gideon (Stoke-on-Trent Central) (Con)
I have listened with great interest to the points made by the hon. Lady and by the shadow Minister, the hon. Member for Ellesmere Port and Neston, but I do not recognise my NHS as being a sort of binary choice between public and private sectors.
During the pandemic, we have seen the incredible work across sectors; I am glad that the shadow Minister mentioned the voluntary and community sector, and charities, because that sector has largely been left out of people’s comments. Possibly it was convenient to leave it out because it shows that the breadth of the NHS family is more than the NHS itself; it is very much about everybody working together. For me, that is what integrated care is all about. I welcome the mention of the voluntary and community sector.
When we look at NHS procurement, we also need to focus on prevention as well as on clinical treatments because the wording of new clause 12 seems to focus very much on clinical treatments. We all agree, I think, that the purpose of integrated care is to have a big focus on the prevention piece, and the NHS family must surely include the third sector and private sector providers that are specialists in that area. For me, there is no conflict.
Edward Argar
I welcome the sentiments underpinning some of Opposition Members’ comments about our changes to section 75. I am nothing if not prepared to listen and be pragmatic, and I am glad that they at least welcome that aspect of the Bill.
I will address directly a number of Opposition Members’ points. My right hon. Friend—I mean my hon. Friend the Member for Stoke-on-Trent Central, but it is surely only a matter of time before she is right honourable—was absolutely right about the NHS family being wider than the NHS itself. All these organisations are involved; to be fair to the shadow Minister, the hon. Member for Ellesmere Port and Neston, he mentioned the voluntary sector and particular organisations that have done amazing work in the past year and a half. In fact, they do that work every year, and day in and day out, working hand in hand with the NHS. I put on the record my appreciation of the independent sector providers for what they have done during this pandemic to support the pandemic response.
The shadow Minister asked a very specific question about what activity had been undertaken, what money had been spent and what assessments had been made, including of value for money. I do not know whether I have written to him already, but a number of colleagues from across the House have written to me and I have set out, in broad terms, the number of patient episodes that have been provided by the independent sector. If he would like me to write to him in a similar vein, I am very happy to do so; my officials have heard that commitment and I will adhere to it. Regarding the broader point that he made about value for money, cost and how money has been spent, those details will be published later in the year in the usual way, when the accounts for the last year have been audited. They will be published; I make that commitment to him.
The shadow Minister raised a number of other specific issues and I will address one head-on before addressing the substance of the amendments. Essentially, he said that the NHS should be deemed the preferred provider by default almost, citing the words of Dr Chaand Nagpaul. Dr Nagpaul and I have our differences of opinion, shall I say, but he is an eminent clinician and performs a very important role, and I put on the record my respect for him and for the principles that he articulates on many occasions.
I believe that the key defining feature should be what delivers the best outcomes for patients, rather than simply having a default presumption. Now, that may well regularly be, as Dr Nagpaul asserted, the NHS. However, I think we should start from the presumption of what delivers the best services and the best outcomes for patients.
The shadow Minister asked—I think he asked this, but if it was the hon. Member for Bristol South I hope she can forgive me—what regime would apply to the Department. My understanding is that that would continue to be the Public Contract Regulations 2015 in the context of the Department itself. The hon. Member for Ellesmere Port and Neston suggested that in the next couple of years we would do the next reorganisation; I can reassure him that I am not necessarily sticking to the new Labour playbook of 1999, 2001, 2003—doing something almost every two years.
The hon. Gentleman’s broader point was about the involvement of private sector providers. He will be aware of this, because he knows his NHS and health history, but one of the key points came in 2004—the first time the then Government opened up clinical services to tendering by the private sector, in that case for out-of-hours services. Again, “any qualified provider” dates back to 2009, under the title “any willing provider”, as it then was. It was exactly the same scheme, and all that happened in 2012 was that the name was changed from “any willing” to “any qualified” provider; the scheme was brought in under the Government led by Prime Minister Brown.
Governments of all complexions have amended and changed the clinical regime to recognise that there is a role, as there always has been, for private and voluntary sector providers and, of course, for the NHS at the heart of it. None of that puts at risk a taxpayer-funded NHS that is free at the point of delivery. For the record, I reassure the hon. Gentleman, as he would expect me to, that in the context of trade deals the NHS is not for sale: it never has been, and it never will be.
Turning to the detail of the amendments, amendment 95 would change the scope of the regulation-making powers in this clause. Currently, these will govern the procurement of healthcare services for the purposes of the health service; this amendment would broaden the provision so that it extends to all services required by the health service.
The NHS procures many services, but has specifically asked us to introduce a new, tailored provider selection regime that would replace section 75 and enable it to arrange healthcare services in a more flexible manner and one that fosters integration and collaboration. The NHS has told us that the current competition and procurement rules, particularly the PCR 2015 rules, are not well suited to the way healthcare is arranged in the context of the services the NHS provides. They create barriers to integrating care, disrupt the development of stable collaborations and can cause protracted processes with wasteful legal and administration costs, while adding little value to patients or the taxpayer.
Regarding the hon. Gentleman’s specific question, I am afraid the individual costs over the years since 2012 would have been borne at a local systems level, so I suspect that they are not agglomerated together in a national figure. However, I understand his reasons for asking.
When NHS England consulted on the new provider selection regime earlier this year, it suggested specific key criteria to be used in decision making under the regime, tailored towards the effective arrangement and delivery of healthcare services. The proposed criteria include integration and collaboration, and that services should protect patient choice and focus on tackling inequalities. Having a power to introduce procurement measures specifically for healthcare services will enable procurement decisions to focus on such tailored criteria, and to create a regime that works best for the health service.
However, it is right that non-healthcare services—cleaning services, administrative services and others—should, and will, still fall under the PCR 2015 and, in future, the new Cabinet Office procurement regime, which is currently being considered. This will ensure that these services are still arranged in a way that continues to add the best value to the healthcare system.
We know there may be cases in which it is essential that a service is procured as part of a healthcare service contract—I think that was one of the hon. Gentleman’s points. It is for this reason that we have included the ability for regulations made under this power to include provision in relation to mixed procurements, where other goods and services are procured together with healthcare services.
We are working closely with the Cabinet Office and with stakeholders across the health service to ensure that the regulation of mixed procurements of healthcare and other services works effectively for the appropriate arrangement of healthcare services and for the arrangement of wider public services, with respect to their distinct characteristics. Should the hon. Gentleman wish to write to me and ask me to forward his letter to the Cabinet Office to ensure it is cognisant of his views, I am happy to do that.
Amendments 96 and 99 and new clause 12 in effect make statutory NHS providers and general practitioners the preferred provider of NHS-funded services, but our intention is not quite as rigid as what the hon. Gentleman would wish. As I have said, the vast majority of NHS care has and will continue to be provided by public sector organisations, but successive Governments of all political affiliations have allowed the NHS to commission services from the private and voluntary sector, to improve accessibility and experience for patients, to increase capacity swiftly or to introduce innovation.
It is the strong view not just of this Government but of the NHS that local commissioners are the best people to determine what services a local population needs. The best interests of patients, the taxpayer and the population, rather than dogma or ideology, should guide those decisions, and that is what this Bill aims to deliver. I know that the hon. Gentleman is certainly not dogmatic—he may be ideological, but he is certainly not dogmatic—so I hope he appreciates the sentiment behind that statement.
Amendment 99 would mean that a contract for the provision of healthcare services could not be awarded to a body other than a relevant body as defined in the clause unless a full formal competitive tendering process had been followed. This requirement would need to be set out in the regulations made under proposed new section 12ZB.
Amendment 96 would require that regulations include the power for ICBs to commission services provided by an NHS trust or foundation trust without retendering. Regulations would also need to require an ICB to conduct a public consultation and publish a business case where it wished to put out to competitive tender a service currently provided by an NHS provider for contracts over an agreed value. They would also need to require an assessment to be made of alternative ways of providing a service using NHS providers before a contract with a non-NHS provider were extended or renewed. It would require any procurement regulations to be based on the assumption that the NHS is the preferred provider. Regulations would also need to add a requirement on providers to pay and provide terms and conditions of employment to their staff that are at least in line with those of the NHS.
In addition, the amendment would require NHS England to publish a report on the proportion of contracts subject to the regulations made under the new power that are awarded to different types of providers, and would require both NHS England and ICBs to publish a plan for reducing private providers’ provision and increasing the capacity of NHS providers to provide those services. As the shadow Minister set out, it would require ICBs to publish in full bids received for contracts, contracts signed and reports of contract management.
By way of context, the NHS has told us that the current competition and procurement rules are not well suited to the way healthcare is arranged. That is why we are creating a new provider selection regime that provides greater flexibility, reduces bureaucracy on commissioners and providers alike, and reduces the need for competitive tendering where it adds limited or no value. I fear that the amendments would start reimposing a degree of that bureaucracy. The absence of competitive tender processes does not mean an absence of open, transparent and robust decision making. Our proposed new regime is designed to allow transparency, scrutiny and due diligence in decision making, but without all the barriers and limitations associated with running full tender exercises.
NHS England has laid out a series of reasons in its public consultation why competitive tendering may not be suitable in every case. We do recognise the value of competition in particular cases, but this is about introducing an element of greater flexibility, rather than rigidity. NHS England has proposed that, having considered a set of key criteria, the decision-making body may have reasonable grounds for choosing either to continue with the incumbent provider where it is doing a good job and the service is not changing, or alternatively, where the service is changing, of selecting one provider or group of providers or of course holding a competitive tendering process.
Structuring the new provider selection regime around such criteria will ensure that the factors taken into account by commissioners are those relevant to the health service, while still retaining flexibility in the types of provider from which commissioners can commission. Amendment 99 would mean that these regulations go further than the existing rules under the PCR 2015. Those regulations allow for an exception to competitive tendering where competition is absent for technical reasons, but this provision would not allow for that, nor for an exception in relation to a procurement for an extremely urgent case.
Transparency was a keen concern of the hon. Gentleman. Regulations and statutory guidance made under new clause 68 will set out rules to ensure transparency and scrutiny of decisions to award healthcare contracts under the new provider selection regime. The regulation-making powers specifically allow for the imposition of requirements for the purposes of ensuring transparency and fairness in arranging services, which will allow us to design a regime to ensure open, transparent and robust decision-making, including requiring decision-making bodies to keep records of the rationale for their decisions.
We do not consider it necessary to publish all bids received for contracts or the detailed content of all contracts. Doing so would have the potential to prejudice the commercial interests of the parties involved, including NHS commissioners and providers as well as those bidding.
We consider these amendments to be unnecessary. Indeed, we fear that they might actively undermine what the NHS is telling us it needs from the private selection regime to secure high-quality, safe and good-value services. Therefore, I hope that I might tempt the hon. Members not to press their amendment to a vote. I have a feeling, though, that we might face a Division on it in the near future.
Let me move briefly to the clause 68 stand part debate. The clause inserts a new section, 12ZB, into the National Health Service Act 2006.
Edward Argar
In that case, I nudge the Opposition to consider withdrawing their amendment, but I may be unsuccessful.
Justin Madders
I picked up some interesting points. There was, I think, some common ground with the Minister about the mistakes of the past. From the contribution of my hon. Friend the Member for Bristol South, I think we have found one positive aspect of section 75, which is that it brought her to this place. At last, there is something positive to say, because we do not mourn its passing. As she said, at the time, not a single ounce of support existed for those rules outside of the coalition Government, but we will not go over all the old ground again.
In his response, the Minister talked about the “any qualified provider” regime that was introduced in 2009. My understanding is that, had we been successful at the 2010 election, we would have moved to “a preferred provider”, but, of course, when we look at the commitments made in 2010, we can forget David Cameron’s promise not to reorganise the NHS. We will see whether the Minister’s promises in respect of that are as robust.
The Minister says that what matters is the best outcome for patients, and we absolutely agree with that. We think that the best outcome for patients will be stability and a regime in which the NHS is the preferred provider, because all the evidence points to better outcomes for patients.
I am grateful to the Minister for not characterising me as dogmatic, because I do not wish to be. I wish to be pragmatic. The idea of putting into the Bill some requirements about what we expect from the regulations is a perfectly reasonable position to take, but until we see those regulations, we cannot be sure about what they will include. By supporting the amendment, what we hope to include is a base position that injects a degree of transparency, which is what has been lacking over the past 18 months, and the Bill clearly fails to refer to any particular issues in that regard. Our view is that the purpose of this Bill should be to reinforce the NHS—to bolster it—by using a preferred provider, which is why we wish to put our amendment to a vote.
Question put, That the amendment be made.
Edward Argar
I will be brief because we covered key aspects of clause 68 in debates on the amendments. The clause inserts proposed new section 12ZB into the NHS Act 2006. Section 12ZB allows the Secretary of State to make regulations setting out the regulatory framework for the procurement of healthcare services, to better meet the needs of the NHS.
Section 12ZB provides further information about the content of those regulations. They may contain provision in relation to the objectives of procurement, and they may contain provisions ensuring transparency, fairness and effective management of conflicts of interest, as well as provision for the purpose of verifying compliance with the regime. The new section also allows for NHS England to publish guidance about compliance with the new procurement requirements to which relevant authorities, as defined in the section, must have regard.
The NHS has sent us a clear message that the current regime for arranging healthcare services is not working. It is confusing, overly bureaucratic and does not fully support the integration and efficient arrangement of services and collaboration in the best interest of patients, which, of course, run through the Bill like a golden thread. Through the clause, we will develop a new provider selection regime for the NHS and public health—a bespoke NHS regime that will give the NHS and local government more discretion over how they arrange healthcare services. Informed by the consultation run by NHS England earlier this year, it will aim to enable collaboration and collective decision-making—recognising that competition is not the only way of driving service improvement. It will aim to reduce bureaucracy on commissioners and providers alike, and to remove the need for competitive tendering where it adds limited or no value.
We recognise that in many cases competition can be beneficial for procurement. Where a competitive tender is the best way for an NHS commissioning body to secure value and quality in its healthcare provision, it will be used. However, it will no longer be the default that contracts in the NHS are automatically put out to tender. All decisions about provider selection will continue to be made in an open and transparent way, considering key criteria and applying them to decision making, in the best interests of patients and the taxpayer. I commend the clause to the Committee.
Justin Madders
I will not repeat all my comments from earlier, to save the Committee’s time. I have two remaining specific questions, which I hope the Minister can address. The clause says that regulations “may” be produced. Can he state for the record that there will be regulations? Can he also give us some indication of when they are likely to be made and when they are likely to take effect?
Edward Argar
I can reassure the hon. Gentleman that “may” is the technical language used in drafting such legislation, but we intend that they will be made. I am afraid I will disappoint him on the second part of his question, because I would not presume to say exactly when; that will be down to the passage of this legislation and then the usual wait and the discussions through the usual channels on securing an appropriate slot for the regulations. I hope I have given the hon. Gentleman a modicum of reassurance.
Question put and agreed to.
Clause 68 accordingly ordered to stand part of the Bill.
Clause 69
Procurement and patient choice: consequential amendments etc
Justin Madders
I beg to move amendment 97, in clause 69, page 62, line 26, at end insert—
“(1A) In the National Health Service Act 2006, in section 272(6), after paragraph (za), insert the following paragraph—
‘(zaa) regulations under section 12ZB,’”.
This amendment would require a draft of procurement regulations under new section 12ZB of the National Health Service Act (inserted by clause 68) to be laid before, and subject to approval by resolution of, each House of Parliament.
I will not detain the Committee long on this amendment. Following on neatly from our previous discussion, it requires that the regulations, which I am now assured will be produced, are subject to a resolution of approval by both Houses. I do enjoy spending time in Delegated Legislation Committees with the Minister, and I hope we will be able to do that again as a result of this amendment’s being accepted.
Edward Argar
I am, as ever, grateful to the hon. Gentleman. The amendment would require a draft of procurement regulations under new section 12ZB of the National Health Service Act to be laid before, and subject to approval by resolution of, each House of Parliament. As set out in our delegated powers memorandum, the powers created by clause 68 amend the NHS Act 2006. In line with the vast majority of regulations made under that Act, these powers will be subject to the negative procedure in section 272(4) of that Act.
As demonstrated by the passage of the Health and Social Care Act 2012, there is significant parliamentary interest, both in this House and the other place, in the rules for determining how healthcare services are arranged. However, it is vital that we strike the right balance between democratic scrutiny and operational flexibility. The negative procedure provides that balance, ensuring transparency and scrutiny, while also providing sufficient flexibility to ensure that the regulations continue to drive high-quality services and value for money.
We have consulted extensively on the proposals for these regulations to ensure that we are delivering the flexibility, transparency and integrated approach that the NHS has asked for. The engagement exercise undertaken in early 2019 collected views from across the health sector, and the proposals put forward by NHS England around procurement gained widespread support, with 79% of respondents agreeing or strongly agreeing with the proposals.
Earlier this year NHS England consulted on further detail of the proposed regime that should apply when healthcare services are arranged in future, following removal of the current requirements. NHS England received a range of responses from NHS national and representative bodies. In addition to written feedback, it met NHS colleagues and external stakeholders. We have been and continue to be as transparent as possible in our approach to these proposals. Therefore, I suggest that the hon. Gentleman amendment’s is unnecessary.
Justin Madders
In the light of the Minister’s comments, 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
I will be very brief. The clause will remove the specific healthcare procurement rules that currently apply to NHS commissioners when arranging clinical healthcare services. Specifically, it will repeal sections 75 to 78 and schedule 9 to the Health and Social Care Act 2012 and revoke the National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013. It also makes other minor, consequential amendments in relation to these changes and the introduction of the power to make a new provider selection regime for procurement of healthcare services under clause 68.
The Chair
With this it will be convenient to discuss the following:
Clauses 71 and 72 stand part.
That schedule 12 be the Twelfth schedule to the Bill.
Clause 73 stand part.
Edward Argar
I will try to be as brief as I can, while giving the Committee the information it wishes to have.
This package of measures is aimed at promoting collaboration in the NHS, reflecting a shift towards integration between commissioners, providers and other partners as a way of improving the healthcare people receive. Clause 70 allows for the removal of Monitor and the Competition and Markets Authority’s duties to co-operate in the exercise of their functions as concurrent competition regulators. Instead, they are replaced with a duty on NHS England to share regulatory information with, and provide assistance to, the CMA where the CMA requires it to exercise its functions.
Clause 71 removes the Competition and Markets Authority’s role in reviewing mergers solely involving NHS foundation trusts, NHS trusts or a combination of both. The CMA has led a number of investigations into NHS provider mergers or acquisitions in recent years. Although it has approved all but one merger, the investigations have been costly and time-consuming for the organisations involved.
We recognise the CMA’s important role in investigating alleged infringements of competition law and particular markets if it sees issues for consumers with reducing competition. However, as has been alluded to, the NHS is not a true market, and it has become clear that the CMA is not the right body to review NHS mergers. Instead, NHS England will continue to review all NHS provider mergers to ensure they have clear benefits for patients and the taxpayer. The CMA will retain its merger control powers in relation to the private healthcare and pharmaceutical industries, where competition plays a greater role. The NHS should be able to make decisions about provider mergers itself. Without this clause, NHS provider mergers will still be subject to costly, time-consuming investigations.
Building on the experience of the last few years, the Bill will clarify the central role of collaboration in driving performance and quality in the system. As part of that, under clause 72, we are looking to remove Monitor’s role as a concurrent competition regulator. However, although we are removing Monitor’s competition regulation functions, it is right that NHS England should continue to share regulatory information with and provide assistance to the CMA so that the CMA can carry out its functions. The clause will ensure that the CMA has the information and assistance it needs to do that in respect of its competition functions to prevent anti-competitive behaviour in the wider sector. That will ensure that the CMA can continue to make sure that the healthcare sector works for consumers, patients and the taxpayer.
The clause removes Monitor’s competition functions, which it exercises concurrently with the CMA. It also inserts schedule 12, which makes consequential amendments in relation to the removal of Monitor’s competition functions. The Health and Social Care Act 2012 allowed Monitor to exercise some of the functions that the CMA holds under the Competition Act 1998 and the Enterprise Act 2002, but solely in relation to the provision of healthcare services in England. Those included powers to take action on anti-competitive agreements and conduct in the sector and powers in relation to mergers in the sector.
The Bill will enhance collaboration between different NHS commissioners, providers and local authorities. We therefore expect that NHS England’s primary role, following its merger with Monitor, will be to support commissioners and providers to deliver safe, effective and efficient care, rather than to act as an economic or competition regulator.
While competition will continue to play an important role, including through patient choice and the new provider selection regime, it is right that the duties and role of the merged NHS England give greater weight to fostering collaboration and integration rather than enforcing competition, and that competition regulation is left to the CMA. The concurrent competition duties and functions of Monitor should therefore be removed. Schedule 12, inserted by clause 72, makes the necessary consequential amendments to take account of the removal of Monitor’s competition functions. The clause allows NHS England to work collaboratively with organisations to deliver the best possible services to patients.
Finally, clause 73 removes the CMA’s role in reviewing contested licence conditions. The licence conditions have not changed substantially since they were first agreed in 2013. However, NHS England and NHS Improvement’s oversight of the NHS has changed significantly. Their primary role is to support the delivery of safe, efficient and effective care. The merged NHS England, as provided for under this Bill, should be able to set its own licence conditions for providers and regulate providers of NHS services without needing to refer matters to an external competition regulator such as the CMA.
NHS England will remain under duties to consult with local organisations on revised licence conditions. That, alongside the removal of the CMA’s review functions, ensures that any decisions remain in the interests of the NHS as a whole. In addition, NHS England’s accountability arrangements to the Secretary of State and Parliament offer a further safeguard against disproportionate changes to licence conditions. Sufficient safeguards, such as those that I have mentioned, ensure that providers have input into any proposed changes, without the need for oversight from a third party.
We therefore believe that these measures deliver the changes that the NHS has been asking for to help it deliver the long-term plan and recover from the pandemic. I therefore commend them to the Committee.
Justin Madders
I will not detain the Committee long, but perhaps we need a minute to pause, because, as my hon. Friend the Member for Bristol South said on Tuesday, this marks the end of an era. Monitor is gone, competition is no more, and procurement is gone—I think—and become bespoke, to be determined in more detail in the regulations. Perhaps even more stark is the fact that ICBs now have providers on the board, having jettisoned the GPs, and that NHS England is now both an actual commissioner and a systems manager for both commissioners and providers. It feels like we are going back to the future.
As the Minister said, these clauses end the role of the Competition and Markets Authority. This is the final nail; it is perhaps the final recognition that the wild promises made about the 2012 Act have failed to achieve what they said they would. The expectations that Lansley set out back then have failed to produce any desirable results. I do not know whether Government Members wish to shed a tear at this point for the end of these measures, but, for Opposition Members, health is not a commodity; it is a right. Health is not a product, and the NHS is not—and never can be—a market.
As we see the end of the ideological attempt to create a market, Opposition Members cheer the bidding into history of this failed experiment, which should never have occurred. Turning to the actual substance of the clauses, as the Minister set out, they do what is necessary to achieve that aim.
Question put and agreed to.
Clause 70 accordingly ordered to stand part of the Bill.
Clauses 71 and 72 ordered to stand part of the Bill.
Schedule 12 agreed to.
Clause 73 ordered to stand part of the Bill.
Clause 74
Special Health Authorities: removal of 3 year limit
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clauses 74, 75 and 76 repeal the three-year time limit on special health authorities, restate the requirements for special health authorities and NHS trusts to keep proper accounts and records, and repeal the powers of the Secretary of State to make a property or staff transfer scheme.
Together, along with the provisions in the Bill to merge NHS England and NHS Improvement and the powers we will discuss in part 3 of the Bill in a few weeks’ time, these technical changes will help ensure that we have flexibility in the arm’s length body landscape to support the delivery of a world-class healthcare system.
Clause 74 repeals legislative provisions that currently impose a three-year time limit on any newly established special health authority. When the three-year time limit was initially imposed under the Health and Social Care Act 2012, it was envisaged that any future special health authority would have time-limited functions and therefore be temporary in nature. This has not proved to be the case.
The NHS Counter Fraud Authority is the only special health authority created since the time limit was introduced. The Government consider it unnecessary for the NHS Counter Fraud Authority, or any other special health authorities that are established in future, to undergo the process of extending their lifespan every three years. As well as repealing the time limit, the clause sets out changes to the statutory instrument used to create the NHS Counter Fraud Authority, to reflect the fact that there is no longer an abolition date.
Clause 75 simply tidies up provisions in the current legislation in respect of requirements to keep accounts. It restates the requirements for special health authorities and NHS trusts to keep proper accounts and records. It also restates a number of requirements in relation to the auditing and publication of accounts. This clause does not create any change in existing arrangements.
Finally, clause 76 abolishes powers taken in the Health and Social Care Act 2012 to transfer property, rights and liabilities from bodies abolished or modified by that Act. Those powers are now spent, so we are removing the clause to ensure neatness of the statute book, especially as a number of bodies in the 2012 Act are being abolished by this Bill. However, we have retained the ability to make transfer schemes in respect of previously transferred property and rights.
The Bill allows property, rights and liabilities that have been transferred previously under section 300(1), to subsequently be transferred to a Minister of the Crown, NHS England, an integrated care board, an NHS trust or foundation trust, or a qualifying company. That will ensure clarity that rights, property and liabilities are properly allocated and maintained, and not lost to the NHS.
These technical changes will support the wider intentions of the Bill to have a flexible and responsive national architecture for managing the healthcare system. I therefore propose that these clauses stand part of the Bill.
Justin Madders
I will not detain the Committee for long. We are enjoying the Minister’s conversion as regards the folly of the 2012 Act, this being another example of things not turning out as originally envisaged. As he said, these clauses are necessary and we will not oppose them.
Question put and agreed to.
Clause 74 accordingly ordered to stand part of the Bill.
Clauses 75 and 76 ordered to stand part of the Bill.
Clause 77
Abolition of Local Education and Training Boards
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 77 is a relatively short clause, which seeks the abolition of local education and training boards—these committees of Health Education England will, by the provisions of the clause, be abolished. In consequence, as set out in the legislation, we amend the Care Act 2014 to reflect this abolition. This is a substantive provision, but it is of a technical nature, to reflect the evolution of the provider landscape. I propose to make no further comments at this stage, but I suspect the shadow Minister may wish me to respond.
Justin Madders
I have a couple of questions for the Minister. We would more accurately describe this as a reflection of the reality on the ground, and how local education and training boards have not really been the vehicle for change that they might have been. Their original rationale was to
“build a system that is responsive to the needs of employers, the public and the service at local level.”
It seems odd that this is happening, given that the thrust of the rest of the Bill is to increase local autonomy, but I understand that the regional people boards will be taking up the majority of the slack. It raises the question of how exactly the undoubted variation in recruitment and training needs within ICBs and regions will be addressed, and how ICBs will interact. I would like to hear from the Minister about that. There is also a concern from the British Medical Association that this could mean the loss of dedicated local support systems for GP trainees, and there is some need for clarity on how that function will be met.
Edward Argar
The shadow Minister is right in surmising that once LETBs are abolished, their functions will be discharged by HEE directly in the manner he has set out. On his specific questions, HEE will continue to have responsibility for workforce planning and will engage with regional people boards, integrated care boards and the regional directorates of NHS England to carry out this function. Those responsibilities will be set out in a report that we will publish describing the system for assessing and meeting the workforce needs of the health service in England, as debated in relation to clause 33—to which we may yet return, either on the Floor of the House or in the other place.
We are not removing local or regional workforce planning from the statute, as the hon. Gentleman suggested; HEE will continue to have responsibility for that workforce planning. The LETBs were sub-committees of HEE and reported to the HEE board in any case, so clause 77 just removes some of the rigidity in respect of how HEE had to operate. As is the theme throughout this legislation, this clause seeks to give a greater degree of flexibility and permissiveness to allow the system to adapt to changing needs. On that basis, I ask that it stand part of the Bill.
Question put and agreed to.
Clause 77 accordingly ordered to stand part of the Bill.
Clause 78
Hospital patients with care and support needs: repeals etc
Alex Norris
I beg to move amendment 98, page 68, line 22, at end insert—
“(2A) A social care needs assessment must be carried out by the relevant local authority before a patient is discharged from hospital or within 2 weeks of the date of discharge.
(2B) Each integrated care board must agree with all relevant local authorities the process to apply for social care needs assessment in hospital or after discharge, including reporting on any failures to complete required assessments within the required time and any remedies or penalties that would apply in such cases.
(2C) Each integrated care board must ensure that—
(a) arrangements made for the discharge of any patient without a relevant social care assessment are made with due regard to the care needs and welfare of the patient, and
(b) the additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments after a patient has been discharged are met in full.
(2D) The Secretary of State must publish an annual report on the effectiveness of assessment of social care needs after hospital discharge, including a figure of how many patients are readmitted within 28 days.”
Clause 78 is the final clause of part 1, but it is an important one, and we hope that the amendment improves it. I will be interested to hear the Minister’s views. This all relates to discharge to assess, where patients are discharged from hospital into the community setting and have their care needs assessed at home, or wherever they have gone from hospital, rather than waiting to be discharged from hospital and having to stay there longer than they clinically need to before the assessment takes place. Importantly, this is something that has been trialled during the pandemic. There is a lot of vulnerability at that point, and this process will matter to a lot of people. It is right that we give it proper consideration, and I think we ought to tighten it up.
I will confess that I have gone back and forth on the principle of discharge to assess, and I have had this conversation with colleagues in recent months. When the Bill was published, my first instinct on this clause, as former local authority social care lead, was a negative one. I felt—I still have this lingering doubt—that there was a real risk of patients essentially being parked in the community to the detriment of their health, with the obligation and cost put on local authorities. Of course, in many cases, some of that will be borne by continued healthcare funding. However, in the end that will become a local authority responsibility for each individual, and there will be a significant risk of them being readmitted shortly afterwards.
Local authorities are already scandalously underfunded to meet the social care needs of their population. Adding some of the most vulnerable people to that list and to the quantum of need that needs to be met will add greater risk, so I have serious reservations. This is not a conceptual debate, and that makes life easier; we have evidence to work with. Through no one’s planning, we have essentially run a de facto pilot scheme during the pandemic, so we know of what we talk. We have a sense of what is going on on the ground, and clause 78 will put it on a permanent footing.
On matters relating to local government, I always fall back on my former colleagues in local government. Their views on this are very clear, and I have had this conversation with them a lot. It always ends up with me saying, “Are you sure?” However, we should not miss their evidence. They say:
“The repeal of legislation related to delayed discharges is good news. This paves the way for the continuation of discharge arrangements which have worked well during the pandemic. The emerging evidence is that going home straight from hospital is what people want.”
I can certainly understand that. They also want greater clarity on the future of this de facto pilot from next month, in the interregnum between when the Bill becomes law and when the funding runs out next month. That is a very reasonable request, and I hope the Minister can respond. The strength of feeling from local government colleagues—our experts by experience—cannot be ignored, and that is why we are seeking to improve rather than prevent this innovation. It does need improving.
Important concerns were raised in the written evidence from Carers UK, which says:
“Under the CC (Delayed Discharges, etc.) Act 2003 a carer’s assessment can be requested and if so, a decision must be made about what services need to be provided to the carer, whether by social services or a consideration by the NHS, to ensure that the ‘patient is safe to discharge’.”
That will be repealed by clause 78. However, they will still be able to fall back on the Care Act 2014, so the carer will get a carer’s assessment under that if they wish. Presumably, that will now take place post-discharge. That is quite a significant change. A great deal of people will become family carers overnight. They might not be conscious that that will happen, but before anybody has made any assessment of their capability to do so, they will quickly find themselves operating as family carers for very vulnerable people immediately post discharge. By the time they get the carer’s assessment, they may well have been struggling to cope for a significant period of time. That could have some dreadful consequences, which is why amendment 98 states that there must be an assessment within two weeks. Obviously, we would want it much more quickly than that, but two weeks is a bare minimum backstop.
I do not think that this is catastrophising. According to research that Carers UK submitted, 26% of carers had not been consulted about discharge before the discharge of the person they care for, and a third were consulted only at the last minute. I do not think that is setting families up to succeed. If the Minister thinks that that will get better as a result of these innovations, we would welcome that, but I would like to understand why he thinks that might be the case and how the situation will look better. Carers UK recommends putting greater responsibility on the integrated care board to have oversight of how discharge to assess is working for the individuals in their care and across their footprint more generally. That is what we have sought to recommend with amendment 98.
The concerns of Carers UK are echoed by the British Association of Social Workers, and social workers, like family carers, have first-hand experience of the trial. The association worries about there being a move away from the fundamental point that the wellbeing principle is uppermost, and its evidence is concerning:
“A survey of Social Workers conducted in December 2020 involved in hospital discharges highlighted that the vital contribution of social work in the multidisciplinary team was being marginalised by the medicalisation of people’s journeys out of hospital. Most importantly, social workers felt that the voice of the individual was lost”.
It is quite significant to say not only that skilled staff would not be able to play their normal role in the process but that the individual’s voice would not be there.
The worst manifestation of the provisions in the clause would be for it to be in the system’s interest to move people out of hospital, because that would then be the priority. We need to make sure that that is not the case. The British Association of Social Workers would rather that the clause was not in the Bill at all, but we have not gone that far and have sought to improve it by putting a maximum two-week wait time in the Bill. That would be prudent. The amendment would also centre the integrated care board in the management and oversight of the process. If the integrated care board is to act as a system leader and integrator, surely such a system process—this is the ultimate system process—that touches on the borders between institutions ought to be within its purview. Otherwise, where will the oversight come from? Who will hold the different parts of the system to account?
I hope that the Minister addresses the concerns I have expressed, because this is an important and, in the plainest-speaking sense, risky decision. There are ways to mitigate that and we have suggested a good one in the amendment. I am keen to hear the Minister reflect on that.
Karin Smyth
I echo the comments of my hon. Friend the Member for Nottingham North. We discussed this when the Bill hit the Vote Office, because from a system management point of view I saw this change as a positive move. It was necessary in the system to increase the flow out of hospitals, particularly in the pandemic.
We talk about flows out of hospitals, but we are really talking about individuals—our nearest and dearest. During the summer, my husband and I were both responsible for supporting my mother and my mother-in-law in and out of the system, and my mother-in-law was part of the discharge to assess programme. This is not the place for me to rehearse the traumas of becoming, as my hon. Friend so eloquently put it, a family carer overnight and realising, if I did not know already, how little there is outside hospital. My hon. Friend’s point about families suddenly becoming responsible carers overnight is really important. Thousands and thousands of families are finding themselves in that position. Most people would agree about discharging people out of hospital as soon as possible, particularly given the fear of covid and people not being able to go into hospital to see their loved ones. In my mother’s case, she was discharged very quickly, and we went to get her because there was no ambulance service.
The closure of hospitals to visitors adds to the trauma of an acute episode, and people then have to take on that responsibly. People are assessed for care and told in the same sentence, “You’re assessed for care, but there is no care,” and that care takes several weeks to come into play. Among my own family and my in-laws, we have a clinical person in the team, we are fairly articulate, we are knowledgeable about the system and we perhaps know what we are taking on and have the capacity and capability to manage the situation, but it is deeply worrying that people who have no advocate or no other support—even social workers—are told when they are discharged that they need assessed care but there is none. It will take some time for us to understand what has happened to thousands of people who have found themselves in such a difficult position. I am particularly worried about people who have no advocate.
I suspect that the Minister will not accept the suggestions in the amendment now, but I hope he will take advice so that we can understand better—perhaps through an assessment—what has happened to people who have been discharged in the last few months without having support in place. We need to hear about that.
Edward Argar
I am grateful to the hon. Member for Nottingham North and the hon. Member for Bristol South. I knew that the hon. Member for Nottingham North and I had a shared background in local government, but I did not realise that it may have covered the same portfolio. I share his view on two points in particular. First, we have had the opportunity, of necessity, during the pandemic to see how the approach might work in practice. My instinctive reaction is that I can see how it works from the perspective of the system and the health service but, with my old council hat on, I would say, “How does it work from our perspective?” What we have seen throughout the pandemic has not been without its challenges, but it has broadly worked.
Like the hon. Gentleman, I am always happy to speak to my local councillors, who will not hold back in telling me what they think is working and what is not. However, I do think that this is the right approach when implemented properly. We know that if people stay in hospital longer than is medically necessary, it affects not only the system but individuals’ physical and mental health. It is therefore right that we get people home or to an appropriate interim place where they can be cared for and continue their rehabilitation in the right setting.
The amendment would introduce a new requirement for local authorities to carry out social needs assessments either before a patient has left hospital or within two weeks of discharge. Integrated care boards would have to agree the process with local authorities, including any penalties when local authorities fail to assess people within two weeks. It would also introduce a requirement for an annual report to be produced
“on the effectiveness of assessment of social care needs”
post discharge. As I hope I alluded to in my opening remarks, I entirely appreciate the intention of the amendment—all patients must receive the care that they need on being discharged—and understand where the hon. Gentleman and his colleagues are coming from, but I am not sure that it is the best way to advance that objective.
Existing discharge guidance states that health and social care systems must determine the most appropriate discharge pathway for each person to ensure that they receive the interim care and support they need, pending full assessment. Legislation already requires the NHS to meet people’s health needs, and local authorities must still assess and meet people’s adult social care needs. We are co-producing new statutory guidance on how the existing statutory duty for health and social care partners to co-operate will apply in relation to discharge. By way of reassurance, where local areas follow the discharge to assess model, unpaid carers are still entitled to a carer’s assessment where they are not able to care or need help. A carer’s assessment should be undertaken before caring responsibilities begin for a new caring duty or if there are increased care needs.
As all colleagues who have been involved in local government or the NHS will know, the devil is in the implementation rather than the detail in this case. We must ensure that the system works. The entitlement is there, and we must ensure that that pulls through into practical realities. The hon. Gentleman will be aware that the discharge guidance also states:
“Before discharge a determination must be made about the status and views of any carers who provide care, including that they are willing and able to do so.”
Evidence broadly suggests that when long-term needs assessments are carried out at the point of optimum recovery, that leads to a more accurate evaluation of needs and more appropriate care packages. Many people discharged from hospital require longer than two weeks to recover; we fear that requiring social care needs assessments to be completed within two weeks of discharge would create an extra layer of bureaucracy. In practical terms, it would not necessarily function in people’s best interests.
Our extensive engagement with health and social care partners has highlighted how current bureaucratic discharge requirements, including penalties for local authorities, can damage relationships and create discharge delays, and they do not support collaborative working across sectors. We fear that creating a new penalty for local authorities for failing to carry out assessments would again risk creating a tension within the system, which would go against the spirit of the integrated working that the Bill seeks to support and the good co-operation that I would argue normally and generally occurs. Our existing clause creates freedom for local areas to develop discharge arrangements that best meet their local needs.
I fully appreciate the need for accountability, which is why we are working with NHS England to publish hospital discharge data from 2022 onwards that will include data on the destination and discharge pathways being used to support people after they leave hospital.
For those reasons, I gently encourage the hon. Gentleman to consider not pressing his amendment to a Division.
Alex Norris
I am happy to say that I will consider that request; obviously, I have heard what the Minister has said. I was slightly heartened to hear the point about guidance. I suspect that if we do not see something exactly like what I propose in the amendment, we will see something very similar to it being put in the guidance.
However, we do not have that guidance at this point, which leaves us with two alternatives: either we press the amendment to a Division or we do not. If we do not, we will not be opposing the stand part debate, which means that we might create the impression that we have waved through something that we are concerned is too loosely defined. For that reason, we have to press the amendment to a Division.
Question put, That the amendment be made.
Edward Argar
I will endeavour to be relatively brisk; I think that we have covered some of the issues pertaining to the clause in our discussion of the hon. Gentleman’s amendment.
The clause repeals legislative barriers to the discharge to assess model, in order to better align legislation with current best practice. During the pandemic, local authorities and the NHS developed innovative ways to support better discharge from hospital to community care. The clause is crucial in enabling local areas to build on those partnerships to adopt the discharge approach that best meets local needs, including the discharge to assess model.
The clause will enable the safe and timely discharge of people to a familiar environment where possible. Individuals receive recovery and re-enablement support, and are assessed at the point of optimum recovery. This will enable a more accurate evaluation of their long-term care and support needs. The provision does not change existing legal obligations on NHS bodies to meet their local population’s health needs, and local authorities are still required to assess and meet people’s needs for adult social care.
In addition to those responsibilities, we are co-producing discharge guidance with health and social care partners, setting out how the existing statutory duty in the NHS Act 2006, which requires health and social care partners to co-operate, will apply to discharge. Our guidance will be clear that no one should fall through the gaps so that people receive the right care in the right place at the right time. Discharge to assess will not change the thresholds of eligibility for continuing healthcare—CHC—or support through the Care Act 2014. The clause includes consequential amendments to other pieces of legislation. Those are needed to remove references to pieces of legislation that we are repealing with clause 78 and to tidy up the statute book.
Alex Norris
I shall not duplicate anything I said in the previous debate. I fully support what my hon. Friend the Member for Bristol South said. We accept that hospital is a bad place for a sick person to be once their initial ailment is dealt with. They do not want to be around all sorts of illnesses when they are susceptible.
I want to make a final point on rehabilitation and re-ablement, as the Minister called it. That is at its most valuable as early as possible. Getting a person into their rehab and exercises rather than just being parked in an armchair is a big part of someone’s bouncing back from physical injury, and it helps with mental health as well. It is not desirable for them to wait a long time for an assessment because that will be a part of how they bounce back, rebuild their lives, and re-able and rehabilitate themselves. That strengthens rather than weakens the case for trying to be very tight about how quickly we want that to happen.
Edward Argar
I concur with the sentiments that the hon. Gentleman has expressed. It is absolutely right not only to have the right model in place but that that model moves swiftly and effectively to provide the services required.
Question put and agreed to.
Clause 78 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)