Subsidy Control Bill (First sitting)
(2 years, 10 months ago)
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The Chair
Before we go further and begin, I have some preliminary announcements to make. May I encourage Members to wear masks when they are not speaking? That is in line with current Government guidance and that of the House of Commons Commission. Please give each other and members of staff space when seated and when entering or leaving the room. Hansard colleagues will be grateful if Members could email their speaking notes hansardnotes@parliament.uk. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings. Date Time Witness Tuesday 26 October Until no later than 10.30 am Industrial Communities Alliance; Convention of Scottish Local Authorities Tuesday 26 October Until no later than 11.25 am Institute for Government; Professor Stephanie Rickard, London School of Economics Tuesday 26 October Until no later than 2.30 pm Institute of Directors Tuesday 26 October Until no later than 3.00 pm Monckton Chambers Tuesday 26 October Until no later than 3.40 pm DWF Group; UK Steel Tuesday 26 October Until no later than 4.00 pm Daniel Greenberg, House of Commons Counsel for Domestic Legislation Tuesday 26 October Until no later than 4.30 pm Competition and Markets Authority Tuesday 26 October Until no later than 5.00 pm Ivan McKee, Scottish Government Minister for Business, Trade, Tourism and Enterprise
Today, we will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about our questions for the oral evidence session. In view of the time available, I hope that we can take those matters formally without debate.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 26 October) meet—
(a) at 2.00 pm on Tuesday 26 October;
(b) at 11.30 am and 2.00 pm on Thursday 28 October;
(c) at 9.25 am and 2.00 pm on Tuesday 2 November;
(d) at 11.30 am and 2.00 pm on Thursday 4 November;
(e) at 9.25 am and 2.00 pm on Tuesday 16 November;
(f) at 11.30 am and 2.00 pm on Thursday 18 November;
(2) the Committee shall hear oral evidence in accordance with the following Table:
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 9; Schedules 1 and 2; Clauses 10 to 78; Schedule 3; Clauses 79 to 92; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 18 November. —(Paul Scully.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Paul Scully.)
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Paul Scully.)
The Chair
Copies of the written evidence that the Committee receives will be made available in the Committee Room and circulated to Members by email.
The Chair
Q
We will now hear oral evidence from Steve Fothergill, national director of the Industrial Communities Alliance, who is here in person, and Dr Serafin Pazos-Vidal, head of the Brussels office for the Convention of Scottish Local Authorities, who is appearing virtually. Before I call the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion that the Committee has agreed. For this panel, we have until 10.30 am. Will the witnesses please introduce themselves?
Professor Fothergill: Thank you and good morning. In this context, I have two roles. I am Professor Steve Fothergill, a professor of regional and economic development at Sheffield Hallam University. I am an economist by background. I have worked on these issues for many decades. My second role is national director—chief officer, not the political boss—of the Industrial Communities Alliance, which is the all-party association of local authorities in the older industrial areas of England, Scotland and Wales.
Members might be wondering which hat I am wearing. Fortunately, from my point of view, my personal views as a long standing academic coincide with those of the organisation for which I work part time, the Industrial Communities Alliance, so I am wearing both hats simultaneously. If we get on to territory where I am expressing a personal view as an academic, I will try to flag that up.
Would it be helpful if I were to make an opening statement? Perhaps I could do that after the introduction of the other witness.
Dr Pazos-Vidal: I am very grateful to be able to contribute to this hearing. I am responsible for the international policy unit of the Convention of Scottish Local Authorities, which is the local authority association of the 32 Scottish councils—the equivalent to the Local Government Association in England or Wales for instance. A lot of that work these days refers to repatriation of European Union powers. A lot of what we are going to say has been discussed and validated by our political structures and through the councils. I am also an academic researcher on this whole issue of multilevel governance, which is about how levels of government relate to each other—an issue that I believe is particularly true in this Bill. Where it is helpful for the discussion, I will speak from that international academic experience.
The Chair
Thank you. Professor Fothergill, you have one minute for a brief statement, because time is very limited.
Professor Fothergill: I will do my best. There are two points I want to make by way of introduction. First, we need subsidy control. Subsidies can be expensive and they can be distortive, but they can also deliver valuable objectives—things like regional development, the green agenda and so on—so we do need rules.
The second point I would like to make—this is the big concern I want to air in front of the Committee as we proceed—is about the relationship between the Bill and the levelling-up agenda. The Subsidy Control Bill is potentially a very useful tool in delivering the levelling-up agenda, but at the moment the details are very thin. In particular, there is an absence of an assisted area map, and no commitment to developing one. That would be extremely helpful in promoting growth in the less-prosperous local economies of the United Kingdom.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
Q
Secondly, do you think that the UK Government and the devolved Administrations will have a common way of delivering policy goals under the subsidy control principle—on market failure and equity rationales, for example? How might that be interpreted by different levels of government? Does more need to be done for a stronger relationship between Westminster and the devolved Administrations and local government on the implementation of the measures?
Professor Fothergill: Okay—there is quite a lot in that. Let me clarify the point I was trying to make about how an assisted area map would strengthen the levelling-up agenda, and how it might be incorporated into the legislation.
An assisted area map would define the areas where you could give additional subsidies to firms to promote investment, to bring in businesses from abroad, and to strengthen existing businesses in the locality, for example. We had an assisted area map under the old EU state aid rules, but let me be quite clear: the whole idea of an assisted area map was not something that was imposed on the UK from Brussels; we had an assisted area map in the UK long before Britain even joined the EU. There were maps back in the ’60s and early ’70s defining the areas where it was legitimate to give additional aid to businesses to promote new jobs or protect existing ones.
I do not think we need some after the event audit of how the geography of subsidies has worked out. What we need, in advance, are some clear criteria defining the places where enhanced subsidies can be given. That sends an important signal to businesses in particular that if they were interested in investing in one of the less-prosperous parts of the UK, they might be able to draw down significant financial assistance. At the moment, the legislation does not rule out an assisted area map, but equally, it does not rule one in. I have to say, with due respect to the Minister, that that leaves a huge amount of discretion in the hands of the ministerial team. In the absence of any commitment in the legislation to defining how an assisted area map should be drawn up, I think it is perhaps taking the whole issue away from the scrutiny of Parliament. That is how the legislation should be strengthened on that point.
On the question of the relationship between the UK Government and the devolved Administrations, it is perhaps fair and reasonable that the whole of the UK operates under broadly the same rules, but there is then a subsidiary issue of whether the different tiers of government in the UK actually take advantage of those rules. That has always been the case. It was the case under the old EU state aid rules; we had rules about what you could and could not do, but the different parts of the United Kingdom put larger or smaller amounts of funding into different schemes to support businesses. As long as that was all within the rules, that was okay. In terms of the detailed implementation of the legislation, and I think a lot of the real operation of this legislation does depend on the details—the devil is in the details—then, clearly, it would be good to have that meaningful dialogue between Westminster and the devolved Administrations, even if we are, at the end of the day, working within a single set of rules for the whole United Kingdom.
The Chair
Q
Dr Pazos-Vidal: Yes. I could only agree, in general terms, with what has been said already. I will take the questions in order. Quite clearly, there is an expectation from local authorities that there is a specific targeting of given areas, because that will provide legal certainty for public authorities, but also for economic operators, about whether the subsidies can or cannot be applied. That makes sense, and it is clearly a message that comes from many councils across Scotland, particularly from those that have benefited from assisted area status. It is worth recalling, in the case of Scotland for instance, that the regional selective assistance scheme has been running for many years, awarding around £20 million through 60 or so awards a year. That is something that local authorities want to retain, but the same could be applied to colleagues from the rest of the UK.
Quite clearly, as has been mentioned, the Bill does not say one thing or the other. The supporting documents do say, more or less, that there might be some guidelines or guidance on the special targeting of assisted areas, which, as has been mentioned, has been a feature of the UK policy toolbox since the 1930s. The Bill could, for instance, define what an assisted area is. That would be encouraged, and there would be limited discretion on that for whoever the Minister might be in however many years’ time.
That would be helpful, but it is also important to distinguish that having assisted areas does not mean having European-style assisted areas. After all, the geographies that we have seen in the assisted area maps so far have been developed by Eurostat, according to —I would say—very technocratic approaches that did not fit the geographies of the UK. It created a certain degree of lineation by imposing certain geographies that are not recognisable in the UK, so we should not necessarily look at just having the old maps.
The good thing however, is that the UK, and Scotland, and different parts of the UK, are very privileged in the amount of data that is available at a very local level—sub-municipal level, sub-local level, ward and street level—which will allow the granularity that we perhaps did not have under the EU system. Now that we are moving to creating a home-grown system of assisted areas, that could be very much put to use, in a way that has perhaps not been used at the same level during the time of EU membership.
We should not underestimate the importance for this Bill of the participation of the devolved Administrations, and also local government. After all, we are talking about policy choices, not competition policies. It is about policy outcome and political rationale, and we have a very divided system of Governments, which is asymmetric in certain respects. If a decision is just taken by a Minister, or a Minister just issues guidance, as set out in clause 79, that will not work.
We should not underestimate the constitutional impact that the United Kingdom Internal Market Act 2020 had on the territorial constitution and the governmental relations of the UK. That needs to be addressed—one issue with the Act is subsidy control—by taking a more inclusive approach in terms of how rules are made, even if the Minister has to say at the end, “We need to have a system of engagement and consultation.”
In my view, that should also be specifically incentivised, mentioned and encouraged in the Bill itself, so that it is not a question of the Government of the day just deciding to engage or not to engage. This is quite important—it is part of the role of intergovernmental relations. I should also say that, in a statement to this House in March 2018, the UK Government committed to engage with local government when designing the new rules. That is actually one of the ways of honouring the Government commitment.
Seema Malhotra
Q
Dr Pazos-Vidal: You are absolutely right. Ideally, the Bill should be the framework of how this engagement should be done. Under clause 79, the Secretary of State should consult anybody whom they consider it appropriate to consult before issuing statutory guidance. In our view, that is too general and not reflective of the territorial constitution of the UK as it stands. There should be a provision that the Secretary of State must consult the devolved Administrations in a dedicated system that should also involve local law. There should be a duty to make sure that different parts of the UK have full ownership of the final outcome—it is true that the Secretary of State will issue the guidance—but also the intelligence and the local know-how about these ideas. It is very easy to see things in a certain way in Westminster, but when you are in different parts of the UK, they do not look like that.
On the call-in powers, it is true that UK Ministers have responsibilities only for England on some issues, whereas other Ministers across the UK have responsibilities on the same issue in other parts of the UK. It makes sense that whenever the competent authority is in a devolved part of the UK, the same consultation mechanism should be provided, mutatis mutandis, before the Secretary of State decides to call in a subsidy. That seems to be quite inclusive. I have to say that the intergovernmental review, which was updated in March this year, tends to go in the other direction, but as the supporting document suggests, we cannot wait for the intergovernmental review to happen, because it will take its time.
Subsidy control is potentially a sensitive constitutional and political issue. We are already introducing provisions to make sure that the mechanism of consultation happens. It is quite consistent with the direction of travel in which we should be going. As I say, the intergovernmental review really goes in that direction, but that is a wider piece of work, and I think we should introduce those social provisions in the Bill.
Likewise, because the Government committed to a consultation mechanism with local government a couple of years ago, there should be some provisions for that. That is what we had when the European Commission used to draft the guidelines. The member states had a special legislative committee, and there were specific procedures for local government. There was even a statutory procedure through the European Committee of the Regions. There was a whole infrastructure to help the Commission design the rules. We do not have to replicate exactly the same things, but at the very least we should have the same level of ownership as we had during our EU membership—or more. That is only right and proper if we are to ensure that the system works in the long term.
Equally, the new subsidy control unit in the CMA could benefit from the work of the devolved state aid units, which are not mentioned in the Bill or the supporting documents, but naturally these teams have a lot of experience working with local authorities, sorting out the practicalities of how to assign a subsidy. It would be a shame if all this knowledge was not properly used to design the system and rules that will emerge from the Bill.
Professor Fothergill: May I amplify my remarks on the consultation and the involvement of the devolved Administrations? The crucial thing is to include a commitment to consultation and to their involvement in the drawing up of the detailed guidance, because the guidance really matters. Let me illustrate how this might work in the context of an assisted area map, if we are to have such a map; I know from personal involvement that an assisted area map has been drawn up the last three times round, and a full consultation process has been undertaken. Indeed, there was a two-stage consultation process, in which the principles underlining the map were out for consultation first, because the map was largely drawn here in the UK, though parts of it were set by Europe, and then the draft map went out to consultation.
I am also aware that the devolved Administrations largely drove the detailed drawing of that assisted area map within their own patch. There needs to be a commitment to undertake a similar sort of procedure.
Bill Esterson (Sefton Central) (Lab)
Q
Professor Fothergill: I think that we can draw a map better this time if it is simply drawn here in the UK. Last time, the way that the system worked was that certain areas under EU rules automatically qualified for assistance, such as west Wales and the valleys, the highlands and islands, and Cornwall. There was also a particular deal over Northern Ireland, which meant that the whole of Northern Ireland automatically qualified. The rest of the map beyond those limited areas was drawn within the UK, but it was drawn within an overall population envelope, in terms of population coverage, that was set by Brussels, so it was a question of, “We have so much coverage to allocate. Where do we allocate it?”.
The Government went through a very difficult procedure to try to target the areas that were most in need, as well as places within or close to those areas where there were genuine opportunities to promote jobs and support businesses. In a sense, it is no good putting a line around a residential area and saying, “That is eligible for business support”, because there are not businesses in most residential areas; it is the big areas of trading estates and so on that need to be targeted.
Obviously, within a fixed population envelope, not everywhere that perhaps deserved coverage was able to get coverage. If we are drawing a map here in the United Kingdom under our own rules, we can increase the population coverage of that assisted area map to better reflect the true extent of economic disadvantage in the United Kingdom. Under the old EU rules, only about a quarter of the entire UK population was on the map. That really does not accurately reflect the extent of areas that need levelling up in the United Kingdom.
The Chair
Q
Dr Pazos-Vidal: Just briefly, as a complement. My earlier point about consultation at EU level was about all the guidance, not just the regional aid guidance for assisted areas, which is what has been mentioned. Of course we would like to replicate the system and improve on it. On this issue I think—
The Chair
Dr Pazos-Vidal, could you speak up a little bit?
Dr Pazos-Vidal: Yes, sorry. I withdrew from the mic. The general provisions are more state aid-like than just regional aid guidance received in the assisted areas, as my colleagued referred to previously. On the issue of assisted areas, it is important to highlight that assisted areas of regional aid guidance, as they used to be known, were done in complement to the so-called structural funds. Likewise, it is important that we develop the UK’s shared prosperity fund. It appears there will be an announcement on that in tomorrow’s statement by the Chancellor.
As we have seen so far from the pilots of the shared prosperity fund that are already running—the community renewal fund or the levelling-up fund more generally—they already do some special targeting. It makes sense that the assisted areas map that might be developed should complement the geographical prioritisation that we have seen, and probably want to see now in the shared prosperity fund. Sometimes to reinforce that, and sometimes because these things were not prioritised by the shared prosperity fund subsidies or grants, policy outcomes could be promoted by way of public subsidy. It is important to develop both the shared prosperity fund and the assisted areas map in parallel to make sure they are consistent.
As I said earlier, the UK has incredible advantages in terms of the amount of data that it has. For instance, I know from my experience of international work on EU legislation that it was very common for UK impact assessments of UK input of EU law to be taken as a reference for other countries, because they were very well done. We have a huge degree of knowledge that we can use in the UK to develop maps that deliver, and to learn from possible mistakes, or non-optimal allocation of subsidies in the past in the UK.
Perhaps connected to that is the ongoing work on better regulation by the UK Government, and the need for special and better input of the rules. That is something that the UK will be well equipped to provide, if the Government are allowed to be helped by different parts of the UK and the competent authorities there.
Simon Baynes (Clwyd South) (Con)
Q
Professor Fothergill: I would not deny that there are huge amounts of knowledge at local level, but local economies tend to operate beyond the boundaries of individual local authorities. Local economies do not operate at the level of standard statistical regions, but neither do they operate on the small geographical scale of most local authorities; they tend to span several neighbouring areas.
The problem is that if we do not have a map and some sort of discrimination in favour of less prosperous areas, you would be treating potential investment in Guildford, let us say, on the same basis as potential investment in Grimsby. You would not be attempting to incentivise the levelling up of the United Kingdom. In certain places, if we really are serious about levelling up, we have to put more resources into that effort, and we have to use state aid as one of the tools for delivering new jobs.
There is a lot of evidence, accumulated over many years, that state aid subsidies for investment do work and deliver extra jobs in the more disadvantaged areas. It is an effective policy tool, as long as we do it properly and do not squander public money by giving grants automatically; obviously, we would have to scrutinise each case individually, within a set of broad rules. In west Wales and the valleys, for example, it has been possible to give investment projects capital grants of up to 30%, whereas in the more prosperous parts of south-east England, it has not been possible to support investment at all. There has been that positive discrimination in favour of the less prosperous places.
There is a boundary problem; that is inherent in any drawing up of maps. Maps can be drawn sensitively, though, and in a hierarchical way. You do not have to have an area that is entitled to loads of money, and have the rest of the country entitled to no support. You can have a gradation of areas. Indeed, we had a gradation of areas under the old EU system, and under the old UK system before we joined the European Union.
Dr Pazos-Vidal: The Bill is, in a way, is an expression of the legal and cultural difference between continental, EU and UK law. In EU and continental law, everything that is not explicitly mentioned is forbidden, whereas in common law, and certainly in this Bill, it is almost the opposite principle: you can do everything that is not specifically forbidden. That works in theory; in practice, it does not, and that is why we need guidelines, block exemptions, and maps. You need commonly understood criteria across the UK to avoid subsidy rises and the opposite, which is doing less, because the UK public sector is much more risk-averse than the public sector in other European or western countries. We see that at the moment. The old EU rules are de facto being used by managers in local authorities across the UK because they are far more detailed, safe and understood than the provisional framework we have at the moment.
If you do not have a common understanding across the UK about how rules should be applied, what subsidies, even if you leave a lot of local latitude, which we support, of course, we might end up going down the track of, “Are these investments that are actually needed?” and that is why this has to be done. In the same way, there has to be a certain common framework across the UK, because if you leave the onus for doing checks on local authorities, some will not have the capacity or resources, and others would. A common understanding across the UK is helpful for everybody, and that also includes maps.
The Chair
A lot of Members have indicated that they want to speak now. I have the list and I will call those whose eye I have caught—I will try to call Members whom I have seen first. Seema Malhotra, do you have a question?
Stephen Flynn (Aberdeen South) (SNP)
Q
Professor Fothergill: Could I emphasise that the Bill settles remarkably little? It deals with the basic principles that will underpin the UK subsidy control regime. Those principles are very sound—they are not out of line with what we previously lived within and they do make sense. It settles the principles and some of the mechanisms legally, but it does not actually tell us what you can or cannot do. That is all going to come forward in the secondary legislation—the statutory instruments, is that the term? Ministers will be able to issue the secondary legislation within the framework of the Bill. From the point of the view of the devolved Administrations, for example, the passage of the Bill will still leave them pretty much in the dark as to what they can and cannot do. The important element in all of this is the guidance that will be issued subsequently. Quite what that guidance will say or is required to say is not specified in detail in the Bill.
Dr Pazos-Vidal: Absolutely, I completely agree. The Bill provides a good skeleton to start working on the guidance. In an ideal world, that would be enough—everybody would have the same understanding and there would be a very cohesive set of ideas on what needs to be done, what the priorities are and so on. Some countries in northern Europe are like that—they are very consensual democracies. I think the UK is a bit more complicated than that and therefore there should be a bit more detail. The UK is complicated and asymmetric, and therefore some of the provisions ideally need to be in the Bill. It is not about being too prescriptive—that is not the UK way —but about marking the direction of how the secondary legislation should be carried out.
In respect of the territorial constitution, it is just an academic expression. Quite clearly, the internal market Act could be considered part of the constitution because of the way it repatriates EU powers and the way it treats common frameworks. Irrespective of that, the Scotland Act always recognised that the UK level—Westminster Ministers—has powers over the internal market. That has always been the case, but in a way the internal market goes a step further. At the same time, public authorities, devolved Administrations and local government have competencies on local economic development, provision of public services and so on. Those powers also need to be recognised. Ideally, and this goes back to the point I made earlier, the Bill needs to be reflective of the powers of the UK Westminster Government and the internal market of the UK, and of the specific powers that local authorities and the devolved Administration Parliaments have in those policy areas. At the moment, the territorial element—the devolved and local element of the Bill—is limited, to put it politely. It would be helpful for the coherence of the system and to avoid problems of political interpretation in the future if some of that is put into the Bill. It does not have to be very detailed, but some improvements to the Bill would be helpful for the scheme in the long term.
The Chair
I am going to request that Members are brief, because many of you wish to ask questions.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)
Q
Professor Fothergill: The assisted area maps allow a higher rate of financial support for certain sorts of activities—subsidies, state aid or whatever you wish to call it—than is allowed outside the assisted area maps, so you can provide more intensive support. If you really want to attract inward investors to that locality, you can put more money on the table within an assisted area than you can outside an assisted area. One of the advantages of having a map in advance is that it is a clear signal to everyone concerned. Businesses know that those are areas where financial support can be made available, and local players know that in those areas it is possible to put money on the table if necessary to deliver an investment.
If everywhere is treated the same, everybody will be competing against one another on a level playing field, in terms of powers to give financial support or subsidy. If we are seriously interested in levelling up, we have to back that up with something beyond rhetoric. We have to back it up with some action.
Paul Scully
Q
Professor Fothergill: I disagree that it has not worked. There is plenty of evidence, as I was trying to say earlier, that support for businesses through the various programmes of regional investment aid over the years has delivered substantial numbers of new jobs in the less prosperous areas of the country. Often it has meant that we have been swimming against the tide in many of those places, with old industries disappearing at the same time as we have been doing our best to create new jobs. We have not solved the problem, but plenty of evidence shows that the use of what was state aid—we used to call it regional development grants, or regional selective assistance in England, many years ago—has positive benefits and delivers jobs in the places on the assisted area map.
Paul Scully
Q
Professor Fothergill: I am not an expert on some of the international systems, I have to say. I would hesitate to look across the Atlantic, from what I understand of the system there, because I do not think they have a simple system—a map—that applies in the United States, and therefore you get the horrible situation developing of a subsidy race between individual states. In many respects, that is what we want to avoid in the United Kingdom. We want a system where Guildford is not bidding against Grimsby. We want a system where places that really need the investment have the powers to deliver the investment. It is not just the places—the local place—of course; it is the Department for Business itself having the powers to mobilise its resources to give financial assistance in the Grimsbys rather than in the Guildfords.
Paul Scully
Q
Dr Pazos-Vidal: Yes. I could also say, if I quote some data from pre-pandemic, that in the regional selective assistance scheme in Scotland—I just checked that quickly when you raised that question—there were 69 awards worth in total £24 million, and the jobs created or safeguarded were around 2,500. That is evidence about where these schemes have worked, and we can look at that and evaluate that in terms of the development of the new system.
When it comes to international comparisons, I completely agree with Professor Fothergill. Clearly, the reason why this system exists across the Union—the state aid regime or the procurement framework legislation—is to provide the kind of chaotic system we have in the so-called competitive federalism model, such as in the US. Definitely, the UK would be much smaller and I would say more homogeneous in many ways. We should not actually have a system that is imitating that, because I think even the Americans sometimes would love to have a system that is more consistent than what we had in the EU and probably that we will have in the UK, so definitely no. A system that incentivises subsidy races and competitive federalism such as in the US will not perhaps be helpful.
In any case, it is a matter of choice. On this issue, I have been working with my Finnish and Norwegian colleagues, and one is from part of the EU and the other is not from part of the EU. One—Norway—uses special targeting so that certain remote areas will actually get additional subsidies, whereas Finland does the minimum in what it sets. In that more domestic context—a more European context, I mean, or closer to the UK—there is a variety of models, so it is just a question of finding the model that suits the UK, given the geographies, the mobility and the economy of the UK, specific area diversities that we have in the UK, and also the very specific asymmetric system that we have in the UK.
The Chair
Thank you. I am going to call Kirsty Blackman first, then Steve Kinnock, Kevin Hollinrake, Alexander Stafford and Mr Millar. As already indicated, and looking at the time, could we stick to brief questions and brief answers to carry on up to the allocated time?
Kirsty Blackman (Aberdeen North) (SNP)
Q
“Subsidies should be designed to achieve their specific policy objective while minimising any negative effects on competition or investment within the United Kingdom.”
Can I ask you both if that sounds like it is meaningful, and if it is meaningful, what does it mean?
Dr Pazos-Vidal: I assume that the first question was addressed to me. We have had a number of discussions, it is true, in the preparation of the Green Paper and the consultation, and some of this work was facilitated by other organisations, such as ones you are going to speak to later today. I think when we are talking about consultation, we are talking about consultation as something that is structured, something that is predictable, something that has more accountability and something that approaches corporate action to a certain extent. That is something that in the UK is far more touch and go compared with other countries. I think this is an opportunity, on something as potentially economically and politically sensitive as this, to have a much more structured system of consultation, rather than the issue of a local approach. That sometimes works fine—no problem—and I have said to myself that perhaps we could possibly do that many times over the years. Here it is a rather serious matter that is also very political as well, and we should have a very predictable and pre-set system. I should have mentioned that there is a precedent in the UK with the Localism Act 2011. Part 2 deals with subsidies and passing down funds from the EU. At the time, we negotiated a system of proper consultation with local government, in this case from the UK Government, so perhaps that is an issue at present that we can look at in terms of implementing this Bill.
Professor Fothergill: Subsidies are something that you should only use sparingly and where they really deliver something that is beneficial. That is why we need the principles that are set out in the legislation. Indeed, it is hard to see how we can get away from those principles that are set out in the legislation, because all bar one are embodied in the trade and co-operation agreement that was signed with the EU last December. The additional point that the UK Government have added is basically to stop one area entering into a bidding game with another area within the UK, and that, in a sense, is a sensible addition. These are meaningful principles: you use subsidies sparingly, but you use them where they really can deliver something that you think is socially and economically valuable.
Stephen Kinnock (Aberavon) (Lab)
Q
Professor Fothergill: The detail is not there in the legislation. It is all to be determined; it will follow in the guidance, one presumes. Under the old EU rules, the aid intensity ceiling varies from scheme to scheme and from place to place, but if we were talking about regional investment aid, for example, the maximum aid you could give in the top tier of assisted area was 30% for a larger business. It actually rose to 50% for a very small business, but the problem that we had under the old EU rules was that in the lowest category of assisted area, which covered most of the assisted areas in England, the ceiling for regional investment aid was only 10%. Frankly, at 10%, that is very marginal and very unlikely to make much of a difference to business decisions. If a decision is that marginal, really, come on: is it going to tip the balance? Incidentally, the EU has recently raised that lower threshold to, I think, 15%.
Kevin Hollinrake (Thirsk and Malton) (Con)
Q
Professor Fothergill: The 10% to 15%?
Kevin Hollinrake
Of turnover?
Professor Fothergill: No, that is 10% of the cost of a capital investment. It has recently been raised to 15%. Certainly, if we are setting aid intensity ceilings in the UK under the detailed guidance, we need to set them at levels that really can make a difference; otherwise, you are probably ending up just giving money to projects that would have gone ahead anyway, which is not the objective and is actually contrary to the principles of the legislation.
Kevin Hollinrake
Q
Professor Fothergill: I do not think I have a definitive answer on your first point. I was asked the same question a couple of days ago, and I was not actually sure where charitable and third-sector businesses stood in all this. On your third point, which is about a central register, I think there is a lot of merit and transparency in the whole system.
I hope I have understood your second point correctly. The intention behind the Bill is that there will be what is called, in technical terms, a de minimis threshold, below which you do not have to comply with the rules.
Kevin Hollinrake
Q
Professor Fothergill: Yes, you can just get on and do things. Colleagues with whom I work in local government say that when they are involved in giving small amounts of financial support to businesses, or would like to do so—when we are talking about small amounts, it is unlikely to distort competition within the UK, or indeed international competition—there are too many hurdles if you have to go through lots and lots of paperwork.
Kevin Hollinrake
Q
Professor Fothergill: We may be talking about slightly different things. I am talking about the de minimis threshold, which the Bill sets at £315,000 over three years or thereabouts.
Kevin Hollinrake
Q
Professor Fothergill: I do not have a view on the £500,000 issue. Is that about reporting?
Kevin Hollinrake
Yes.
Professor Fothergill: I see no reason that things should be reported. This is a personal view, not the view of the alliance, but I know that the local authorities that I work with in the Industrial Communities Alliance have welcomed an increase in the de minimis threshold. Operationally, that makes sense and does not lead to big damage to competition across the country, or indeed to damage to international trade.
Seema Malhotra
Q
Professor Fothergill: No, I am not objecting to reporting. By the way, when I speak of reporting, I should clarify that the alliance has not taken a particular view on the issue. If I am speaking about reporting, I am expressing a personal opinion that it should not be too onerous. I would have to consult some of my local authority colleagues to clarify their precise views on that, but I know that their precise view on the de minimis threshold is that the increase is a good idea.
The Chair
Dr Serafin, do you wish to add anything, briefly?
Dr Pazos-Vidal: Some of the EU rules are there because one size fits all. Even the level of the threshold is low because the prices in some countries are much lower than you experience in the UK, so it makes complete sense to raise the threshold, which is welcome.
On the level of reporting, the feedback we got from councils in Scotland, and from colleagues across the UK as well, is that it should not be even more onerous than what we had in the EU. Perhaps the proposed system goes in a direction whereby it is less onerous, and that should definitely be the way forward.
Alexander Stafford (Rother Valley) (Con)
Q
Professor Fothergill: First, I would remind you that the map is not simply an EU concept. If anything, an assisted area map was something that the UK sold to the European Union as being a good idea, because we had done it for lots of years. The point is that the map should not be set in stone for all time, of course. Indeed, over the years, the assisted area map in the UK has evolved and changed. Under the EU rules, it used to change on a seven-year cycle. I remember that even before we joined the European Union—I am getting long in the tooth—we changed and revised our assisted area map on several occasions. If an area gets more prosperous, it will come down a tier. If another area is hit by a closure of a major employer, we would have the flexibility to up its status on the map. The map is not for all time; it is a tool, and the details can be adjusted.
The Chair
I am afraid that brings us to the end of the time allotted for the Committee to ask questions. I thank the witnesses on behalf of the Committee.
Examination of Witnesses
Thomas Pope and Professor Stephanie Rickard gave evidence.
The Chair
We will now hear oral evidence from Thomas Pope, deputy chief economist at the Institute for Government, who is here in person, and Professor Stephanie Rickard, professor of political science at the London School of Economics, who is appearing virtually. For this session, we have until 11.25 am. Could the witnesses please introduce themselves?
Thomas Pope: I am Thomas Pope, deputy chief economist at the Institute for Government. I have been leading our work on subsidy control for the last couple of years.
Professor Rickard: Good morning. I am Stephanie Rickard, professor at the London School of Economics. I am a political economist, specialising in Government subsidies.
The Chair
Q
Thomas Pope: Great. We have been looking at this area for a couple of years, from back before the trade and co-operation agreement was agreed. The Bill, as a structure, certainly fits with lots of our recommendations and makes sense, taking advantage of the flexibility that the TCA affords. The decision has been made to move away from state aid and this broad structure makes sense—it fits.
A concern would be that, as it stands, the Bill creates a system that is very much a skeleton—there is more to come later. We need to think about the way in which that secondary legislation is going to be made, and how the guidance is going to be made and updated over time. On the enforcement side, one concern would be that there is a risk that damaging subsidies are going to slip through the net. I am sure we can get on to this in more detail later, but particularly on schemes, there is a bit of a risk that damaging schemes might slip through the net.
Professor Rickard: Subsidies can be a very important policy tool for Governments. We see more and more Governments using subsidies more and more often—last year alone, subsidies more than tripled in developed economies—so I really commend the efforts to design a subsidy control regime.
I would like to draw the Committee’s attention to one issue that I think is particularly important, which is transparency. The benefits of transparency, and more of it, outweigh the costs. One of the benefits I would flag is that transparency can potentially ensure that granting authorities comply with the principles that are laid out in the Bill. They are asked to self-certify their compliance with the principles—that is a bit like me asking my students to mark their own exams. They may do so very diligently and very carefully, but there may at times be some incentives to deviate from the principles and to give themselves a higher mark. Having greater transparency and requiring more subsidies to be notified and to be put into the database for public scrutiny will help to ensure that the granting authorities are very careful in complying with the principles. While I applaud the commitment to transparency that is very obvious is chapter 3, I would encourage Members to think carefully about the ways in which we could further increase the transparency to ensure that the UK was a world leader in transparency in subsidies and so as to help to provide consistency and certainty for business and accountability to taxpayers.
Seema Malhotra
Q
Could I also ask for your view on whether the six-month reporting deadline is necessary? In your view, could that threshold be reduced if decisions had already been made about the subsidy? Those questions are for both our witnesses. Finally, do you believe that the one-month challenge window is sufficient in the context of how the scheme is being designed and is likely to operate in order to make sure there can be an effective challenge to any subsidies?
Thomas Pope: On transparency, as most of you know, there is the £315,000 de minimis threshold. If the subsidy is below that level, we need not worry whether it is complying with the system. There is then a higher £500,000 threshold. If a subsidy complies with a scheme that has already been approved, it need not be put on the database if it is below £500,000.
Seema Malhotra
Q
Thomas Pope: Yes, that’s right. The purpose of having a de minimis threshold is that we are worried only about subsidies that are likely to distort competition or investment. The judgment has been made. It is quite hard to know exactly what the right level there is. I think a bit higher than the EU level, which was €200,000, seems about right, so £315,000 certainly seems reasonable.
My view is that there is a benefit to more transparency. Therefore, it is worth having a lower threshold for publishing to the database than for someone having to think about whether they are complying with the regime and all its principles. There are a couple of reasons for that.
First, I think we want to understand how the system is actually working and the impact of different decisions that we are making in the system. One of the big policy levers we are pulling in the system is the £315,000 de minimis threshold, and we want to understand how influential that is. Are lots of subsidies bunching at £300,000 or £310,000 so as not to comply with the system? That is not necessarily a problem, but we want to understand what impact the system is having on how subsidies are offered. If we censor everything so we see only the stuff above £315,000, we have a less good sense of how the system is operating.
Likewise, with the £500,000 threshold for subsidies that are approved under a scheme, we want to understand how often a scheme is being used and how much public authorities are going down that route. Again, we want to know whether a £400,000 subsidy is being approved under a scheme. I do not think that means we should pull the transparency limit down to £500 or £1,000.
Personally, I think a public authority also has to ask the question, “Is this a subsidy?” With quite big amounts of money, such as £100,000 or £200,000, they will be thinking about that. For £1,500 here or there, I imagine that would be quite a big additional burden. Realistically, we are never going to move the de minimis threshold down to £1,500 or £50,000. A level on the transparency database of around the EU level or a bit lower—about £175,000; I know that was in the original consultation as a possibility—would be a reasonable compromise between those two concerns. We could even have fewer things that needed to be put on the database if the subsidy was below £315,000, although we might want it on the database somewhere.
Professor Rickard: I will give a few examples of things that could be changed to help to improve transparency. The first would be to lower that threshold and report subsidies even if they were below £350,000 over three years. Report subsidies that were included in a scheme, even if they were less than £500,000. Report subsidies even if they were subsidies for the public economic interest.
I would shorten that time for reporting; I think six months is too long. If it is a tax break for 12 months, after 12 months a competitor might be out of business, so I certainly think that there would be scope to shorten the time to reporting. I would increase the time to challenge. One month is too short, particularly if someone is learning about a subsidy only through the public reporting and the database. Remember, for subsidies not publicly reported in the database, how will we know about them? Where will we learn information about them? I would increase the time that people had, or people with interest had, to challenge a subsidy.
I would maintain the information on the subsidy for longer than six years. Six years is mentioned in the Bill. I do not see a good justification for deleting information after six years, particularly if we want to analyse how the regime is working. We need this over-time data, this long-time thing, to ask, is the regime working? Are we achieving what we want to achieve with our subsidies? Are we getting good value for money? Are we helping disadvantaged areas? Are we helping to create economic activity? To assess that, we need to have this information and we should not delete it after a certain time.
I would ensure that certain types of information were reported. At the moment, the Secretary of State is given the discretion to ask for certain types of information, but I would want to see as much information as we could possibly get, while protecting commercially sensitive information.
Finally, I would look to make sure that all the information was self-contained in the database, without having links to local councils or other information. As we know, links break and information gets lost. I understand that there is this concern about putting a burden on granting authorities. One possibility may be to ask the recipients themselves to help to provide some of the information, so we could cross-reference and make sure that we had the correct information from the granting authority and the correct information from the recipients.
Those are just some ideas that would help to improve transparency. Through transparency, we can get better compliance and better value for money, and we can help to ensure that the subsidies that are being granted meet the goals that we are setting out to achieve.
Stephen Flynn
Q
I also have a question for both of you. Thomas, you touched on this in your remarks in relation to this being a skeleton of a Bill. We heard earlier from Professor Fothergill and Dr Pazos-Vidal about the potential implications of that lack of clarity about what sits behind the Bill and what the Government will be coming forward with: statutory instruments or secondary legislation. Do you see the lack of detail in the Bill having a consequence for the investment decisions of public bodies right across the UK?
Thomas Pope: On schemes, my specific concern—and this links to the one-month challenge window—is that a scheme gets added to the database or is set up. There is then a 28-day window where a potential interested party—someone who might be damaged by a subsidy that could be offered under the scheme—has a chance to appeal and to ask for more information and go through the process as set out in the Bill. Once that challenge window has passed, the scheme is approved and subsidies that fit with that scheme can then be offered with no opportunity to challenge.
The risk is that, if I am a competitor business and a business I am competing against is going to get a subsidy under a scheme, but has not yet got that subsidy at the point when the scheme has been set up, I will probably not know that the scheme is here and the clock is ticking. Here is this subsidy that will come later, and I am an interested party because a subsidy could go to my competitor. It is not even clear that that business would be an interested party, so my concern is that there is a benefit to using schemes in that you do not need to go through a separate process for every subsidy, but there is a corresponding risk that if there is not sufficient scrutiny of the schemes when they are set up, there is almost a sort of free pass if a scheme slips through the net and it allows you to give quite damaging subsidies. Once the time limit has passed, there is nothing you can do about that.
In terms of the Bill being a skeleton, there is a trade-off here. We want to be flexible and we want to be able to update elements of our regime over time. Things that are set in primary legislation are harder to change, but at the same time there are bits of the Bill where there is a lot of power given to the Secretary of State, with very little indication about how he or she might need to, for example, decide what constitutes a subsidy of interest or of particular interest. Those are subsidies that would have to be sent to the Competition and Markets Authority before they could be offered. More detail there would be good.
As to whether it will actually cause uncertainty and affect investment decisions, I do not talk directly to public authorities in the same way that some of your other witnesses will. To the extent that you can write very good guidance and have clear secondary legislation, that need not be a major issue. There are other ways that legal certainty can be provided. There probably is an extent to which this system will take a bit of bedding in. It is not clear how the Competition Appeal Tribunal is going to treat appeals and what the burden of evidence will be, or how easy it will be to challenge a subsidy subject to the principles. Probably that means there will be a bit of caution, at least initially while that beds in, because there will be legal precedent that will build up as well. Again, I do not think that will be a permanent feature necessarily.
Professor Rickard: I will weigh in briefly on the streamlined routes that have been proposed. The Government could propose a streamlined route, and they would bring it to Parliament, so there would be some room for scrutiny, but once that streamlined route or scheme is set up, granting authorities can just designate that subsidy as falling within that scheme, and then it is assumed to comply. That is a potentially interesting situation where you have a scheme and granting authorities say, “Yes, the subsidy is part of the scheme.” If we then assume compliance and do not see these subsidies showing up in the database, that potentially allows some leeway for subsidies that are not fully compliant with all of the principles. That would be one potential way in which the streamlined scheme would lay on top of the individual subsidies.
It is a route, of course, for the Government to set priorities and say, “This is an area in which we would like to see subsidies.” They are signalling a policy direction in which they would like to go. Of course, when you get a new Government, you might get new schemes. That would be right and proper. In a democratic system, you have a new Government with a new platform, and the voters have chosen that platform, but it does set up, potentially, a situation where you would have a streamed route scheme full of subsidies, and when there is a new Government there is a new streamed route scheme for subsidies. I am thinking about how to transition between them and the potential uncertainty generated for both businesses and granting authorities.
I want to pick up on one thing that Mr Pope said about who can challenge a potential subsidy. This is an area that would benefit from additional scrutiny. Thinking about who has a particular interest in challenging those subsidies, there may be good reasons to expand the potential set of challengers to ensure that it includes not just competitors but maybe also employees, trade unions, taxpayers or interest groups. That would give us more eyes on the subsidies to ensure that they are complying with the principles, ensuring value for money and achieving the economic outcomes that they set out to achieve.
Seema Malhotra
Q
Professor Rickard: Yes. In my opinion, that would be a good strategy. The benefits of ensuring increased scrutiny of how these subsidies are being allocated and how taxpayers’ money is being spent would outweigh any potential costs.
Seema Malhotra
Q
Professor Rickard: That is a good question. I do not have an opinion on that; I do not think I could say.
Simon Baynes
Q
Professor Rickard: That is an excellent question. The UK is in a unique position because of the TCA. It is hard to find a perfect analogy internationally because of the TCA, and the structure and the limit of the TCA puts the UK in a unique position.
However, there are world-leading examples in transparency, for example Norway and Germany. They are extremely transparent in their subsidies. States within Germany provide annual subsidy reports that run to 50, 60 or 70 pages. I am not saying that that is necessary, but that is the kind of world-leading transparency that the UK could and should aim for.
What the UK is setting up in the subsidy control regime here is closer to what we see in the World Trade Organisation. The WTO allows subsidies, except for those that are prohibited, a bit like what is suggested here. Granting authorities are allowed to provide subsidies, and they self-certify that their subsidies comply with the rules, as we see in the Bill. Those subsidies then persist until they are challenged. That is the best analogy that we see.
The challenge in the WTO system is that many subsidies that do not comply with the principles, with the agreed upon rules, persist for a long time, and in fact may never be challenged. That is the challenge in the subsidy control regime here: granting the ability to self-assess your own subsidies to ensure that they comply with the principles, but thinking about what happens when a subsidy that does not comply with those principles is enacted. How long does it persist before it is challenged? Certainly in the WTO system they persist for a very long time, because it is difficult to enact that challenge.
Simon Baynes
Q
Professor Rickard: I think that Norway is an excellent role model, but again it is in a slightly different situation because it is not bound by the TCA. It has a different system, because it does not have devolved Administrations or devolved authorities. It has Parliament providing budgets to particular subsidy categories, and then an independent body assigning subsidies to groups based purely on economic logic and cost-benefit analysis. So there are politics involved in the budgeting—“We allocate this amount of money for subsidies to research and development”—but then the decision making is granted to an independent body of experts. That works particularly well, because there is still democratic accountability at the budgeting level, but the actual decision-making process is apolitical and led by experts, based on economic logic.
Simon Baynes
Thank you, Professor. Thomas?
Thomas Pope: As Professor Rickard was alluding to, we are going to be more or less unique in having a domestic subsidy control regime like this. The main examples internationally are the EU state aid system and the WTO system, both of which have that international dimension. We have looked in our research at other systems and what other countries try to do, such as Canada in its inter-provincial free trade agreement. It has more barriers to trade than we do. It has a consulting requirement on subsidies, although it is not a very strong one.
Having looked at other countries, what you see in those countries that do not have a domestic subsidy control regime, which is most of them outside of the EU, are the negative effects of not having one. The US is the obvious example, which other witnesses have alluded to, where you get these quite big subsidy races between cities or states. In Canada, there have also been issues with the risk of subsidy races.
Very centralised countries are in a different situation, because if only one authority can grant subsidies, you are not worried about subsidy races. In a world made up purely of central Governments, I think that it would still be good practice to have a set of rules like this, but you would probably design the rules and the system slightly differently. In the UK, we have the three devolved authorities, which puts us in a different situation and means that, even though we are unique in having a domestic subsidy control regime and even though it is required by our TCA obligations, it is a positive thing and it will be very helpful.
Simon Baynes
Q
Thomas Pope: As I say, I do not think that there is one that has a domestic regime. We are charting our own course here.
Bill Esterson
Q
Professor Rickard: That is an excellent question. Some of the things that could help would be lengthening the time available to challenge—extending it beyond a month would be helpful—and clarifying, and potentially expanding, the definition of interested parties who could potentially challenge a subsidy if they are concerned.
Clause 71(3) has this really interesting phrase. It says that the relevant date you can challenge from is the date on which the subsidy has been published to the database or
“the date on which the interested party first knew or ought to have known”
about the subsidy decision in question. That is difficult. What is the date that a potential challenger ought to have known about the subsidy? That is one particular phrase that jumped out at me, and I am curious to think more about it. We should think about extending the time that you can challenge and defining more clearly and broadly who potential challengers may be, but also about how we will learn about a subsidy if it has not been notified and if we do not have publicly available information about it.
Potential challengers can ask the granting authority for information, and the Bill provides a duty on the granting authorities to provide that information. However, it is difficult to know, particularly within this short timeframe, how I will learn of this subsidy. How will I learn that there is a subsidy that is disadvantaging me and that I think is not complying with the principles? How can I learn that in this very short timeframe? Those are some concrete examples of changes that could be made to increase the ability of interested parties, competitors, businesses and others to scrutinise the subsidies that are being provided.
Bill Esterson
Q
Professor Rickard: The database set up by the Department for Business, Energy and Industrial Strategy is excellent, but I would make sure that more subsidies were notified into that database and that it fully encompasses all the information—not linking to other pages, but putting all relevant information into that database. I would also require granting authorities to put that information into the database in a timely fashion—quicker than six months—and make sure that more subsidies have to be notified, not allowing those exemptions for subsidies under £350,000 or £500,000 within a scheme.
Bill Esterson
Q
Thomas Pope: I will answer the first question first. I agree with many of the suggestions outlined by Professor Rickard. My real concern is that, as that 28-day period is so short, there is a risk that a subsidy or scheme that is concerning is missed by potential interested parties. The issue could be that they do not qualify as interested parties, so you could expand that, or that the time is too short.
I would propose one solution. At the moment, the CMA has a reactive role in the system—deliberately so. It issues reports on subsidies of interest and particular interest before they have been offered, if those public bodies offer the subsidies to the CMA for review. In special cases, where the Secretary of State is concerned about a subsidy, it can issue a post-award referral, and after a subsidy has been awarded, the CMA can issue a report. I think that the CMA should have the ability to do that investigation off its own bat. That would not mean giving it a standing a court, or anything like that, but that it could keep an eye on potentially problematic subsidies. If the CMA reports on a subsidy and raises a concern—there would not be ratings—it is much more likely that interested parties would be aware of that. I would possibly go even further and allow the CMA to have standing in court, but I understand that that is quite a departure from the system and it probably will not be a goer. However, at the very least, the CMA could have the proactive ability to investigate and issue reports ex-post.
The six-month challenge deadline is clearly something that has been brought in from the TCA, and that is the maximum we are allowed. I am afraid that I do not have a very strong view on the right amount. I have not spent enough time actually writing the reports. The public authorities have to be very strong on that.
Seema Malhotra
Q
Thomas Pope: We could make it shorter within our own legislation if we wanted to.
Kirsty Blackman
Q
I have two more questions. In the event of cumulative subsidies, where an organisation receives various subsidies from various organisations and it takes them over the threshold of the three-year period, who is responsible for ensuring that that is put on the subsidy database? I am not clear on that.
Lastly, EU state aid rules have a number of de minimis exemptions for agriculture and various other things. Does the fact that the Bill does not include them cause problems, or is it more of a tidying-up exercise?
Thomas Pope: On tax, again, that is a longer allowance that is in the TCA, and that is why it looks like that in the Bill. Of course, the bigger question is why it was permitted in the TCA in the first place. I think it is because tax measures tend to operate on a slightly different cycle—we have our financial years and budgets—and that is why there is a different time period, but I am not quite sure.
In terms of cumulative subsidies, I am not sure that they would end up on the database—I do not believe that is the case. In terms of monitoring that, and knowing whether subsidies have exceeded a de minimis limit, I think that is the responsibility of the recipient rather than the public body. However, I am afraid that is one where you would have to ask some lawyers.
Professor Rickard: I do not know the logic behind the 12 months, but as I said in my opening remarks, I think that is quite a long time. If a competitor is benefitting from a discriminatory tax break, then after 12 months I could be out of business. So it does seem like a very long time, and I would think about the potential benefits of shortening it.
The cumulative subsidies question is an excellent point, and it highlights the arbitrariness of having these thresholds. The monetary thresholds are potentially obscuring these cumulative subsidies, exactly as has been suggested. In my own research on procurements, not in the UK but elsewhere, I find that Governments break up their procurement contracts specifically to get them below the threshold so that they do not have to report them and they are not open to scrutiny. I am not suggesting that happens in terms of subsidies, but these cumulative subsidies could potentially take on that kind of logic where you are breaking up a subsidy or collaborating on providing subsidies below that threshold that actually end up going above the threshold.
Finally, in terms of exemptions, there are exemptions included in this Bill. Sometimes they may be legacy exemptions, but I think that the benefits of having this information surely outweigh the costs. If we understand where the subsidies are going and who is getting subsidised, we can have a better understanding of whether these subsidies are working and achieving their goals. If you are weighing up the costs and benefits, I think the benefits of having fewer exemptions would outweigh the costs.
Kirsty Blackman
Q
Thomas Pope: That is a very good question, and one that I am afraid I do not know the answer to.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
Q
Thomas Pope: Yes.
Andrew Bowie
Q
Thomas Pope: That is a very good question. I think there are various benefits, and in our research we have outlined them. I think there is a particular case, in a system where competing jurisdictions can offer subsidies, for worrying about subsidy races. Actually, that is effectively a co-ordination problem, and a subsidy control regime is effectively that co-ordination.
I also think that, in general, there are benefits to setting out very clearly what the principles are by which you are going to offer subsidies. An interesting analogy—it is not quite the same—is fiscal rules; they are not legally binding in the same way, but these rules are set out by politicians to indicate what we think is sensible policy. They can sometimes help you to resist, for example, political pressure to save a business that is going under but that has no long-term prospects. Those rules can also be quite helpful.
In general, it is quite hard to hold the line on those things, and that probably explains why there are not domestic subsidy control regimes in general, because this is Governments tying their own hands. In general, it is quite hard to do that. It just so happens that we have an international obligation that requires us to do that, but I think that is actually a benefit rather than a cost. That would be my answer as to why there are not lots of subsidy control regimes elsewhere. Professor Rickard may know better than me on that.
Professor Rickard: No, Mr Pope is absolutely right. You are committing to saying that the regions within the United Kingdom will not compete with each other in trying to win business, jobs and investment by awarding subsidies. It is difficult to give up that ability, and say that we will not engage in that type of subsidy war, but we have seen the damage that competitive subsidy provisions have caused. Estimates suggest that in the United States $80 billion a year is spent by states competing for business with subsidies. If they agreed not to do it, and had their own subsidy control regime, real income in manufacturing alone would increase by 5%, so there are real economic gains to tying your hands and saying, “We’re not going to engage in subsidy races.”
Evidence suggests that subsidy races do not work in the long term. Even providing big subsidies does not necessarily guarantee that you will get businesses where you want them to be. For example, the US biotech industry is concentrated in five cities with world-leading universities and very deep and highly educated labour pools. Businesses locate there despite the fact that 41 out of 50 states have very generous subsidies to try to lure them to their regions, so evidence suggests that spending subsidies to try to attract jobs may not always work, and doing so is really a waste, in terms of spending a lot of money in a way that potentially hurts productivity and real income.
Kevin Hollinrake
Q
Professor Rickard: I don’t have a strong feeling on the level. I am not sure where the £175,000 number came from. I heard Mr Pope mention it. I do not know the logic behind it.
Kevin Hollinrake
I think it’s the EU level.
Professor Rickard: Okay, thank you. I do not see why it could not be lower. I recognise that there is a concern that we are putting a burden on granting authorities, but the granting authorities have this information. They have already collated it and made a decision. Increasingly, with tech, I do not think it is a huge burden to upload that type of information to a database, so I would argue for an even lower threshold than £175,000. If I gave you a number, it would be an arbitrary number—as I suggested, all thresholds are arbitrary numbers—but it could be as low as £100,000. I think that would not unduly burden governing authorities, but would increase transparency to ensure value for money and compliance with the principles.
Thomas Pope: I completely agree that all of these numbers are somewhat arbitrary. The reason I mentioned £175,000 specifically is that it is the EU level, and it is the number that was in the Government’s consultation at the start of the year. That was a question in the consultation, but in the end the level was higher. It is very hard to say whether the right number is £100,000, £80,000, £150,000, £175,000 or £210,000. It should be low enough that we have a good sense of how the system is actually affecting how subsidies are offered.
Seema Malhotra
Q
Thomas Pope: I am not an expert on that, and you will probably want to ask other witnesses. I think part of the point here is that a failure to comply with something like this could be challengeable, not directly, under the process set out in this Bill, but that is also a violation of public law. But as I say, it would be better to ask a lawyer than me on that.
Professor Rickard: One possibility, potentially, when you are talking about commercially sensitive information is not to limit the amount of commercially sensitive information that would be in the database but, when you do get a public request, to do something similar to what they do with Nomis and the labour data, which is very disaggregated by firms. You have to sign a declaration saying why you are using this information and that you are not going to use it in a commercial way. That may be a way to provide the necessary information to a potential challenger, but in a way that protects information that is potentially commercially sensitive. So I certainly think there are ways around it, and I think that it would be important to explore some of those mechanisms.
Seema Malhotra
Q
Professor Rickard: I think you are right that we are not only trusting the governing authorities to mark their own exams, but trusting them to provide accurate information about what they have done. So I think there are two possibilities—this is blue-sky thinking. One, as I have suggested before, is to collate information—get the information from the granting authority, but also request information from the body or entity that has received the subsidy. And then you can confirm: do these numbers match? This happens in trade all the time: you say, “What is the export data? What is the import data? Can we match these data?” And if not, what is the problem; why do they not appear to match? One way to have a check and balance on the information that is being provided by the governing authority is to seek this kind of information from the people who received the subsidy. It could even be a condition of receiving the subsidy that you will report this information.
The second suggestion, which is one that Mr Pope offered previously, is giving the CMA a bigger role for audits, and even beyond that. I am glad to see that the CMA has been tasked with doing five-yearly reports, but I really think that there is a lot of additional room for ex post scrutiny, not only of the regime but of individual subsidies, to say, “Did this subsidy achieve this goal? Was the subsidy successful? Did it engender jobs, business and economic opportunities?” I think that is a really important role for the CMA or another entity like that, but in order to be able to do this kind of auditing, this ex post analysis, we need more information, which means we need more transparency.
Thomas Pope: I would agree with all of that. What I would say is that I think there is an incentive to get the information right, in that I think if you are found to have got it wrong, probably your 28-day time limit after you have offered accurate information does not apply. So you do want to make sure that you are providing accurate information here. But I completely agree about some role for the CMA or some other body in getting the information from recipients—it sounds like a very good idea to me—and checking that, subject to how burdensome that would be. Yes, that is a good cross-validation. I suppose the concern here would be that the CMA ends up a sinkhole of time, just looking through every single thing that goes on the database, but if you just have a flag to say, “Hold on, the information doesn’t match here,” and then the CMA looks further, they are two strategies that work together quite well, I think.
Kirsty Blackman
Q
Professor Rickard: I think it is a commendable first step. I think it is great that it is publicly available, that it is online, that it is relatively transparent. There would be some more things that I would like to see. For example, there are many cases, as you will know from looking at it, where it just says “other” or “not available”, and there are a lot of cells that have not been filled in or do not look as if they have been filled in correctly. I encourage some mechanism to ensure that you cannot just say “other” or “not available”. Sometimes the amounts are listed as zero; I am not sure I understand why that is the case. I also think best practice could be followed in terms of international comparability. For example, you could put on these codes that we use to identify the sector, like NACE codes—internationally standard codes that would identify the sector to which these subsidies are going.
The Bill is really commendable and is a great initial step, and I am glad to see it up there, but there are ways that it could be improved by providing more information, and more consistent and detailed information, and by using some of these international standard codes that exist in databases that we use—for example, for imports, employment, industries or firms.
Seema Malhotra
Q
Thomas Pope: I certainly think that the CMA and/or the subsidy advice unit should have a membership and input reflecting its four-nation role in the UK and the fact that, although subsidy control is a reserved matter, it affects devolved competence and the operation of policy in all four nations of the UK. I therefore think it is appropriate that there be better devolved representation. These statutory responsibilities go to the CMA and are then exercised by the subsidy advice unit and the Office for the Internal Market. I think it is time for a look at the CMA’s governance, although that is obviously slightly beyond the scope of the Bill.
There could certainly be ways that the subsidy advice unit could get input. A particular concern could be that, because the regional economies of the UK can look quite different, you may need a different set of local expertise when the CMA or SAU were looking into a particular subsidy in Scotland from what you would need in the north of England, which has quite a different industrial structure. There are lots of creative ways that the SAU could do that. You could have regional panels that have that expertise. I would go further and have a real look at the governance of the CMA as well, because ultimately, while it is the SAU doing the subsidy control, those are the CMA’s powers.
Professor Rickard: I was surprised to see in legislation that members of the SAU can only be employees of the CMA. There may be very good reasons for that. The key for the SAU is to ensure that it is insulated from politics and that the decisions it makes are really not only economic logic but are consistent with the principles. Of course, there is a role for politics in that—people saying, “We want to achieve these particular outcomes”—but I think you really want the SAU to be a technocratic body staffed by experts who will review a subsidy on balance, in line with the principles. With those goals in mind, there may be scope for expanded membership, or certainly at least for ensuring some sort of feed-in from experts on the particular issues, subsidies or areas that the SAU happens to be investigating.
The Chair
I am afraid that brings us to the end of the time allotted for the Committee to ask questions and, indeed, for this morning’s sitting. I thank our witnesses, on behalf of the Committee, for their evidence. The Committee will meet again at 2 pm this afternoon here in the Boothroyd Room to continue taking oral evidence.
Elections Bill (Eleventh sitting)
Tuesday 26th October 2021
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Elections Act 2022 View all Elections Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 October 2021 - (26 Oct 2021)
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Chair
Before we begin, I have a few preliminary reminders for the Committee. I know that you have heard them before, but if you could listen, that would be helpful. Could we have social distancing, and could we have masks being worn when not speaking, please? Also, to be helpful to our wonderful Hansard colleagues, could you email any notes to hansardnotes@parliament.uk? [Interruption.] That is a reminder: please could you turn off all electronic devices? Thank you very much indeed.
We now resume line-by-line consideration of the Bill. Members who wish to press a grouped amendment to a Division should indicate that they wish to do so when speaking to it.
Clause 16
Notional expenditure: use of property etc on behalf of candidates and others
Question proposed, That the clause stand part of the Bill.
The Minister for Levelling Up Communities (Kemi Badenoch)
It is a pleasure to serve under your chairmanship, Mr Pritchard. Clause 16 makes an important clarification to our political finance rules that I hope will be welcomed by all members of this Committee. In 2018, after the Supreme Court determined that the rules on notional expenditure for candidates did not contain a test of authorisation, there were concerns among parties and campaigners that candidates could be liable to report benefits in kind that they did not know about, but could be seen to have benefited from. On Second Reading, we heard about the direct impact that unclear rules about notional expenditure has had on colleagues, and we must prevent the unwelcome consequences that this confusion may have on participation, such as stopping people from volunteering to be agents due to their fear of falling foul of the law through no fault of their own.
That is why we are making it clear that candidates only need to report as notional expenditure benefits in kind—property, goods, services and facilities that are given to the candidate at a discount, or for free—that they have used themselves, or which they or their agent have authorised, directed or encouraged someone else to use on the candidate’s behalf. That is what was already widely understood to be true prior to the court case. We have sought input from the Parliamentary Parties Panel on these measures, and are confident that they will bring important clarity to the rules and support compliance.
In this clause, we are also making an equivalent amendment to the rules for other types of campaigners, such as political parties and third-party campaigners, to ensure consistency. Expenditure that promotes an individual candidature would continue to count towards a candidate’s own spending limit, and expenditure that is joint between a party and a candidate will continue to be apportioned appropriately, a practice which all parties have long engaged in. Together, these changes will bring much-needed reassurances and clarity to candidates and their agents on the rules that apply to notional expenditure. They will support compliance with the rules and ensure that those wishing to participate in public life can feel safe in doing so. I therefore commend the clause to the Committee.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clause 17
Codes of practice on expenses
Question proposed, That the clause stand part of the Bill.
Kemi Badenoch
This clause amends existing provisions in electoral law in respect of the codes of practice that the Electoral Commission may prepare on election expenses for candidates. The clause also amends the parliamentary procedure to bring into force some of those codes of practice, so that parliamentary procedures are consistent.
Clause 17 ensures that the code of practice on candidate spending that the Electoral Commission may prepare can, and should, cover what constitutes notional expenditure and third-party spending under the Representation of the People Act 1983. We are making that change in order to put the scope of the guidance beyond doubt. It is important that the guidance is comprehensive, so that it can address concerns about notional expenditure that have been raised across the political spectrum. At present, the legislation implementing the various codes of practice on candidate spending is difficult to understand, and different codes are subject to different procedures.
Currently, the codes of practice on spending for both candidates and parties and campaigners are laid before both Houses in draft form, and are subject to parliamentary scrutiny for up to 40 days. It is right that Parliament is able to scrutinise those codes before giving them final approval, so this will not change. We are amending the provisions for the candidate code in the 1983 Act simply to specify that the order that brings this code of practice into force is a statutory instrument. This is a minor amendment to an existing power and simply remedies the fact that the legislation does not specify that at present. Like the other codes, the candidate code will still be subject to parliamentary scrutiny for up to 40 days. We are not changing that.
We are also amending the Political Parties, Elections and Referendums Act 2000 so that the order bringing the code of practice for political parties into force is subject to no parliamentary procedure, rather than being subject to the negative resolution procedure. That is in line with other commencement orders and with the procedure followed for other codes of practice prepared by the Electoral Commission. This follows the initial 40 days of parliamentary scrutiny when the code is laid in draft, and that will not change. As I explained, these changes will ensure that the procedure for all the codes of practice are consistent and clearer, while ensuring that Parliament remains able to duly scrutinise them and give them final approval.
None of the codes has been put forward to Parliament to date and, given that the Elections Bill is changing the law on notional expenditure, the draft codes previously developed by the Electoral Commission will need to be updated to reflect the changes in the law. We would expect the Electoral Commission to consult political parties and others in future on any new codes of practice.
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Clause 18
Authorised persons not required to pay expenses through election agent
Question proposed, That the clause stand part of the Bill.
Kemi Badenoch
Section 75 of the Representation of the People Act 1983 prohibits any third party spending above a certain amount on candidates without the written authorisation of the election agent. However, the current rules also provide that any authorised spending incurred by the third party must be paid for by the election agent. That is not logical, which is why we are amending the rules so that any authorised spending under section 75 can be both incurred and paid for by the authorised third party.
The measure does not change the existing rules around submitting spending returns, as any authorised spending should still be reported by both the third party and the candidate. This change will make the process of paying for that authorised spending more straightforward.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Clause 19
Declaration of assets and liabilities to be provided on application for registration
Question proposed, That the clause stand part of the Bill.
Kemi Badenoch
Clause 19 amends section 28 of the Political Parties, Elections and Referendums Act 2000 to bring forward transparency about political parties’ assets and liabilities to an earlier stage. There is already a requirement for political parties to maintain a record of assets and liabilities in their annual accounting records. However, that information may not be available until up to a year after a party registers and can therefore be after an election that the party has contested.
Parties with assets or liabilities that do not exceed the £500 threshold will be required to make a declaration confirming that fact. Parties with assets or liabilities in excess of £500 will be required to produce a record of those assets and liabilities to accompany their declaration. That will be incorporated into the registration process with the commission and into the register maintained and published by the commission. Parties with assets and liabilities of above £500 will be indicated on the register of parties.
This is a good step forward as it will allow earlier public scrutiny of parties’ finances and ensure public confidence in the transparency of all political parties’ financial positions.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Prohibition on entities being registered political parties and recognised third parties at same time
Question proposed, That the clause stand part of the Bill.
Kemi Badenoch
Clause 20 prohibits groups and individuals from having access to multiple spending limits at an election. Spending limits exist to ensure a level playing field, and any opportunities to unfairly expand them should be removed. During the 2019 UK parliamentary general election, one group claimed that it could do exactly that by registering as both a political party and a third party campaigner. That showed the potential for the current rules to be abused and spending limits expanded.
If we do not close down the loophole, it may be exploited further in future. This change will prohibit recognised third party campaigners from registering as political parties and gaining access to a spending limit for each registration. That will serve to protect the integrity of the existing spending limits.
To ensure that there can be no doubt, the list of individuals and entities permitted to be on the third party campaigner register will also be amended to remove political parties. As groups may already appear on both registers when the provision comes into force, clause 21 will ensure that any group that spends in a third party capacity during a regulated period will not be able also to spend as a political party. That means that any group appearing on both registers when these provisions are commenced will have to choose whether it wants to spend as a political party or a third party campaigner during any subsequent regulated period.
Finally, clause 20 also makes consequential amendments to the rules on donations, spending and reporting for recognised third party campaigners, where they currently refer to the specific requirements for political parties, which take into account their existing financial controls as a party. Altogether, these changes will ensure that groups cannot use the rules to their advantage to expand their spending limits unfairly.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clause 21 ordered to stand part of the Bill.
Clause 22
Restriction on which third parties may incur controlled expenditure
Question proposed, That the clause stand part of the Bill.
Kemi Badenoch
Clause 22 restricts all third party campaigner spending during a regulated period to entities eligible to register with the Electoral Commission, as listed in section 88 of the Political Parties, Elections and Referendums Act 2000, and to overseas unincorporated associations with the requisite UK connection.
Currently, foreign third party campaigners can legitimately spend on UK elections underneath the recognised third party campaigner registration thresholds, which are £20,000 during a regulated period in England, and £10,000 in Scotland, Wales and Northern Ireland. This activity becomes illegal only once the thresholds are passed. It is important that only those with a legitimate and fair interest in UK elections are able to influence the electorate.
Clause 22 will remove the scope for any legal spending by foreign third party campaigners underneath the registration threshold but above a £700 de minimis. The inclusion of such a de minimis provision will balance the desire to prohibit spending by foreign entities without criminalising low level, potentially unintentional breaches below £700, which are unlikely to adversely impact an election.
It is worth noting that only individual overseas electors are permitted to register as third party campaigners with the Electoral Commission. In order to support overseas electors, who are important participants in our democracy, to work together, the clause will permit them to form unincorporated associations to campaign if they spend below the new lower tier registration threshold of £10,000, set out in clause 24. That is in line with the current situation, and it is only right that such electors should be able to spend in UK elections as they can now. Under our proposals, unincorporated associations will meet the “requisite UK connection” requirement to incur spending in UK elections only if they are composed solely of registered overseas electors.
To conclude, these provisions make necessary and proportionate changes to ensure that spending at UK elections is only permitted, above a £700 de minimis, for those with a legitimate interest in UK elections. They help reduce the risk of illegitimate foreign influence in UK elections.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Clause 23
Third parties capable of giving notification for purposes of Part 6 of PPERA
Fleur Anderson (Putney) (Lab)
I beg to move amendment 71, in clause 23, page 33, leave out lines 6 to 10.
This amendment would leave out the powers for ministers to remove categories of permitted campaigner while leaving in place their power to add new categories of campaigner.
The Chair
With this it will be convenient to discuss amendment 72, in clause 23, page 33, line 10, at end insert—
“(11) The power to make provision by virtue of paragraph (9)(b) or (c) is exercisable only on, and in accordance with, a recommendation of the Electoral Commission.”
This amendment would require the Government to obtain the recommendation of the Electoral Commission before removing or varying categories of permitted campaigner.
Fleur Anderson
It is a pleasure to serve under your chairship, Mr Pritchard.
Part 4 and its provisions are a brazen attack on our democracy. They will undermine the ability of civil society organisations, charities and trade unions to engage and campaign in our democracy—that is why they are so controversial. We need to spend additional time considering them, and I hope that all Committee members will take up our amendments, which are reasonable, represent an improvement and come very much from civil society.
The provisions in question will infringe the rights of working people to organise politically or campaign on pay or rights at work, and they risk silencing the very people who got our country through the pandemic. They are an unnecessary and disproportionate reaction. They will not add to the integrity of our elections, but only have a chilling effect on democracy.
In a free and open society, democratically elected Governments are scrutinised by Opposition parties and civil society, often campaigning on single issues. Part of what makes democracy healthy is the freedom for civil society to challenge those in power, which the Government are seeking to curtail with the clause and which we seek to amend with amendments 71 and 72.
The clause will allow a Cabinet Office Minister to define who may legally campaign at elections, giving them the power to amend or remove the types of organisations that are allowed to spend as little as £700 on election campaigning across the whole UK. It also doubles as the list of organisations that are allowed to register with the Electoral Commission and spend more than £10,000 at elections. The Minister may now be able to ban charities that are critical of Government cuts to foreign aid, ban local community groups protesting against planning reforms, ban unions that might work with a political party for workplace rights, and ban anyone convicted of a public order offence. In conjunction with the Police, Crime, Sentencing and Courts Bill, which makes it much easier to criminalise protesters—even a protest involving one person—this would disproportionately impact on the Government’s most vocal and active opposition, who may have already been criminalised for protesting. That is a terrifying prospect and, as far as I can see, quite unprecedented.
The Bill is not about influence. It is a way for the Government to stifle their critics before elections and cripple them during elections. Giving the Government such power over their opposition during elections is completely at odds with free and fair elections. It is deeply inappropriate and offensive to our democratic tradition. Unions and other campaign organisations have a right to engage in our democracy and already face a highly regulated landscape, which is why the clause is unnecessary.
Patrick Grady (Glasgow North) (SNP)
The hon. Lady says this is the Government stifling their opposition. Actually, civil society, trade unions and charitable organisations are all our opposition, because they put equal pressure on all candidates and parties that stand in an election, as they want to achieve policy change. Obviously, some organisations are more closely affiliated with political parties than others are, but many of them are party-neutral in that sense, because they want to drive a policy change rather than see one party be successful in any given constituency or general election.
Fleur Anderson
I absolutely agree with the hon. Gentleman. It is a range of political opinions and opinions about different issues that are not necessarily the main bread and butter of political parties, but which are so vital, especially in an election time, when we are talking about the future of such a wide range of policy decisions that are about to be made on behalf of the electorate. Unless we accept the amendment, we face the risk of some groups, individuals, community organisations and single-issue campaigns being unnecessarily banned from taking part in the electoral process. There will be scandals ahead unless we accept the amendment.
Labour’s amendments 71 and 72 seek to temper the clause. Amendment 71 will delete the unprecedented and dangerous powers to remove categories of permitted campaigners while respecting the Government’s stated intention to future-proof electoral law by allowing the addition of novel categories of campaigner. It is flexible and can still respond to new issues and campaigns as we go forward, but it does not have the draconian and heavy-handed influence of only the Minister choosing who is on the list. Amendment 72 requires the Government to obtain the recommendation of the Electoral Commission before removing or varying categories of permitted campaigner, and I hope all Members will agree that it is a very reasonable amendment.
Both amendments are necessary to prevent a Minister from having the unprecedented ability to interfere in a free and fair election. They also have significant civil society support, including from Bond—British Overseas NGOs for Development—which represents over 400 organisations, ranging from small specialist charities to large, international non-governmental organisations. It has many supporters in all our constituencies, with a worldwide presence, and believes that:
“This is an extremely broad power which could be open to abuse by future governments.”
I would add that it could be open to abuse by the current Government. Bond has urged that it be amended, and so do I.
Kemi Badenoch
Clause 23 builds directly on the requirements put in place by clause 22. As I have mentioned, the aim of clause 22 is to remove the scope for foreign entities to spend above a £700 de minimis amount during the regulated period running up to an election by restricting all third party campaigner spending at that time to spending by entities that are eligible to register with the Electoral Commission, as in section 88 of PPERA.
However, we are conscious that legitimate categories of third party that are not on the list of categories of campaigners may emerge in future, and clause 22 would significantly restrict their ability to campaign if they could not be added to the list quickly. For that reason, clause 23 makes provision for the amendment of the list of eligible categories of third party campaigners in PPERA. It will allow the Government to add to, remove items from, or otherwise amend the list of categories of third party campaigners as necessary. Any such changes will be subject to parliamentary scrutiny via the affirmative procedure. These provisions will ensure that we can be responsive to the emergence of new groups, and that eligible categories of third party are not unduly restricted from campaigning and participating in our democracy in future. I therefore urge the Committee to allow the clause to stand part of the Bill.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
Recognised third parties: changes to existing limits etc
Fleur Anderson
I beg to move amendment 76, in clause 24, page 33, line 23, at end insert—
“(5C) Registered charities and Community Interest Companies may act as a recognised third party subject to the lower-tier expenditure limits without the requirement to give the Electoral Commission notification under section 88 of PPERA.”
This amendment would exempt registered charities and Community Interest Companies from the notification and registration requirements of Clause 24, which introduces a new lower tier registration for third party campaigners who spend more than £10,000 on controlled expenditure anywhere in the UK.
The Chair
With this it will be convenient to discuss the following:
Amendment 77, in clause 24, page 33, line 23, at end insert—
“(5C) Registered charities and Community Interest Companies (CICs) which intend to incur election expenditure within the lower-tier expenditure limits may provide the Electoral Commission with their charity or CIC registration number, and the Commission—
(a) shall treat that information as sufficient for the charity’s or CIC’s notification and registration for electoral purposes under section 88 of PPERA, and
(b) may collect any information the Commission requires about the charity or CIC from the Charities Commission or Companies House respectively.”
This amendment seeks allow charities or Community Interest Companies who wish to campaign at elections within the lower tier of expenditure and which are already subject to transparency requirements to avoid the additional compliance burden arising from Clause 24.
Amendment 90, in clause 24, page 34, line 22, at end insert—
“except where the third party is a charity which is registered with the Charity Commission of England and Wales under section 30(1) of the Charities Act 2011 or is exempt from registration under section 30(2)(a), (b) or (c) of the Charities Act 2011 or is registered as a community interest company under section 36B of the Companies (Audit, Investigations and Community Enterprise) Act 2004;”.
Fleur Anderson
I am pleased to speak to amendments 76 and 77, which would significantly improve the Bill. Amendment 76 would exempt registered charities and community interest companies, or CICs, from the notification and registration requirements of clause 24, which introduces a new, lower-tier registration for third party campaigners who spend more than £10,000 on controlled expenditure anywhere in the UK. Our amendment 77 seeks to allow charities or CICs that wish to campaign at elections within the lower tier of expenditure, and that are already subject to transparency requirements, to avoid the additional compliance burden arising from clause 24.
The Electoral Commission says on part 4:
“Some of the changes in Part 4 of the Bill would increase transparency for voters about who is spending money campaigning at elections and how they are funded.”
So far, so good. It goes on:
“But they would not increase transparency about how much is being spent and on what. The added complexity of these changes could deter some from campaigning at elections, or restrict the type of campaigning they can spend funds on. Voters could therefore receive less information about candidates and parties, and hear from a narrower range of sources.”
The Electoral Commission continues:
“Third party campaigners are individuals and organisations that campaign in the run-up to elections but do not stand as political parties or candidates. These are a vital part of a healthy democracy and play a significant role in providing voters with information. It is important that a broad range of campaigners can take part in public debate ahead of UK elections and referendums so voters hear a diversity of voices.”
The commission states:
“These changes would add new requirements to laws which many campaigners have said are already complex and hard to understand.”
Again, these changes are unnecessary and will have a chilling effect on democracy, and especially on registered charities and CICs. That is why they are the focus of our amendments. The Bill risks tying organisations up in red tape and stifling democratic engagement by civil society organisations, which are concerned about breaking the rules.
I was working in a charity when the gagging, or lobbying, Act—the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 —was introduced. I very often found myself sitting around with my colleagues asking, “Can we now do this? Can we now say that? Can we now work with them? What can we do?”. Our charity did not have enough money to seek a large amount of legal advice. The law was also quite unclear, so to avoid falling foul of it, we would step back and not do many things that would have been perfectly within the law, which had been changed, just in case they were not.
The provisions we are discussing extend those powers. Indeed, I see this as a trilogy, comprising the lobbying Act, the Trade Union Act 2016 and this Bill, which altogether stifle democracy and free speech, and stop really valuable campaigners campaigning about issues that we politicians need to hear about.
I spoke to the National Council for Voluntary Organisations, which is concerned about this issue. It said that it was unconvinced by the argument in favour of the lower threshold in general terms. Has the Minister met the NCVO to discuss its concerns? The Government have framed the issue in terms of increased transparency, but it was not clear to the NCVO, which represents charities across the country, that there would have been a significant impact. It cannot see that there will be more transparency.
The NCVO asked the Minister’s predecessor to look at whether charities could be exempted from the lower threshold. Its argument is that when campaigning is done by a registered charity, people can in any case look it up on the register and see who its trustees are, how it is funded and so on. The transparency point therefore does not apply in the same way, because charities are already transparent and highly regulated. This new tier will inevitably result in smaller organisations being unable to engage in democracy. Charities and community groups that might not have the policy and legal expertise of larger organisations and that, as I have said, will fear running afoul of the rules may decide—in fact, will decide—that it is not worth the trouble to spend a relatively small sum, or they might be put off by appearing on a public register.
Aaron Bell (Newcastle-under-Lyme) (Con)
The hon. Lady is obviously making a powerful speech, but the primary purpose of charities, which we give tax relief to, should surely be supporting good causes, not campaigning in elections.
Fleur Anderson
In many respects, supporting good causes is done by campaigning. For many charities, the causes of the symptoms they are seeking to address will be back in Government policy. The policies that we decide all the time obviously have an immediate impact on people on the ground. Charities work with those people and need to change the policies to change the issue they are addressing.
Brendan O’Hara (Argyll and Bute) (SNP)
Does the hon. Lady agree that charities by their nature have expertise and understanding—for example, of homelessness, third-world debt, climate change, or whatever—that we in this House have to learn from? The idea that they should be restricted simply to raising funds to alleviate an issue, rather than trying to engage and inform the debate, is simply preposterous.
Fleur Anderson
I absolutely agree. For example, during this Bill Committee, we have relied on expert advice from the Royal National Institute of Blind People about the impact of these changes on people who are blind or partially sighted across this country. As the representative organisation of those people, who will be affected by the Bill in how they vote, the RNIB should be giving us expert advice. In the future, having to work out how much money it has spent jointly and severally with other organisations, which tier it falls into and whether it will get on to the list will all have an effect on whether or not we receive that expertise, which helps us to be much better decision makers.
When we consider that the Conservative party spent £16 million in the last general election, we see that lowering the spending threshold for groups to register during an election from £20,000 to £10,000 is clearly aimed at deterring smaller organisations, community groups and single-issue groups, which the hon. Member for Argyll and Bute mentioned, such as groups concerned with refugees, disability rights, women’s rights and LGBTQ issues. Community groups campaigning on a single issue in our constituencies may fear running afoul of changing election rules, which will have that chilling effect.
I ask the Minister whether there will be a review of the impact of the lobbying Act as we go forward with the Elections Bill, because I think that they go together. To know what impact the lobbying Act has had on campaigning will be very instructive. Perhaps there has been such a review already, and I did not know about it. If not, will there be a review of the impact of that Act and this legislation on campaigning, particularly single-issue campaigning?
If existing party activity is redefined as joint campaigning, smaller unions that spend only very small amounts on regulated activity and do not come close to meeting the threshold for registering with the Electoral Commission could find themselves having to register and submit a complex and comprehensive return, despite having not spent any of their own funds on a campaign. Should not they be spending their money on frontline service provision and advocacy, rather than filling in complex and comprehensive returns that do not add to transparency but only decrease our democracy? This will be a huge bureaucratic burden on small organisations; it is both completely unnecessary and overly burdensome.
Labour’s amendment 76 seeks to reduce the chilling effect and remove the burdens of additional regulation by exempting registered charities and community interest companies from the notification and registration requirements. In the community organisation that I worked for just before I became an MP, there was a fantastic organisation called SEN Talk—special educational needs talk.
For years, I supported it in becoming a CIC. It is a long process. The organisation had to go through a lot of measures and have a lot of transparency. It was doing a lot of frontline work with parents and children with special educational needs, but also it was advocating to the council for the changes that it needed in order to operate on behalf of parents, and to the Government, and working on Select Committee reports, for example. If that organisation were asked to then submit returns but did not know exactly when the election period was and feared falling afoul of this, it would have to cut down on its frontline services or not take part in the advocacy that really does help it to stand up for children with special educational needs. It would put that organisation in a real bind, and it is just one example.
This proposal has also, as I have mentioned, been called for by Bond—the overseas aid network—and several other third-sector organisations. Setting up a registered charity takes considerable time and effort, and these entities must already, by law, identify their trustees—or, in the case of CICs, their directors—and publish their accounts. There are already robust transparency initiatives regulating charity governance, so it is highly unlikely that those seeking to exert undue influence in elections would pursue this approach as a means of evading regulation. I would like to know how many conversations the Minister has had with CICs, in particular, about the effect of the Bill.
Registered charities cannot exist for solely political purposes, and charities that do engage in political activity in pursuit of their charitable objects are already closely monitored by the Charity Commission. These organisations would still have to register with the Electoral Commission as a non-party campaigner if they met the existing spending thresholds.
Amendment 77 would recognise the need for all campaigners at elections to submit to electoral regulation by the elections regulator, and to be transparent about their purpose if they are seeking to campaign to influence voters at election time—but without duplicating the compliance burden for those organisations that already routinely are required to be transparent.
I urge all hon. Members to support these very reasonable amendments, which would allow small organisations and single-issue campaigns to continue to campaign.
Patrick Grady
Like the Labour Front-Bench team, SNP Members have warned repeatedly about the chilling effect that the Bill as a whole will have on political participation. We have gone through the clauses that suppress turnout; we have gone through the clauses that weaken oversight of elections; and now we are on to clauses that will deter organisations with legitimate interests from contributing to debate and policy development, though that is what happens during general elections.
The intervention made by the hon. Member for Newcastle-under-Lyme was very telling. His point was that charities should be seen and not heard—the patrician attitude was that charities do beneficent works, helping poor unfortunate souls, maybe contributing to the Government’s levelling-up agenda, or maybe not, and while doing all the hard work must live with the consequences of the policies made by Governments of whatever colour. That includes SNP Governments in Scotland; there will be organisations that are highly critical of some aspects of SNP Government policy—but so they should be, as the point of a vibrant third sector is to contribute to policy debate.
Most charitable organisations that I have come into contact with in my professional career, both in that sector and as a politician, ultimately do not want to exist. They are there to solve problems, and they do so by providing immediate relief and support to people who require it, but they also want to tackle the underlying policies that have caused those problems. The best time to do that is at election time, when decisions are made and when power really is in the hands of the people and the voters. Of course those organisations want to seek pledges from individual politicians. They are not necessarily seeking to influence political parties as a whole. They are certainly not telling their supporters which party to vote for. First, they are not allowed to, but even if they were, they are not going to tell their supporters and donors which party to vote for, because by definition these are cross-party organisations that draw support from a wide range of people across society, and doing so would be counterproductive.
It is crucial for our democracy, however, to allow these organisations to encourage supporters and donors, educate the people who support their cause, and engage with decision makers. If that means extracting pledges from candidates on a constituency-by-constituency basis, then good for them. If that means that candidates from whatever party get elected and are then held to account for signing a pledge or supporting a policy in the election, so much the better. When we have mass lobby days here in Westminster—there are a few lined up this week, now that covid restrictions are easing—Members of Parliament from all the political parties come along to demonstrate their support for a charitable cause. Yes, sometimes there is weight in one direction or the other, but inevitably the best way to drive political change is to achieve cross-party consensus. That is what these organisations are often trying to do, but the clause will have the chilling effect of which the hon. Member for Putney spoke.
Cat Smith (Lancaster and Fleetwood) (Lab)
When we heard the intervention from the hon. Member for Newcastle-under-Lyme, was the hon. Gentleman reminded, as I was, of Desmond Tutu’s words:
“There comes a point where we need to stop just pulling people out of the river…We need to go upstream and find out why they’re falling in”?
Is that not the philosophy of the charities that the hon. Gentleman has worked with? Certainly the charities that I have worked with in my constituency want to stop people falling into the river upstream, rather than just keep fishing them out at the bottom.
Patrick Grady
Absolutely. Where are those decisions ultimately made? Here, in rooms like this one. We are engaging with charitable organisations on this Bill. We are being advised and lobbied on matters in the Bill by organisations that are making representations to us, have frontline experience, and are delivering in a whole range of sectors. We have heard from domestic organisations and from Bond, the international development network.
I am sure all Committee members have diligently read the written evidence submitted by Bond, EB14. I strongly encourage them to do so, because it explains the challenges and difficulties faced by these organisations, which are having to comply with election registration regulations and reporting requirements, and finding it incredibly difficult. There is evidence in that document—we heard it from the hon. Member for Putney as well—that many organisations are already choosing simply to step back, so their voices are not being heard. That goes back to the narrative of what exactly the Bill is trying to achieve, in terms of suppressing debate and political participation in this country.
Although clause 24 is not quite as draconian as clause 23, it is still pretty oppressive. Amendment 96, tabled by the SNP, could achieve much the same as the Labour party amendments in exempting registered charities from these incredibly stringent new reporting requirements. The threshold of £10,000 could easily be reached once everything that had to be calculated was taken into account, such as staff time, resources, and collaboration with other organisations.
It would be easy to hit that threshold, potentially unexpectedly. The charity would then face another burden if it was sanctioned. There have been examples, referred to in the written evidence, of charities that inadvertently crossed the threshold and did not report that appropriately, and then faced fines. That is fair enough, if that is the regime, but it is another cost. That is money that people have given to those charities. It might be taxpayers’ money, received through gift aid, that has to be spent on fines, compliance and regulation, deterring the charity from political participation and delivery of frontline services, when it already exists in a rightly strong and tightly regulated environment.
The Government should accept the amendments. If they genuinely believe in levelling up, surely they want to hear from organisations that have frontline experience of the difficulties and challenges being faced by ordinary people day to day, and that are identifying solutions that will help to raise standards in society and level up. In fact, we are seeing a levelling down, suppression of debate, sticking with the status quo, and a message not to challenge anything coming from the Government who happen to be in power now.
We have learned in this Committee and in others that the chances of an amendment succeeding are middling to none. Nevertheless, I look forward to the Minister’s response to my points.
Brendan O’Hara
It is a pleasure to follow my hon. Friend, who is absolutely right, though I admire his endless optimism that the chances are middling to none. He is far more optimistic than me that the Government will ever move an inch. That does not mean that the arguments cannot be made. Indeed, there is every reason for the arguments to be made.
At general elections, every single one of us has been made to think, question and commit one way or another to an idea coming from a third party or campaigning organisation. That is exactly how it should be in a democracy. When we put ourselves forward for election, people have a right to know where we stand on the big issues of the day—whether that is homelessness, third-world debt or support for those suffering domestic violence—and where better to do that, for a charity or third party organisation, than a general election? People are not asking us just as individuals; they are asking all those who put themselves forward for election in this country where they stand, because our public have an absolute right to know that.
The real question is about the motivation of the Government in introducing the measure in the first place. Campaigning is a core function of many organisations. It allows them to highlight areas of concern and contribute to the wider public discourse, from a position of authority and experience, from which every one of us benefits. We have all heard from numerous third party organisations of their concerns, but these measures will make an already complicated area even more confusing and burdensome for those issue-based campaigning organisations. They face new rules that may see them inadvertently fall foul of legislation and, as a result, step a long way back from their activity. They will shrink back from that public debate, which can only harm our democracy. That will dampen public debate, and the voice of those marginalised groups they represent will be further diminished.
Organisations will quite rightly engage in campaigning 12 months prior to a general election, but the vast majority of that campaigning will not be focused on that general election. Those organisations campaign every day of the year, every year of a decade. That is what they are there to do; they are there to inform and to advocate.
What is really troubling here is the purpose test and whether it can be passed. It is confusing. The legislation says that the purpose test can be passed if it
“can reasonably be regarded as intended to influence voters to vote for or against political parties or categories of candidates, including political parties or categories of candidates who support or do not support particular policies”.
That is all well and good, but the confusion arises because that is not the intention of the charity of a third sector organisation. The interpretation comes from someone else, and it is their perception of what counts as political campaigning. Even if the charity is clear that that is not its intention, it could be decreed by someone else that it is. The result is that the charities will shrink from those areas of concern—homelessness, domestic abuse—for fear of falling foul of the legislation. Many of us on this side of the Committee think that that was probably the Government’s intention from the start.
Kemi Badenoch
Amendments 76 and 90 would exempt from the transparency requirements provided by the lower tier of expenditure registered charities, charities exempt from registering with the Charities Commission, and community interest companies spending more than £10,000 across the UK but less than the existing notification thresholds. Amendment 77 would allow those groups to forgo the usual notification process for the lower tier and instead provide only their charity or company number.
The Government are clear that any group spending significant amounts in UK elections should be subject to scrutiny. That is essential to ensure transparency for voters and to maintain the level playing field for all participants in elections. It is therefore right that all types of third party campaigner should be subject to the same sets of rules where they are trying to influence the electorate. The amendments would undermine those principles, and the Government cannot accept them.
Additionally, third party campaigner regulations do, and should, focus on the purpose of campaigning activities conducted by all organisations, not just specific types of organisation. Charities and CICs can always choose to spend less than £10,000 in the period before an election if they do not want to register with the Electoral Commission.
Patrick Grady
Given the repeal of the Fixed-term Parliaments Act 2011, how will charities know when it is 12 months before a general election?
Kemi Badenoch
I will come to that point in a moment. Charities can choose to spend less than £10,000 in the period before an election. The clause is drafted so as to increase transparency by requiring third party campaigners to register at a lower level of spend than is currently the case, while also ensuring that the regulatory requirements on such third party campaigners is proportionate to their campaign spend.
Digital technology has significantly reduced the cost of campaigning, and it is important that the lower tier of expenditure reflects that reality. Those third parties subject to the lower-tier expenditure limits will be subject only to minimal registration requirements and will not be subject to reporting or donations controls. That increased transparency is intended to reassure the electorate and to continue to uphold transparency as a key principle of UK elections. No group should be exempt from that. In fact, having third party spending limits is essential to prevent the influence of American style “super political action committee” pressure groups in UK elections.
The notification requirement for third party campaigners involves the provision of important information, which the Electoral Commission uses to ensure that campaigners are eligible and to provide information about those campaigners to the public. While amendment 77 would still require third party campaigners to notify the Electoral Commission, it would allow them to provide only their registration numbers with the Charity Commission or Companies House, instead of providing the usual information, which would undermine the intended transparency.
Let me address some of the questions raised by Opposition Members before I continue on clause 24. I am not clear about what the hon. Member for Putney was referring to when she talked about the impact on the lobbying Act; if I am not answering her question here, I am happy to write to her with more information. The report on the 2014 lobbying Act from Lord Hodgson of Astley Abbotts said that as one of the fundamental purposes of electoral law
“is to maintain public trust and confidence in the integrity of the electoral system, it must be right that any regulation should apply to all such participants, regardless of their size or status.”
That shows that, even as the lobbying Act was being created and reported on, those considerations were taken into account.
Brendan O’Hara
I ask the Minister a very, very simple question. How will a charity or any other organisation—
Brendan O’Hara
Indeed, or a Back-Bench MP—how will they know when they are in that 12-month period before a general election?
Kemi Badenoch
The fact is that we all have a fairly good idea of when an election will be. Although snap elections can be called, the fact is that everybody will be in the same situation.
Kemi Badenoch
I am not giving way again on that point. Third party campaigning groups will not have any special intelligence. People will need to take that into account when they are campaigning politically. People seeking to influence the electorate should all be subject to the same laws.
The debate is not about whether charities are nice groups or nice individuals, which is 50% of the argument made by SNP Members. To be perfectly honest, it sounds like Opposition Members want charities to make their political arguments for them, because they think they are more acceptable.
Kemi Badenoch
I am no longer giving way on that point.
That is not how we want to regulate our politics or our electorate. Charities should make points on their own—not in the way that SNP Members are saying, as if there are other political reasons that would be helpful to them, rather than the Government. They accuse us of playing politics, but it sounds to me as though they are the ones doing that.
Nick Smith (Blaenau Gwent) (Lab)
In 2017, the Prime Minister called a snap general election. What would the Minister say to charities who find themselves in a similar situation after the Bill is passed?
Kemi Badenoch
I would say that all third party campaigning organisations need to be mindful of their spending. I believe that snap elections are a rarity, given what happened in 2017. They do not happen very often.
Kemi Badenoch
Yes, but the fact is they are not very common. Every single one of us in this room is in the same situation. I was elected in 2017. I did not know that a snap election was going to be called. I am afraid that what Opposition Members are asking for is the Fixed-term Parliaments Act 2011, which is not within the scope of what we are discussing. Debates on the clause are not the place to discuss certainty around election time, if that is what Opposition Members want. The clause is about regulating political finance transparency.
The fundamental point made by Opposition Members is that clause 24 creates an undue administrative burden for charities and community interest companies, but it does not do that. They can easily supply the relevant information.
Kemi Badenoch
The hon. Lady knows that I cannot answer any questions about when elections are forthcoming. That does not change the premise of our argument. I do not know; she does not know; charities do not know; no third party campaigners know. The law is equal for everybody. I am afraid we simply do not accept the argument that there should be special rules and exemptions for particular groups.
Charities can supply the relevant information, and the amendment would increase the administrative burden for the Electoral Commission—a point it has made several times—and not allow it to obtain all the necessary information covered in the notification requirements. Under the amendment, charities and community interest companies would not have to provide the name of a responsible person. That information cannot be obtained through Companies House or the Charity Commission because it is specific to electoral law.
It is important to identify a person who will be responsible for ensuring compliance with electoral law. Naming a responsible person also acts to protect third parties from being liable for expenditure that has not been authorised by that person. Allowing charities and community interest companies to be exempt from that requirement would risk their duty of compliance and protection falling away, which would not be right. In the light of the reasons I have given, and the minimal burden on charities that the measures will generate, we oppose the amendment.
Brendan O’Hara
I have a question for the Minister, which I think is a perfectly reasonable and fair question to ask on behalf of charities. How do they know right now that they are not 12 months out from a general election? How do they know where their spending is in relation to the next general election, and that they have not already exceeded the threshold? The question is whether she thinks it is fair for charities inadvertently to fall foul of the legislation, with their having absolutely no way of knowing where they stand because the Government have changed the rules around about them. Will she address the basic issue of fairness to our charities?
Question put, That the amendment be made.
Kemi Badenoch
Third party campaigners must currently register with the Electoral Commission before they spend £20,000 in England and £10,000 in any of Scotland, Wales or Northern Ireland for controlled spending during a regulated period before an election. Groups that spend below those thresholds could be spending substantial amounts of money on campaigns, but they are not regulated. Clause 24 addresses that issue, and introduces registration for third party campaigners at a lower level of spend than is currently the case.
Third parties spending in excess of £10,000 on controlled expenditure during a regulated period across or in any constituent part of the UK, but below the existing per-country thresholds for registration, will be required to register with the Electoral Commission. That will not replace the existing registration thresholds, which will stay in place. Therefore, if a third party campaigner spends more than £20,000 in England or £10,000 in Scotland, Wales or Northern Ireland, they will still be required to notify the commission as they currently do. That will be for all groups, as we said in the debate on the amendments. No exceptions will be made for any special category of campaigner; they will all be subject to the same rules.
In addition, all the measures apply only to qualifying expenditure that can reasonably be regarded as intended to promote or procure electoral success at any relevant election. I want to be clear that they do not apply to wider non-electoral campaigning that groups may undertake.
As I mentioned, third parties registered in the lower tier will be subject to minimal regulation upon registration—for example, ensuring that they are UK based or otherwise eligible to register with the Electoral Commission. Again, such entities will not be subject to some of the other political finance controls in legislation around reporting on donations and controlled expenditure, nor will they be subject to the internal reporting and recording requirements.
We must recognise that digital campaigning has significantly altered the campaigning landscape by making it easier to spend less on campaigns and to spend more widely across the whole UK. Introducing registration at a lower level of spend reflects that reality and will help to increase transparency for the public with regulation proportional to the level of spend.
Patrick Grady
The Minister said in her previous speech that the measure was partly intended to avoid a situation arising comparable to the US super-PACs that spend millions of dollars with very little regulation. It is impossible under current UK electoral law for a situation anything like that to arise in this country. The notion that small local charities that want to lobby their local candidates to stop the closure of a swimming pool, a school or a library are somehow comparable to the dark money seen in other parts of the world, which has been reported as potentially having an increasing impact in this part of the world, is completely extreme.
It is not impossible that there will be a general election in February 2022, because as the Minister has admitted, the Prime Minister will have that option when the Fixed-term Parliaments Act 2011 is finally repealed. As soon as that happens, the next election campaign will effectively start, which is delightful for all of us because of the rare snap elections that we have experienced twice in the last three years.
Under the terms of the clause, if an election came that early it might be the case that some organisations would have already reached the threshold without knowing it, not least because they are in the process of holding us to account for pledges that we made in 2019 that they have not had much opportunity to lobby on. Organisations that are organising a big lobby day—there are several coming up—that involve a lot of logistics such as the hire of the hall and the transportation of people, and that are related to pledges that Members may have made at a general election and therefore could reach the threshold, may find that they are already in breach without knowing it.
It is an awkward clause that relates to the overall package of reform that the Government are bringing in through the Bills that we have mentioned throughout the progress of this Bill, including the repeal of the 2011 Act, the Police, Crime, Sentencing and Courts Bill, and the other aspects of electoral and political law that are being amended. The Minister is falling back on the idea that it affects everyone, but that does not really answer that point. In a sense, it does affect all of us and we may already be in the run-up to a general election campaign but we just do not know because of the power grab that is being exercised by the Conservative Government, of which this clause is another example.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Clause 25
Joint campaigning by registered parties and third parties
Fleur Anderson
I beg to move amendment 74, in clause 25, page 36, line 19, at end insert—
‘(2A) In section 85(2) of PPERA, after “incurred”, insert “(in the case of a parliamentary election only after the date of the election has been set or fixed)”.’
This amendment would limit regulated periods for UK Parliamentary General Elections to the period between the announcement of the election and the close of polls.
Clause 25 is about joint campaigning by registered parties and third parties and sets up the necessary amendment to have joint plans registered by those registered parties and joint parties when they are campaigning together. It clearly focuses mainly on suppressing the unions’ ability to campaign with parties. The Opposition oppose clause 25 in its entirety, as I will come to later.
On amendment 74, we have just been talking about deadlines and dates and how, if there is confusion about who can campaign, there is confusion about what has to be registered financially and who that has to be registered with. Then there is a lot of red tape. On top of that, there is confusion about the dates and the period that we are in: is it an election time or not? That will all, jointly, have a huge suppression effect on campaigning, which is the lifeblood of our elections and our free and democratic society.
Kemi Badenoch
Third party campaigners are subject to limits on their controlled expenditure in the periods leading up to parliamentary elections in the UK, including devolved elections. The time during which those spending limits apply are known as regulated periods and are 12 months long for UK parliamentary elections and four months long for the relevant parliamentary elections in Scotland, Wales and Northern Ireland. Regulated periods can be longer where they overlap. It is right that any campaign that could influence the electorate at an election should be regulated and subject to a spending limit. While significant amounts of spending might take place following the announcement of a poll, elections are often known, rumoured or expected to take place long before the poll date is announced and a Parliament is dissolved, which is the point that we are debating.
Brendan O’Hara
Can the Minister explain how the House can legislate on the basis of a rumour of when a general election might be? How is that any way to run a country?
Kemi Badenoch
That is not what we are legislating on; that is a statement of fact. Just as with every intervention the hon. Gentleman has made, it is a point we all acknowledge that while elections are at expected times, they can happen at different times: earlier or there may be snap elections, though rare. That does not change the fundamental point under discussion.
Opposition Members seem to be annoyed that there is a regulated spending period at all. I am afraid that that is not going to change. Campaigning and political activity, which can occur up to 12 months or more in advance of an election, may have a significant influence on its outcome. Having a short regulated period, as proposed by the amendment, would mean that spending, which does influence the electorate, is likely to fall away from being regulated and reported. That fatally undermines the principle of transparency and spending limits.
Cat Smith
On the point about transparency, does the Minister not recognise that the Government are not being transparent with charities or third party campaigners? How are they ever meant to know when the regulated spend period is kicking in when we do not have scheduled, regular general elections for the UK Parliament because of legislation we already passed a couple of months ago? Does the Minister agree that we are asking charities, which are blindfolded, to make decisions with no idea when an election will take place? The amendment is the only way we can treat all third party campaigners fairly and give them any sense of transparency. Can the Minister see that the Government are a little inconsistent on the point about transparency?
Kemi Badenoch
I do not think so at all. In the previous clause, we made the situation equal for everybody. The Opposition are talking as if there is a secret conspiracy where everybody knows, other than them, when an election is going to be called. We are applying the law equally to everybody. That is right and I am happy to continue making the argument.
Kemi Badenoch
I have already given way multiple times and we need to proceed. There are other more important reasons why the amendment simply cannot pass.
Under the terms of the amendment, third party campaigners would be able to incur spending beyond their current limit, prior to the poll being officially set, and still be able to influence the electorate. That would give a potential advantage to those with access to greater funds, and thus also undermine the fundamental democratic principle that there should be a level playing field for all those taking part in elections. That would apply to all third party campaigners, whether on the Government’s side or the Opposition’s. That is the fairness about which the hon. Lady is talking. In addition, donations of third party campaigners are regulated only where they are used for controlled expenditure during a regulated period. That ensures that donations that are spent to influence the electorate in the period before an election come from permissible sources and are fully transparent. This is a regulated period amendment and we are not talking about charities.
A shorter regulated period would allow third party campaigners to accept and spend donations from potentially impermissible sources in the run-up to an election, and do so without being subject to transparency controls, as long as those donations were spent before the regulated period began. That risks unchecked money being used to influence the outcome of an election.
Kemi Badenoch
I have answered that question already.
The amendment, as drafted, does not achieve the aims set out in the accompanying explanatory memorandum. Although the memorandum suggests that the amendment would limit
“regulated periods for UK Parliamentary General Elections to the period between the announcement of the election and the close of polls”,
that is not correct. It makes changes to section 85 of the Political Parties, Elections and Referendums Act 2000, which provides a definition for what constitutes controlled expenditure, namely spending incurred by third party campaigners at relevant elections, not just UK parliamentary elections, which can be regulated. The amendment does not amend the length of the regulated period, but rather creates an additional time period over which controlled expenditure is regulated. That would cause confusion to third parties as to which time applies.
The amendment would also create disparity between the rules for third party campaigners and the controls on political parties, which would still have a twelve-month regulated period, known as the relevant period. The proposed change would therefore also have the effect of making regulated periods for UK parliamentary elections significantly shorter than those for the devolved Parliaments, whose regulated periods would remain at four months. The amendment therefore should not stand because it would undermine the principles of controls and transparency that are placed on election funding and spending, and it would create confusion and disparity.
Question put, That the amendment be made.
Kemi Badenoch
As I have already set out, spending limits are an integral part of the political finance framework. They ensure a level of fairness between parties and campaigners. Controls are already in place on the integrity of spending limits—for example, in the case of targeted spending where a cap is placed on third party spending to promote one political party, and joint campaigning, which applies where third party campaigners work together and must all report costs. It is right that where groups work together on a campaign the spending should be accounted for by anyone involved in it, otherwise groups could unfairly attempt to make use of multiple spending limits. Therefore, we are extending the principle of joint campaigning to cover scenarios where political parties and third party campaigners are actively working together on a campaign. That is very different from targeted spending, where a third party targets a political party with their spending, but they do not actually work together on a campaign. It will simply mean that where a political party and third party campaigner are incurring spending and actively campaigning together, the relevant spending for that joint campaign should be accounted for by all groups involved in the spending. That will help to ensure that campaigners are playing by the rules and make it much easier to know who was involved in such campaigns. Of course, it will not stop groups spending separately outside the joint plan in their capacity as an individually recognised third party or political party. Any regulated spending that is undertaken by an individual group and is not part of a joint campaign will need to be reported only by the group incurring the spend.
Furthermore, to create parity with the current rules on joint campaigning between third party campaigners, the requirement to specifically identify relevant spending and spending returns will also be applied to the existing rules on joint campaigning between more than one third party campaigner. It is absolutely right that the rules on transparency of joint campaigning should be as similar as possible across all types of campaigners, to ensure fairness and support compliance. Therefore, I urge that the clause stand part of the Bill.
Fleur Anderson
We oppose part 4 in its entirety. The Minister makes it sound very easy. Parties campaign together and write a joint plan. If they have been a part of it, they declare all the expenses. In practice, that involves a huge amount of red tape and burden, and it is absolutely disproportionate to the effect that the Government are trying to achieve with the Bill—transparency, integrity and freeing up our elections so that everyone can take part and we all know what is happening. There should absolutely be transparency, but there should not be an overly bureaucratic system that will actually suppress freedom of speech.
The clause is a deliberate attempt to silence the trade unions in particular, which is what I will focus on. It is all about the Conservatives rigging democracy in their favour, because they know full well that the clause will silence Labour-affiliated trade unions. It is totally out of step with what we see globally. Only four of the 57 member states of the Organisation for Security and Co-operation in Europe—the UK, the Czech Republic, Ireland and Slovakia—require third parties to register campaigning activity at election time. Clause 25 would change the joint campaign rules so that organisations campaigning jointly with political parties are collectively liable for the total campaign expenditure of all organisations. No matter what small part or supporting role an organisation might play, it has to declare the full total amount, which will take up all of its campaigning allowance. That will include the political party.
The 2021 report “Regulating Election Finance” by the Committee on Standards in Public Life says:
“When considering calls for greater regulation of non-party campaigning it is important to be mindful of the role of non-party campaigning in the broader ecosystem of democracy and pre-election debate. As the Committee made clear when it first concluded that spending limits for non-party campaigners would be necessary, there is nothing wrong with individuals and organisations sending out explicitly political messages in advance of and during election campaign—‘On the contrary, a free society demands that they should be able to do so, indeed that they should be encouraged to do so.’ The right to campaign is also protected by law through the right to freedom of expression. This should act as a check on ensuring that regulation strikes the right balance.”
We contest that the Bill does not strike the right balance. Who can think of a political party that has strong historical links with external organisations working together—maybe around election time, and maybe for workers’ rights across the whole country—and traditionally campaigning together as a movement for change? That’s right: it is the trade unions. I hope that the Minister has talked to the trade unions about the Bill and understood the impact that it will have on trade union activity in all our constituencies, as well as across the country.
Patrick Grady
I want to speak briefly in solidarity with my Labour comrades. I was reminded during the hon. Lady’s speech of the quote, often attributed to Margaret Mead, that is a favourite of many third sector organisations:
“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”
Policy change cannot be effected without building a coalition. We cannot change direction and implement new legislation without bringing several diverse and disparate groups together to support that cause. That is why we have left the European Union: that was done reasonably successfully. We can ask about where some of that money came from, because we know where trade union money comes from; it comes from the members, by and large, and if people do not want their trade union membership fee to fund the Labour party—I have first-hand experience of this—they can opt out. Thatcher introduced that quite some time ago.
Historically, the Labour movement has that relationship with the trade unions, but there are unions or branches in Scotland that support either individual SNP candidates—the cause of independence—or at the very least Scotland’s right to choose. Perhaps the Labour party would be in a slightly better position if it aligned itself with those enlightened trade unions.
The point made by the hon. Member for Putney, about the effect that the clause will have in restricting the ability of organisations to unite behind a common cause, is very concerning. How else will change be achieved? As I said earlier, the whole thing seems to be about putting up a block now—“We have reached some sort of status quo, and that should be the end of it.” That is always the Conservative attitude—that Conservative government is, essentially, the end of history, that perfection has been achieved with their election and that nothing should change. It is not so much levelling up as levelling over—just pouring concrete on everything that might have gone before or anything that might pose a challenge to them, to try to stop it there. Labour Committee members are right to highlight the dangers of the clause, and we will be very happy to vote with them should they press the clause to a Division.
Question put, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider that schedule 8 be the Eighth schedule to the Bill.
Kemi Badenoch
Clause 26 creates a new disqualification order for offenders who intimidate those who contribute to our public life. Political intimidation and abuse have no place in our society; they risk reducing political participation and corroding our democracy. To tackle the problem, the Committee on Standards in Public Life suggested that it would be appropriate to have specific electoral sanctions that reflect the threat posed by the intimidation of candidates and their supporters.
Based on the protecting the debate consultation, the Government committed to applying electoral sanctions to existing offences of intimidatory behaviour. That is precisely what the new disqualification order achieves. It is a five-year ban on standing for, holding, and being elected to public office. It can be imposed on those convicted of intimidating a candidate, elected office holder or campaigner. After all, it is simply not right that those who try to damage political participation through intimidation are allowed to participate in the very same process that they tried to undermine.
The disqualification order can be applied to a wide range of intimidatory criminal offences such as, but not limited to, stalking, harassment, common assault and threats to kill. For the disqualification order to be imposed, the intimidatory offence must be aggravated by hostility related to, for example, a candidate. That ensures that the disqualification is imposed only in instances where political participation is genuinely at risk.
The court that determines conviction for the intimidatory offence will also impose the disqualification order. Where the court is satisfied that the offence is aggravated by hostility, then it must impose the disqualification order, except where the court considers that there are particular circumstances that would make it unjust to do so. This sentencing model strikes the right balance between ensuring a sufficient deterrent against political intimidation, while maintaining the crucial role of the judiciary in determining the most appropriate penalty commensurate with the seriousness of the individual offence and in light of the specific circumstances of the offender.
The clause also gives effect to schedule 8, which lists the offences that, when committed by an offender with the necessary hostility, can trigger the imposition of a five-year disqualification order. There is no single offence of intimidation in criminal law, so the schedule lists a wide range of offences of an intimidatory nature in respect of which the new disqualification order can be imposed.
The list is based on a core list of offences suggested by the Committee on Standards in Public Life, such as common assault, harassment, stalking or sending communications with intent to cause distress and anxiety. Following public consultation, and engagement with key stakeholders such as the Crown Prosecution Service and the Electoral Commission, we have broadened the list to include four intimidatory offences.
It is important to cast our net widely in selecting intimidatory offences for the schedule; that will help to avoid a situation where a person commits an offence against a candidate with the clear intention of intimidating them but, because the offence is not included in the schedule, the new disqualification order cannot apply. That is why the clause should stand part of the Bill.
The Chair
I have agreed that the hon. Member for Lancaster and Fleetwood can make her remarks while seated.
Cat Smith
Thank you, Mr Pritchard. I welcome not just clause 26, but the whole of part 5 of the legislation. As shadow democracy Minister, I have had the unfortunate pleasure of having to take part in many debates about intimidation of candidates; I am sure all Members will be aware of some of the accounts.
We know that many of our colleagues are intimidated, and many candidates of our party have experienced intimidation and threats. It is devastating that we should be debating this clause so soon after the murder of our colleague, Sir David Amess, who was on the Panel of Chairs and chaired many debates on issues like this. I must be honest: I did not expect when I stood for election in 2015 that I would lose two colleagues to murder in such a short space of time. An attack on an MP, and an attack on a candidate, is an attack on democracy. The Opposition therefore welcome part 5 of the Bill.
I am making remarks about clauses 26 to 34 so that I do not have to bother for future clauses. My only concern is that some of the legislation does not go far enough. Many of the people who might go on to intimidate candidates, agents or campaigners might not be put off by the idea of not being able to stand for elected office for five years, because many of the people who commit these crimes are not interested in participating in our democratic processes—they are, in fact, opposed to the democratic process in its entirety.
As the Minister finds her feet in this new role, I would be very happy to open a dialogue with her to explore ways in which there might be a consensus across the House to ensure that our democracy, which we all take part in and support, can be strengthened so that we do not see the acts of violence and intimidation that we have seen in recent years deter good people from entering public life.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Schedule 8 agreed to.
Clause 27
Vacation of office etc
Question proposed, That the clause stand part of the Bill.
Kemi Badenoch
While those in public life are often the targets of intimidation and abuse, I regret to say that they can also be the perpetrators of intimidation and abuse. For example, it is possible that an MP or a local authority mayor or councillor will be sanctioned by the new intimidation disqualification order. They will be treated no differently from anybody else and will be disqualified from holding elected office.
The clause sets out the process by which the office holder’s office is vacated; this is no more than three months after the officeholder receives the intimidation disqualification order. During the period prior to the office being vacated, the officeholder is suspended from performing the functions of their office. However, if the officeholder makes a successful appeal against their conviction or sentence before that three-month period ends, the office is not vacated and consequently they can resume their office.
The process strikes the correct balance between, on the one hand, the right of an offender to appeal and, on the other, the smooth vacation of office and a swift resolution. A swift resolution provides certainty for electors and ensures that there is an office holder in place who can discharge the responsibilities of that office. This is also consistent with the existing process for vacating office outlined in the Representation of the People Act 1983.
Question put and agreed to.
Clause 27 accordingly ordered to stand part of the Bill.
Clause 28
Candidates etc
Kemi Badenoch
The new disqualification order will be applied only when intimidatory offences are motivated by hostility towards certain groups of people. This clause defines the first group that requires this additional protection from abuse and intimidation. Candidates at any election, including candidates named on lists, will be protected by the new disqualification order. Future candidates—people whose intention to stand as a candidate has been declared, but whose formal candidacy has not yet begun—are also included in this clause. Substitutes and nominees who are expected to fill vacancies in Northern Ireland will also be protected by the new disqualification order. Candidates, future candidates, substitutes and nominees all play a vital role in participating in our democracy and standing for election. That is why they deserve the additional protection from intimidation provided by the new disqualification order, and it is why I commend this clause to the Committee.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
Clause 29
Holders of relevant elective offices
Question proposed, That the clause stand part of the Bill.
Kemi Badenoch
Clause 29 builds on the previous clause and sets out another group of people whom the new disqualification order will protect: holders of elected office, such as—but not limited to—MPs, councillors and mayors. Given the high-profile nature of their roles, elected officeholders are sadly all too often the targets of intimidatory, threatening, or abusive words or behaviour. We cannot allow intimidation to force those public servants to stand down from their offices or not stand for re-election. Banning those convicted of an intimidatory offence from standing for election and potentially standing against the very same people they abused is an important step. That is why I commend this clause to the Committee.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
Clause 30
Campaigners
Question proposed, That the clause stand part of the Bill.
Kemi Badenoch
The previous two clauses extended the protection of the new disqualification order to, broadly, candidates and elected officeholders. However, we must not stop there. Campaigners, from grassroots volunteers through to party employees, play a vital role in our democratic process, and the intimidation and abuse to which they are subject is abhorrent. Therefore, an intimidatory offence that is motivated by hostility towards campaigners can also trigger the new disqualification order.
Unlike candidates, there is no single definition of a campaigner. For the purpose of this clause, we have used a reasonably broad definition that includes individuals who are a recognised third party campaigner, an accredited campaigner for a recall petition or a permitted participant in a referendum, or who are involved in the management of a local referendum campaign. Individuals who are employed or engaged by the aforementioned people to carry out campaigning activities are also considered campaigners. This definition includes campaigners who undertake relevant campaigning activities at any time of year, not only during a specific election period, to reflect the fact that campaigning—particularly online campaigning—takes place outside of formal election periods. Unfortunately, intimidation and abuse also affects campaigners at any time of year, not only during election periods.
Anybody can potentially be a campaigner, including volunteers, and the disqualification order must protect campaigners from intimidation in the same way as it protects MPs. For that reason, I commend this clause to the Committee.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Clause 31
Election etc of a person to the House of Commons who is subject to a disqualification order
Question proposed, That the clause stand part of the Bill.
Kemi Badenoch
The new disqualification order, which we have already debated, disqualifies offenders from being elected to various offices. This clause ensures that this disqualification applies to the House of Commons. It specifies that if an offender who is subject to an intimidation disqualification order is elected to the House of Commons, their election will be void. Other relevant elected offices already have provisions that state that an election will be void because of disqualification. The House of Commons has no such provision, and we therefore need to provide specifically for that possibility.
This clause is reasonably technical in nature, but it has an important role to play in ensuring that the new intimidation disqualification order works smoothly. I therefore commend it to the Committee.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Clause 32
Power to amend Schedule 8
Patrick Grady
I beg to move amendment 92, in clause 32, page 44, line 12, leave out “may by” and insert
“must consult with such persons as the Minster considers appropriate before making”.
This amendment empowers the Secretary of State to consult broadly before making regulations under clause 32 to amend Schedule 8.
Patrick Grady
This relatively technical amendment is based on the written evidence and suggested amendments submitted by the Law Society of Scotland, which I am sure Committee members are familiar with and have read in detail. Schedule 8 provides the list of offences that disqualify offenders for elected office, including offences under the law in Scotland, which in a lot of these areas is determined by the devolved Scottish Parliament, so we think it is pretty simple and appropriate that the clause places a duty on Ministers to “consult with” relevant persons as appropriate before making statutory instruments.
A lot of themes that have come up in the course of our deliberations are about the need for enhanced scrutiny and consultation. Indeed, the Minister strongly defended the role of consultation—as opposed to seeking consent from the devolved Assemblies, which we are not asking for in this amendment—in a debate on a previous clause. I look forward to her saying that the amendment would be overly bureaucratic and delay the process and therefore is not necessary.
Kemi Badenoch
I thank the hon. Gentleman for his comments. If he already knows what I am going to say, and if we have had this debate multiple times, it raises the question of why he chose to table the amendment. Nevertheless, I will speak to the clause and his amendment.
The purpose of clause 32 is to future-proof the new disqualification order so that it remains relevant and can continue to apply to offences of an intimidatory nature. For example, the nature of electoral campaigning is evolving as online campaigning increases in significance, which unfortunately means that the nature of intimidation and abuse is also evolving and shifting online. It is possible that new online intimidatory offences will be created. For example, a Law Commission report in July recommended the creation of a more modern harm-based communications offence. If this proposed offence became law, we might want to make it possible for the intimidation disqualification order to be imposed in relation to that offence where the necessary hostility was established. That is why the clause enables Ministers to add, amend or remove offences from the list of intimidatory offences in schedule 8. Any statutory instrument made using this power would be subject to the affirmative procedure.
Amendment 92 would require the Secretary of State to undertake a consultation with such persons as he considers appropriate before making use of the regulation-making powers to amend the list of intimidatory offences in schedule 8. This is not necessary, as the hon. Gentleman knew I would say. The Secretary of State will be able to seek and consider the views of such persons as he considers appropriate when relevant without the need for a legal requirement to do so—this is the normal business of government. As previously stated, the clause already requires that any statutory instrument laid using these powers will be subject to parliamentary scrutiny under the affirmative resolution procedure. This will ensure that Parliament can scrutinise and decide whether to accept any proposed changes to schedule 8. The Government will therefore not accept the amendment, as we believe that it is unnecessary. To ensure that the new disqualification order evolves in the same way that intimidatory behaviour and criminal offences evolve, the clause should stand part of the Bill.
Patrick Grady
I do not think that was a massive surprise. The Minister is right to say that it is important that the legislation is future-proofed. The Scottish Parliament has a proud record—as indeed does the Senedd Cymru—of being in advance of this place sometimes in terms of the legislation it has brought forward and the kinds of behaviour it has gone on to deem a criminal offence; in fact, a recent piece of hate crime legislation might well contain examples to add to the disqualifying offences in the Bill.
In an attempt to strike a note of consensus, I will take in good faith the Minister’s commitment to monitor the development of legislation north and south of the border and that the consultations will happen. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 ordered to stand part of the Bill.
Clause 33
Interpretation of Part
Question proposed, That the clause stand part of the Bill.
Kemi Badenoch
The clause helps to interpret and clarify two terms that are used frequently in this part of the Bill. The first is “disqualification order”, which refers to the new five-year intimidation disqualification set out in clause 26. The second is “relevant elective office”. The list of offices determines the offices that an offender subject to the new disqualification order cannot stand for, be elected to or hold. It also determines the elected office holders who are protected by the new disqualification order.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Clause 34
Minor and consequential amendments
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss that schedule 9 be the Ninth schedule to the Bill.
Kemi Badenoch
The clause gives effect to schedule 9, which contains minor and consequential amendments resulting from part 5 of the Bill.
The new intimidation disqualification order must be enforceable. Offenders who are banned from standing for election must be prevented from doing so. It is already a criminal offence, punishable by imprisonment, to provide false information on a candidate nomination form. All candidates must declare that they are not disqualified from being elected. That will be a sufficient deterrent for most offenders banned by the new disqualification order, but it is possible that some will try to stand for election regardless. That is why schedule 9 amends the rules for Northern Ireland, local and UK parliamentary elections. It provides returning officers with the power to hold a nomination paper invalid where a candidate is disqualified by virtue of the new intimidation disqualification order. Returning officers are only expected to hold nomination papers invalid where they are certain, based on information provided or otherwise available to the returning officer, that a candidate is disqualified.
Schedule 9 also makes minor changes to the process for vacating various elected offices and, by amending the Armed Forces Act 2006, allows the new disqualification order to be imposed by military courts on an offender who is subject to service law. Schedule 9 is important for the enforcement of the new disqualification order and for ensuring that the disqualification fits smoothly and consistently with all elected offices.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Schedule 9 agreed to.
Ordered, That further consideration be now adjourned.—(Rebecca Harris.)
Health and Care Bill (Sixteenth sitting)
Tuesday 26th October 2021
(2 years, 10 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 26 October 2021 - (26 Oct 2021)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 5 - Question accordingly agreed to.
The Minister for Health (Edward Argar)
On a point of order, Mrs Murray. I put on record through you my gratitude to the Committee, and particularly to the usual channels and the shadow Ministers, for facilitating the adjournment of the Committee last Thursday in order to allow me to attend the funeral of my friend James Brokenshire.
The Chair
Thank you, Minister. I am sure the Committee has taken note of your point of order.
Clause 106
Prohibition on disclosure of HSSIB material
Dr Philippa Whitford (Central Ayrshire) (SNP)
I beg to move amendment 86, in clause 106, page 92, line 26, leave out subsection (2) and insert—
“(2) In this Part ‘protected material’ means—
(a) all statements taken from persons by the HSSIB during a safety investigation or in the course of deciding whether an incident is going to be subject to an HSSIB investigation,
(b) records revealing the identity of persons who have given evidence in the context of the safety investigation,
(c) information that has been collected by the HSSIB which is of a particularly sensitive and personal nature, such as (but not limited to) copies taken by the HSSIB of health records, care records, clinical notes, or personnel records,
(d) material subsequently produced during the course of an HSSIB investigation such as (but not limited to) notes, drafts and opinions written by the investigators, or opinions expressed in the analysis of information obtained through the investigation,
(e) drafts of preliminary or final reports or interim reports, information that would be subject to legally enforceable commercial privileges.”
This amendment would define more closely the materials covered by the “safe space” protection provided for by the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 87, in clause 106, page 93, line 6, leave out
“information, document, equipment or other item held by that individual”
and insert “protected material”.
This amendment is consequential on Amendment 86.
Clause 106 stand part.
Amendment 91, in schedule 14, page 212, line 14, leave out paragraph 6.
This amendment would remove the provision allowing coroners to require the disclosure of protected material.
Amendment 136, in schedule 14, page 213, line 3, at end insert—
“Disclosure to families
6A The Chief Investigator may disclose findings to any patient involved in any incident which HSSIB is investigating, or the family of any such patient, on the condition of confidentiality and any other condition the Chief Investigator sees fit.”
This amendment would give the Chief Investigator the discretion to disclose information about an investigation to a patient/family involved if they deem this appropriate, on the condition that the information remains confidential.
That Schedule 14 be the Fourteenth schedule to the Bill.
Amendment 88, in clause 107, page 93, line 17, leave out from “Part” to the end of line 41.
This amendment would remove the ability of the Secretary of State to make regulations authorising disclosure of protected material beyond that provided for in the Bill.
Clause 107 stand part.
Amendment 89, in clause 108, page 94, line 15, leave out paragraph (c).
This amendment is consequential on Amendment 88.
Clause 108 stand part.
Amendment 90, in clause 109, page 95, line 6, leave out subsection (7).
This amendment is consequential on Amendment 91.
Clause 109 stand part.
Clause 117 stand part.
Dr Whitford
We are now discussing the health services safety investigation body, and I rise to speak to amendments 86, 91 and 88, which are the main substantial amendments, with amendments 87, 89 and 90 being consequential on those three. HSSIB will not apply in Scotland, but having been a surgeon for over three decades and having been involved in quality improvement and the Scottish patient safety programme, I will be watching it with interest. We want it to succeed, and I am sure the other nations in the UK will want to learn from it, so it is important that it is not simply drowned at birth and that we get it right at this stage.
HSSIB is based on the principles of the air accidents investigation branch, and we on the prelegislative Committee felt that the most central and important part was the safe space protected materials. The main priority is learning from incidents, mistakes and errors and looking at how to prevent them from happening in future; it is not about blaming individuals. That is because most incidents in the NHS are system-related, rather than individual-related. Errors and mistakes will happen, particularly when NHS staff face workforce shortages and are covering more patients than normal. The pandemic might mean that they are working outside their comfort zone. They also work long hours, and sometimes the system will cause a mistake. We should be designing a system that prevents a simple mistake or error from delivering harm to a patient. That is the critical aim, and that has been the focus of the Scottish patient safety programme, which was introduced in operating theatres in 2007, when I was still working as a surgeon.
That programme made the World Health Organisation checklist compulsory. It involved a discussion at the beginning of operation lists and time out with the whole theatre team before the operation started, so that patient safety and the responsibility to prevent wrong site surgery, which the shadow Minister raised previously, is made everyone’s responsibility. The whole team stops and is quiet, and everyone goes through that final check before the operation starts. A former Health Minister from this place visited Scotland but never made that checklist compulsory in England. I do not understand why not.
This issue is not in need of investigation by HSSIB, but it does demonstrate that it is necessary for someone learning from an incident to recognise and admit candidly that they have made a mistake. Such mistakes could include putting the wrong mark on a patient, putting the wrong side on the consent form, or putting the X-ray up the wrong way around. Whatever led to the error, we need people to be willing to completely admit to their mistakes, and to then create systems to prevent that mistake from resulting in harm to the patient. That is why the safe space is so critical—otherwise NHS staff, clinicians, and anyone else involved will not be candid—and it is why the prelegislative Committee felt it was important to be absolutely focused on protecting it. The aim is to design safety nets to protect the patient.
Amendment 86 seeks to change the orientation of the Bill. The Bill defines protected materials very widely and creates exceptions. It implies that other organisations cannot get on with their investigations because HSSIB is getting in the way. The amendment seeks to define protected safe space materials very narrowly. HSSIB would only hold copies of records. That means that the originals—the safe space testimony of witnesses or others —would still be held by the NHS. Patients and families could still give permission for their testimony to be disclosed, thereby avoiding the need to repeat it to another agency, but evidence could not be forcibly disclosed. Other bodies could not use HSSIB as a substitute and say, “Oh well, if you’ve investigated it, we won’t bother. We’ll simply copy what you’ve found.”
Amendment 88 to clause 107 would remove the potential for the Secretary of State to simply expand the disclosure exceptions later on. There is a big list in clause 107 of what could be changed. Schedule 14 lists the authorised reasons and persons who would access disclosure. Amendment 91 seeks to remove coroners from that list. If coroners are given access to testimony, other people do not understand why they should not be given access, too. We have probably all been lobbied about that by the ombudsman and the freedom of information bodies. If that happens—if more people access the safe space raw testimony—it will no longer be a safe space and the system will simply not match the achievements of the air accident investigation branch in getting such frank and candid evidence. People can be summoned and made to respond to factual questions, but will they discuss poor interpersonal relationships in a team, people not working together and all the things that could contribute to a bad atmosphere or system?
In the prelegislative Committee we felt that there were two key reasons for disclosure to go ahead regardless. The first obvious one is if there is an ongoing significant risk to patient or public safety, and the other is if there is a criminal prosecution because of someone’s actions or because they have breached the disclosure rules. The Bill states that access can be granted to safe space materials via the High Court. That is how it is for air accident investigations. It is felt that the High Court will weigh up the importance of admitting the disclosed materials versus the chilling effect that could have on future investigations and people giving evidence to them. It is important to keep the High Court provision in place and to trust it as the main route for other bodies or individuals seeking access to safe space testimony or records.
It is important to recognise that aviation is among the safest industries because of the safe space provided when investigating air accidents. It is not always a matter of investigating catastrophes; it is also about investigating near misses and working out why an accident did not happen. Was it by the grace of God, or did something kick in, and should processes and procedures be changed?
The amendments would strengthen the safe space, help ensure the willingness of NHS staff to come forward to give honest testimony, and protect that testimony so that it could be used to reduce any future harm to patients.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to see with you in the Chair, Mrs Murray. I will speak to amendment 136, as well as the other clauses and amendments in the group. I will not repeat the points made by the Scottish National party spokesperson, the hon. Member for Central Ayrshire, in her excellent introduction, but I will draw the Committee’s attention to a few salient points.
First, amendments 86 and 87 seek to create a new definition of protected material. We support the amendments because, as the SNP spokesperson said, it is important to turn this around and try to create as much certainty as possible by defining protected materials as far as possible. I suspect that the Minister will tell us that the amendments are unnecessary, but we certainly feel that it is better to over-prescribe now than to undercook the Bill and find out in two or three years’ time that some loophole ends up having the chilling effect that we have discussed several times.
I am aware of the counter-argument that there should be no restrictions or protected material if an individual is not capable of being identified, but that is a rather risky strategy. It would not remove the risk of people being able to identify someone simply by working out who was doing what at a particular time and what evidence they gave. It also does not help to build the confidence necessary to deliver the safe space that the Bill is trying to achieve. Certainty and clarity are needed wherever possible, and defining materials that are to be considered a safe space and protected will assist in that aim.
Turning to clauses 106 to 108 on disclosure, it is appropriate to make clear in clause 106 that the disclosure of protected material is prohibited, but we think that clear statement is rather undermined by the ability of the Secretary of State in clause 107 to make regulations to change that. As I have said, the parameters of safe space should be clear, consistent and constant. That is why amendment 86 in particular ought to be supported. The Secretary of State is once again giving himself more powers—a theme we have picked up throughout the Bill—and that is of concern.
Let us not forget that this Bill has been floating around in various guises for about five years, so we do not think it is acceptable or, indeed, necessary for the Secretary of State to reserve for himself greater ability to move the goalposts at some later date. If we do not know now what protected material and safe space are, we are never going to know. Amendment 88 commends itself on those grounds alone. Any ability for the Secretary of State to change the boundaries risks undermining trust and confidence. If those taking part in investigations do not have trust in the safe space provided, it is likely that they will not feel confident enough to be as candid as we would like them to be. If the Minister feels that exceptions are needed, they should be on the face of the Bill; they should not be slipped in by regulations at a later date.
The independent advisory panel of the Healthcare Safety Investigation Branch has also offered a view and stated that staff would not speak up if there was a risk of exposure of identity, and any issues regarding the limits of disclosure are best dealt with by the High Court, not by the Secretary of State in further regulatory procedures.
A related concern on disclosure is that an HSSIB employer who reveals information showing that the organisation itself is failing to properly discharge its responsibilities would commit an offence if he or she knew or suspected that what they were disclosing was protected information. Given the work that they are likely to undertake, I think we can all see that that is likely to be the case. It would not be needed to show that the disclosure had caused, or was likely to cause, harm, and there would be no reasonable excuse defence and no protection under whistleblower legislation. Yet under clause 108(4) a reasonable excuse defence is available to third parties that disclose information to them provided by HSSIB. Will the Minister explain that discrepancy and what protections might be available to whistleblowers who work for HSSIB?
Turning to amendment 91, it is right that considerable concern has been raised about the proposal to allow coroners to access protected material, because it could mean individual coroners routinely requesting material from HSSIB investigations. I hope it is clear to members of the Committee the ramifications that could have on healthcare professionals’ willingness to be fully engaged and open with HSSIB investigations.
Another consideration—and another reason why we think this is a bad idea—is that there is variation in coronial practice around the country. There is a risk that one coroner or region could be more proactive than others, and could undermine confidence in the system as a whole. It is right that coroners have their own discretion and powers, but the chilling effect would be obvious should only one coroner make a stand on a particular issue.
There is also the question of cost. If HSSIB needs to challenge these decisions, which I am sure it will want to from time to time, it will have to spend considerable amounts on legal fees to do so. Surely its resources would be better spent on delivering its core objectives, rather than on trotting off to the High Court every five minutes to deal with inquisitive coroners.
The Joint Committee on the Draft Health Service Safety Investigations Bill concluded:
“We recommend that the draft Bill be amended to put beyond any possible doubt that the ‘safe space’ cannot be compromised save in the most exceptional circumstances, and therefore that the prohibition on disclosure applies equally to disclosure to coroners.”
That is why we believe that amendment 91 should be supported.
I also refer to the evidence submitted by the independent advisory panel of the Healthcare Safety Investigation Branch, which said of the proposal that there is in fact no parallel in the transport sector—from which the idea for this body was originally conceived—and nor is there any evidence from its experience of the transport sector that such an approach would be necessary. Obviously, we are dealing with different orders of investigations. Certainly, the number of people who would die in an air accident is very different from an incident in the NHS, and we would also expect there to be a significant number of patient safety issues that do not apply to the air sector. However, HSSIB has been going for a considerable time and it has not had any circumstances or incidents where it thinks this power would have made any difference.
HSSIB’s approach to protective disclosures does not limit the powers of coroners to conduct investigations in their own way—there is nothing in there that takes away from their current situation. The independent advisory panel also said that areas of prohibited disclosure should be highly specific and as limited as possible, and expressed the view that disputes regarding the prohibition of disclosure should be determined through an independent judicial process in the High Court, which is already provided for in the Bill.
Finally, I will say a few words on our amendment 136, which is a probing amendment. We want to raise the concern articulated to us that, although it is important that any evidence gathered by HSSIB remains protected, for the reasons we have been discussing, there may be occasions when it would be appropriate for some information to be shared with a patient, or the family of a patient, who has been involved in any qualifying incident. I certainly would not envisage such a power being used routinely. Indeed, the amendment places the discretion entirely in the hands of the chief investigator, who may decide not to use that power at all. However, there may be occasions when certain information, handled correctly—and at the very least on condition of confidentiality, and quite possibly with the consent of the individual or organisation that has provided the evidence—could be passed on to those with a direct interest in the matter, whose knowledge and understanding of what had gone wrong would be improved by the disclosure of the information.
That would still not be considered to be admissible evidence for any proceedings. Given the chief investigator’s desire to keep the concept of safe spaces as secure as possible—which should always be the primary consideration—we can see why that might be put at risk, but I want to flag up this as an issue. Patient groups have long-running concerns that the defensive culture that so often pervades the NHS when something goes wrong does little to aid the ability of patients and their families to get to the bottom of what went wrong. There are always concerns about medical negligence or professional competence proceedings, but rarely do families go into these situations looking for compensation. They are far more likely to want an explanation and an assurance that measures are being put in place so that nobody else will have to go through what they have. In any event, the proposed powers are not too dissimilar to those set out in paragraph 2 of schedule 14.
Dr Whitford
I want to echo that. I have been involved as an external for significant adverse event reviews, and it has always been my experience that what the family wants to find is that it will not happen again. I therefore feel that we have to trust HSSIB that the duty of candour will mean that there is discussion with the family as we go. That should be the culture across the NHS. The problem is that the more threatened clinicians feel by litigation, the more defensive they become. If the whole orientation can be changed to be about learning and preventing rather than blaming, we will probably get better relationships with families and better, open duty of candour discussions.
Justin Madders
I thank the hon. Lady for that intervention, which articulates well what we are trying to highlight. It is a question of culture, which legislation can go only so far in addressing. As a Parliament, we need to address what more we can do to engender greater openness in the NHS. When things go wrong, there are better ways of handling that than what happens at the moment. When we have an £8 billion a year clinical negligence bill, it is incumbent on us all to look at ways that we can reduce that as well as assisting patients and their families to gain a better understanding of what has gone wrong.
Edward Argar
It is, as ever, a pleasure to serve under your chairmanship, Mrs Murray.
I am grateful to the hon. Member for Central Ayrshire not just for her amendments but for the opportunity to debate the issue, which goes to the heart of the challenges we face. I think there is broad consensus on clauses up to clause 119, perhaps with a challenge or a tweak here and there, but the provisions that we are considering are the one bit, as I know from the hon. Lady’s work on pre-legislative scrutiny and when the Bill was previously considered, that remains challenging. It is a matter of striking the appropriate balance to ensure the proper functioning of judicial authorities at the same time as achieving the overall objective of what we are trying to do with HSSIB: foster that learning culture, understand what goes wrong and avoid a repetition of it. It ultimately comes down to a subjective view of where that balance is most appropriately struck.
Clauses 106, 107, 108, 109 and 117, and schedule 14, address how HSSIB will protect the material it holds and outline the concept of safe space. Before getting into the detail of the clauses, I want to acknowledge that there has of course been extremely good and well-informed debate outside the Committee about how broad or narrow safe space should be; whether it should be as defined in the Bill with exceptions, or, to use the suggestion of the hon. Member for Central Ayrshire, flipped around to be the converse of that; and the merits of HSSIB sharing or not sharing information with other organisations. I feel it is important to set out how we came to the balance we propose.
The hon. Lady mentioned a previous Minister who visited Scotland. I am very conscious that I have a kind, outstanding invitation to visit from her and I look forward to taking that up at some point soon, I hope. I also spoke to the Scottish Cabinet Secretary for Health and Social Care, who endorsed that invitation. I therefore look forward to being able to come not only to Edinburgh, but possibly to Ayrshire, and finding a way to shoehorn that into the visit.
Key to our vision for a new model for investigations is that they are conducted in a safe space so that patients, families, NHS staff and other participants in an investigation are encouraged to speak freely and candidly and have the confidence that the information they provide will be protected, save in the most exceptional circumstances.
The objective is to encourage that open flow of information and get to the bottom of what may have happened with the best possible information available. Without guarantees that that information will not be shared—again, save in very limited circumstances, which I will come on to—we risk, as the hon. Lady said, eroding the confidence of all those who candidly trust HSSIB with that information.
We propose that information, documents, equipment or other items held by the new body in connection with an investigation will be considered protected material and must not be shared, apart from in certain limited circumstances, such as when necessary to address a serious and continuing risk to the safety of a patient or to the public, and then only to the extent necessary to allow a person to address the risk.
It is also important that people have certainty that the information they provide will not be used for the purposes of blame or liability. The current investigation branch does a good job under the current legislative framework but can only operate a weakened form of safe space. In addition, it has no powers to impose sanctions. We need to address that and put the HSSIB on a par with similar investigation bodies in the transport sector, as colleagues have said. Non-compliance with safe space protections may result in criminal sanctions.
Mary Robinson (Cheadle) (Con)
I have listened to the reasoning behind the amendments, and I feel that they are based on an acknowledgement that people in the health service have perhaps so far not found themselves willing to come forward and speak up when they see something wrong. The scope is much wider with this proposed body because evidence can be taken not just from people who work in the health service, but more widely. It is hugely important that we get to that place, because when we look at evidence taken on civil aviation and what happens in the civil aircraft space, we see that people always behave with the best interests of their sector, their workplace and the public at heart. People want to do the same with this Bill, so I am grateful that HSSIB has been set up. Can more consideration be given to how we ensure that people can speak up without feeling that they will blame another person or that they could be singled out for speaking out? That is exactly what we hope to address with the safe space.
Edward Argar
My hon. Friend is absolutely right. I should say that, even now, I am sure that many people in the health sector co-operate voluntarily, even when it is potentially challenging for them to do so. They do so because they want to foster that culture. This proposal will take that a step further forward and make it even easier for people to do so with confidence and to overcome any reticence that might exist because of, as she said, the fear of blame, the fear of opening up about something and the need to protect their sector and organisation, as they see it. She is absolutely right, and the key is to try to create a learning, rather than a blaming, culture. That is why the balance we strike in the definition of the safe space and exceptions to it is so important. We may or may not reach a consensus on where the balance should be struck, but this debate goes to the heart of the efficacy of the new body and how it will operate.
The Bill therefore sets out, on a statutory footing, a much stronger and more robust form of safe space. Clause 106 is the cornerstone of that. It is key to ensuring that all participants are completely candid with the information that they share, and it enables more thorough investigations and the development of meaningful recommendations. Investigations where protected material is held in the safe space should improve openness and co-operation between all participants and identify risks to the safety of patients, so that patients, families and the wider public can benefit from the experience of better investigations, and improvements can be made to the systems and practices in the provision of healthcare in England.
We believe that we have reached the right, balanced position after a lot of careful thought. In dealing with this legislation, my predecessors and I, along with my right hon. Friend the Member for Mid Bedfordshire (Ms Dorries), who is now Culture Secretary, wrestled a lot with the question of how to strike the right balance. I therefore turn to amendments 86 and 87. I am pleased that there is, I think, a consensus among all Members across the Committee that we need to protect materials, and about the value attached to protecting materials in the safe space, which is a key part of our approach to improving patient safety by allowing individuals to feel able to speak candidly.
Amendment 86 seeks to list in detail the types of material that will fall under the definition of protected material, while amendment 87, as the hon. Member for Central Ayrshire set out, is consequential on that. The definition given in clause 106(2) is intentionally broad. HSSIB will carry out a range of investigations, and it would be impossible to identify prospectively, in advance, all the material that will need to be gathered and should be protected by the safe space. By having a broad definition, we can give greater confidence to those who speak to HSSIB that all the material that it collects will be appropriately protected. There are very specific exceptions, which I will come on to.
As a future-proofing mechanism, the materials that are protected have not been listen in detail in the Bill. New technologies and ways of recording data are developing at a rapid pace. It is vital that HSSIB is able to adapt as these developments reach the frontline, rather than having to rely on returning to this House for further amendments to primary legislation. Listing the types of material in detail would have a number of practical implications. If we had a specified list, we could inadvertently leave out material that should be protected, when the vast majority of material the HSSIB will gather would be protected under the current definition. The Government endeavour to get everything right, but, as we all know, often do not.
Justin Madders
Does the Minister think that there is anything missing from the amendment that ought to be included?
Edward Argar
I will take the intervention from the hon. Lady, and I will address both together.
Dr Whitford
I want to point out that it is irrelevant whether records, statements or information, all of which are listed in amendment 86, are in a digital form or some different form in the future. We use the words “statements”, “information” and “records”, and the importance of having copies is that the originals will still be available to other investigatory bodies. I cannot see what the gap is. Whether we are talking about an audio recording or sheets of paper, the technology is irrelevant.
Edward Argar
I am grateful to the shadow Minister and the SNP spokesperson, whose points are not dissimilar. I take the hon. Lady’s point that statements and information are recognised legal terms and would catch different mechanisms by which they are recorded. We still think it is prudent to allow not only for developments that we may not have anticipated, but for clarity. We believe that the blanket provision gives greater clarity and certainty without the assistance of the amendment, so we do not share the hon. Lady’s view. I suspect she may still wish to test the amendment with a Division to make the point, as she is entitled to do.
Moving on from these amendments, to illustrate the variety and breadth of debate on this subject—we have had a small taste of it this morning—I want to address the argument that keeping protected materials in the safe space would potentially undermine the role of other bodies, such as the Parliamentary and Health Service Ombudsman. This illustrates part of the challenge. There are, understandably, calls from colleagues on the Committee to further restrict the exceptions to the safe space. As has been alluded to, others outwith this place argue for an expansion of the list of those exceptions. Some have argued that the PHSO should be on that list. With all due respect to those who advocate that, I do not agree. I do not think it would be appropriate to add the Ombudsman to the list of exceptions. The PHSO will still be able to fulfil its important independent role. It will have direct access to the same sources as it does now when it needs to investigate a complaint. The HSSIB will not in any way limit its ability to conduct an investigation.
Karin Smyth (Bristol South) (Lab)
I am a member of the Select Committee on Public Administration and Constitutional Affairs, which oversees the ombudsman. The Minister will be aware of correspondence between the Committee and the ombudsman. Could the Minister comment on the report from the Venice Commission about how far the United Kingdom will be outwith international consensus on this subject?
Edward Argar
I will do so now for the hon. Lady. I have great respect for the work of the Council of Europe and the Venice Commission around ombudsman services. The Venice Commission has looked at this, understandably, from the perspective of the ombudsman and uniformity of process. We have had to weigh that up—exactly as the Committee is doing in this debate—in balancing the impact of too many exceptions, or exceptions that are too wide, on the candour with which people can contribute their views to further the improvement of patient safety. There is no ideal line on this, hence this morning’s debate.
I respect the views that the Venice Commission has set out. I think it formally set out its conclusions a week or so ago, after a number of informal meetings among its members and with officials to gather evidence; I suspect it also took the views of the Public Administration and Constitutional Affairs Committee. The Venice Commission looked at the matter, quite rightly, from the perspective of the ombudsman and the uniformity of the services it provides. We had to strike a slightly different balance, hence why we reached a different conclusion.
Justin Madders
I appreciate the work that has gone into ensuring greater consistency among coroners. The fact remains, however, that, as the Minister said, these are independent judicial positions, and coroners are entitled to make decisions as they see fit. I do not think that that concern has been adequately addressed yet.
Edward Argar
I will take an intervention from the hon. Member for Central Ayrshire, because I suspect it is consequential on what the hon. Gentleman has said.
Dr Whitford
I would like to understand what coroners have now that they would lose by the protection of safe space. The provisions on granting disclosure apply to the High Court, not to all courts and not to all judicial positions. Why is the coroners’ court specifically being given the right to access, as opposed to applying for disclosure through the High Court? It will be the thin end of the wedge, and other groups will feel they ought to have a right to the same safe space. As clause 107 allows regulatory changes to be made later, this could continue to be eroded. I do not understand what part of what coroners do would be undermined by the introduction of HSSIB and the real safe space.
Edward Argar
I am grateful to the hon. Lady and the hon. Gentleman, and I think the points they made are linked. The distinction we draw with other organisations and individuals is because of the key point that coroners are members of the judiciary. The hon. Gentleman is right to say that that gives them independence in the exercising of their functions, and I will turn in a minute to what the Chief Coroner is doing specifically with these clauses to seek achieve greater consistency.
Coroners are independent and that goes to the heart of their role, which is to determine the circumstances of a death. That is why we believe it is important that their independence, and their existing right to access papers and documents, is not in any way fettered by the legislation. I will try to make a little progress in explaining what we have done with the Chief Coroner, and that may assuage some of the hon. Lady’s fears. I fear it will not, but I will try.
As we know, coroners would not have wholesale access to the protected material. They would have access only when it was necessary for them to fulfil their judicial functions in a clear way—for example, in particular individual cases. We expect that the memorandum of understanding between HSSIB and the Chief Coroner, which will be in place, will set out how HSSIB and coroners will work together to minimise the occasions and the amount of material on those occasions that would need to be shared to meet the responsibilities of a coroner that are clearly set out in statute when investigating a particular death.
Although I hope I have provided a degree of reassurance, I fear that it may not be sufficient for the hon. Lady, who has studied the issue over many years in her work. Our aim is that, due to its sensitive nature, the information cannot be publicly disclosed or shared further without an order from the High Court, which is an important safeguard and something that we have considered carefully to balance the needs of coroners and HSSIB. We believe that we can trust our coroners as judicial office holders to behave appropriately.
Dr Whitford
If it is the case that it should be judicial officers, why is it only the High Court, and not other courts in the land that might have an interest in such a case?
Edward Argar
The role of the coroner is very specific, which is why we have singled out coroners, because their role is to investigate deaths. Hopefully, a large number of the investigations that HSSIB will be investigating will not be about deaths but, to use the hon. Lady’s analogy with air accident investigations, near misses or incidents that, thankfully, did not result in the death of the patient but may have resulted in injury or other concerns. In the vast majority of cases, therefore, I do not believe that coroners will be involved in HSSIB’s work, but they have a specific role in investigating and determining the circumstances and cause of a death. Therefore, we feel that their ability to access it in extremis is the right approach.
The hon. Lady talked about the High Court. For other circumstances, we think that that is the right bar, whether for the PHSO or others, because it is experienced in considering those very complex cases. I suspect, and I think there have been some cases in a similar vein, that the court will consider and debate them over many days because the balance is so delicate.
Because of coroners’ historical and defined-in-statute role, specifically around the investigation of deaths, we think that they are the single right exception in the judicial space. The hon. Lady may take a different view and I entirely respect that, as I respect pretty much all her views when it comes to health. We do not always agree on everything but, like the hon. Member for Bristol South, she knows of what she speaks even if sometimes we reach a different political conclusion.
As I have said, an order will be made only if the High Court is satisfied that the interests of justice served by allowing disclosure in those other cases outweigh the impact. As I touched on in my reply to the hon. Lady, I remind hon. Members that HSSIB will be looking at systemic learning rather than individual cases. As I said, thankfully, many instances do not involve deaths, and even if they do, they may not be ones that are scrutinised by a coroner save in a formalistic way. Therefore, we would not expect the power to be used frequently by coroners at all.
We have included the last limited exception because, as I say, we want to ensure that coroners have appropriate access to information to carry out their statutorily defined judicial functions while seeking to balance that with protecting the integrity of safe space by preventing onward disclosure, except by court order. As such, I hope that hon. Members, even if they do not necessarily agree, recognise the amount of thought that has gone into seeking to strike the appropriate balance.
Dr Whitford
I still do not understand from the Minister’s explanation what the coroner loses from where they are now. They can still investigate a death, exactly as now, and that was the argument for narrowing what is kept in safe space so that all the original materials are available to other bodies, including the coroner. The Bill adds something extra at the risk of undermining safe space.
Edward Argar
I take the hon. Lady’s point, but I do not believe this very narrow exception does or will undermine safe space. What it does is enable coroners to continue to do their job, and if there is information available out there, it enables them to access it from that source. My personal perspective is that we have struck the right balance: if the information is there, we should make it easier for coroners to do their job and access information that facilitates it. I have sat through coroners’ court hearings, and I have seen how families cope with them—it is not the easiest experience for them. If there is information out there that would make it easier for a coroner to reach a swift conclusion, and would give them the information that they need about circumstances and cause of death and so on—the other key part, which is not necessarily pertinent here, is the identification of the deceased individual—I believe it appropriate that we give them access to that information.
Justin Madders
I understand what the Minister is saying: we need the ability to make regulations to give us some flexibility. Equally, the definition of protected material is broad, to give Ministers and HSSIB flexibility as well. It seems that there is a bit of cakeism going on here.
Edward Argar
I think I know what the shadow Minister means by cakeism. I see his point, but I think the Bill strikes the right balance by building in a further degree of flexibility, but with the safeguard of the affirmative procedure. As he knows, because he has debated such things with me in the past, the affirmative procedure is not always a friend to Ministers in obliging them to come to this House and debate and explain everything. It is, however, an important democratic safeguard when regulation-making powers are inserted into primary legislation, and that is why we have adopted the affirmative procedure in this context. I hope that that gives him a degree of reassurance that the Secretary of State’s regulation-making power is simply a future-proofing mechanism, with sufficient parliamentary and democratic safeguards attached to it.
It is crucial, of course, that the integrity of investigations is protected and that we take a careful approach to how information is protected, so that there is public confidence in the work of HSSIB. That goes to the heart of what we are seeking to achieve with this part of the legislation. To ensure that confidence, the Bill provides for the creation of offences for unlawful disclosure. That is the backbone to the creation of statutory safe space. Clause 108 creates three offences of unlawful disclosure. The offences extend to HSSIB and connected individuals, individuals who are no longer connected with HSSIB, and persons who are not connected with HSSIB but receive certain protected material. It is important that we send a robust message that there will be consequences if protected information is disclosed unlawfully. It will be a criminal offence, and the person who commits an offence will be liable on summary conviction to a fine.
Clause 109 prevents a power in any other legislation from being used to require the disclosure of any protected material by HSSIB, or to seize protected material from HSSIB. That is, as we have debated, with the exception of certain parts of the Coroners and Justice Act 2009, which allows coroners to require disclosure in some circumstances due to provisions made in schedule 14 of the Bill. However, that provision respects the devolution settlement agreement and therefore does not apply to any provision that is within the legislative competence of the devolved Administrations. The clause will help to enhance HSSIB’s safe space protections by prohibiting the unauthorised disclosure of protected material. It is important to ensure that safe space cannot simply be breached by the use of a power elsewhere in another part of the statute book, and this provision makes that position entirely clear.
As we have debated, safe space encourages all participants to be completely candid with the information that they share with HSSIB, enabling more thorough investigations into what went wrong. That will also help more widely to protect the “learning, not blaming” culture that hon. Members have spoken about and that HSSIB is hoping to embed.
Mary Robinson
I am so pleased to see and hear this balanced argument, and the way that all the considerations have been taken into account. With regard to the penalties for disclosure of information, how does the Bill add to or improve the provisions in the Public Interest Disclosure Act 1998? Does it improve on those provisions, or sit alongside it? Does it protect workers who disclose that there is an issue, not only from penalties such as losing their job, but also from the fine for disclosures put out there deliberately?
Edward Argar
I know that my hon. Friend has done a lot of work in this space, possibly involving the all-party parliamentary group for whistleblowing. I know she is very concerned to make sure that, while these protections are in place, the legitimate rights of whistleblowers seeking to disclose information are not inhibited. This provision sits alongside the 1998 Act, but it is a difficult balance to strike, as she rightly suggests. I pay tribute to her work in helping to foster a culture in which people feel able to speak up and bring matters to the attention of the appropriate body to address wrongdoing.
Finally, clause 117 ensures that the disclosure of information, documentation or other items that are authorised by the provisions I have just discussed does not breach any obligation of confidence owed by the person making the disclosure or any other restriction. The clause also confirms that part 4 does not authorise any form of disclosure that would contravene data protection legislation, which is intended to ensure that where an individual is required or authorised to disclose material, they are protected from violating restrictions on disclosure. A disclosure to HSSIB in those prescribed circumstances therefore does not contravene any restrictions on disclosure, removing barriers that individuals may face in disclosing information to the current investigations branch and helping to instil trust in the new HSSIB investigatory process.
Safe space is an exciting and important development of recent years. What we are seeking to do today is a first for a health body in this country. The clauses are of great importance to the new HSSIB and the vision we have for it. The novelty of what we are seeking to do here, building on what happens in the transport space, and the challenges that that poses, are demonstrated in the debate we have had on what the right balance is. It is an incredibly difficult and, to a degree, subjective judgment for Members of this House and others to make. While I have set out where we believe it should sit, I entirely respect the perspective of the hon. Member for Central Ayrshire, who has a slightly different and entirely legitimate view. I commend the clauses to the Committee.
Dr Whitford
This is the nub of the entire debate on HSSIB. I welcome that the Minister is struggling with exactly how to achieve that balance. I think everyone on the Committee is trying to do their best to get a good outcome. The Minister talks about clarity, but then we hear about flexibility. It is important that we get this right in the Bill. I wish to press amendment 86 to a Division.
The Chair
With this it will be convenient to debate that clauses 111 and 112 stand part of the Bill.
Edward Argar
The clauses address HSSIB’s relationships with other bodies, including with the devolved Administrations.
Clause 110 places a requirement on HSSIB and a number of listed bodies, including the Care Quality Commission, NHS England and the commissioner for patient safety, to co-operate with each other when they carry out investigations into the same or related incidents. The duty to co-operate relates to the practical arrangements for co-ordinating those investigations.
Clause 110 would not require the sharing of any protected material held under the safe space. It will also require HSSIB to publish guidance regarding when an incident may be considered related to another incident. That will ensure that there is the necessary clarity across all organisations as to when co-operation is required in often complex investigations. HSSIB will, of course, still be able to co-operate with bodies that are not listed in clause 110, and the current investigation branch has already established many strong relationships with bodies not covered in that list.
However, clause 110 is crucial if we are to ensure that there is a consistent and cohesive approach to investigations in the same area or related areas. It is important that we encourage organisations to co-operate in this way so as to ensure that multiple investigations touching on the same incident can be delivered in the most stream- lined way. For example, the clause would compel two organisations that wished to interview the same individual to co-ordinate. Similarly, if two organisations need to visit a clinical area, it is important that they co-operate to minimise the impact on the day-to-day running of that clinical area.
Clause 110 helps to ensure that information is accessed effectively and efficiently. It ensures that organisations can carry out the important but different roles that they have in an efficient manner and also minimises disruption to patients and to others involved.
Clause 111 places a requirement on HSSIB to comply with any request for assistance from a relevant NHS body. That assistance would be in connection to an investigation into any incident that may have occurred during the provision of NHS services or at premises at which NHS services are provided. NHS England or the Secretary of State may also request that HSSIB provides a relevant NHS body with assistance. Assistance can be provided to trusts, foundation trusts, NHS England and the newly formed integrated care boards. Such assistance may include advice, guidance and training for those organisations in connection with an investigation.
The purpose of HSSIB’s investigations is to identify risks to the safety of patients and to address those risks by facilitating the improvement of systems and practices in the provision of NHS services or other healthcare services in England. HSSIB is designed to encourage the spread of a culture of learning within the NHS, and clause 111 allows HSSIB to support others in undertaking investigations and to share knowledge gained from its own investigations. The clause will help HSSIB to promote better standards for local investigations and improve their quality and effectiveness. To this end, HSSIB will disseminate information about best practice and standards to be adopted.
Clause 111 will also enable HSSIB to provide assistance to bodies other than relevant NHS bodies if they request assistance in relation to any matter connected with the carrying out of investigations. That will help to encourage the spread of learning and enable HSSIB to share its expertise across the wider healthcare sector, both within the UK and abroad, if requested. It will be able to charge a fee for such activities. Of course, we would not expect HSSIB to provide such assistance should doing so significantly interfere with the exercise of any of its investigative functions, and protections are included in the clause to ensure this.
Finally, clause 112 enables HSSIB to enter into agreements to carry out certain investigations relating to Wales and Northern Ireland, a provision that the Welsh Government and the Northern Ireland Executive were keen to see included. Those investigations would identify risks to the safety of patients and help to facilitate improvement of systems and practices. Investigations would not assess blame or involve the determination of any civil or criminal liability. It is important that HSSIB has the opportunity to share its expertise and help facilitate greater learning and improvement outside England. The clause allows HSSIB to charge for such investigations in Wales and Northern Ireland but only to cover the costs incurred through the course of the investigation. Of course, we would not expect HSSIB to provide such assistance should it significantly interfere with the exercise of its core investigative functions and, again, protections are included in the clause to ensure that.
These clauses are crucial to ensure that HSSIB has strong working relationships with NHS bodies, as well as regulators and, where requested, the devolved Administrations. I therefore commend the clauses to the Committee.
Justin Madders
As we have heard, the clauses deal with the requirement to co-operate and I will not go over the ground that we have already trodden on in respect of degrees of co-operation and how that might make a material difference to ultimate success. We hope that the many organisations listed in clause 110 will respond not simply because of the legislation but because the no-blame culture to which this body aspires is just as relevant to them as it is to individuals.
Is the long list of organisations in clause 110(3) the totality of NHS bodies or bodies associated with the NHS, or with running NHS services? I think the Minister mentioned that there may be others that have been involved but that are not in this list. Has any of them been excluded from the list and, if so, why?
The power to levy charges on NHS bodies for assistance shows why our amendment requiring the creation of the post of chief finance officer would have been sensible. While there are sanctions for individuals who block investigations and there is a debate about where co-operation ends and obstruction starts, I am unclear whether there is a similar sanction that could be imposed on the bodies listed in clause 110. Has the Minister considered that? Is there a process whereby the buck will stop with a named individual in any of these organisations or is that dealt with later in the Bill?
Karin Smyth
My point concerns the practical implementation, given the examples where the organisations currently do not work together or share, and the issues about real accountability. I have a case that I have dealt with since 2016, which preceded me by some four years, involving an individual going through the complaints system. It resulted in the parliamentary ombudsman’s report wanting details to be shared between the trust, NHS Improvement and the Care Quality Commission. In August this year, the trust admitted that it had not provided any such details to NHS Improvement or the CQC. There seems to be no recourse in respect of that lack of communication and accountability between the existing organisations.
My concern on co-operation is about adding HSSIB to a system that does not work now in terms of ensuring that recommendations are shared and acted upon. The intent on co-operation in clause 110 is welcome, but what assurance can the Minister give that that wider culture of co-operation, delivery and implementation of recommendations will be improved by the addition of HSSIB? There is an opportunity for HSSIB to do that, but that would require all those other organisations, named and perhaps unnamed, to also look to their own house to make sure that in the interests of those patients the recommendations are acted upon.
Hywel Williams (Arfon) (PC)
I want to ask some questions about clause 112. I have practical questions that the Minister might answer today, or he might wish to write to me. I welcome the clause as a continuation and an improvement, hopefully, on current arrangements. Who might ask HSSIB to carry out an investigation in Wales? Would it be the individual health board or the Welsh Government? Has a mechanism been established yet? Secondly, how involved would the Welsh Government be in any investigation? Would the Senedd, for example, have access to information in an ongoing investigation?
Thirdly, in respect of challenging who would be responsible for paying, would it be the Welsh Government or the individual health board? Fourthly, the Healthcare Safety Investigation Branch has noted that the Bill could be strengthened by the Secretary of State giving a clear mandate for HSSIB to monitor the progress of the response to recommendations. Does the Minister envisage the Welsh Government having a role in monitoring progress, or would it be a matter for HSSIB or the health board?
On clause 107, which has already been debated, I have reservations about extending further exemptions. Would the Welsh Government be able to request or even authorise exemptions where HSSIB carries out investigations in Wales, or is it a matter specifically for the Secretary of State, although health is almost entirely devolved, of course? Finally, will the Minister outline what discussions he has had with the Welsh Government about these provisions? I appreciate that those are detailed questions and he might want to reply to me in writing.
Edward Argar
A number of questions were asked that I will seek to address. If I cannot answer the specific points raised, I will write to clarify them.
The hon. Member for Ellesmere Port and Neston asked about sanctions, and the hon. Member for Bristol South asked about a list of bodies and whether there are any not included—essentially, who was in and who was out. There are two, which I am sure the hon. Gentleman will have noticed, not included in the list of bodies: the Medicines and Healthcare products Regulatory Agency and the National Institute for Health and Care Excellence. I suspect that is the genesis of his asking the question. We recognise the strategically important role that both bodies play in patient safety. Not listing them does not mean that HSSIB cannot co-operate with them. Co-operation across different bodies is something that we encourage. In fact, we would expect HSSIB to develop memoranda of understanding with those organisations, but we focused on specific ones on the list where there is likely to be day-to-day co-operation, particularly with health trusts and others.
On sanctions, we focused on what HSSIB is doing and its being able to progress its investigations. Ultimately, as we have debated, it has the power to seize documents and require information. I very much hope that that will not be needed and that co-operation and memoranda of understanding will be an effective way of moving forward, as it appears to be at the moment, but we have those powers in the legislation, were they to be needed in extremis.
The hon. Member for Arfon mentioned several issues relating specifically to Wales and engagement with the Welsh Government. As I briefly alluded to in my speech, the inclusion of powers to allow the Welsh Government to request the involvement of HSSIB was done at the request of the Welsh Government. We have discussed the issue with them, and I think their request reflects their view that HSSIB involvement could add value in Wales.
The hon. Gentleman sought to understand how the arrangement would work in practice and asked a number of questions about what the fees would be, who would pay them and whether that would be the responsibility of a trust or the Welsh Government. We are still working through those practical matters with the Welsh Government, but we were keen to include the power while we had the opportunity, because the original request came from the Welsh Government. It is a similar case with the Northern Ireland Government. Scotland, to which the hon. Member for Central Ayrshire alluded, has its own well established approach, which works, and therefore a different option was taken in its respect.
Conversations with the Welsh Government have not progressed to the extent that I can give the hon. Member Arfon detailed answers to all his questions, but I will write to him if there is any more that I can add.
Question put and agreed to.
Clause 110 accordingly ordered to stand part of the Bill.
Clauses 111 and 112 ordered to stand part of the Bill.
Clause 113
Failure to exercise functions
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clauses relate to the oversight of HSSIB’s functions. Clause 113 enables the Secretary of State to direct HSSIB to exercise its functions within a specified time period and in such a manner as the direction prescribes. That direction-making power, on which I suspect the shadow Minister the hon. Member for Ellesmere Port and Neston will question me, will apply only in the event that the Secretary of State considers that HSSIB is failing or has failed to exercise any of its functions, and that that failure is significant. Directions must be in writing and will ensure that appropriate action can be taken by the Secretary of State in the event of any failure on the part of HSSIB to exercise its functions.
Independence as a concept is fundamentally important, and indeed at the heart of HSSIB, and will be a crucial way to ensure that patients, families and staff have trust in its processes and judgments. However, the clause serves to help to safeguard the trust placed in HSSIB by patients and families in the event of its significant failure to exercise its functions. We believe this is a sensible and proportionate provision, which ensures that HSSIB is performing its vital functions. To maintain the independence of the investigatory process, such directions made by the Secretary of State will not be able to influence the outcome of any HSSIB investigation.
We do not expect to use the power—in fact, I hope that we will never have to use it—but it is right that the Secretary of State has the power to act in the event of significant failure. That is consistent with similar existing powers available to the Secretary of State in relation to other non-departmental public bodies, including the Care Quality Commission. Should HSSIB fail to comply with such directions, the clause enables the Secretary of State to choose to make arrangements either to undertake the exercise of HSSIB’s functions themselves or for another body to undertake them. That will ensure that the important investigatory work is sustained and delivered at the appropriate high standard, should HSSIB have experienced significant failures in achieving that.
Clause 114 requires the Secretary of State to undertake a review of and prepare a report on the effectiveness of HSSIB in undertaking its investigation function. That report must be prepared, published and laid before Parliament within four years of clause 94 coming into force, which sets out its investigation function. Given the trust that patients, families and staff will place in HSSIB’s processes and investigations, it is vital that Government is transparent to the public and parliamentarians regarding the performance of the new body. That report will be key to ensuring such transparency and to helping to facilitate learning and improvements within HSSIB. I therefore commend the clauses to the Committee.
Justin Madders
As the Minister has anticipated, clause 113 troubles me somewhat. We have talked extensively about the importance of independence and the need for HSSIB to have the confidence of those with whom it interacts so that it is fully effective. Once again, in common with much else in the Bill, we see that the Secretary of State gets to hand himself extensive powers to interfere with HSSIB. Subsection (1) basically places judgment about the exercise of that power in the hands of the Secretary of State. It is his opinion that counts, and no attempt is required to evidence-proof a failing. HSSIB is apparently unable to challenge that judgment. Subsection (5) states that that failure only has to be a failure to exercise its functions properly. That is qualified a little by subsection (1)(b), which says that the failure has to be significant, but unfortunately that is what the Secretary of State considers significant, nobody else. With all that together, the Secretary of State has pretty much a blank cheque to step in and interfere any time he likes, so long as he considers that there has been a significant failure.
However, it gets worse. Subsection (2) allows the Secretary of State to direct HSSIB in whatever manner he determines, which I would have said is about as far away from independence as we can get—until I read subsection (4), which allows the Secretary of State to step into HSSIB’s shoes and do its job himself. I am sure he has other things in his diary at the moment, but the idea that he can come in and undertake the functions of what is meant to be an independent body is simply unacceptable. I can do no better than refer to the evidence that Keith Conradi gave to the Committee:
“Ultimately, we end up making recommendations to the Department of Health and Social Care, and in the future I would like to ensure that we have that complete freedom to be able to make recommendations wherever we think that they most fit.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 60, Q78.]
The Secretary of State having the power to effectively step in and start running the body, either directly or indirectly, at a moment’s notice, will not help with that freedom. Why does that need to be in the Bill and hanging over the body the whole time?
There is a suggestion that the Health and Social Care Committee would be better placed to administer this function, or at the very least that the Secretary of State should require its agreement before exercising this function. I agree that that Committee might be better placed than one person to have oversight of HSSIB. Perhaps we should consider which group will be best placed to have oversight of HSSIB, to ensure that it is truly independent.
The Secretary of State is tasked with carrying out a review of HSSIB. I am pleased that any subsequent report would be laid before Parliament, but again it is the Secretary of State undertaking that review—his judgment alone. Clause 114 says that the report must be laid within four years of the Bill’s passage. Is there a particular reason why four years was chosen? I am sure the Minister anticipated that question, so I hope he will be able to answer. My reading of the clause is that a report is required after four years, and after that there is no further requirement. It seems rather remiss for there to be no ongoing commitment to review HSSIB.
On clause 113, there are concerns that the oversight of HSSIB will be carried out by the same person who appoints its members, can remove them at a whim, sets remuneration, directs investigations, sets the funding and consents to the criteria of processes. There appears to be a clear conflict of interest. While I accept that there is a role for the Secretary of State, it is not necessary for this role to be so far reaching and overbearing. HSSIB is meant to be an independent non-departmental public body, but the role given to the Secretary of State throughout the Bill suggests that that will not quite be the case. The Bill firmly situates its functions under the Health Secretary, which is far from the definition of a non-departmental public as separate body from the sponsoring Department. Non-departmental public bodies tend to be responsible to Parliament, rather than the Government. Placing scrutiny powers with Parliament and ensuring that a framework document is in place to inform the basis of performance monitoring, rather than placing all the power in the Secretary of State’s hands, would be the best way to achieve this.
I have to say that the fact that the Secretary of State can pretty much pick all the main players in HSSIB does not say much about his confidence in his own judgment about these decisions, if he needs these sweeping powers up his sleeve just in case. I suspect that he was not the person responsible for these appointments, but the point remains that there are still questions over whether this is needed. I know the Minister said that this power would hopefully not be used, but if that is the case, why does it need to be in the Bill?
Edward Argar
I am grateful to the shadow Minister for his comments. I semi-predicted where I thought he might be going with his challenges, and I hope I can offer him reassurance.
First, at the heart of this is the fact that with an NDPB, an executive agency or any other public body, ultimately the Secretary of State is accountable, quite rightly, to this place for the operation of that—not for the operational decisions, but that it functions as an effective public body. Therefore, we never know, but I suspect that there may be a day—not necessarily in the immediate or near future—when the hon. Gentleman is sitting in my office or the Secretary of State’s office, and he would want, quite rightly, where there is a significant failure of an organisation, to be able to take action to address that. That is what the clause provides for.
Those powers would be used only in extremis, and only where
“HSSIB is failing or has failed to exercise any of its functions, and…the failure is significant.”
These are terms of which there is a legal understanding. It is not carte blanche for the Secretary of State, as I think the hon. Gentleman suggested in a debate on a previous clause, to get up one morning and say, “Do you know what I feel like doing? I feel like exercising these powers.” It is not possible to do it in that way. These are understood terms that set a very high bar for interventions.
Secondly, these powers are analogous to similar powers that the Secretary of State has over other NDPBs, or the CQC, as I said in my opening remarks, and other organisations in this space.
Justin Madders
I am not suggesting that anyone might wake up in the morning and decide on a whim to do this, but the fact of the matter is that, as the clause is drafted, if the Secretary of State was minded to do that, there is nothing that would stop them being able to do it, is there?
Edward Argar
I come back to the point that I have just made to the hon. Gentleman. Terms such as “the failure is significant” are understood terms, and of course public law principles would apply to decisions made by the Secretary of State, such as reasonableness and proportionality. I do think that this is both analogous to powers that the Secretary of State has over similar bodies and also proportionate.
Similarity, I do not believe that the clause questions or brings into question the independence of HSSIB. We recognise that that is fundamental to its success, and that is why it would be used only if the body
“is failing or has failed…and…the failure is significant.”
I come back to those understood terms, and that is a very high bar that would be subject to public law principles.
On the report that the hon. Gentleman mentioned, why is it four years—why not three, two or five? We think that four years is an appropriate and reasonable length of time for the new body to become established and to show what is working and what is not, so that we can see a meaningful report on how it has functioned over a number of years. As he said, the House would have the ability to debate that report, if it chose to do so. The report would be laid before the House and he could call a debate, if he was still in the same role at that point. Given that he has served in his Front-Bench role even longer than I have served in mine, I suspect that, much though he enjoys doing so, he may be hoping for a change by then.
The other point is that, just because this is the only report that is formally specified, it does not mean that there would not be the opportunity for other reports or reviews to be undertaken regularly. As the hon. Gentleman knows, we do that with other public bodies from time to time. It is right that Governments of whichever complexion review the NDPB landscape. We talked about ALBs earlier in our consideration of the Bill, and about the ability to move functions around depending on whether they are best exercised by the existing body or elsewhere, which reflects the same point.
I hope that gives the hon. Gentleman some reassurance that there is no desire on the part of the Secretary of State or me to add to our current workload, or indeed, should the day come, to add to the hon. Gentleman’s workload, were he to occupy this office—or indeed to that of the hon. Member for Nottingham North, whom I would not wish to exclude. The words used and the public law principles that apply would mean that the provisions would be commensurate with the powers over other bodies, and proportionate. I commend the clause to the Committee.
Question put, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following: Clause 116 stand part.
Clause 118 stand part.
That schedule 15 be the Fifteenth schedule to the Bill.
Clause 119 stand part.
Edward Argar
These clauses cover further detail regarding offences created in part 4 of the Bill and interpreting part 4 of the Bill more generally. Clause 115 specifies that when an offence created by part 4 is committed by a company, an officer of that company may also be liable for that offence. This would be the case where it could be proven that such an offence was committed with the consent or involvement of an officer of the company or that such an offence could be attributable to neglect by an officer of the company. Hence the officer and the company who commit the offence are both liable and can be punished accordingly. Company officers who are liable in such a way would include any person who would purport to act in that capacity, including any directors or managers in the company.
It is important that any offences set out in part 4 of the Bill are capable of being fully enforced, and this means ensuring that the right actors are held to account and are therefore also deterred from committing such offences in the first place. Ensuring that both an individual and an organisation can be held to account shows clearly the commitment to maintaining a high standard of investigation and information protection, and to protecting the principles of safe spaces more widely.
Clause 116 specifies that when an offence created by part 4 of the Bill is committed by a partnership, a partner may also be liable for that offence. This would be relevant in an instance where, for example, a GP partnership commits an offence. The clause allows proceedings to be brought in the name of the partnership as well as the individual partners. Similarly to clause 115, where an offence is committed by an partnership and it can be proven that such an offence was committed with the consent or involvement of a partner or could be attributable to neglect by a partner, the partner and the partnership that commit the offence are both liable and can be punished accordingly. The clause also provides that where a fine is imposed on the partnership, it must be paid out of partnership assets. However, should a fine be imposed on a partner, that fine would be paid by the partner as an individual.
The committing of offences set out in part 4 of the Bill would reduce trust in HSSIB’s investigatory processes, and therefore it is important that the right actors are held to account should such offences be committed. Ensuring that both the partnership and individual partners can be so held to account is important for the same reasons I have discussed in relation to company officers under clause 115. The corporate structure itself should not make any difference: we want to ensure that the investigatory process and the principles of safe space are always upheld and protected. Both clause 115 and 116 are common provisions in relation to offences. They ensure that the appropriate actors are covered, but also add a further deterrent effect that can help avoid offences being committed in the first place.
Clause 118 inserts schedule 15 into the Bill. Schedule 15 makes the relevant consequential amendments to other Acts of Parliament to ensure that HSSIB, as a new non-departmental public body, is referenced in relevant legislation. This includes relevant public body, health, employment and equalities legislation and means that HSSIB must comply with the relevant legislation, such as the Freedom of Information Act.
Finally, clause 119 sets out the defined terms used in part 4 of the Bill. The clause is crucial to ensuring that the HSSIB provisions are correctly interpreted and provides the necessary clarity on key terms. I therefore commend these clauses and this schedule to the Committee.
Justin Madders
I am not going to spend an awful lot of time on these clauses and this schedule, because the Minister has set them out very well, but I want to come back to his reference to clause 110 and the obligations on those who hold senior positions in NHS bodies. Regarding offences committed, the Minister said that there would not be the same need for punishments to follow failure to co-operate. I wonder whether that is consistent. Could he set out how offences committed by officers of a body corporate could be equated to offences committed by those who are running NHS bodies, or whether there is any discrepancy there that he would like to address?
Edward Argar
I will also endeavour not to detain the Committee for too long. I do not believe there is any discrepancy; I believe there is consistency there. The shadow Minister has highlighted what is essentially a technical point in the read-across between the two, and over the next couple of hours I will quickly check on that to make sure that I am right. I do not think there is any inconsistency there, but he has raised an interesting technical point, and I will review it. I hope he will forgive me if I do not give a technical answer right now, but I may shoehorn it in somehow this afternoon, keeping it in order by relating it to a clause that we will discuss subsequently. That will be a challenge, because we are about to finish the HSSIB clauses, but if there is anything to add to what I have just said, I will endeavour to work it in later this afternoon.
Question put and agreed to.
Clause 115 accordingly ordered to stand part of the Bill.
Clauses 116 to 118 ordered to stand part of the Bill.
Schedule 15 agreed to.
Clause 119 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Nationality and Borders Bill (Ninth sitting)
Tuesday 26th October 2021
(2 years, 10 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 26 October 2021 - (26 Oct 2021)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Chair
Good morning, ladies and gentlemen. Before we start, I ask Members to ensure that their electronic devices are either switched off or on silent. Members are encouraged to wear masks at all times, except when speaking, but I entirely accept that it is a matter of personal choice, and of necessity in some cases. I understand from the usual channels that we might sit past 5 o’clock. I put that on the record so that Members can adjust their diaries accordingly should that be necessary, although it may not be. The reason, as some Members might not understand, is that come 4 November at 5 o’clock, the guillotine comes down, which means that anything undebated in the Bill remains undebated in Committee, so it is necessary to pace the pitch backwards. We hope to get through all the work in a timely fashion, but we are putting down a marker. If Ms McDonagh is not available to take the Chair this evening, I shall. Hansard and the Doorkeepers have been informed as well.
Clause 14
Asylum claims by persons with connection to safe third State: inadmissibility
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 56, in clause 14, page 17, line 31, at end insert—
“(d) there are in law and practice—
(i) appropriate reception arrangements for asylum seekers;
(ii) sufficient protection against serious harm and violations of fundamental rights;
(iii) protection against refoulement;
(iv) access to fair and efficient state asylum procedures, or to a previously afforded refugee status or other protective status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention;
(v) the legal right to remain during the state asylum procedure;
(vi) a grant of refugee status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention for those found to be in need of international protection;
(e) it is safe for the particular claimant, taking into account their individual circumstances.”
This amendment modifies the definition of a “safe third State”.
The Chair
With this it will be convenient to discuss the following:
Amendment 18, in clause 14, page 17, line 33, leave out “5” and insert “3”.
This amendment is consequential on a later amendment about the definition of “connection”.
Amendment 19, in clause 14, page 17, leave out lines 35 to 38.
This amendment removes subsection (6), which states that a claimant whose asylum claim has been denied by virtue of their connection to a particular safe third State may be removed to any other safe third State.
Amendment 20, in clause 14, page 17, line 40, leave out “may” and insert “must”.
In cases where it is unlikely to be possible to remove the claimant to a safe third State, or in other exceptional circumstances, this amendment would require otherwise inadmissible claims to be considered under the immigration rules.
Amendment 21, in clause 14, page 17, line 41, leave out line 41 to line 2 on page 18 and insert—
“(a) in the absence of a formal, legally binding and public readmission agreement between the United Kingdom and the State to which the person has a connection;
(b) as soon as the proposed State of readmission refuses to accept the person’s return or if the person’s readmission has not been agreed within three months of the registration of their asylum claim, whichever is sooner;
(c) if, taking into account the claimant’s personal circumstances, including the best interests of any children affected by the decision, it is more appropriate that the claim be considered in the United Kingdom;
(d) in such other cases as may be provided for in the immigration rules”.
This amendment broadens the circumstances in which the Secretary of State must consider an asylum application, despite a declaration of inadmissibility.
Amendment 22, in clause 14, page 18, line 13, leave out line 13 and insert—
“(a) has been granted refugee status or another protective status in the safe third state that is inclusive of the rights and obligations set out at Articles 2 to 34 of the 1951 Convention”.
This amendment would strengthen the safeguards in place before a “connection” can be relied on for the purposes of inadmissibility.
Amendment 23, in clause 14, page 18, leave out lines 16 to 24.
This amendment changes the definition of a “connection” to a safe third State.
Amendment 24, in clause 14, page 18, leave out lines 35 to 37.
This amendment changes the definition of a “connection” to a safe third State.
Amendment 25, in clause 14, page 18, leave out lines 38 to 43 and insert—
“(6) For the purposes of this section, a “relevant claim” to a safe third State is a claim for refugee status or other protective status that is inclusive of the rights and obligations set out at Articles 2 to 34 of the 1951 Convention.”
This amendment changes the definition of a “relevant claim” to a safe third State.
Amendment 26, in clause 14, page 18, line 46, at end insert—
“80D Conditions for implementation of section 80B
(1) The Secretary of State may not make a declaration under section 80B(1) in relation to any State unless there are in place reciprocal arrangements with that State by which—
(a) that State has agreed to receive from the United Kingdom a person with a connection to it; and
(b) the United Kingdom has agreed to receive from that State a person who has made an asylum claim in that State who has a connection to the United Kingdom.
(2) For the purposes of subsection (1), any reciprocal arrangements must provide for the period within which a State is to receive a person from the United Kingdom; and any declaration made under section 80B(1) shall cease to apply if that period has passed and the person remains in the United Kingdom.
(3) The period to which subsection (2) refers must not be longer than 6 months from the date the asylum claim to which it relates is first made.
(4) Notwithstanding subsection (3), the passing of the period shall not prevent the transfer of a person from the United Kingdom to another State in which the person has a family member and to which the person wishes to be transferred.
(5) The Secretary of State may not make a declaration under section 80B(1) in relation to any person who—
(a) has a family member in the United Kingdom;
(b) has been lawfully resident in the United Kingdom;
(c) has worked for or with any United Kingdom Government body or other body carrying out work for or sponsored by the United Kingdom Government; or
(d) has a family member who has been lawfully resident in the United Kingdom or worked with or for such a body.
(6) In this section—
“a family member” means a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece.”
This amendment would prevent the Secretary of State from rejecting asylum claims on the grounds that the claimant has a connection to a safe third State unless the UK has reciprocal arrangements with that State.
Clause stand part.
Stuart C. McDonald
It is a pleasure to serve under your chairmanship again, Sir Roger. I will speak to amendment 56 and the other amendments in the group, and against the clause, as currently drafted, standing part of the Bill. The clause allows the Secretary of State to declare asylum claims inadmissible on the grounds that she considers the person has a connection to a safe third state. That brings us to another provision in the Bill in relation to which we allege profound inconsistencies with the refugee convention—no doubt those will have been discussed when the Minister met with the United Nations High Commissioner for Refugees last week.
That inconsistency is one of the reasons why we believe the clause should not stand part of the Bill. Another reason is that we already know it does not work, because a version of this scheme has been in place in the immigration rules since the start of the year. It is incumbent on the Minister to provide the evidence that the provision has achieved anything remotely along the lines of what was intended. From the information that I have seen, it has achieved nothing of the sort.
Those immigration rules were put in place because, with the end of the transition period, the applicability of the EU’s Dublin rules came to an end. That created a significant problem for the Government as they had no replacement agreement in place with the EU under which individuals who would more appropriately have their asylum claim processed elsewhere could have their case transferred there. The clause is not a replacement for Dublin, but a dreadful, one-sided, pale imitation of it, and it is incompatible with the refugee convention.
The Dublin regulations were far from perfect but, first, they included important safeguards that are totally absent from the Government’s scheme, and they contained some restrictions on the grounds for transfer, whereas here the connection can be flimsy indeed, including mere transmit. Secondly, the Dublin rules are two-way. People could be transferred here from the EU or could remain here if they had connections to the UK, such as family, that made it appropriate for asylum claims to be considered in this country. Under the rules that the Government are offering, it is one-way only. The absence of such provision means that, unlike Dublin, this is not about responsibility sharing; it is about responsibility offloading.
The UK is failing to live up to its international obligations and hoping that somebody else will pick up the slack. More often than not, that will be a country that already supports larger numbers of refugees and processes far more asylum claims, including France, Germany, Belgium, the Netherlands, Italy and Greece—all highlighted by the Home Secretary at Second Reading.
Thirdly, the Dublin rules represented an agreed framework between member nations. Other countries had actually agreed in principle to take people back. In contract, the scheme set out in the immigration rules and in this Bill, as it stands, is a Home Office pipe dream. There are no agreements with our neighbours to take back those whose claims have been deemed inadmissible. In essence, the Home Office is suspending consideration of asylum claims for six months, even with no realistic prospect of removing more than an handful of people to have their claims considered by other countries. It simply adds another six months of limbo to these people’s lives, at a time when there is already a massive waiting time.
The latest figures I have read showed that something like 4,500 asylum seekers had been subject to the inadmissibility procedures since they came into effect in January. I think seven had ultimately been found inadmissible, and nobody had been removed. Those figures will have changed since then, and I look forward to receiving the updated figures, but what a disaster that represents. Freedom of information requests have confirmed that thousands of cases, including hundreds of Eritreans, Syrians and Afghans, have been served with inadmissibility notices, even though the Home Office knows that, for all intents and purposes, it will not be possible to remove them to so-called connected safe third states.
This is a waste of officials’ time, adds six months to the backlog and adds to, rather than resolves, the problems with the UK asylum system. I would ask the Minister, in responding, if he has calculated how much money the Home Office has spent supporting and accommodating people declared inadmissible only for the Home Office then to start assessing their claims six months down the line. As it stands, clause 14 should not form part of the Bill.
The amendments in this group prompt the Government to think about safeguards that could enable the clause to be consistent with the refugee convention, including restrictions and reciprocity. Amendment 26 tries to do that in a comprehensive but succinct way, while the other amendments probe more deeply into certain aspects of the clause as drafted.
Amendment 26 would basically add a new clause into the Nationality, Immigration and Asylum Act 2002, alongside the Home Office clauses, to fix the failures highlighted. Subsections (1) to (3) would require that an arrangement is in place with the third country, so there is no mass service of inadmissibility notices on people who there is no prospect of removing. Subsection (1) would also address the absence of reciprocity by ensuring that the agreement is a reciprocal one, so the Home Secretary can operate an inadmissibility regime only in relation to countries that are able to send people here or transfer claims here as well. Thus, for example, people with a family connection to the UK are able to have their claims considered in this country, and other examples are given in the amendment. As it stands, people’s connections, such as with family—even their closest family members—as well as language, previous residence in the UK or working for UK entities, including the British Army, are all totally overlooked by the Government’s scheme.
The remaining amendments in this group probe in more detail how the Government will ensure various other vital protections are in place. They take into account the published legal opinion of the United Nations High Commissioner for Refugees on the concept of inadmissibility and some of the criticisms raised there. Amendment 56 seeks to ensure that the rights of asylum seekers will be fully protected in the country to which the Government are seeking to transfer the claim.
As it stands, the definition of a safe third state is really pretty pathetic. So long as your life and liberty are not at risk for a refugee convention reason and that some sort of asylum process is in existence, off you go. There could be an almost certain risk of human rights breaches, albeit falling short of a threat to life or liberty, and that would not matter. There could be a threat to life, but for a non-convention reason, and again it seems that it does not matter, and the country is still deemed safe.
The wording of the safe third state definition is troubling from all sorts of angles. For example, the clause states that a country is safe if “a person” can apply for refugee status and “a person” will not be removed in contravention of the convention, without specifically asking the question, “Will this individual that we want to declare inadmissible be at such a risk?” It is not robust enough either in what it requires for access to asylum and refugee procedures. It simply says that a person may apply and receive protection in accordance with unspecified principles of the convention.
As I read clause 14 just now, if I was at risk in a proposed country I had a connection to because of new autocratic rules or a ruler who decided they wanted capital punishment for people with red hair, it would still very likely meet the definition of a safe country, because my life would not be threatened for a convention reason—arguably, it could be a particular social group, but it is not clear—and if I had previously made a claim there and it had been refused, apparently I am connected enough to be required to go back there. If I am wrong about that, I look forward to the explanation of how that would apply in these particular circumstances.
Amendment 56 therefore surely sets out totally unobjectionable safeguards about which we can all agree, so that—not just on paper, but in practice—fundamental rights are going to be respected, there are appropriate reception arrangements for asylum seekers, there is access to fair and appropriate asylum procedures, and the full convention of refugees must be available if accepted as a refugee.
Amendment 19 again seeks information from Ministers about their intentions in relation to a new provision that allows them to deny an asylum claim on the basis of a connection to country A, but instead remove that person to country B, even when, it seems, there is no connection. I guess that is a foretaste of the debate we will have on clause 26, but this is an extraordinarily wide provision and it is not constrained by any assessment of the appropriateness or otherwise of the transfer in the circumstances of the individual person.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does the hon. Gentleman accept that any country that meets the Copenhagen criteria, by virtue of being either a member of the European Union or an accession country, would be, by definition, a safe country?
Stuart C. McDonald
It almost certainly would, and it would meet the criteria in the Bill. However, that is not really the issue, because, as drafted, the definition of “safe country” goes way beyond who would meet those criteria in the EU. That is what I am driving at. Again, we struggle to see how clause 14 can be justified and how it can possibly be said to be appropriate or consistent with the convention. As the UNHCR put it:
“This would be a significant break from…international practice”.
Amendment 20 would simply mean that if there is no reasonable likelihood of removal to a third country in a reasonable period or there are exceptional circumstances that mean that the Home Secretary should consider the claim, then she “must” do so. As it stands, she “may” do so, but she also may not. Surely it is odd to want to give the Secretary of State the power not to consider a claim when she has decided that
“the claim should be considered”.
The amendment should probably also have taken out the reference to “exceptional circumstances”. After all, if the unexceptional circumstances suggest that the claim should be decided here, where is the logic in not doing that?
Amendment 21 sets out circumstances in which claims should, on any reasonable view, be processed here rather than attempts made to move them elsewhere. In short, if there is not an agreement with a third country that will allow for the transfer of cases, the Home Office should just get on with considering it. If the third country refuses the transfer or does not reply in three months, the Home Office should, again, just get on with considering the case. And if in the circumstances, including the best interests of any children affected, it is better for the claim to be decided here, the Home Office should get on and do it.
Amendments 18 and 22 to 24 take us to the current definition of “connection” to be introduced into law by clause 14. Amendments 23 and 24 remove from the Bill two circumstances in which it is currently said that a connection is sufficient for the purpose of the inadmissibility regime. Amendment 24 would remove what is termed “condition 5”, which is so vague as to be almost incomprehensible and allows the Secretary of State to decide that a connection has been established in an almost unlimited number of scenarios. There is reference to “the claimant’s particular circumstances” but no explanation of what is meant by that.
Amendment 23 takes out “condition 2”, so that a connection can be provided only by proper and full-blown refugee status in accordance with the convention, and not a substandard or pale imitation of it. Amendment 22 puts the full-blown refugee status as a possible connection in the clause.
Amendment 25 is similarly motivated. In short, if the making of an asylum claim in another country is to establish the connection necessary for an inadmissibility declaration, it must be the case that the protection status offered in that other country to a refugee is fully compatible with the 1951 UN refugee convention. Again, it is absolutely not enough for a substandard asylum regime to be in place, and it would be outrageous for the UK Government to say otherwise and to be seen to be tolerating the watering down of refugee rights across the globe.
All these amendments provide ways to fix the flaws in the scheme. We could also have tabled other amendments to fix the inability of anyone to challenge inadmissibility decisions on any grounds. The Government say that this is all about deterring onward movements from France and other neighbours, but the clause is drafted in a way to allow removal to any old regime, regardless of how they treat asylum seekers and refugees. That is not remotely good enough, so the Minister must accept the flaws in the drafting and engage with the UNHCR on changing them.
Bambos Charalambous (Enfield, Southgate) (Lab)
I speak in support of the Scottish National party amendments and against clause 14 standing part. Once again, we are faced with a draconian, punitive clause that we the Opposition believe risks putting vulnerable people in danger and depriving them of the protection that they deserve under international law. I will begin by setting out what clause 14 does. Again, I thank the many sector organisations that have helped us to analyse the likely impacts of the clause.
Clause 14 puts in the Bill an existing immigration law on inadmissibility that makes any asylum claim inadmissible in a number of circumstances, including if the claimant has passed through a safe country or if they have a connection to a safe third country. The result of a finding of inadmissibility is that, unless the Secretary of State decides that there are exceptional circumstances, the claimant will be denied access to the United Kingdom’s asylum system for a “reasonable period”—currently defined as six months by Home Office policy—while the UK seeks to transfer them to “any other safe country”.
Before getting to the extremely problematic moral and legal aspects of clause 14, I want to draw hon. Members’ attention to the unworkable practical aspects of it. Members know that the current regime is unworkable even as it stands because the UK Government do not have returns agreements with European Union member states, namely the “safe third countries” that refugees are most likely to have passed through. With the huge backlog and delays currently in the system, it is truly impossible to understand how adding another six months to the asylum process will help an already dysfunctional system.
Any Member who is familiar with dealing with asylum cases will be only too familiar with cases that have dragged on for years and seemingly been lost in the system, and the many refusal cases that are overturned on appeal. The current system is not working and by adding extra time to it before a case can even begin suggests a huge increase in the processing backlog. As an ex-lawyer, I know that justice delayed is justice denied, and therefore I have grave reservations about the time stipulations in the clause.
To put the Government’s actions so far into greater context, it is worth noting that in the first six months after implementation of the inadmissibility provisions of the immigration rules—they are echoed in the statutory provisions we are currently considering—the asylum claims of more than 4,500 people were put on hold by the issuance of notices of potential inadmissibility. Incredibly, the UK sought to transfer only seven of those cases—seven out of 4,500. Surely that demonstrates that the concept of inadmissibility is deeply flawed, and that attempts to enforce it by statute, as currently envisaged in clause 14, are equally flawed.
To make matters even worse, the inadmissibility rules set out in clause 14 have a far broader reach than anything that has gone before. First, let us consider the clause’s reference to a “safe third country”. The clause creates a disturbingly low standard for when a state would be considered safe for a particular claimant. The criteria are that their
“life and liberty are not threatened there by reason of their race, religion, nationality, membership of a particular social group or political opinion.”
That state must be one from which “a person” will not be removed in breach of a non-refoulement obligation under the refugee convention or the European convention on human rights, and that “a person” may apply for refugee status there and, if recognised, receive protection in accordance with the refugee convention. According to clause 14, therefore, a country could still be considered safe even if the applicant had been, or perhaps continues to be, at real risk of being subjected to human rights violations in that country which either fall short of threats to life or liberty, or to which they were not exposed for reasons of a refugee convention ground.
Equally worrying is that, according to clause 14, although that safe state must be one in which in general a person “may” apply for refugee status and receive protection
“in accordance with the Refugee Convention” ,
it is not clear from the terms of the Bill that that possibility needs to be available to the particular applicant. Given the reference in the Bill to “a person”, it appears that it may be sufficient that, in general, there is the “possibility” of applying for refugee status in that state. That is hardly reassuring. In fact, it means that the supposed “safe” third country might not be at all safe for any particular individual. That surely makes a mockery of the term “safe” as commonly understood.
In addition, in order to be found to have a connection to a safe third state, the particular applicant need not have had a reasonable opportunity to access refugee status there. It is worth examining that in more detail. The terms of the clause imply that although the state would have to be one in which, in general, the possibility existed for a person to apply for refugee status, an individual claimant could be found to be inadmissible because they had received nothing more than protection against removal, in violation of the refugee convention or article 3 of the ECHR, or had made or had a reasonable opportunity to make a “relevant claim” for such protection in that state.
Furthermore, we need to look at the use of the term “connection” in clause 14. The clause makes it clear that the mere presence in a safe state where it would have been reasonable to expect the applicant to make a “relevant claim” would be sufficient to establish a “connection”. That in turn would be enough to trigger inadmissibility. Overall, the use of the term “connection” is nothing short of Orwellian. The framing of that term suggests that it could be an otherwise unelaborated connection—in other words, in the claimant’s particular circumstances, it would have been hypothetically reasonable for them to have gone to a given state to make such a claim, even if they had never been there.
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
I thank hon. Members for tabling their amendments. I have listened carefully to the arguments that they have put forward.
Amendments 18 to 26 and amendment 56 seek to amend the Bill provisions relating to the inadmissibility of asylum claimants with a connection to a safe third country. This Government are clear that people should seek asylum in the first safe country they reach rather than make dangerous journeys to the UK to claim asylum here. Inadmissibility is a longstanding process designed to prevent secondary movements across Europe, and these measures are being introduced to support that. The amendments seek to significantly weaken our ability to treat these individuals as inadmissible, and therefore weaken our ability to focus our resources on those most in need of our help. I make no apologies for prioritising the protection of the individuals most in need of help over those who could have claimed asylum elsewhere.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Will the Minister indicate where in international law there is a requirement on an individual to make such a claim in the first safe country they reach? Or is the UK seeking to impose its domestic law on the international community?
Tom Pursglove
It is fair to say that the Committee had an extensive debate about this issue last week in relation to earlier clauses. I would refer the hon. Member to the comments read out in the Committee from a previous Bill Committee under the last Labour Government, where the principles we are talking about here were very firmly established and endorsed. They have underpinned the approach that has been taken on these matters under successive Governments in this country, and we continue to believe that they are applicable.
I wholeheartedly agree with the importance of the UK continuing to meet its obligations under the refugee convention, including through the rights that we provide to refugees in the UK. I understand the spirit of amendment 56 in defining a safe third state in a way that ensures that an individual removed to that country is provided with adequate protection and their individual rights as a recognised refugee under the refugee convention. However, the definition of a safe third state as set out in clause 14 already ensures that the principles of the refugee convention should be met if we are to remove an individual to that country.
Stuart C. McDonald
The term “the principles of the refugee convention” is vague. What do the Government mean by that?
Tom Pursglove
As we have repeatedly made very clear during the passage of the clauses we have already debated, our obligations are being properly upheld through the provisions of this Bill. We believe that the Bill is fully compliant, and I maintain that that remains the case. The approach is not new; it has been part of our previous legislation on safe countries. We will only ever return inadmissible claimants to countries that are safe, so I do not agree that the amendment is necessary.
Neil Coyle
Defining what is safe is very important. It is not adequately set out in the Bill. Does the Minister believe that Afghanistan is a safe country?
Tom Pursglove
I refer the hon. Member to our earlier exchanges during the passage of the clauses we debated previously. In relation to Afghanistan, as that situation has evolved, the approach that we have taken has also evolved, and quite rightly so. No one is being returned to Afghanistan at the moment. That fully reflects the in-country situation in Afghanistan, of which we are incredibly mindful, as the hon. Member and people of this country would quite rightly expect.
Neil Coyle
The Home Office has published updated guidance that suggests that it is open to question as to whether there continues to be a situation of international or internal armed conflict in Afghanistan, and that should indiscriminate violence be taking place, it is only in some areas and to a far lesser extent following the Taliban takeover. Therefore, the Home Office is saying that Afghanistan is becoming safer because the Taliban are now in control. Does the Minister accept that position?
Tom Pursglove
I will repeat this point again: we are not returning individuals to Afghanistan at the present time. I believe that is the right decision and I believe it fully takes into account the circumstances within the country at the moment. That is an approach that Members across this House can support.
Mr Goodwill
Does the Minister agree that situations in different countries can change? I have a constituent who was granted asylum from Iran, but subsequently has gone on a package holiday to Turkey and visited his family in Iran. As far as he is concerned, the situation in Iran has obviously improved.
Tom Pursglove
It is of course the case that situations in countries change. That is why the approach we take is flexible and means that we keep under constant review the circumstances in individual countries. We then make judgments on the approach that we take in response.
Neil Coyle
The Government’s resettlement scheme for citizens of Afghanistan is not even open and they are paving the way for Afghanistan to be redetermined as a safe country. Based on the previous example, if an Afghan asylum seeker ever gets to come through the scheme in this country and then goes back to visit Pakistan to see relatives—probably in one of the refugee camps there—they may be deemed to be okay to go back to Afghanistan.
Tom Pursglove
I can only the refer the hon. Gentleman to the point that I have now made several times about Afghanistan.
Tom Pursglove
The hon. Gentleman says from a sedentary position that it is not a convincing argument. The bottom line is that we are not removing people to Afghanistan based on the current circumstances. I think that is the right approach.
The ability to return an individual declared inadmissible to any safe country, and not just the safe third country they have a connection to, has formed a part of our inadmissibility process since the changes to our immigration rules in December 2020. In seeking to remove that ability, amendment 19 would remove a provision that Parliament has already been provided an opportunity to scrutinise.
Stuart C. McDonald
We all know that there is no scrutiny with these things in any real sense, but that is not a justification for the change. On what possible grounds can a connection with a country A justify removal to country B? What is the point?
Tom Pursglove
Again, we have had extensive debates in Committee about the approach that the Government are seeking to take on these matters. We have to stop these dangerous, unacceptable crossings of the channel. We believe that the deterrent effect is very important.
Amendments 18 and 22 to 25, taken together, seek to narrow the meaning of whether we consider an individual to have a connection to a safe third country, and therefore whether it is appropriate to consider them inadmissible. If individuals have travelled via or have connections to safe countries where it is reasonable to expect them to have claimed asylum, they should do so, rather than making dangerous and unnecessary onward journeys to the UK.
We already have in place a well-established process, should it become clear that an individual cannot be returned to a safe country or if after a reasonable period no return agreement has been possible. Where that is the case, the individual’s asylum claim will be considered in the UK. The Bill provisions will not change that. Therefore, I do not agree that amendments 20 and 21 are required.
Agreements by a safe third country to accept an asylum seeker may not always be via a reciprocal arrangement. I believe it is right to also seek returns on a case-by-case basis where appropriate.
Neil Coyle
Will the Minister set out how many reciprocal arrangements we have at the moment? Will there be more detail in the Bill documents about what those arrangements might be?
Tom Pursglove
As I have said, there are case-by-case agreements that are reached in relation to returns. The Government are ambitious about the approach we want to take through the Bill. We want to try and forge fresh returns agreements with countries. The hon. Gentleman will note that this year we reached a returns agreement with Albania. That is a positive and welcome development. I will not give a running commentary on the negotiations we might be having with countries to forge returns agreements, and he would not expect me to do that.
Mr Goodwill
We certainly have a returns agreement with Nigeria, where we have biometric evidence that the person concerned is indeed the person who came to the UK. I know that because I signed it myself.
Tom Pursglove
It is fair to say that my right hon. Friend was a proactive Immigration Minister. That was a significant achievement during his tenure.
Neil Coyle
While we are celebrating this one reciprocal arrangement that can be used, and having trashed the Dublin Accord and all that it provided, can I just remind the Minister that Albania provided, in the last full year we have stats, the second highest number of successful asylum claims to the UK? The Albanian Foreign Minister has described the Government’s approach to negotiations on offshoring with Albania as “fake news”.
Tom Pursglove
As I said, I am not going to get into a running commentary about negotiations that the Government may or may not be having with individual countries. What I would say more generally on returns arrangements is that we are seeking to negotiate readmission arrangements with key EU member states. Where we do not have broad return agreements, we will seek returns on a case-by-case basis—a long-established process that we will continue to follow.
Mr Goodwill
I note the point made by the hon. Member for Bermondsey and Old Southwark, but is it not the case that Albania, Montenegro, North Macedonia, Serbia and Turkey are in negotiation with the European Union, under article 49 of the 1992 Maastricht treaty? That means that they will have to meet the 1993 Copenhagen criteria on human rights, and respect for and protection of minorities. If they meet those criteria regarding accession to the EU, they must meet the criteria for returns.
Tom Pursglove
The simple reality is that we will not return people to countries where to do so would put them in danger, or where their rights would not be respected and upheld. That is a perfectly correct approach to take, and entirely in line with what people would expect.
Tom Pursglove
I will give way, but I am very conscious that I want to make some progress.
Stuart C. McDonald
I absolutely accept that that is the Minister’s intention. He is not going to remove people; he is going to do all he can not to remove people to unsafe countries. The problem is: what about the next Minister responsible for immigration? As drafted, this definition of safe third state allows his successor to remove somebody to a place where they are at risk of serious human rights abuses, albeit falling short of a threat to life and liberty—it could be torture or whatever else, just as long as it is not a convention ground. I accept that the Minister is going to do the right thing, but we need a Bill that has proper constraints on the next Minister to come along, and that is not clear.
Tom Pursglove
The provisions, as drafted, define safe countries as states where people would not be at risk of persecution or a breach of their article 3 ECHR rights. The provisions are considered and consistent with our obligations under the refugee convention. An individual will have an opportunity to raise specific ECHR claims against removal under schedule 3 provisions.
I am confident that the measures in place are appropriate and sufficiently robust. We know it may not always be appropriate to apply inadmissibility to all claimants. Any oral or written representations from a claimant about why inadmissibility processes should not be applied in their case, including any connections they may have to the UK, will be considered ahead of any removal to a safe third country. However, if an individual has family in the UK, there are family reunion routes available. These amendments should not be used to circumnavigate those provisions. For those reasons, I do not support the suggested addition of proposed new section 80D in the Nationality, Immigration and Asylum Act 2002, under amendment 26, and I invite hon. Members not to press it to a Division.
Turning to the clause overall, an increasing number of people are risking their lives to get to the UK, using unseaworthy vessels, putting at risk not only their lives but those of the UK Border Force and rescue services. Those routes are often facilitated by criminal gangs, seeking to arrange those dangerous journeys for profit. We are determined to make the use of small boats to cross the channel an unviable option for reaching the UK. We are determined to send a clear signal that it is unacceptable for individuals to travel through multiple safe countries to then claim asylum in the UK.
To stop people risking their lives on those dangerous crossings, reduce the unsustainable pressure on the asylum system and protect those most in need, we must be clear that many of those coming to the UK by irregular means will not be admitted into our asylum system. Inadmissibility is a long-standing process, designed to prevent secondary movements across Europe, and these measures are being introduced to support that. People should claim asylum in the first safe country they reach, rather than make dangerous journeys to the UK to claim asylum here.
Paul Blomfield (Sheffield Central) (Lab)
What consideration has the Minister given to the impact on the system of international protection for those fleeing conflict and persecution if the entire world adopted that principle, so that the responsibility only ever fell on the countries on the frontline of conflict and persecution?
Tom Pursglove
I have heard the point that the hon. Gentleman has raised. I would make the point that this country has and will continue to make a significant contribution to the global effort to tackle the challenges that we face around displacement. We would argue that that must be achieved through safe and legal routes. That is the cornerstone of our policy, and I think that is the right approach. We must render these dangerous channel crossings unviable.
Paul Blomfield
I thank the Minister for giving way again. I want to press the issue, because it is helpful to have an answer that reflects the question. The question did not ask him to reiterate his belief, but to articulate what the Government feel would be the consequences for the international protection system if every country adopted the same approach.
Tom Pursglove
The point that I would make is that we need to establish a clear principle that people should come to this country through safe and legal routes. We would argue that the best and most effective contribution that we can make as part of the global effort is to establish those safe and legal routes—there are many past and current examples. We think that is the right approach; we cannot in any way support or endorse people making dangerous and unacceptable crossings.
As a result, we strongly believe that the approach that we are taking in the Bill is right and builds on our proud traditions in this country of providing sanctuary to those who require it. That gets to the heart of the hon. Gentleman’s question. It is not about this country refusing to participate in the global effort, but about establishing clear expectations around how we intend to do that. We will continue to build on the proud traditions that we have in this country.
Neil Coyle
I am finding the Minister’s answers increasingly disappointing. Could he come back to the specific legal question from my hon. Friend the Member for Enfield, Southgate about article 33 of the refugee convention and the principle of non-refoulement?
Tom Pursglove
Again, I refer back to the point that has been raised, which is that we will not return individuals to countries where they would be unsafe as a consequence. Of course we would look at cases on an individual basis and at the concerns that have been raised. If there are concerns, it is important that they are properly taken into account. I am confident that the approach we are taking addresses that issue.
We know, however, that it may not always be appropriate to apply inadmissibility to all claimants. For example, we will not apply those procedures to unaccompanied asylum-seeking children. The introduction of the clauses on inadmissibility aims to strengthen our position on inadmissibility, further disincentivise people from making those dangerous journeys, and encourage them to claim asylum in the first safe country they reach. Those who fear persecution should claim asylum in the first safe country they reach. Parliament has already had an opportunity to scrutinise the measures when they were placed in the immigration rules in December 2020.
Stuart C. McDonald
I just do not think that the significant legal questions that have been asked have been answered appropriately, and there are all sorts of questions about the safeguards around the description of a safe third state, so I want to press amendment 56 to a vote.
Question put, That the amendment be made.
Bambos Charalambous
I beg to move amendment 36, in clause 16, page 20, line 8, at end insert
“, subject to subsection (1A)”
This amendment is consequential to the amendment which would remove the ability to serve an evidence notice on certain categories of person.
The Chair
With this it will be convenient to discuss the following:
Amendment 37, in clause 16, page 20, line 8, at end insert—
“(1A) The Secretary of State may not serve an evidence notice on a person—
(a) who has made a protection claim or a human rights claim on the basis of their sexual orientation or gender identity;
(b) who was under 18 years of age at the time of their arrival in the United Kingdom;
(c) who has made a protection or human rights claim involving sexual or gender-based violence; or
(d) is a victim of modern slavery or trafficking.”
This amendment would remove the ability to serve an evidence notice on certain categories of person.
Amendment 153, in clause 16, page 20, line 8, at end insert—
“(1A) The Secretary of State must not serve an evidence notice on a person—
(a) who has made a protection claim or a human rights claim on the basis of sexual orientation, gender identity, gender expression or sex characteristics;
(b) who was under 18 years of age at the time of their arrival in the United Kingdom;
(c) who has made a protection or human rights claim on the basis of gender-based violence;
(d) who has experienced sexual violence;
(e) who is a victim of modern slavery or trafficking;
(f) who is suffering from a mental health condition or impairment;
(g) who has been a victim of torture;
(h) who is suffering from a serious physical disability;
(i) who is suffering from other serious physical health conditions or illnesses.”
This amendment would prevent the Secretary of State from serving an evidence notice on certain categories of people.
Bambos Charalambous
We are extremely worried about the implications of clause 16 and its possible effects on vulnerable people. We tabled these amendments because we wish to further understand the Government’s intention with regard to certain particularly vulnerable groups. We believe that the impact of this clause, if it remains unamended, will further retraumatise vulnerable people.
As the Committee will know, clause 16 provides for an evidence notice to be issued to a claimant requiring them to provide evidence in support of their claim before a specified date. If they fail to do so, the provision of evidence will be deemed to be “late” and the claimant will be required to provide a statement setting out their reasons for providing that evidence “late”. The consequence for not complying with the evidence notice without good reason is that a decision maker may give minimal weight to the evidence. Apart from potentially impacting on a claimant’s credibility, the late provision of evidence in respect of evidence notices, under clauses 16 and 17, and priority removal notices, under clauses 18 and 20, may prejudice the weighting that a decision maker may give to the evidence. As we will see later, clause 23 states:
“Unless there are good reasons why the evidence was provided late, the deciding authority must, in considering it, have regard to the principle that minimal weight should be given to the evidence.”
It is unclear what “minimal weight” or, indeed, a decision maker having “regard to” this principle would mean in practice.
We are therefore extremely concerned that this clause and the others alongside it may potentially compound discrimination faced by people with protected characteristics. It is well established that people with different traumatic experiences may find it more difficult to disclose on demand their experiences of persecution, especially if they lack effective access to legal advice. Indeed, the Government’s message about legal aid to PRN recipients is insufficient amid the broader gutting of legal aid for the immigration sector since the legal aid cuts in 2013. This on its own is reason to doubt that individuals are likely to receive adequate legal support in terms of submitting evidence.
The situation may be compounded for people with protected characteristics. For example, women who have experienced sexual and/or gender-based violence may find it particularly difficult to disclose information about their experiences. The Home Office itself acknowledges the particular difficulties that LGBTQI+ asylum seekers may have in substantiating their claim or providing full disclosure, including experiences of discrimination, hatred, violence and stigma.
The stipulation about late evidence in clause 16 also has profound implications for the victims of trafficking and modern-day slavery. Frontline anti-trafficking organisations have previously highlighted how lack of identification is compounded because victims of trafficking are often unaware that there is a system to protect people who have experienced exploitation. The Government’s own guidance on the national referral mechanism provides that
“Victims may not be aware that they are being trafficked or exploited, and may have consented to elements of their exploitation, or accepted their situation.”
It is highly concerning that an individual could potentially be punished for failing to give evidence on time, in that such late disclosure might affect the credibility and/or weighting given to their evidence, which in turn would adversely affect their chances of a protection or human rights claim succeeding. It is clear that this is likely to lead to compounding of the discrimination experienced by certain groups, and make it harder for them to make the best possible case for themselves.
The Chair
In his opening remarks the hon. Gentleman referred in some depth to clause 16 in addition to speaking to the amendment. I have no problem with that whatever, but I remind the Committee that you cannot have two bites of the cherry. In the light of the line that has been taken, I suggest that we treat this as a stand part debate as well. If anyone has anything to say, now is the chance.
Stuart C. McDonald
May I confirm, Sir Roger, that there are two groups of amendments to this clause?
Stuart C. McDonald
Thank you, Sir Roger. In relation to the first group, we fully support the shadow Minister and amendments 36 and 37, which would limit the range of applicants who might face those notices, including children survivors of trafficking and those who need protection because of gender-based violence or sexual orientation. Amendment 153 simply excludes a number of additional groups of people, including those suffering from mental ill health. The shadow Minister explained exactly why it can be very difficult to demand disclosure by certain deadlines from certain applicants. The same arguments apply in relation to our amendments. If we go down this route, there must be a recognition that disclosure of evidence for some can be an incredibly difficult process. How will that be taken into account?
Paul Blomfield
Taking account of your suggestion, Sir Roger, I wanted to make a few comments, although my hon. Friend the Member for Enfield, Southgate made a substantial contribution. We need to pay close attention to this clause and those that follow it, because they cut across a basic principle of English and Scottish law: the presumption of innocence until proven guilty. Underlying the clauses is an assumption of disbelief—everybody is playing the system. Of course, there are people who do, but we do not design our justice system on that assumption, nor should we design the asylum system on that basis.
Instead, we should look at the practical application, because as I said when I spoke to clause 10, we need to understand the journeys taken by those seeking refuge in our country as they flee persecution and conflict, and understand the trauma that led them to uproot themselves from their homes and the trauma that they experience on their journeys. That should give the Government serious pause for thought.
Clauses 16, 17 and 23 prejudice the system against survivors of violence, including sexual and gender-based violence, and reduce access to refugee protection. Clause 16 permits the Home Secretary to serve an evidence notice on a person who has made a protection of human rights claim, forcing them to provide evidence before a specified date. That needs to be looked at in terms of the consequences set out in clause 23 diminishing the weight of their evidence. We are returning to a theme here, because this is in conflict with the Home Office’s own asylum policy, which recognises that there are many good reasons why women who have survived sexual and other gender-based violence would be late in applying for asylum or in submitting evidence.
Let me quote the Home Office’s policy:
“There may be a number of reasons why a claimant, or dependant, may be reluctant to disclose information, for example feelings of guilt, shame, and concerns about family ‘honour’, or fear of family members or traffickers, or having been conditioned or threatened by them…Those who have been sexually assaulted and or who have been victims of trafficking may suffer trauma that can impact on memory and the ability to recall information. The symptoms of this include persistent fear, a loss of self-confidence and self-esteem, difficulty in concentration, an attitude of self-blame, shame, a pervasive loss of control and memory loss or distortion.”
That policy—the policy of the Home Office—states that
“disclosure of gender-based violence at a later stage in the asylum process should not automatically count against their credibility.”
Yet that is precisely what the Government are trying to do in these clauses, in conflict with their own policy.
The Women for Refugee Women charity, which does extraordinary work supporting those fleeing gender-based violence, says:
“because there are so many legitimate reasons for why a woman who has survived gender-based violence may submit evidence late, we do not think there is a way in which these evidence notices can be implemented fairly in respect to these highly vulnerable individuals.”
Let me return to the Home Office’s own assessment of the proposals, which found that the Bill’s
“policies could indirectly disadvantage protected groups”,
such as
“children, disabled people and people who are vulnerable for reasons linked to other protected characteristics—including but not limited to gender reassignment, pregnancy and maternity, sexual orientation and sex.”
That disadvantage, which the Home Office has identified, to vulnerable people and victims of huge trauma and violence will be hardwired into our law by these clauses, so I urge the Government to withdraw them.
Neil Coyle
On a day like this, I really do regret giving up coffee. I remind Members of my entry in the Register of Members’ Financial Interests and of my support for the Refugee, Asylum and Migration Policy project.
I had not planned to speak but I was very disappointed with the first set of answers I received. The only reason our debating time is limited is that the Government set an artificial timeframe for a very controversial piece of legislation. Yesterday morning I visited an asylum hostel set up in Southwark without giving prior notice to the council or to local organisations that would be willing, and have the network, to support asylum seekers. In the course of my discussion with asylum seekers in my constituency, I asked what specific support they had received in making their applications. They said, “Nothing apart from an interpreter.” When I asked if they had been given access to legal aid, they said they did not know what it was. The Home Office officials and the charity present said that legal aid information had been included in their induction materials, which are in several languages, but nobody had bothered to explain to them in their first language what legal aid meant, and no one had pointed out how someone could get access to legal aid in Southwark. Members should bear in mind that some of them were being told, especially when they first arrived, that they should not leave the premises. Access is a crucial point.
If the Home Office actually bothered to get out of bed and talk to local authorities before making such impositions on local communities, it would find that there is a willingness to better co-ordinate support and to help. There are some brilliant organisations, such as the Southwark Law Centre and the Southwark Day Centre for Asylum Seekers, which are there, willing and able to support those asylum seekers—if the Home Office just bothered to communicate. Instead, we have a more expensive system, with duplication and the Home Office imposing new contracts, commissioning new services and ignoring networks and systems that are already there, at substantial cost to the taxpayer—something that the Government seem to ignore. That is the context of clause 16: people do not have access to sufficient support to make the best application possible at the first point.
Mr Goodwill
Does the hon. Gentleman accept, however, that there will be cases where the reason evidence is presented late is that the initial reason for an asylum claim was exposed as a complete pack of lies, and therefore the claimant, maybe following the advice of people who understand the system, casts around for another reason why he or she might want to make an asylum claim?
Neil Coyle
I think the right hon. Gentleman makes the point that I am making, which is that we need a fast, fair and effective system up front. If we had such a system, those bogus claims would be weeded out pretty early on, and we would not have a Government desiring to implement a new set of impositions on children who have gone through trauma. The Government’s own statistics show how many cases are actually proven and upheld, so he does an injustice when he suggests that there might be some volume to the level of the claims he described.
I want to come back to the point about legal advice. It is poor legal advice, in addition to trauma, and an inability, not through any deliberate purpose but just through a lack of understanding, that lead—I am trying to find my place.
Holly Lynch (Halifax) (Lab)
I just want to support the incredibly powerful contribution that my hon. Friend is making, following our hon. Friend the Member for Sheffield Central. As we have heard, it is often those who have been subject to the most trauma and who are most deserving of sanctuary who will take the longest to disclose. Those are the people who will be really negatively impacted if we allow these provisions to go ahead.
Neil Coyle
My hon. Friend is not only right; she is also a jolly good egg for helping me out.
All too often with asylum-seeking children and young people, poor legal advice, in addition to trauma, can lead to an inadequately prepared case and the rejection of their claim—in the small number of cases that are rejected. Having a good solicitor can make all the difference in enabling young people to give instruction, and to anticipate a thorough and full asylum claim, which negates the need to present at later stages.
In the hostel I visited yesterday, I was told that there is a Home Office list of legal aid providers that can be used. It would be really helpful if the Government agreed to publish the list so that it could be expanded and improved. Other local organisations that do this—often on a pro bono basis but obviously with professionals—could provide the best advice up front, so that we do not end up with lengthy cases, with stuff added later that could have been added up front, and the individuals could then have the best support possible. I think we should be committed to having a first-class, up-front service.
I will give one example, provided by the Children’s Society, of a child who went through the process:
“My solicitor did nothing, it was horrible. They didn’t even prepare a witness statement for my interview. I had to do everything myself. I had my social worker but she didn’t know how to help me with my asylum case. The interviewer told me she had no information and that I had to tell her everything”.
Of course, we have had a decade of legal aid funding cuts, with many asylum-seeking children and young people struggling to access quality legal advice. The availability of high-quality legal advice under the legal aid contract or on a charitable basis is both patchy and frequently limited. We are very fortunate to have some excellent organisations in Southwark but I know that that is not the case across the country, where there is a dearth of legally aided advice for asylum seekers. That is the system that exists and that has been attacked for a decade because the failure to provide up-front support necessitates further stages. Clause 16 will make that worse.
Another example from the organisations that have briefed us is the fact that many asylum seekers change solicitor. That is not because they have hundreds of thousands of pounds in their pocket and are looking for a different lawyer who might get a better result but because of the process. It is because the Home Office has moved them and because they rely on free legal aid contracts. They do not have the funds to stick with one solicitor and visit them by train if they move from city to city as part of the accommodation process that the Home Office requires. The Home Office is not doing this because it is deliberately trying to upset the legal support but because it is moving people and takes too long to make decisions. If it committed to a timeframe to make decisions up front, perhaps we would be in a stronger position and would be more supportive of legislation that makes such demands, though I doubt it very much in this case.
Last week, I asked the Minister about the extension of legal aid and I did not get a particularly precise answer, if I may put it delicately. I also tabled a named-day question––I think it was 58412––to the Ministry of Justice because the equality impact assessment suggests that legal aid will be extended. I asked the Minister whether it would be and I did not get an answer last week. Nor is there a commitment to extended legal aid for these cases in the answer from the Ministry of Justice, so I am confused and surprised. There must be a cost attached to this. The Department must have some more information, which I hope the Minister can share today, on how this new extension for legal aid will be paid for, where exactly it sits and who is delivering it. Is the Home Office again going to seek to extend its empire and build new services and contracts rather than working better with the Ministry of Justice? Councils often get dumped on by the Home Office rather than being supported and worked with. They have contracts with legal aid solicitors and experts on the ground who could provide a valuable service that speeds things up and cuts costs for the Home Office, rather than having the Home Office suddenly impose a new contract. I hope that the Minister can shed some light on that.
I am concerned about the clause’s potential cost and damage to the UK’s reputation, and about the potential breach of Home Office duties. Hon. Members have already touched on this, so I shall just whizz through. The Secretary of State bears a duty
“to safeguard and promote the welfare of children”
under section 55 of the Borders, Citizenship and Immigration Act 2009. It is through section 55 that the spirit of the UK obligation to the best-interest principle set out in article 3 of the 1989 UN convention on the rights of the child in respect of asylum-seeking children has been translated into UK law.
The Home Office’s own casework guidance for assessing claims from asylum-seeking children makes it clear that decision makers are to take account of what it is reasonable to expect a child to know or relay
“in their given set of circumstances.”
That is crucial to the children we are discussing. It is inappropriate for authorities to question the credibility of a child’s claim if they omit information, bearing in mind the child’s age, maturity and other reasons that may have led to those omissions, which may be many, given the people we are talking about. The guidance sets out distinct factors that decision makers are to take into account, including age, maturity, the time of the event, the time of the interview, mental or emotional trauma experienced by the child, educational level––bearing in mind that many children will have had a fractured education––fear or mistrust of authorities given the experience many of them will have come through, and feelings of shame and painful memories, particularly those of a sexual nature.
Once again, we look set to have a Government, who have already been found to be acting unlawfully, failing to take into account the best interests of children. We have had that in the High Court. The Government want to spend hundreds more millions of pounds going through legal cases. Let us not do that. Let us get the system right and ensure that first-class legal aid and support are there for children at the soonest point rather than requiring them to fail because they do not understand the system and because no legal aid is there, and then punishing them for their failure, which is actually a state failure.
I have one more example from the Children’s Society—again, from a child:
“My first court hearing was horrible, my solicitor advised me to not answer every time anyone asks you any questions. However, when I got the refusal letter from the judge, it said it was because I hadn’t answered any of the questions. As soon as I changed solicitor, my solicitor told me to appeal, prepared an expert report and told me to speak in court this time round and finally my case was accepted.”
The Chair
Before I invite the Minister to respond, I need to clarify something. At the start of his remarks, the hon. Member for Bermondsey and Old Southwark indicated that there had been a lack of time to consider the Bill. I cannot recall whether he was a member of the Programming Sub-Committee, which I chaired, but the programme motion was agreed by its members, from both sides of the House. The motion was then put to the whole Committee at the start of the first evidence session, and was again agreed without dispute. I am sure that no criticism of the Chair was intended, but I think it is necessary to clarify that.
Let me also make it absolutely plain that this Chair, and I am sure Ms McDonagh, is at the service of the Committee, as are the Officers of the House. It may be unpalatable, inconvenient or undesirable, but if it is necessary for the Committee to sit late into the evening, or even into the night, and that is what the Committee desires, then we are at your disposal. Clearly, we have to expedite the business, and believe me that this Chair, at least, understands the difference between a filibuster and a contribution, and I will say so, but no Member on either side of the Committee should feel constrained by time. We have an important job to do, and it is vital that we do it thoroughly. I hope that is absolutely clear.
Tom Pursglove
Thank you for that clarification, Sir Roger. I thank hon. Members for raising these important issues. I will start by addressing amendments 36 and 37.
We all recognise that young or particularly vulnerable claimants, sufferers of trauma such as sexual violence or ill treatment on account of their sexual orientation or gender identity, and survivors of modern slavery or trafficking need to be treated with care, dignity and sensitivity. It is important that they are able to fully participate in the asylum process so that, in the case of a genuine applicant, their claim for protection can be recognised and their status settled at the earliest opportunity. That is in the best interests of the claimant and the overall functioning of the asylum system.
At the same time, we recognise that it may be harder for some people to engage in the process. That may be because of their past experiences, a lack of trust in the authorities, or because of the sensitive and personal nature of their claim. That is why clauses 16, 17 and 23 provide for good reasons why evidence might be provided late. What constitutes “good reasons” has not been defined in the Bill, as that would limit the discretion and flexibility of decision makers to take factors into account on a case-by-case basis. It would be impractical to legislate for every case type where someone may have good reasons for not previously disclosing evidence in relation to their protection claim.
Good reasons may include objective factors such as practical difficulties in obtaining evidence. That may be where the evidence was not previously available or there was a lack of availability for an expert report. Good reasons may also include subjective factors, such as a claimant’s particular vulnerabilities relating to their age, sexual orientation, gender identity or mental health. Decision makers, including the judiciary, will be better placed to identify and assess those factors on an individual and case-by-case basis.
Rather than facilitate engagement in the process, amendments 36 and 37 would exclude claimants from it. They would artificially limit the circumstances in which the evidence notice would apply, favouring certain groups above others, who may have genuinely good reasons for providing late evidence. The amendment could create a perverse outcome, whereby it takes longer for the particulars of a genuine claim to be surfaced and to receive favourable consideration. Furthermore, this would create a situation in which unscrupulous claimants could cynically abuse the process by falsely claiming to be within one of those categories. That would tie the hands of decision makers, who are able to look at the facts of a case in detail and make an appropriate decision based on the facts before them. That would perpetuate the issues that the clauses are designed to address, to the detriment of genuine claimants.
Neil Coyle
I did point out earlier that 23% of these applications come from children. Is the Minister suggesting that they are making bogus claims and are cynical? Those are the words he is using. I urge him to distinguish more carefully between children and adults, and would make the case again that children should be exempt, specifically because of their age.
Tom Pursglove
I will develop my remarks a little further. I will come back to some of the points raised in the debate, but to start with I want to get through the rationale behind our thinking on the various amendments before the Committee.
Amendment 37 also fails to fully understand the remit of clause 16. The evidence notice applies solely to evidence in support of protection and human rights claims. The new slavery and trafficking information notice, covered in clause 46, will require a person to provide any information relevant to their status as a victim of modern slavery or trafficking.
On amendment 153, the Government take their responsibility towards those seeking international protection seriously. We recognise that particularly vulnerable claimants and survivors of modern slavery need to be treated with care, dignity and sensitivity. Individuals may be particularly vulnerable as a result of their age, their health, the experiences they have lived through or a range of other factors. It is because these factors can be so wide ranging that I am resisting this amendment.
Clause 16 and the new evidence notice will require those who make a protection or human rights claim to provide evidence in support of their claim before the date specified in the evidence notice. This clause works in parallel with clauses 17 and 23. Where evidence is provided late, claimants will be required to provide reasons for that. Where there are no good reasons for the late provision of evidence, this should result in damage to the claimant’s credibility, and decision makers must have regard to the principle that little weight should be given to that evidence.
By introducing a statutory requirement to provide evidence before a specified date, clause 16 will contribute to the swift resolution of protection and human rights claims, enabling decision makers to consider all the evidence up front and, where appropriate, grant leave. However, we recognise that it may be harder for some people to engage in the process. That may be as a result of trauma they have experienced, a lack of trust in the authorities, or because of the sensitive and personal nature of their claim. That is why clause 16, together with clauses 17 and 23, allows for good reasons why evidence might be provided late. As I say, what constitutes good reasons has not been defined in the Bill. It would be impractical to legislate for every case type where someone may have good reasons for not previously disclosing evidence in relation to their protection claim.
Stuart C. McDonald
Nobody is arguing for an exhaustive list, but if we are all agreed that these are examples of good reasons, why not include them as a non-exhaustive list, just to make sure that these people are protected?
Tom Pursglove
Of course, the situation will be set out clearly in guidance. We think that is the better approach, because it allows greater flexibility on the sorts of factors that might be relevant to the disclosure of late information, and obviously on matters that are relevant to individuals circumstances.
We tend to think that taking a less prescriptive approach than what the hon. Member is suggesting is the best way to address that, because we want to focus on individual cases and on ensuring proper consideration on a case-by-case basis, which is very difficult to capture in the circumstances being suggested here or by adopting the approach necessary to achieve that. That is why clause 16, together with clauses 17 and 23, allows for good reasons why evidence might be provided late.
As per the amendments directly commented on, rather than facilitate engagement in the process, amendment 153 would exclude claimants from it. This would have the perverse impact of some vulnerable claimants facing different evidential requirements simply because their particular vulnerability was not included in the list of exceptions. In addition, the amendment could create a situation where individuals who do not fall into one of the categories identified by the amendment were able to abuse the process by falsely claiming that they did. This would perpetuate the issues these clauses are designed to address to the detriment of genuine claimants, undermining their usefulness.
I am mindful that a number of detailed points were raised during the debate that I want to come to. The issue of deviation from the Home Office’s existing policy was raised by the hon. Member for Sheffield Central. I would not accept that depiction. I would say that the Home Office will have discretion over who is served an evidence notice and the extent to which credibility is damaged by late evidence. Where there are good reasons for late evidence, credibility will not be damaged. There is nothing automatic about this. Credibility is also not by itself determinative.
Building on that point, there are various safeguards in the clauses that mitigate a decision that could lead to removal in breach of the rights afforded by the conventions. First, claimants who raise matters late will have the opportunity to provide reasons for that lateness—and where those reasons are good, credibility will not be damaged. Decision makers will have the discretion to determine the extent to which credibility should be damaged, and that determination need not by itself be determinative of a claim, as I have already said.
The point was raised, understandably and quite rightly, about how we intend to deal with potential victims of trauma. Of course, how decision makers reach decisions is important in all this, and they should treat claims from vulnerable people in accordance with the guidance that we will set out. Extensive training will of course be put in place alongside that. Decision makers are already accustomed to ensuring that complex factors relating to trauma are properly considered.
Neil Coyle
How will this training operate in practice, given the points already made about how long it can take for PTSD symptoms and impact to emerge? No training on the planet can force those symptoms to emerge sooner, unless the Home Office is developing a particularly pernicious system.
Tom Pursglove
I do not accept the hon. Gentleman’s latter point. I would expect there to be extensive training for decision makers on guidance when it is issued. Again, I make the point that the approach we are adopting is intended to be responsive to individual circumstances, and cases should be considered on a case-by-case basis. That is the entire approach we are taking here.
The shadow Minister, the hon. Member for Enfield, Southgate, raised the issue of refoulement, and I just want to be clear on this point. Again, individuals will not be removed if there is a risk of refoulement, and the provisions are drafted to ensure this.
On the point made by the hon. Member for Bermondsey and Old Southwark about legal aid, it is generally not available to individuals who are seeking advice or assistance with citizenship applications or on nationality matters. That is because it is not an issue within scope of the legal aid scheme—in other words, it is not an issue that Parliament has expressly provided for in statute as something for which legal aid can be provided.
For any issue where legal aid is not available, individuals can apply for exceptional case funding. The test for this is whether, without legal aid, an individual’s human rights might be breached. The only group of people who can routinely receive advice on nationality and citizenship are separated migrant children, as that is provided for in statute. We will come on to later clauses in which the legal aid provisions in this Bill, which relate to priority removal notices, will no doubt be debated as part of our consideration.
The hon. Gentleman also asked me whether a child rights impact assessment has been carried out on clauses 16 to 23. As part of our obligations under the public sector equality duty, equality impact assessments have been completed in respect of these clauses, and those assessments incorporate a consideration of the impacts on children.
Bambos Charalambous
Having looked at the amendments, I think amendment 153 is more substantive than my amendments 36 and 37. On the understanding that the spokesperson for the Scottish National party, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, will be pressing amendment 153 to a vote, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
I have had no notification that amendment 153 is going to be pressed to a vote, but, in the spirit of the Committee’s operation, if the hon. Gentleman wishes to move it perhaps he would like to say so now.
Stuart C. McDonald
I thank you for your indulgence, Sir Roger.
Amendment proposed: 153, in clause 16, page 20, line 8, at end insert—
“(1A) The Secretary of State must not serve an evidence notice on a person—
(a) who has made a protection claim or a human rights claim on the basis of sexual orientation, gender identity, gender expression or sex characteristics;
(b) who was under 18 years of age at the time of their arrival in the United Kingdom;
(c) who has made a protection or human rights claim on the basis of gender-based violence;
(d) who has experienced sexual violence;
(e) who is a victim of modern slavery or trafficking;
(f) who is suffering from a mental health condition or impairment;
(g) who has been a victim of torture;
(h) who is suffering from a serious physical disability;
(i) who is suffering from other serious physical health conditions or illnesses.”—(Stuart C. McDonald.)
This amendment would prevent the Secretary of State from serving an evidence notice on certain categories of people.
Question put, That the amendment be made.
Stuart C. McDonald
I rise to speak to amendment 27, in clause 16, page 20, line 9, leave out “requiring” and insert “requesting”.
Under this amendment, evidence notices would “request” (rather than “requiring”) the provision of supporting information for a protection or human rights claim.
The Chair
With this it will be convenient to discuss the following:
Amendment 28, in clause 16, page 20, line 14, leave out “must” and insert “may”.
This amendment would remove the obligation for applicants to provide supporting information for a protection or human rights claim.
Amendment 40, in clause 18, page 22, line 4, leave out “requiring” and insert “requesting”.
Under this amendment, priority removal notices would “request” rather than “require” the recipient to provide information.
Stuart C. McDonald
We have had an extensive debate on these clauses, so I can be brief. Amendment 27 would cast the evidence notices that we have just debated in the form of a request, rather than a requirement. Amendment 28 would mean that an explanation for late evidence could be provided, rather than it being mandatory, so that we were explaining these rights and responsibilities instead of imposing inappropriate penalties. Amendment 40 would provide for similar changes to the priority removal notices instituted by clause 18.
The previous debate was essentially about whether those notices should extend to various groups of people, but in this group of amendments we are attempting to challenge the principles behind them.
Like other hon. Members, we agree that this is just a rehash of the one-stop process, which will achieve little and risk harm to claimants who need refugee protection. It is a distraction from the real issues that the Home Office needs to get a grip of. People who are at risk of persecution are generally desperate to provide evidence if they can, and if they are aware of and understand the processes that they are involved in. There is no advantage to them in providing evidence late, but there are often very good reasons why that happens. On the other hand, if evidence is provided late, it is still ultimately going to have to be looked at; if it proves someone is a refugee, it will have to be recognised, so it is time for the Home Office to get on with fixing the real problem in the asylum system, which is the appalling delays and backlogs in that system. That is why we have tabled these amendments. However, rather than putting them to a vote, I beg your leave to withdraw them, Sir Roger. I will vote against the clause standing part instead.
The Chair
That is unusual. The amendment cannot be withdrawn, because it has not been moved.
Question put, That clause 16 stand part of the Bill.
Stuart C. McDonald
I beg to move amendment 39, in clause 17, page 20, line 22, at end insert—
‘(1A) For subsection (1) substitute—
In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or human rights claim, a deciding authority shall take into account any behaviour to which this section applies.”
This amendment would mean that – whilst attempts to conceal information, mislead, or delay the processing of a claim would still be taken into account – it will be for the deciding authority to assess what impact this has on the claimant’s credibility.
Section 8 of the Asylum and Immigration 2004 is hugely controversial, both on a point of principle and in its practical effect. It tells decision makers, whether at the Home Office or an independent judge, that if an applicant behaves in a certain way that must be taken as damaging their credibility. Clause 17 adds to the list of behaviours.
Amendment 39 would take us back to the point of principle by saying it is not for Parliament to tell decision makers, judges of fact, what to think about evidence that they have seen and we have not. Are the Government saying that they do not trust them to do their job properly? If we take a step back, the clause would represent the Home Office using legislation to tell decision makers what to think about evidence, in a dispute that it is party to itself. In that light, it is an outrageous principle.
The amendment would mean that those decision makers are asked to take into account the behaviour, rather than being told what to think about it. It is up to them to decide what they should read into late provision of evidence. What if the late provision of evidence is not the claimant’s fault? What if the lawyer made the mistake? What if a medical expert took too long to finalise a report? Ultimately, decision makers have to decide whether the person is at real risk of persecution. If late evidence provides compelling proof of that, they need to be recognised as refugees. Again, get on with fixing decision-making times and quality. From the point of view of principle, we should leave decision makers to weigh up the evidence themselves, without direction from legislators. It is as simple as that.
The Chair
I remind the Committee that this will also be considered a clause stand part debate.
Bambos Charalambous
As with clause 16, the Opposition are deeply concerned that clause 17 will contribute to a culture of disbelief that will harm vulnerable people who deserve our support. We will oppose the clause because we do not believe there is any way that it can be amended to be more reasonable. Clause 17 builds on the false premise established by clause 16 that evidence given after a certain date lessens the weight and, in turn, the credibility of the claimant. Clause 17 would extend that to the possible use of evidence in appeals.
Before I go further, I would like to draw the Committee’s attention once again to the startling statistics I referred to in the debate on clause 16. I do not believe they can be stated enough to illustrate the fallacy inherent in the culture of disbelief being pushed by the Government. Let me state again for the record: the proportion of successful asylum appeals allowed in the year up to March 2021 was 47%, and that has been steadily increasing over the past decade.
That is in a context where legal aid has been decimated. The Home Office is notoriously floundering with delays and a sclerotic process within the context of the hostile environment encouraged by the Government. If with those factors, nearly half of appeals are successful, how on earth can the Minister think it is fair to introduce another arbitrary hurdle for vulnerable people? What kind of civilised society implies that people who have escaped the most horrific situations imaginable are likely to be acting in bad faith? Clause 17, along with clause 16, will shame us and UK values if it reaches the statute book.
All the arguments that apply to clause 16 apply once again. As Ministers well know, there are many reasons why people who are escaping sexual abuse, gendered violence, torture and trauma cannot produce evidence by a particular date. Well-known psychological processes, such as dissociation, PTSD and denial of sexual trauma, militate against the so-called efficient delivery of evidence. That is before we get to the dysfunctional lack of legal aid and advice available, and the broken nature of the asylum system as a whole, as we discussed with reference to clause 16. Again, the Government seem to want to blame their own failings on vulnerable people, and scapegoat them for 11 years of a broken asylum system.
I will give an example of how unfair clause 17 is, and why someone’s credibility is in no way contingent on their ability to provide evidence by an arbitrary date. The example, concerning someone I will call “Gloria”, is a real case that was described to me by the excellent organisation Women for Refugee Women.
Gloria and her husband were supporters of the Opposition political party in the Democratic Republic of the Congo. When the Government started to suspect that her husband was talking to journalists about human rights abuses, they targeted both him and Gloria. Gloria was raped by soldiers and taken to prison. Upon release, she and her husband fled the Congo, but they were forced back into the DRC and targeted by the Government again. Gloria was violently raped again by several soldiers and held in a detention centre from where she was trafficked to the UK.
When she arrived here, Gloria was detained in a house and forced to have sex with several men for weeks, until a cleaner helped her to escape. This woman encouraged her to claim asylum, but Gloria was too scared to talk about her traffickers in the interview, so she could not explain why she had not claimed asylum earlier. Her male interpreter at the interview did not speak Lingala fluently and got angry with her when she tried to clarify points. She had no mental health support so was unable to discuss the extreme sexual violence she had experienced, and her lawyer never explained to her that the experience of being trafficked was relevant to her claim.
Gloria was refused asylum and taken to Yarl’s Wood, which she found highly traumatic, given her previous experience of incarceration in the DRC. She was released from Yarl’s Wood and then came to seek help from Women for Refugee Women, as she was homeless. She joined one of the organisation’s creative projects and, over time, began speaking about her story. Gloria now has a positive reasonable grounds decision and is preparing further submissions for a fresh asylum claim. Under clauses 16 and 17, Gloria could be prohibited from presenting evidence of the violence that she faced, with the ultimate risk of being returned to her persecutors. Gloria continues to suffer from post-traumatic stress disorder, depression and suicidal thoughts.
Surely when hearing of cases such as Gloria’s, Ministers must pause and realise that provisions such as clause 17 are inappropriate. Worse than that, calling into question the credibility of people who are traumatised is severely harmful. As discussed with reference to clause 16, the ultimate risk of undermining the credibility of applicants and denying the validity of their evidence is refoulement and is in contradiction of the refugee convention.
The one-stop process being proposed in the group of clauses that include clause 17 would force traumatised women to raise all the reasons why they need protection at the outset. If they fail to do so, their credibility could be damaged, according to the clause. It is worth stating again that, as with clause 16, this goes directly against the Home Office’s guidance, which states that late disclosure should not automatically prejudice a woman’s credibility.
As highlighted, moreover, many women do not realise that their experiences of gendered violence may constitute an asylum claim. Poor legal advice compounds that problem, so women do not raise these experiences in their initial claim. Clauses 16, 17 and 23 will result in more women being wrongly refused protection and so becoming liable for detention.
Clauses 16, 17 and 23 create a mechanism that forces people to produce relevant evidence by a fixed date. If that deadline is missed, the evidence could be given “minimal weight”, which will impact on a decision maker’s assessment of an applicant’s LGBT+ status and/or whether they have a well-founded fear of persecution. That would be acutely detrimental to LGBT+ people because of the difficulties in gathering and providing evidence that helps to confirm their sexual orientation or gender identity. Many LGBT+ people may have spent a long time trying to hide their sexual orientation or gender identity from other people not only in their countries of origin, but in the UK. Further, it can be an enormous challenge, if not impossible, to obtain supporting evidence from former partners, friends or family members in their country of origin, who can be too afraid to write a witness statement. For trans people specifically, many are unable to access healthcare in their countries of origin and to receive timely support in the UK, and, again, struggle to offer supporting evidence as a result.
If LGBT+ people get evidence such as letters from those who can testify to their sexual orientation or gender identity, proof of membership of LGBT+ organisations or photos at Pride, it may not be until they are more comfortable and confident in being open about their sexual orientation or gender identity, and therefore easily after any deadlines for evidence are imposed by the Home Office.
Clauses 17, 20 and 23 direct or encourage decision makers, including immigration judges on appeal, to exclude evidence or reject the credibility of a claimant. That exclusion or rejection is arbitrary. It is not on the basis of the decision maker’s assessment of the relevance or probity of the evidence or truthfulness of the claimant. It is not on the basis of any individual assessment of all the relevant material and circumstances.
The Chair
The Chair has no desire to curtail comment, particularly from the Front Benches, but we do have to remain within the scope of the matter under discussion. I am conscious that that is difficult when there are related clauses, but the hon. Gentleman has strayed into referring to clauses 20 and 23. The Chair will bear that in mind when we come to those debates; I would not expect repetition on the subject.
Tom Pursglove
Amendment 39 would render clause 17 inoperable. Clause 17 introduces two new behaviours into section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. That section provides that a decision maker shall take account, as damaging the claimant’s credibility, of the behaviour to which the section applies. Without the consequent amendment to section 8, which amendment 39 seeks to remove, there is no penalty for late evidence or not acting in good faith, which would make such a measure inappropriate for primary legislation and would also render it pointless.
Clause 17 is not prescriptive as to how decision makers, within both the Home Office and the judiciary, determine credibility or the claim itself. It has always been the case that decision makers must consider egregious conduct by the claimant. It is then open to the Home Office or the courts to decide the extent to which credibility should subsequently be damaged. Amendment 39 simply seeks to do away with that well established principle.
Let me build on the point about the judiciary and the point that was raised by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. He asked, “Aren’t judges best placed to determine the credibility that evidence should have? Why be prescriptive?” The point that I will make in response is that clause 17 is not prescriptive as to how judges determine credibility or the claim itself. It adds two new behaviours to the existing section 8 of the 2004 Act. That section provides that a decision maker shall take account, as damaging the claimant’s credibility, of the behaviour to which the section applies. I think it is important to clarify this. It should be noted that clause 17 applies to all decision makers. That includes Home Office staff who make the initial decision on protection and human rights claims. Clause 17 adds new behaviours to the existing behaviours that should already be taken into account as damaging to credibility under section 8 of the 2004 Act. The concept that certain conduct should be damaging to credibility is nothing new. It has always been the case that decision makers must consider egregious conduct by the claimant. It is then open to the Home Office or the courts to decide the extent to which credibility should subsequently be damaged.
Clause 17 will also not be determinative of a claim. Decision makers will still be required to consider the claimant’s credibility in the round, as they would currently as part of their decision-making processes.
Neil Coyle
Clause 17 further compounds the damage potentially arising from clause 16. When answering the question about a child rights impact assessment, the Minister seemed to talk about an equality impact assessment. I wonder again whether a child rights impact assessment, as developed by his colleagues in the Department for Education for schools, would benefit the Government, to prevent them from imposing conditions that fall foul of other Government legislation—
The Chair
Order. I understand the hon. Gentleman’s concern, but we have gone past clause 16; we are now on clause 17.
Neil Coyle
But having a child rights impact assessment would prevent the Government from implementing clause 17 in a way that harms children and causes the Government to lose legal cases further down the line, so I believe it is relevant, Sir Roger.
Tom Pursglove
Thank you, Sir Roger. I want to pick up on a couple of other points that were raised in responding to amendment 39. I should clarify that clauses 17 and 23 do not apply to consideration of modern slavery referrals. Claims are considered holistically, and credibility is not by itself determinative of a claim. It is important to emphasise that point. The hon. Member for Enfield, Southgate raised the case of Gloria. Obviously, I am mindful of talking about individual cases because of the difficulties associated with that, as I am sure that he will appreciate, but clauses 17 and 23 do not prevent someone from providing late evidence. Late evidence will still be considered in full. Where there are good reason for lateness, a person’s credibility will not be damaged and clause 23 will not apply. I wanted to provide clarity on that point. With that, I ask that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraw amendment 39, and that the Committee agree that clause 17 stand part of the Bill.
Stuart C. McDonald
As a point of principle, I object to Parliament telling decision makers what to think, but having made my point I am happy to leave it there for now, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That clause 17 stand part of the Bill.
Tom Pursglove
I beg to move amendment 60, in clause 18, page 22, line 26, leave out “10(1) or (2)” and insert “10”.
This amendment is consequential on clause 43 of the Bill.
The Chair
With this it will be convenient to discuss the following:
Government amendment 61.
Clause stand part.
Tom Pursglove
It is often the case that those facing removal or deportation from the UK raise late protection or human rights claims that could have been provided at an earlier juncture. That causes unnecessary delay and expense to the taxpayer. The clause strengthens the existing one-stop process by establishing a priority removal notice, or PRN, which may be issued to a person who is liable to removal or deportation from the UK. The PRN will require a person to raise any new or additional grounds for why they should remain in the UK before the date specified in the notice. That includes information relevant to whether the person is a victim of modern slavery or trafficking. Any supporting evidence must be provided at the same time. That will ensure that all claims can be considered sufficiently in advance of the person’s removal, reducing the extent to which removal can be frustrated, and allowing those in need of international protection to be identified and supported as early as possible.
Factors that may lead to a person being issued with a priority removal notice will be set out in guidance and will include, for example, where a person has previously made a protection or human rights claim. Where information or evidence is provided on or after the PRN cut-off date and without good reason, it should be damaging to the person’s credibility. Those reforms will drive efficiencies across the system, decreasing the cost of unnecessary litigation and failed removal attempts, while maintaining fairness, ensuring access to justice and upholding the rule of law.
Amendments 60 and 61 are minor amendments to reflect a change to clause 43 and to remove a superfluous paragraph in subsection (7) of the clause that has no material impact.
Health and Care Bill (Seventeenth sitting)
Tuesday 26th October 2021
(2 years, 10 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 26 October 2021 - (26 Oct 2021)
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Chair
Good afternoon. It is lovely to see everyone again. I must remind you of various things before we start. Please switch electronic devices to silent. No food or drink apart from water is permitted. Please wear masks when not speaking, as per the Government and House of Commons Commission guidance, unless there is some obvious reason not to do so. It would be helpful if any speaking notes could be e-mailed to hansardnotes @parliament.uk. I am also asked to remind people that they can have lateral flow tests twice a week if they are coming on to the estate.
Clause 120
International healthcare arrangements
Dr Philippa Whitford (Central Ayrshire) (SNP)
I beg to move amendment 110, in clause 120, page 101, line 15, at end insert
“but does not include a Scottish Minister, a Welsh Minister or a Northern Ireland Minister”.
This amendment removes devolved Ministers from the definition of a “public authority” on which the Secretary of State could confer functions, or to which the Secretary of State could delegate functions, under this section.
The Chair
With this it will be convenient to discuss the following:
Amendment 111, in clause 120, page 101, line 22, at end insert—
“(5A) In section 5 (Requirement for consultation with devolved authorities) in subsection (1), for ‘consult’ substitute ‘gain the consent of’.”
This amendment would require the Secretary of State for Health and Social Care to obtain the consent of devolved governments before regulations under section 2 of the renamed Healthcare (International Arrangements) Act 2019 could be made.
Amendment 146, in clause 120, page 101, line 22, at end insert—
“(5A) In section 7 (Regulations and directions)—
(a) in subsection (4), after ‘under’, insert ‘section 2 or’;
(b) after subsection (4), insert—
‘(4A) A draft instrument which contains regulations under section 2 may not be laid before Parliament under subsection (4) unless a document containing a proposal for such regulations and an impact assessment of the costs and the demand placed on the NHS have been laid before Parliament.’”
This amendment would make regulations giving effect to a healthcare agreement subject to the affirmative resolution procedure, and would require a proposal for such regulations and an impact assessment to be laid before Parliament before any such regulations could be brought forward.
Clause stand part.
Dr Whitford
It is a pleasure to serve under your chairmanship, Mr McCabe.
The amendment brings us back to a knotty problem I have raised previously: although the Bill was brought forward as predominantly a Bill for England, it does have an impact on the devolved Governments, who saw it the day before it was launched. There is absolute support in Scotland, and I am sure across all the devolved nations, for strong healthcare agreements with other nations outwith the EU, particularly Switzerland and the European Free Trade Association countries, which are not currently covered, but it has to be remembered that the delivery of healthcare is a devolved issue. We are trying to ensure that that is recognised in the Bill, so that the UK Government, who absolutely have the right to negotiate international agreements, work much more closely than we have seen them do so far on how the technicalities should work in the devolved health services.
Amendments 110 and 111 relate to the same issue: the fact that the devolved nations, and certainly the Ministers concerned, were not involved in the development of these clauses. There is no mention of them, and no mention of how they will be involved in shaping any healthcare agreements or health insurance card. That is what we are now calling for.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to see you in the Chair, Mr McCabe. I shall speak in support of amendment 146, which stands in my name and the name of other Opposition Members. There is a temptation to get teary-eyed and reminisce about the 2017-19 Parliament; it is almost overwhelming, but I will resist and battle on.
What we are discussing in this clause amounts to a significant amendment to the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, on which I had the pleasure of leading for my party, opposite not one but two of the Minister’s predecessors. I hope that the same fate will not befall this Minister as befell his predecessors who dealt with this legislation—although one of them actually got a promotion. Clause 120 renames that Act the perhaps more snappily titled Healthcare (International Arrangements) Act 2019, which is what the original Bill was called until Parliament, in its wisdom, decided that as this was a Brexit Bill, it was better to have it deal with matters associated purely with Brexit, and not to slip in wider powers almost wholly unrelated to our decision to leave the EU.
The clause gives the Secretary of State power to make regulations to pay for healthcare provided outside the United Kingdom where the payments give effect to a healthcare agreement. In the context of what has come before, that is no surprise, and it is certainly something we would expect to be pursued. It also means that the Secretary of State will be able to make regulations on the payment of healthcare provided in another country where the healthcare is outside the scope of healthcare agreements if he thinks that payment is justified by exceptional circumstances and the healthcare is provided in a country with which the UK already has a healthcare agreement. This discretionary power could, for example, be exercised to pay for a specific treatment that falls outside the scope of an existing healthcare agreement.
Not content with giving himself the power to enter into further healthcare agreements outside the EU, by doing this, the Secretary of State effectively gives himself another power to make further payments if he later discovers that there was another matter that he thinks we should have been paying for that had not been covered by those agreements. It may be that that situation would only arise in exceptional circumstances, but the whole genesis of the original Bill was that it was considered sensible to retain reciprocal healthcare arrangements with countries in the EEA, whereas the clause implies that things may not be quite so reciprocal in future. I wonder what the dynamic will be in negotiations with third countries if, on our side at least, we can just authorise further payments outside any agreement anyway.
These are potentially extraordinarily wide powers, and the regulations would be subject only to the negative procedure. Our amendment is not only consistent with the importance of parliamentary scrutiny, but would ensure value for money. The original Bill contained a similar power to that in the clause and was considered by the Delegated Powers and Regulatory Reform Committee in the other place. It set out clearly the power’s potential impact:
“If, without such amendment, the Secretary of State wished to fund wholly or entirely the cost of all mental health provision in the state of Arizona, or the cost of all hip replacements in Australia, the regulations would only be subject to the negative procedure.”
[Interruption.] The Minister is chuckling. He may well know that I have used that quote before, because it highlights the extreme examples that are possible under the Bill. The Committee continued:
“Of course, these examples will not be priorities for any Secretary of State in this country.”
We should hope not. While the Minister may be able to rule out those two specific examples today, we have to consider how the powers could be used, and not just how they might be expected to be used.
The concern that this is a very broad power has been further strengthened by the inclusion of the power to make payments outside healthcare arrangements. We have to ask what the Secretary of State is trying to solve by giving himself these additional powers. Let us look at what the powers do. There is no limit to the amount of payments he can make. There is no limit on who can be funded worldwide. There is no limit to the type of healthcare being funded. Such powers without qualification or any criteria being applied in the Bill are simply unacceptable, so a resolution of both Houses should be required, alongside an impact assessment of the costs and demands any regulations might place on the NHS.
On the costs, there is no limit on what the Secretary of State might pay. If we are to assume that this will come out of existing departmental budgets, who will receive less? I mention this not just in the context of extra payments that the Secretary of State may make for things not covered by agreements, but in terms of the burden on the NHS of delivering any new obligations, because, to be blunt, cost recovery has been suboptimal. As the Law Society of Scotland said:
“As the NHS has never been very effective in reclaiming the fees owed to it by overseas visitors to the UK, the UK may find itself substantially worse off financially when new arrangements for funding cross-national use of health services are put in place.”
The Government need to raise their game on cost recovery, and if there is an additional administrative burden on the NHS in setting up new systems of cost recovery because of new agreements reached, we need a commitment from the Minister to adequate resources to ensure that those services are delivered and the cost recovered.
We support the concept of reciprocal healthcare arrangements. They are a very good thing for our citizens and for visitors to the country, but it cannot be right to give the Secretary of State such a blank cheque. Amendment 146 will ensure transparency, accountability and a proper assessment of the obligations entered into by virtue of regulations under the clause.
The Minister for Health (Edward Argar)
The hon. Gentleman alluded to being shadow Minister during the passage of the previous piece of legislation, and that reflects once again his longevity in his post. I am grateful to the hon. Member for Central Ayrshire for amendment 110, and for bringing the issue before the Committee. It is right that we debate and air it in this forum. I am aware of the concerns, which she expressed extremely clearly, about the Secretary of State’s ability potentially to confer functions on, or delegate functions under the 2019 Act to, Ministers from the devolved Administrations. She highlighted the perfect example: the challenge that we inevitably face with elements of the devolution settlement. Delivery may rest with the devolved Administration, and is therefore a devolved power; concluding international agreements is a reserved matter and therefore one for the UK Government.
Understandably, the point of principle on both sides is not to concede consent but, from our perspective, to consult. I will come on to that in a minute. I appreciate the perspective brought by the hon. Lady and her colleagues in the Scottish Government. Let me reiterate the UK Government’s strong commitment to meaningful and ongoing engagement with the DAs on reciprocal healthcare. There is already a statutory obligation under section 5 of the 2019 Act to consult the devolved Administrations before making any regulations under the Act in areas within the competence of the devolved legislatures.
We are working with officials in the devolved Administrations on the development of a memorandum of understanding setting out how we will fulfil that duty in practice. Indeed, the memorandum goes further in undertaking to engage and consult the devolved Administrations, not just at the end of the implementation stage but from a much earlier stage. I appreciate that the hon. Lady may say that, although that is progress, it does not go far enough. I believe that good progress is being made, but I suspect that on Report, I will have to report back on where we have got to, and whether we have managed to find a way forward. The work continues to be done.
Turning to amendment 110, the regulation-making powers in HEEASAA—I was going to say that was a shortened version of the Act’s title; I might just refer to “the aforementioned Act”, which may save us a little time—are important as they provide the UK Government with the ability to implement international reciprocal healthcare agreements. The Government fully support the devolution settlement and, as I say, we would not normally confer functions on the devolved Administrations under the Act without their agreement and consent.
To date, we have used the power only to ensure that Ministers in the devolved Administrations can have a role in authorising planned treatment applications if they wish, but we need to ensure that when negotiating agreements and committing to international obligations we can be confident that we can implement them. Further, we are keen to ensure that Ministers in the devolved Administrations can continue to have a role in devolved planned treatment applications. I reassure the hon. Lady that we continue to explore the issue with the DAs. I do not want to pre-empt what may emerge from that. For that reason, I encourage her not to press the amendment to a Division at this stage. She may reserve her right to do so at a subsequent stage in the passage of the legislation.
Amendment 111 would introduce a duty to seek the consent of the DAs before making regulations relating to international reciprocal healthcare agreements that contain a provision within a devolved competence. Reciprocal healthcare agreements benefit all our residents across the UK, providing safeguards and support for our most vulnerable, as well as greater opportunities to travel, for work or leisure. Where an agreement is in place, those living in the UK can access affordable healthcare when they need it when travelling abroad.
As I have said on multiple occasions, we recognise the need to work with our friends in the devolved Administrations, but we cannot include a statutory consent requirement. That would risk the UK Government not being able to comply with our international obligations, and it would, in a sense, give the devolved Administrations a veto over a reserved matter. I do not understate the complexity of the way the constitutional settlement works in this context.
Karin Smyth (Bristol South) (Lab)
I would like to live in the Minister’s world sometimes. What I am struggling to understand from him before he finishes—
Karin Smyth
It looked like he was finishing. My hon. Friend the Member for Ellesmere Port and Neston referred to the suboptimal collection of payments in the health service where they are due. When I was a member of the Public Accounts Committee, it reported on this issue, generally in the context of treatment for overseas patients. I am struggling to understand how the Government expect the NHS to manage this operationally, given how suboptimal overseas payments have been—prescription charge recuperation, for example. This strikes me as an incredibly complicated issue. When we talk about impact assessments, perhaps the Minister could tell us what work has been done in the Department to understand the impact on the service, and how people who are providing treatment are to understand where we have reciprocal arrangements and where we do not, and who is entitled to that treatment.
Edward Argar
I am grateful to the hon. Lady. We have made significant strides forward in making this easier and clearer for the NHS in recent years, recouping money where appropriate to help fund our NHS. We regularly update the guidance to trusts, which—as the hon. Lady will appreciate—are responsible for recouping funds where a patient is chargeable. They are increasingly consistent in how they apply those rules.
I concede to the hon. Lady, quite reasonably, that there are occasions when trusts do not apply the rules in a fully consistent manner. That is why we have taken steps centrally with NHS England to ensure that we pass very clear guidance to them; we do not believe that this will impose any heavier burden on them than is currently the case. Similarly, in the implementation of the agreement with the EU—again, it would be churlish not to admit it—we have faced some challenges in making sure that other countries understand their obligations to British citizens abroad under that agreement. That is in the nature of the early days of a new agreement.
Anecdotally, I receive correspondence on this issue from right hon. and hon. Members, and there was an increase in that correspondence at the very start of the year: Members were either saying that they had constituents who went abroad and did not receive the free healthcare they should have received, or were taking up the cases of people who visited this country who were charged and did not think they should have been, or vice versa. That correspondence has significantly dropped off in recent months, so with that caveat about it being anecdotal, I suggest that the new agreement has bedded in fairly efficiently. I have not had any responses from trusts saying that the way in which the agreement works has imposed any additional burdens on them that they cannot cope with.
Of course, there are other countries with which we already have different bilateral agreements, so I am confident at the moment that the administrative processes will be an effective extension of current processes but, as with all these things, I keep the issue under review. The hon. Member for Bristol South will know from her time in the NHS that if a trust found that the burden was significant or increasing, it would not hesitate to tell me. Equally, we are looking at reciprocal healthcare agreements here—we are not looking at a whole load of agreements, but dealing with them bit by bit, as we negotiate them, and we are allowing them to bed in. That was a long answer, but she made an important point.
It is time for the Government to build on our significant success in negotiating the agreement with the European Union and our new relationship, and to turn our attention to the UK’s relationship with countries outside the EU, as another strand of our global Britain strategy. That is why we are extending the geographical scope of the 2019 Act beyond the EEA and Switzerland and renaming it, as the hon. Member for Ellesmere Port and Neston said, the Healthcare (International Arrangements) Act 2019.
Outside Europe, we have limited healthcare agreements with a number of countries, which support people from the UK in accessing medically necessary healthcare. These agreements do not always provide comprehensive cover to those who need it; for example, a person suffering from kidney failure may be able to access emergency treatment if something happens to them while abroad, but they would likely have to pay for their ongoing dialysis needs privately.
The clause will enable the Government to implement comprehensive reciprocal healthcare agreements with other countries around the world by allowing for the reimbursement of healthcare costs and the exchange of data to facilitate this reimbursement. By implementing such agreements, we can better support people when they are abroad. Comprehensive reciprocal healthcare agreements can help people to access necessary healthcare services when they are travelling for leisure or business. Importantly, they can particularly benefit those with chronic health conditions, for whom travel insurance is very costly—or in some cases, sadly, completely unaffordable. Furthermore, agreements usually reduce the burden on NHS trusts, which would otherwise have to pursue individuals to recover overseas charges, as there is normally state-to-state reimbursement built into the agreement. Hopefully, the provisions will mean that we can reduce the debt owed to the NHS in an administratively unburdensome way.
Finally, reciprocal healthcare agreements can strengthen our relationships with countries around the world and foster greater healthcare co-operation, including on health security and research, the importance of which hon. Members on both sides of the House would acknowledge has been illustrated by the recent pandemic and the research around that.
The clause will enable the Government to implement more comprehensive agreements where that is to the benefit of the whole UK. We will also be able to improve arrangements to make them more effective. Our ambition is for new and improved agreements to be brought under the umbrella of the new UK global health insurance card, which will bring our EU and rest-of-the-world agreements together into a cohesive and visible service for UK citizens, and ensure that people can take advantage of their rights under these agreements.
During the 2019 Bill debates, which I confess to having read, the Government were asked to review the breadth of powers in that Bill after the conclusion of the EU exit negotiations. We have listened to the concerns expressed by the House, and our amendments to this Bill remove section 1 of the 2019 Act, which provided for a free-standing payment power and enabled the Secretary of State to make unilateral payments for healthcare in the EEA and Switzerland—a point to which the hon. Member for Ellesmere Port and Neston alluded. This power is no longer needed now that the withdrawal agreement and the trade and co-operation agreement are in place to protect the healthcare rights of UK nationals living in EU member states.
We are replacing that broad payment power with regulation-making powers. These can provide for payments to be made in two circumstances: first, to implement healthcare agreements, and secondly in countries where there is a healthcare agreement in place but the healthcare falls outside the scope of the agreement, and the Secretary of State determines that there are exceptional circumstances that justify payment. This latter element prevents a cliff-edge loss of rights in marginal cases.
As demonstrated in recent months, healthcare co-operation between countries is vital in our globalised world. Reciprocal healthcare provides safeguards and support for those who might find themselves in a vulnerable position, and supports greater opportunity for travel for those with healthcare conditions. As we move into the post-EU-exit world, we are excited to seize these new opportunities for global Britain. I therefore commend the clause to the Committee.
Dr Whitford
I welcome the drive to set up these reciprocal arrangements. One of the big losses of Brexit threatened to be the loss of the European health insurance card, and I am glad that arrangements have been reached with most European countries, although obviously not in some of the EFTA countries; that is still to be dealt with. I appreciate that the Minister recognises the particular importance of that for people on dialysis, who were unable travel under that scheme, as they require dialysis three times a week. The majority simply could not pay for it themselves, nor would insurance ever be likely to cover it, so I welcome the aim on that. It simply comes back to the need for genuine consultation with the devolved authorities, which would be delivering healthcare for those from the reciprocal countries arriving in the UK.
The Chair
Does the hon. Member for Ellesmere Port and Neston wish to press amendment 146?
Justin Madders
I thought at one point that the Minister was going to accept the amendment, given the way he was talking about the importance of parliamentary scrutiny and impact assessments. He will not need to be reminded that on a number of occasions in the past 18 months the Department has not produced those impact assessments when regulations have been produced. As he has clearly become a full-blooded Brexiteer, given his comments today, I am minded to press the amendment to a vote because it is about Parliament taking back control.
Question put, That the amendment be made.
Alex Norris (Nottingham North) (Lab/Co-op)
I beg to move amendment 145, in clause 121, page 102, line 40, at end insert—
“(11A) When conducting a review under subsection (1), the Commission must ensure the direct involvement of both users and providers of services.”
This amendment creates an explicit requirement for service users’ and providers’ involvement in the reviews and assessments that the new Part 46A creates.
The Chair
With this it will be convenient to discuss the following:
Government new clause 60—Default powers of Secretary of State in relation to adult social care.
Government new clause 61—Care Quality Commission’s powers in relation to local authority failings.
Clause stand part.
Alex Norris
We have been at this now for the best part of a couple of months. This is our 16th session. Some of the faces have changed but largely it is the same group of people. We have reached clause 121 of the Health and Care Bill and we have finally found the bit that is about care. It is amazing—you had to not blink or you might have missed it. But I would not get too excited; it is only two clauses, and neither comes anywhere near addressing the problems we face in our nation’s social care.
The national Government’s cuts to local authorities over the past decade have had a devastating impact, particularly around social care. They have led to rationed care and poor quality care. They have led to care being devalued as a profession and to providers being unable to retain their staff. As a result, we see short visits and a constant changing cast of carers, and we know that is bad for all those individuals receiving support. That is the story across all our communities, and it is worsening as we go.
Clause 121 proposes that the Care Quality Commission will now make a general assessment of the quality of a local authority’s offering for those needing care. Once those reports start coming back, I have no doubt they will make very difficult reading for many parts of the country, if not all, because they will lay bare the issues that I talk about. I do not have any problem with inspection and public assessment of the quality of care services. I do not have any problem understanding this at a local authority level rather than provider by provider. My constituents, and people across the country, deserve excellent services, and I can see how these things work in support of that goal. What I do worry about is that this will be just another way for the Government to passport blame to hard-pressed local authorities that are doing their best but are simply not adequately funded to do their job. That is the reality in this country today.
Amendment 145 seeks to improve clause 121 a little, in line with our broader efforts throughout the Bill, because we want to see service users at the heart of the health and care system as genuine shapers of what happens to them in their lives and their community. We want to make sure that those with the greatest stake and the greatest expertise by experience have the chance to be part of the process, as set out in clause 121, and to talk about their experiences in their community and about how things might be done better, because they hold so many of the answers to the challenges we face. That is a moderate but important ask and I hope the Minister will support it in the Bill or make a commitment that it will follow in the guidance that will be issued to the Care Quality Commission.
Similarly, we should seek the voice of providers, for a couple of reasons. First, they know what the successes and challenges are in their local system, and they know about the hard conversations they have with commissioners, which ought to be conversations about an individual’s needs but are, inevitably, rationing decisions. Secondly, and this them gives a special insight, many if not most—probably the vast majority—of these providers work across multiple local authorities, giving them a rich picture of the differences in approach, availability of care and similar. That is a rich contribution. We strongly think that those two voices should be heard, and the amendment is a good way of doing that.
Turning to Government new clauses 60 and 61, I express my gratitude to the Minister for his correspondence on them to give the Committee a sense of where the Government seek to go, but he was not quite able to provide comfort. New clause 60 is a mess constitutionally. It allows the Secretary of State for Health and Social Care greater powers over local authority social care functions, including giving him powers to talk about failures and directions. First, local authority accountability is to its public. We know that, every four years, we have elections. Beyond that, exceptionally and rarely, the Secretary of State who leads for local government—I know they have taken “local government” out of the name, but there is still one in whatever the Department is calling itself now—can take action in instances where the local authority is deemed to be failing in its duties to its population. The Secretary of State can put in directions, support and, as we have seen, even commissioners. That is a well-established process, but the clause inserts the Secretary of State for Health and Social and Care into this arrangement, which is a considerable overreach. It gives the Secretary of State a power to impose themselves on local authorities in a way that I do not think is welcome. At the bare minimum, it ought to be something that is exercised by the colleague of the Secretary of State who leads on local government in ways that are already well established, rather than creating another actor in the piece.
That leads us to the continued pattern that we have seen throughout the Bill. I am afraid that integration is a bit of a myth, but where there is any, it is largely that the health service ought to have more power and, more importantly, that the Secretary of State ought to have more power over telling local government what to do. There is no equivalent or supporting ability for local authorities to impact on the decisions taken by the Secretary of State. That creates a mismatch, which is really undesirable. I am keen to hear from the Minister why it was decided that the Secretary of State needed direct access to do that, when they could perhaps have worked better through their colleague, who does it more conventionally on a day-by-day basis.
New clause 61 dispenses with the Care Quality Commission’s ability to issue a notice of failure to a local authority in England. Again, when taken with new clause 60, my suspicion is that that is because the Secretary of State is in charge now. The commissioners and inspectors may be there to give some helpful evidence but, in reality, it is the Secretary of State who will command and control the system. That might be deemed adequate by the Government with regards to the health service, but I do not think it is adequate in local government, given the mandate that our councillors get from their population.
We cannot support the new clauses. We will not oppose clause 121, because there needs to be some oversight in the new environment that the Government are seeking to create, but I have no doubt that we will have to find a better way to do that in years to come. In the meantime, I hope that we can at least enhance that with amendment 145.
Dr Whitford
I rise to support amendment 145 but also to echo the comments of the Labour Front Bench about how far we have to go into the Bill, which is called a Health and Care Bill, before we hear anything about care. I think that all of us with any interest in social care have recognised the challenges within the sector over the past 18 months, which have been laid bare by the pandemic. What needs to come out is a much more radical approach to social care, including closing what is thought to be between a £6 billion and £8 billion funding gap in England every year.
In Scotland, we spend over 43% more per head on social care than in England, and that provides free personal care to people who are resident in Scotland. We fund the real living wage, which helps to begin to tackle the workforce issues, but the deeper issue facing all four nations is that we need a different approach to social care. The Feeley review, which the Scottish Government commissioned last autumn, highlighted the fact that we constantly talk about social care as a burden, and about how much it costs, instead of realising that almost half of those receiving care are people of working age. We must recognise the importance of social care for both younger and older people, recognise it as a human rights issue, and recognise it as funding to allow people to participate in the society in which they live. We need to turn that around, which means that we need to change the approach to the staff who deliver it.
Workforce is the biggest single problem. It is unfortunately much worse since we left the EU—certainly in parts of rural Scotland, where up to 30% of care workers were European citizens. We need to develop care as a profession. It is a registered profession in Scotland, but the staff need to be treated as professionals with career development, so that people come into social care for a lifetime, not just until they get a job on the checkout in Tesco. I appreciate clause 121, but it is not remotely radical enough. In something called the Health and Care Bill it is very small considering the mountain that has to be climbed.
Edward Argar
I do not think it is an entirely fair reflection to ask why it is taking so long to get to social care reform. We have already had debates about integrated care systems, integrate care partnerships and the integrated care board; a key element of that was about local government working with the NHS in the social care space, so that is a slightly unfair characterisation. Members will have heard the Prime Minister set out his ambitious plan to fix social care and waiting lists, with more to follow.
Clause 121 inserts proposed new section 46A into the Health and Social Care Act 2008, introducing a new legal duty for the CQC to review and make an assessment of the performance of local authorities in exercising certain regulated care functions related to adult social care. As part of the new legal duty, the commission will be required to publish a report of its assessment. The specific regulated care functions that local authorities will be assessed against will be set out in secondary legislation. These reviews will be informed by objectives and priorities set by the Secretary of State and will reflect indicators of quality and methodology devised by the commission and approved by the Secretary of State.
The commission may choose to revise the quality indicators and the statement describing the methodology periodically, or do so under the Secretary of State’s direction. In order to provide transparency, the commission must publish the objectives and priorities, the quality indicators that will inform assessments, and the statement describing the methodology. This new duty is crucial in increasing assurance and transparency about how local authorities are delivering critical adult social care responsibilities, on which so many people rely.
Amendment 145 would alter the proposed duty under proposed new section 46A of the Health and Social Care Act 2008, to require the Care Quality Commission directly to involve service users and providers when undertaking reviews of local authorities’ regulated care functions. I understand the spirit behind this amendment and sympathise with its aims. It is our intention that reviews by the CQC should draw upon a wide range of information and perspectives from the sector, including from providers and service users.
However, I do not feel this cause is best advanced through acceptance of this amendment. The views of people who use services, and the providers of those services, are already central to the way in which the CQC regulates. The CQC has a proven record of hearing a wide range of views since its creation over 10 years ago, both when it develops its methodology and when it assesses quality and safety in services. That is supported by section 4 of the Health and Social Care Act 2008, which places a duty on the CQC when performing its functions to have regard to views expressed by or on behalf of members of the public about health and social care services, and to the experiences of people who use health and social care services, and their families and friends.
Reviews under proposed new section 46A are not due to commence until 2023-24. As the CQC designs its approach to reviewing local authority performance before then, it will work closely with people who use health and social care services, their families, health and social care providers and the organisations that represent them, as well as other key stakeholders to ensure that its regulation is properly informed by a diverse range of views.
More detailed information on how local authorities’ reviews will be undertaken will be provided in a method statement, which the CQC must develop and the Secretary of State will approve. Section 46A(8) requires the CQC to produce a method statement outlining the method that it proposes to use in reviewing local authorities. This statement is a more appropriate place to set out operational details such as when and how providers and service users will be involved—the shadow Minister made a point about whether it would be guidance and whether it should be in the legislation.
I would like to further reassure right hon. and hon. Members, given the CQC’s publication of its new strategy, “The world of health and social care is changing. So are we” and “A new strategy for the changing world of health and social care” in May this year. That sets out a bold new approach to regulation, underpinned by a focus on what good and outstanding person-centred care looks like, and smarter use of data and intelligence. The CQC consulted on the strategy earlier this year, receiving more than 790 responses from people who use services, the public and voluntary groups and almost 400 from commissioning bodies and service providers. For the reasons that I have given, I would encourage the shadow Minister to consider withdrawing his amendment.
Let me turn to the relevant clause. Demographic change has resulted in more people having care and support needs, and we expect that trend to continue for the foreseeable future. As social care affects a greater number of people at some point during their lives, it is important that there is a transparent system through which local authorities can be held to account by their populations for delivering the right kind of care—I take the point, which I think the hon. Member for Nottingham North was making, about democratic elections, essentially, forming a key part of that; I do not disagree, but I believe it is important that there is a mechanism to assess quality of care in this context, and the best outcomes within the resources available. The measure delivers on that aim by requiring that assessment of how local authorities are delivering critical adult social care functions.
I believe that this new level of insight will support local authorities to understand what they are doing well and what they could do better. It will also help the Department to understand what is happening, forming an overarching national picture alongside the local-level assessments. I do not believe it challenges the parallel strands, which we have talked about before—the different approaches in a national health service versus local authority social care provision. I do not believe it threatens democratic oversight, either.
Turning to Government new clauses 60 and 61, new clause 60 provides the Secretary of State with powers to intervene where local authorities are failing to discharge their functions under part 1 of the Care Act 2014 to an acceptable standard. This will form one part of a new approach to assurance and support for local authorities, which will underpin our efforts to improve outcomes for people receiving care and support. Our new power of intervention will sit alongside this statutory CQC assurance framework. Where issues are identified, our priority will be to support local authorities to lead their own improvement. However, where CQC assessment identifies a persistent and serious risk to people’s wellbeing and local authorities are unable to lead their own improvement, it is right that the Government have powers to step in and help secure that improvement.
We will intervene using the most proportionate and appropriate tools available. That might include requiring local authorities to report to an improvement panel or co-operate with improvement advisers nominated by the Department of Health and Social Care. We have ruled out the use of independent trusts, whereby services are removed from local authority control and transferred to an independent charity or a commercial organisation. We will of course engage partners in the sector to finalise our approach, with additional detail to be set out in the forthcoming White Paper. Where necessary, the new clause gives the Secretary of State, or an individual nominated by the Secretary of State, power to take over the exercise of specified adult social care functions of a local authority.
In the light of our new approach to assurance and support, we are making changes to section 50 of the Health and Social Care Act 2008 through new clause 61. Where the CQC identifies failure, it may make recommendations to local authorities. It must also notify the Secretary of State of the failure and advise him on possible next steps to secure improvement. Because we are creating bespoke powers relating to adult social care services, we are taking adult social care functions under part 1 of the Care Act out of the scope of the existing powers of intervention under section 7D of the Local Authority Social Services Act 1970.
Our intervention amendments are key to ensuring that people can expect high-quality care, regardless of where they live; without clause 121, we would continue to lack a strong understanding of local authority performance, good practice and pioneering approaches that can support local authorities to meet the needs of those who rely on them for social care. I therefore commend the clause and the Government new clauses to the Committee.
Alex Norris
I am grateful for the contribution from the hon. Member for Central Ayrshire. I completely agreed with her point that, fundamentally, the No. 1 basic issue is a complete lack of investment, as we have seen over the last decade. Everything else after that becomes just tinkering around the edges, and there has been too much of that in this legislation. I share the hon. Member’s enthusiasm for taking a different approach—to stop treating social care as a burden and to understand our responsibility to working-age adults, but also to older people, and the investment and the national good of investing to ensure that those people can live independent lives and can reach their potential and do what they want to do. That we do not prioritise that in this country is a profound sadness.
Perhaps I was a little glib in the point that I made about the two clauses, and I am conscious that the Minister thinks that was unfair. He talked about other examples in which carers feature in the Bill. The reality is that each time it is about how care affects and reflects on the national health service. It is never about social care; it is about what the health service needs with regard to social care. Those two things are not the same. The point is that the Bill, for better or worse—we are not very enthusiastic about it—has 120-odd clauses about reforming the national health service and two clauses about reforming social care.
The problem is that for 11 years, or certainly for my entire four and a half years in Parliament, the Government have been promising a social care Green Paper that never comes. It is in a desk. It has supposedly been written for many years, but it never sees the light of day. Our failure adequately to grasp social care is really bad for society and terrible for the health service. That is why I made that point. How many more health service Acts do we have to see before someone finally tries to grab hold of social care? The reality is that we will have to see a change of Government for that to happen meaningfully.
The Minister’s comments on amendment 145 provided great comfort, so I will not press it to a Division. On the point that he made about needing a mechanism in cases where a local authority fails, in the most exceptional cases I agree with that, but what do we do when national Government fails? National Government have failed on that point for 11 years. The answer is that we wait until the next general election and try to persuade people. We have failed to do that three times in that period. That is right, but it also applies to local government, so I would not want to see that overused. I think I have made my point on Government new clauses 60 and 61, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Edward Argar
I beg to move amendment 147, in clause 121, page 102, line 46, leave out “or”.
This amendment is consequential on NC59.
The Chair
With this it will be convenient to discuss the following:
Government amendment 148.
Government new clause 59—Care Quality Commission reviews etc of integrated care system.
Edward Argar
We tabled the amendments following the publication of recommendations by the Health and Social Care Committee on the Bill. The Committee recommended that the Care Quality Commission be given a role in assessing integrated care systems—the umbrella term, of course, for integrated care boards, local authorities and their system partners working collectively. We agree entirely; indeed, I thank the Committee for championing that agenda. The intention is for those reviews to provide the public and the system with independent assurance of how their ICS area is performing, and in particular the effectiveness of joined-up working and integration. Those reviews will be a valuable way to improve the services provided and encourage the effective joint working that the Bill enables.
Edward Timpson (Eddisbury) (Con)
I welcome the involvement of the CQC in reviewing the work and impact of the new integrated care systems, but other parts of public service provision, particularly children’s services, are regulated by other bodies—Ofsted, in the case of children’s social care. Can the Minister reassure me, either now or at a later stage, that those bodies will be involved in the initial discussions about what the reviews will look like, and how Ofsted may be able to provide input to ensure that the review encompasses all aspects of regulation and inspection that will touch on the ICSs.
Edward Argar
I am grateful to my hon. Friend for his comments. He is right that we must not at any point forget the interest of children and families in the context of the services being provided. I hope that I can give him the reassurance that he seeks. I certainly envisage that, as we draw up the system, and as what we are proposing becomes designed and operationalised, the process would encompass close co-operation with Ofsted and other relevant bodies to ensure that it does the job that it is intended to, and that no one falls through the cracks—for want of a better way of putting it—in that regime.
Our approach builds on the existing role of the CQC as the independent regulator of health and adult social care in England. Under the Health and Social Care Act 2008, it already reviews individual providers of health and social care. This Bill expands its role, as under clause 121 it will also have a duty to review and assess the performance of local authorities in delivering their adult social care functions under part 1 of the Care Act 2014.
Alex Norris
I am glad to see this change added to the Bill. Since the publication of the White Paper, we have called for greater oversight of integrated care systems. We offered options in previous sittings around democratic accountability, which would be our preference, but we may have to settle for this change, which does represent progress. Integrated care systems—in particular integrated care boards, which will be the system in reality—will be powerful. They will hold billions of pounds in funds, and will author and manage care for the entire population—a lot of people. The quality of their work will go a long way to deciding the quality of local healthcare provision and, indeed, health outcomes in their communities.
It is right to have oversight of that work, to have a way to hold systems up against each other and understand where there is success and where there are greater challenges, and to use an established overseer with reputation, experience and a degree of independence—one that the public know how to engage with and contact. It represents the first bulwark against the system working in its own interests, rather than in the interest of population health, which is good news.
I have a couple of specific questions, but before asking them I want to make a general point to the Minister. I hope we do not lose one of the best things that local government does, and does much better than the health service, which is sector-led improvement. The idea is that as we have however many—150—local authority areas in England, they will develop an awful lot of great experience over time and can share it among them. I do not mean, “Here, read our manifesto—we’re wonderful,” but in a day-to-day supportive and developing way, which is better than just waiting for an inspection every four years.
Before I was elected to this place, I was a member peer, and I helped those in other health footprints on the exact point of integration, so I know that established people are already working in this field. I recall that it was at one of these sector-led, improvement-type activities that I first met my hon. Friend the Member for Ellesmere Port and Neston. That was eight or nine years ago, when we were the future once in local government, or perhaps in politics in general—and look at us now! Nevertheless, the point is that there is loads of really good work going on in the LGA, and I really hope to hear from the Minister that that will be seen as an asset, and could now be developed for all these systems as something that would really complement an inspection regime.
I will make two quick points about the inspection regime itself. Proposed new section 46B(3)(a) in new clause 59 says that the CQC will have to establish indicators. Will the Minister clarify what he means by that? Is it about things we would conventionally understand —outstanding, good, requires improvement, adequate—or similar? Again, this needs to be something the public can easily understand, and we need to be able to understand what it is trying to tell us.
Under proposed new section 46B(6)(a)(i), it would be left to the CQC to determine the frequency of inspection. I feel that that is rather a function for the Department, as it commissions the inspector, than for the inspector itself. I seek at least a sense from the Minister of the frequency we are talking about. I understand that it might be different for different footprints—I think it was the hon. Member for Eddisbury who mentioned Ofsted—depending on how their ICSs are doing at a certain point, but what at least is the broad frequency we are talking about?
Those are important details, and I hope to hear greater clarity on them, but the basic principle that there is oversight is one we are supporting.
Edward Argar
I will be relatively brief. I am grateful to the shadow Minister, and I think that on this we are in broad agreement. He raised a few specific points, about which I hope I can reassure him. On local authority sector-led improvement, I entirely share his view; I think it is an asset. We are in the business not of excluding ways to improve, but of creating new ways to improve. If we have something that—he is absolutely right—does add value, I would hope it is looked to as an asset to draw on, rather than pushed to one side.
Let me discuss the hon. Gentleman’s other points. On indicators, yes, I entirely agree with him. While we must wait for subsequent developments to assess exactly how we characterise those—we will be doing a system assessment rather than an individual provider assessment, with complex moving parts—I entirely agree with his underlying point, which is that the indicators ideally need to be consistent with extant ones, to be easily understandable and to convey a clear message on performance—be it outstanding, good or whatever—as something that is meaningful to all our voters and to those using the systems.
On the hon. Gentleman’s final point about frequency, I may disappoint him a little in not being able to give quite such a clear answer. I am being cautious because I think it is right that the CQC—when it is given this power, subject to the passage of the legislation through Parliament—can take a step back and consider what it thinks. The ICSs will be at different stages of development in different parts of the country; some will be very much advanced because of where they are now, and some will not be.
It would wrong at this stage to be prescriptive about that frequency. I suppose I would say—we have seen this with Ofsted—that some are inspected very regularly because there is clearly a problem that needs to be addressed, but others that are doing quite well will be assessed at regular, but less frequent, intervals. That does not give the hon. Gentleman a clear statistical answer, but I would expect regular routine assessments, obviously with the facility for the CQC to do more frequent assessments where it thinks something needs bottoming out or where it needs to support such improvement. I hope that that, to a degree, answers the points he made, all of which are valid and important.
Amendment 147 agreed to.
Amendment made: 148, in clause 121, page 103, line 3, leave out “or”.—(Edward Argar.)
This amendment is consequential on NC59.
Clause 121, as amended, ordered to stand part of the Bill.
Clause 122
Provision of social care services: financial assistance
Question proposed, That the clause stand part of the Bill.
Edward Argar
I will be relatively brief. The clause will expand the Secretary of State’s powers under the Health and Social Care Act 2008 so that payments can be made to all providers delivering social care services. It will also allow the Secretary of State to delegate the new power to special health authorities via directions.
The power in the 2008 Act excludes providers that operate for profit. Given that social care in England is largely delivered by private providers operating on a profit-making basis, the Secretary of State is unable to make direct payments to much of the sector under the existing power. Crucially, the power can be used only by financial assistance bodies engaged in providing social care services or services connected with social care services.
The coronavirus pandemic has demonstrated the need for speed and flexibility in providing support to the care sector. Without the clause, our only means to deliver financial assistance to social care providers is via local authorities. We are clear that the power will not be used to amend or replace the existing system of funding for adult social care, whereby funding for state provision is funded via local authorities, largely through local income and supplemented by Government grant.
The new power will allow the Secretary of State to react to unforeseen and changing circumstances by directing financial assistance social care providers with greater speed and in a more targeted manner. That is one of the learnings that we are seeking to implement as a result of what has happened during the recent pandemic. I therefore commend the clause to the Committee.
Alex Norris
I will be very brief, not least because we will not divide the Committee. However, I could not let us go past the clause without mentioning the heading. I must read it from the Bill because it gives me so much pleasure: “Provision of social care services: financial assistance”. Wouldn’t that be something in this country?
It is quite something to see the Government seeking to establish a mechanism to fund social care because we have been waiting 11 years for them to do so. During tomorrow’s Budget, we will listen with interest for news of support for social care. Given that most of the Budget has been leaked already, I dare say we will be disappointed. I feel a little as though the clause is the parliamentary equivalent of being threatened with a good time.
We do not have any issue with the establishment of such a mechanism, although our preference would be for that to be done by the Department that leads on local government, rather than by the Secretary of State for Health and Social Care, because we think that that is confusing. However, we do not oppose the principle behind the clause.
I can foresee the scenario in which this power would be desirable, but I would like the Minister to reiterate on the record that it will not lead to the routine commissioning of private providers outside the commissioning plans of the local authority. Each local authority puts incredible efforts into commissioning services in its community. The last thing local authorities want is someone doing a sideline arrangement on a different matter. To be clear, this is an exceptional power—almost an emergency power—and not one that we would expect to be used frequently.
Edward Argar
I think I can give the shadow Minister that reassurance. The clause is intended to reflect some of the learning from the pandemic. There are occasions when such intervention is necessary, but there is no intention, as I said in my remarks, to in any way go round or replace the current commissioning functions of the local authority. I have had discussions with the Local Government Association on exactly that point, so I hope I can give him the reassurance he seeks.
Question put and agreed to.
Clause 122 accordingly ordered to stand part of the Bill.
Clause 123
Regulation of health care and associated professions
Dr Whitford
I beg to move amendment 112, in clause 123, page 105, line 13, at end insert—
“(f) after subsection (3) insert—
“(3A) An Order in Council under this section—
(a) which affects Scotland may only be made with the consent of the Scottish Ministers;
(b) which affects Wales may only be made with the consent of the Welsh Ministers;
(c) which affects Northern Ireland may only be made with the consent of the Northern Ireland Ministers.””
This amendment would require the appropriate authority to obtain the consent of devolved governments before orders under section 60 of the Health Act 1999 affecting the relevant territory could be made.
Obviously, we are discussing the regulation of healthcare and associated professions. I am concerned that what we see written is that the Secretary of State will have the power to abolish certain regulatory bodies, deregulate certain professions and specifically deregulate social care workers. Most registration and regulatory bodies for healthcare are UK-wide, but it must be recognised that people work and move between the four nations, so anything that happens at that level will have an impact on the devolved health services.
During the debate on the United Kingdom Internal Market Bill, Members raised the issue that professional qualifications gained in any of the four nations must be recognised across all four. That makes absolute sense, but the debate was about teachers, and in England Teach First allows a degree holder to become a teacher within a matter of a couple of months whereas in Scotland and Wales, a postgraduate teaching qualification is required. That did not go ahead, but it highlights the issue.
We see new health professions developing—new grades, physicians and associates—and the devolved nations will have their own view on whether they would use such staff, how they think those staff should be regulated and registered, and where they would fit in their health services. We face the potential of new grades or qualifications being created that the devolved health services would have no option other than to recognise and accept, yet they would have minimal input, so we are back to the issue of genuine consultation with and consent from Health Ministers.
Earlier, when we were talking about the need to professionalise social care, I was surprised to hear the deregulation of social care workers mentioned. In Scotland, we are moving forward with the registration of care staff as the first step in that professionalisation, and we would not want to see it undermined. That is the same theme, unfortunately, that I have repeatedly put before the Committee. However, it is important to recognise that while the delivery of health and social care is devolved, some of the issues that we are debating would have a significant impact on the three devolved services, and it would be wrong for their Ministers to have these decisions forced on them by the Secretary of State with no significant input or consent as to how to take things forward.
Hywel Williams (Arfon) (PC)
I shall be brief. I support my hon. Friend on this matter. Clearly, systems vary from one country to another. Indeed, a long time ago, I was involved in teaching social care staff, and we were ambitious to register all staff whereas, as I remember it, 10% of staff in England were going to be registered at that time. Across the UK, there are different approaches to health provision. As I have said before in the Committee, the Labour Government in Wales have adopted a wellbeing approach for many years, and I think the requirements of implementing such a wellbeing approach might vary from one country to another.
I restate my support for my hon. Friend on this matter and look forward to hearing what the Minister has to say about it.
Edward Argar
Amendment 112 would place on the Secretary of State a duty to obtain consent from the devolved Administrations prior to legislating using section 60 of the Health Act 1999, where such legislation would affect the devolved Administrations. Before I turn to the substance of the amendment, I will set out the benefits of regulating health and care professionals on a UK-wide basis. It is important that we have UK-wide standards to ensure the same level of public protection across the UK and to allow healthcare professionals the flexibility to work across the whole of the UK. We value and will continue to work collaboratively with our devolved Administration partners on the regulation of health and care professionals.
Each devolved legislature, as has been alluded to, has its own devolved arrangements in respect of professional regulation, which are a mix of reserved and devolved or transferred powers. In practice, any use of section 60 affecting professionals in Northern Ireland is exercised only with the agreement of the Northern Ireland Executive. In Scotland, consent is required in relation to legislation concerning healthcare professionals brought into regulation post the Scotland Act 1998. In the case of Wales, the regulation of healthcare professionals is a reserved matter, so consent is not sought.
In practice, the UK Government always seek the agreement of the NI Executive when making changes to the regulation of healthcare professionals, and the Scottish Parliament’s consent is required in the circumstances that I set out previously. The amendment would add to that by requiring consent in relation to any changes to the regulation of healthcare professionals affecting the devolved Administrations. In addition, legislation requires that section 60 can be used only following public consultation and the affirmative parliamentary procedure.
The purpose of the professional regulation system is to protect the public. Regulating health and care professionals on a UK-wide basis helps to provide consistency across the four nations and ensures that we continue to work together with the devolved legislatures to align workforce policy. For those reasons, although I appreciate the point underlying the amendment, I ask the hon. Member for Central Ayrshire to withdraw it.
Dr Whitford
We have had a lot of debate over recent years about whether we are aiming for lowest common denominator or to achieve the highest standard. The concern is about delegating or creating new grades of staff who are not expected to have the same level of qualification or training as the people they may be replacing within the health service. That is not always to the benefit of patient safety. We are really calling for meaningful engagement, which is not what we have seen before. It is important to recognise the impact that it would have on the devolved nations.
I totally recognise that professionals need to be able to work across the UK, but it should be about aiming for people to have the training, professionalisation, standards and regulation that they require and which is comparative to the job that they are doing and the service they are delivering for patients. We spent the whole morning on patient safety. The standard of the staff who deliver the care is the most important thing for patient safety. However, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Justin Madders
I beg to move amendment 142, in clause 123, page 105, line 13, at end insert—
“(f) After subsection (2B) insert—
(2C) The regulation of health professions and social care workers must be used where possible to raise professional awareness of rare and less common conditions.”
This amendment would require professional regulators to support improved awareness of rare and less common conditions amongst health and care professionals.
May I clarify that there will be a debate on the substantive clause afterwards?
Justin Madders
I do so wish. I will not detain the Committee long on amendment 142. We are seeking to find ways of increasing awareness of rare and less common conditions among healthcare professionals. I readily accept that the amendment may not be a perfect vehicle for doing that, but the recent UK rare diseases framework included increasing awareness of rare and less common conditions among healthcare professionals as one of its four priority areas, partly due to the challenges that people within the community face in receiving accurate and timely diagnoses in primary care.
What mechanisms can be introduced to help to raise awareness of rare and less common conditions among healthcare professionals? Will the Minister consider introducing reforms to workforce training and resourcing to facilitate that because among the raft of the entire professional regulation process and a range of development issues, continuing development about and awareness of rare conditions is at the heart of proper and effective regulation?
Edward Argar
Amendment 142 would introduce a legislative requirement in section 60 of the Health Act 1999 for health and care professional regulators to raise professional awareness of rare and less common conditions where possible.
The purpose of regulating healthcare professionals is to protect the public. Regulators set the standards that registered professionals must meet; they also set standards relating to education and training. By ensuring that the standards are met, the regulators ensure that on an ongoing basis professionals have the right behaviours, skills, knowledge and experience to provide safe and effective care.
Section 60 of the Health Act 1999 provides powers to make changes to the professional regulatory landscape through secondary legislation. Each professional regulator has its own legislation that can be amended under the powers in section 60, which provides the framework for its establishment and remit. Although I have sympathy with the amendment’s aim and the points made by the hon. Member for Ellesmore Port and Neston about the need to ensure that health and care professionals are aware of rare conditions, I do not believe that writing such a requirement into section 60 of the 1999 Act is quite the right approach to achieve that.
All the healthcare professional regulators have the same set of objectives, which were placed on a consistent footing by the Health and Social Care (Safety and Quality) Act 2015. Those objectives are to protect, promote and maintain the health, safety and wellbeing of the public; to promote and maintain public confidence in the professions regulated under the Act; and to promote and maintain proper professional standards and conduct for members of those professions.
A key part of delivering those objectives is setting standards that require professionals to have the necessary skills and knowledge to practise safely. That includes knowledge and awareness of rare conditions where that is necessary for an individual’s practice. Regulators set the standards that healthcare professionals are required to meet in order to practise. Professionals have a duty to ensure that they provide a good standard of practice and care, which includes keeping their professional knowledge and skills up to date. That is set out in the guidance issued by the regulators.
For example, the General Medical Council’s “Good medical practice” sets out the standards required of a registered doctor. It specifies that a doctor must keep their professional knowledge and skills up to date, must be familiar with guidelines and developments that affect their work, and must recognise and work within the limits of their competence. That provides a clear framework that requires doctors to have knowledge of rare conditions where that is necessary for their practice.
The exact knowledge and skills required for each healthcare professional cannot be known or set by the regulator, but the current legislative requirements put in a place a framework that requires each professional to maintain the skills and knowledge needed to practise safely, including knowledge of rare conditions.
As experts in regulation, it is the responsibility of the regulators to determine what role they need to play in raising issues such as awareness of rare and less common conditions among their professionals. For those reasons, I encourage the hon. Member for Ellesmere Port and Neston to consider withdrawing his amendment.
Justin Madders
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
The clause provides additional powers that will widen the scope of section 60 of the Health Act 1999 and enable the Privy Council to make additional changes through secondary legislation.
The powers will enable the abolition of an individual health and care professional regulatory body where the professions concerned have been deregulated or are being regulated by another body; the removal of a healthcare profession from regulation where that is no longer for the protection of the public; or the delegation of certain functions to other regulatory bodies through legislation which previously had not been allowed. The powers will enable the regulation of group of workers concerned with physical and mental health, whether or not they are generally regarded as a profession, such as senior managers and leaders.
The UK model of regulation for healthcare professionals is rigid, complex and needs to be flexible and to change to better protect patients, support our health and care services and to help the workforce meet future challenges. The case for reforming professional regulation has long been acknowledged. Stakeholders have long expressed concern that having nine separate professional regulatory bodies is inefficient and confusing to the public. Our 2019 public consultation response reflected the desire for fewer regulatory bodies to deliver benefits to the professional regulation system. In addition, an independent review of the regulatory landscape, in particular the existing roles of regulators, has been commissioned and is due to report by the end of this year.
The powers in clause 123 will enable future changes to be made to make the professional regulatory landscape more streamlined and work more flexibly. The powers will also make it easier to ensure that the professions protected in law are the right ones and that the level of regulatory oversight is proportionate to the risks to the public.
Justin Madders
As the Minister has told us, the clause seeks to amend section 60 of the Health Act 1999 in relation to making changes to the professional regulatory landscape through secondary legislation. It will simultaneously widen the scope of section 60 and extend the Secretary of State’s powers. Members may have picked up a theme by now: whenever there is a chance for the Secretary of State to seek more power, he uses this Bill to obtain it.
At the moment, the Government have powers to bring new professions into regulation or make modifications through secondary legislation, but can remove a profession from regulation only through primary legislation. This clause will enable the removal of a profession through secondary legislation and makes it clear that a profession would be removed from regulation only when that was no longer required for the purpose of protecting the public—but then I would hardly expect a statement from the Government about deregulating only where there is a risk.
While at one end of the spectrum one could argue that virtually all interactions with patients might have some element of risk, the more balanced view might be that while not all interactions carry the same risk, it is likely that all professions at some time undertake acts where the consequences of mistakes for the patient will be significant.
I am left wondering exactly what the yardstick will be and what criteria will be used to determine when there is no longer a need to protect the public. Is that the only criterion to be applied? Does professional regulation not also help to facilitate consistent common standards? What is lacking at the moment is any sense of the principles that will be followed to inform decisions to bring professions into regulation or to remove them. Will patient organisations, representative bodies and regulators be consulted on any new criteria to be applied?
I appreciate that, as the Minister said, section 60 of the Health Act 1999 already contains requirements that legislation should be published in draft, subject to a three-month consultation, specifically with affected professionals and service users, but it would be helpful if he confirmed that that is the absolute minimum. I have to say, though, that even if the answer to that is yes, it seems a fairly minimal procedure for abolishing an entire profession. I am not sure that will cut it in terms of Parliament, never mind the public being satisfied that due diligence has been done to assess the overall risk profile of any particular role in the system. I am concerned about where that would leave matters such as professional indemnity insurance, as well as about any knock-on effect on the reassessment of bandings under agenda for change.
The more one looks at this, the harder it is to see how it could be done properly in the timescales envisaged. There are just under 700,000 registered nurses in the UK. One can see how resource-intensive it would be if every one of them responded to a consultation to abolish their profession. I suspect the Minister will tell us that he has no plans to abolish professional regulation for doctors and nurses, but imagine if he did. This process would be wholly inadequate, which leads to the question: what exactly does the Minister, or more accurately the Secretary of State, have in mind when it comes to these powers? If we got some answers on that today, it might help us to decide whether these procedures were adequate and also whether the powers are necessary at all.
Moving the power to abolish professions to secondary legislation is not putting scrutiny and transparency at the forefront, and doing so without putting any indication on the record of which professions are being considered for derecognition under this power does not instil confidence that this power grab has been considered properly or is in fact needed at all. The implications for the devolved nations, particularly Scotland, are also important. There are differences in regulation and it is not clear what would happen if there were a difference of opinion between England and the devolved nations.
Clause 123(2)(d) inserts new subsection (2ZZA) into the Health Act 1999. I would welcome the suggestion that the scope of regulation could be extended to others who might not necessarily be regarded as professionals. It remains to be seen who or what this power will be used for, but I question whether the vehicle proposed is sufficient. More needs to be done. The 2019 Interim NHS People Plan states:
“It cannot be right that there are no agreed competencies for holding senior positions in the NHS or that we hold so little information about the skills, qualifications and career history of our leaders. A series of reports over the last decade have all highlighted a ‘revolving door’ culture, where leaders are quietly moved elsewhere in the NHS, facilitated by ‘vanilla’ references. These practices are not widespread, but they must end.”
I do not know whether this will be the right vehicle for tackling this issue, but it certainly needs tackling.
On clause 123(3) and the power to abolish regulatory bodies, the case has been made rather better—most notably by the Health and Care Professions Council, which sees this as an opportunity for some much needed modernisation, with a multi-professional regulatory model that would allow regulators to retain their individual identities and independence. That would see each regulator continue to operate its own register, oversee fitness to practise processes, liaise with relevant professional bodies and set its own educational standards relating to the professions they regulate, but there would be greater collaboration, with shared back-office services and other resources, which would presumably improve efficiency.
That approach has some benefits although I am also mindful of the evidence submitted by the Professional Standards Authority, which warned:
“Any mergers would be likely to lead to a period of turbulence of three-to-five years.”
It may be of interest that the authority also said that in the coming five or so years, it expected turbulence in the NHS and referred to the Bill as part of that turbulence. Of course, there are also the issues that we have discussed many times in this place about the pandemic’s impact.
On the overall impact of clause 123, I am sure that we can all agree on the need for robust, independent processes to ensure that any decisions made are in the public interest and based on a clear assessment of the risk of harm arising from practice. It is an obvious thing to do. It is important that individuals belong to a profession because that provides a framework of standards to uphold, encourages expertise and respect, and brings a higher level of professionalism, and, crucially, accountability to the public. However, it is far from obvious how the clause will assist those aims or why in going down the road of deregulation we would want to put those important principles at risk.
Edward Argar
I am grateful to the shadow Minister. His points coalesce around a number of key themes that I shall seek to address. He highlighted his concern about why we would do this and the potential disruption of either a lack of regulation in some spaces were we to abolish regulators or of that caused by moving functions. The key point here is that this is about creating a power that enables flexibility in the system that is not currently there. It is not that we have any direct or immediate plans to do this but about creating, in the context of the opportunity provided by the legislation, a framework whereby we could move powers around. There are some points sitting underneath that which I shall try to address.
The current section 60 powers are limited in terms of the changes they can deliver in the professional regulatory framework. We can use secondary legislation to bring a new profession into regulation and create a new regulatory body, but we do not have equivalent powers to remove a profession from regulation or close a regulatory body and move functions without primary legislation. Widening the scope helps us to ensure that professional regulation delivers public protection more consistently and efficiently, recognising the dynamic, to a degree, nature of evolving professional regulation.
On his concern about abolishing regulators, I know the hon. Gentleman will appreciate that there is no intention of doing that. But he rightly asks, “But what if?” It is the role of the Committee to look at that. Were a regulator to be abolished, that would not necessarily mean that the professionals they regulate would cease to be regulated. Current legislation allows a number of professions to be regulated by a single body, and that creates the mechanism to allow those movements and transfers.
To give an example that some might raise, would that mean that the GMC could be abolished? It is an extreme example, but hopefully it illustrates the point. The scope of the power to abolish a regulator covers all health and care professional regulators. However, the key point is that a regulator will be abolished only if the professions have either been moved to another regulator or removed, or deemed to be removed, from regulation altogether. Any use of this power is subject to existing legislative provision, namely a public consultation and the affirmative procedure. However, to take the example I gave, there are no plans to abolish the GMC, because clearly there would always be a need for continued regulation of medical practitioners. Therefore, given that the GMC regulates them, it would continue to do so.
Underpinning that concern is whether the removal of a specified profession entirely from regulation would increase in any way risks to public safety. Again, a profession would only be removed entirely from regulation following an assessment that showed the profession no longer required regulation for the purposes of public protection and that risks could therefore be safely managed, effectively and efficiently, outside statutory regulation. Given the nature of the professionals that we are talking about here, that would be highly unlikely in any of those spaces and I do not anticipate it. Any use of the power to remove a profession from regulation would be subject to consultation and, again, the affirmative parliamentary procedure.
The counterpoint could be why more professions are not included in regulation. From time to time we debate particular professions as new treatments, such as cosmetic treatments, emerge. Given the risks that some may pose, the question of whether there should be greater regulation then arises. Although statutory regulation is sometimes necessary where there are significant risks in the use of services that cannot be mitigated in other ways, we believe that it is not always the most proportionate or effective means of assuring the safe and effective care of service users. Therefore, each situation needs to be assessed carefully on its own merits. We have seen colleagues from the across the House making the case for regulating different aspects of professions, or service providers that have effectively become professional or are providing a service that is regularly used. Rather than a blanket approach, we believe that remains the right way.
Dr Whitford
I wonder whether, within this, there is a consideration of the issues within the cosmetic surgery and treatment field, particularly the use of Botox and the injection of fillers, which often result in side effects, and the fact that even cosmetic surgeons, as opposed to plastic surgeons, are not regulated in the same way. The problem is that whenever those medical terms are used, the public assume that they are dealing with a licensed medical professional who is both registered and regulated.
Edward Argar
The hon. Lady makes an important point. I pay tribute to my hon. Friend the Member for Sevenoaks (Laura Trott) for her private Member’s Bill, which began putting a framework around Botulinum fillers and who could or could not access them, with age limits. My right hon. Friend the Member for Mid Bedfordshire (Ms Dorries) was then the Minister responsible, but she was self-isolating and awaiting test results, so I had the privilege of speaking in that debate. As often happens on Fridays, it was an interesting and well-informed debate, rather than a political to and fro, as occasionally happens in the Chamber. The hon. Member for Central Ayrshire highlights an important point.
My right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) has taken a close interest in the issue, as have hon. Members across the House. I am due to meet her to discuss this more broadly in the context of this legislation. I do not want to pre-empt that meeting and the upshot of it, but I take on board the point made by the hon. Member for Central Ayrshire.
Question put, That the clause stand part of the Bill.
Justin Madders
I beg to move amendment 116, in clause 124, page 106, line 34, at end insert—
“(4A) In subsection (4) in paragraph (e), after “examiners” insert “including the requirement to investigate stillbirths and deaths related to childbirth”.”
This amendment would extend the medical examiner remit to look at still births and maternity cases.
This place has come a long way in recognising, discussing and acting on the tragedy that is baby loss. It has taken us a long time to get there, and there is still a long way to go, but we hope that this amendment will help us to continue on that journey.
The Minister will be aware of the November 2017 announcement on the possibility of coroners being asked to conduct inquests into stillbirths and the subsequent consultation—I believe he was the Minister who initiated that consultation, which was needed. In 2017 the Court of Appeal highlighted the need for reform. It said that the law relating to coronial investigations of stillbirths had not changed since 1887, and:
“Still-birth is a tragedy that continues to befall many families in advanced societies but it was a phenomenon more common in the past… The public interest in establishing whether a child was or was not stillborn, and if it was not how it came by its death, is apparent and continuing.”
I am sure those words will resonate with all Members, who will recognise that during the tragedy of stillbirth, parents will want to know why it has happened to them. Although a coronial investigation is no guarantee that answers will be forthcoming, it may relieve the sense of loss that they feel and may help in some small way.
The Government response to the consultation has been delayed somewhat, and they have said that they are not seeking to replace the role of the NHS in investigating stillbirths, but coronial investigations would
“supplement and support those investigations and ensure that coroners can contribute to the learning and play a role in reducing the stillbirth rate.”
Any update on when the response to the consultation will be published would be appreciated.
In essence, the amendment seeks to build on the comments made by the Royal College of Pathologists, which stated when that announcement was made back in 2017 that medical examiners should in fact play a far greater role in investigating stillbirths, as
“medical examiners are ideally placed to identify trends relating to deaths”
and to highlight areas for further improvement. The Government’s roll-out of medical examiners so far has not included investigations into stillbirths. The purpose of the amendment is to get underneath the rationale for that and to press for the issue to be reconsidered. If we are to have a separate debate on clause stand part, I will leave my comments there in order for the Minister to respond.
Edward Argar
I am grateful to the hon. Gentleman for giving us, through amendment 116, an opportunity to debate and discuss this issue. Every stillbirth and death related to childbirth is a tragedy, and it is only right that we remain absolutely committed to supporting parents and families during such a difficult time. However, we are not convinced that this amendment is necessary in order to do that, and I will explain why in due course.
Following the passage of the Bill, the Secretary of State will make, in relation to England, regulations underpinning the medical examiner system, which will set out that the functions of medical examiners include confirming the cause of non-coronial deaths as stated by the doctor on the medical certificate of cause of death. The intention is that that will include confirming the cause of deaths of mothers in childbirth. As part of proposals to improve and digitise the medical certificate of cause of death, we are proposing the introduction of a new section on the certificate that will allow information relating to pregnancy at the time of death to be recorded. Recording information relating to pregnancy on the medical certificate of cause of death will provide a more accurate way to measure maternal deaths, and bring the certificate used in England and Wales in line with certificates used in other countries.
On stillbirths specifically, it is the case that between March and June of 2019, as the hon. Gentleman alluded to, the Ministry of Justice—I was in the Department at the time, as he set out—and the Department of Health and Social Care jointly consulted on proposals for coroners to investigate term or post-term stillbirths. The proposals are intended to improve the independence and transparency of reviews through independent investigation by coroners as judicial office holders outside the NHS. Work on analysing the responses to the consultation was delayed during the covid-19 pandemic, but the Government hope to publish the response to the consultation as soon as possible.
The Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 also requires the Secretary of State to make arrangements for the preparation of a report on whether and how the law ought to be changed to require coroners to investigate stillbirths, and provides a power to make those changes within five years. At such a time as the response to the consultation on proposals to provide coroners with new powers to investigate term stillbirths is published, it will be appropriate for the position on medical examiners also, potentially, to be considered.
There are existing processes for investigations of stillbirths, including the perinatal mortality review tool, introduced in 2018, and investigations by the Healthcare Safety Investigation Branch. I would like to highlight the importance of parents having the opportunity to be involved in the reviews and investigations. In early 2018 the perinatal mortality review tool was introduced to support NHS maternity and neonatal units in England, Wales and Scotland to undertake high-quality, standardised reviews of the circumstances and care leading up to and surrounding each stillbirth and neonatal death. The aim of the perinatal mortality review tool is to support objective, robust and standardised reviews to provide answers for bereaved parents about why their baby died, as well as ensuring local and national learning to improve care and, ultimately, prevent future baby deaths.
Since April 2018 the Healthcare Safety Investigation Branch has been responsible in England for all NHS patient safety investigations of maternity incidents that meet the criteria for the Royal College of Obstetricians and Gynaecologists’ Each Baby Counts programme, of which there are approximately 1,000 cases each year. That includes all cases in which a term baby was considered to be alive and healthy at the onset of labour but the birth outcome was severe brain damage, intrapartum stillbirth or neonatal death, and maternal deaths, to identify common themes and influence system change.
Both the perinatal mortality review tool and the Healthcare Safety Investigation Branch provide the opportunity for parents’ involvement in the investigation of stillbirths, which is essential to help provide answers for bereaved parents and to improve care.
I will not prejudge what the response might be to the consultation that we spoke about earlier, but I invite the shadow Minister to perhaps draw his own conclusions about my thinking on this, given that I believe it was my signature on the front of that document and I was the Minister who fought to be able to launch it. On that basis, I gently encourage him to consider not pressing his amendment to a vote on this occasion.
Justin Madders
In the light of the Minister’s encouragement, 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
Clause 124 will amend the statutory medical examiner system in the Coroners and Justice Act 2009 so that English NHS bodies may appoint medical examiners to scrutinise deaths, instead of local authorities. Appointment of medical examiners by NHS bodies will facilitate their access to patient information in order to scrutinise the proposed cause of death while remaining clinically independent of the case. The medical examiner system will introduce a level of independent scrutiny, improving the quality and accuracy of the medical certificate of cause of death and thereby informing the national data on mortality and patient safety.
The medical examiner system will increase transparency and offer bereaved people the opportunity to raise concerns. It will provide new levels of scrutiny to help identify and deter criminal activity and poor practice. New duties on, and powers for, the Secretary of State to ensure enough medical examiners are appointed by English NHS bodies and are provided with sufficient resources and monitoring will help to facilitate and develop this system. As a result of the introduction of the medical examiner system, all deaths would be scrutinised by either a medical examiner or coroner, irrespective of the decision to bury or cremate, thus bringing the system on to an equal footing. I therefore commend the clause to the Committee.
Justin Madders
As the Minister has outlined, the purpose of medical examiners is to provide greater safeguards to the public by ensuring proper scrutiny of all non-coronial deaths; to ensure the appropriate notification of deaths to the coroner; and to provide a better service for the bereaved and, importantly, give them an opportunity to raise any concerns to a doctor who was not involved in the care of the deceased. It will also hopefully improve the quality of death certification and mortality data. These are all worthy aims that we can support, so the challenge for the Minister is to set out how the Government will benchmark the success or otherwise of medical examiners in achieving those aims. For example, can he tell us what improved quality of mortality data will actually look like? Does he envisage this leading to further system changes down the line, or is it too early to tell?
Another area I would be grateful for a little more detail about is set out in proposed new section 19(A3) of the Coroners and Justice Act 2009, which gives the Secretary of State the power to
“give a direction to an English NHS body—
(a) requiring the body to appoint or arrange for the appointment of one or more medical examiners,”
setting out the funds and resources that should be made available to such employed medical examiners, or setting out the means and methods that may be employed to monitor the performance of those medical examiners. Can the Minister tell us exactly who that body might be? Does the Secretary of State have a view on how many medical examiners might be needed, and what the appropriate level of funding might be?
I also want to ask about clause 124(8), which amends section 20 of the 2009 Act. That section provides a power to make regulation to require a fee to be payable in respect of medical examiners’ confirmation of cause of death. The clause will require any such fee to be payable to an English NHS body, rather than a local authority. Does the Department have a position on fees? Are they desirable? Has a level been set for them? What consultation has taken place about that level, and indeed the principle of charging a fee? It would be a shame if medical examiners were not accessible to the majority of people because of a barrier being created by a fee. If the Minister could answer those questions, it would be appreciated.
Dr Whitford
The recommendation to introduce a medical examiner system was one of the strongest recommendations from the Shipman inquiry, and Shipman was convicted in 2000, over two decades ago. As a professional, we saw an entire industry of appraisals and various other systems introduced to the NHS that took up hours and hours of clinical time, whereas there was nothing to actually review death certificates—either their accuracy or who was issuing them—and to spot unusual patterns. Obviously, it can be the case that a GP practice covers a hospice or some other setting where there are likely to be increased numbers of deaths and, therefore, death certificates, but it has taken an awfully long time to get to this point. Scotland introduced its medical examiners six years ago, in 2015.
The Minister has talked about all certificates being reviewed, but I would be interested to know the degree of depth to which they are going to be reviewed. It is unlikely to be possible to have a detailed inquiry on every death certificate, so in what way will they be streamed for further intervention, review or interaction with clinicians to understand what happened? That may not be clear from just looking at the certificate. Clearly, patterns of certification and patterns of death would become obvious to a medical examiner and may produce very interesting and useful information.
Edward Argar
A number of points have been raised. The shadow Minister, the hon. Member for Ellesmere Port and Neston, asked whether we would envisage this leading to system change if a pattern was identified and whether it could be a catalyst for that change. Absolutely—that is part of what we hope would come out of this. I am pleased that we are legislating now on this issue, but the hon. Member for Central Ayrshire is right about the time it has taken. I acknowledge the example from Scotland; I do not always agree with everything done in Holyrood, but to give credit where it is due, I recognise the progress that Scotland has made in this space.
The hon. Member for Ellesmere Port and Neston made a number of points generally revolving around resources, fees and similar issues. I hesitate to put a figure on exactly how many medical examiners or what level of resource would be needed at this stage, but I will seek to address his point about fees and resourcing in broader terms. He will know that, in the non-statutory system, medical examiners are funded through the existing fee for completing medical cremation form 5, in combination with central Government funding for medical examiner work not covered by those fees. With the temporary removal of cremation form 5 as a provision of the Coronavirus Act 2020, all costs are currently covered by central Government, but that is temporary. The Coroners and Justice Act 2009 includes provisions for making regulations to introduce a new fee for the service provided by the medical examiner, and any such regulations will be subject to further parliamentary debate and scrutiny before their passage.
On the overall cost, the reality is that our estimated cost will be informed by the impact assessment published in 2018 and the data gathered from the non-statutory medical examiner system introduced in the NHS in 2019. We have seen a slightly atypical year or 18 months, so I hesitate to put an exact figure on this, but we have a broad evidence base from which to extrapolate. It predates the pandemic but it probably still has relevance. I am sorry that I cannot give him more direct data, but I would not want to pluck out a figure for him and then, quite rightly, be held to account for it in due course. I cannot do that but I hope that I have given him and the hon. Member for Central Ayrshire some reassurance on those points.
Question put and agreed to.
Clause 124 accordingly ordered to stand part of the Bill.
Clause 125
Advertising of less healthy food and drink
Dr Whitford
I beg to move amendment 113, in clause 125, page 107, line 12, at end insert—
“(2) Regulations made by the Secretary of State under any section of the Communications Act 2003 inserted by Schedule 16 may only be made with the consent of the Scottish Ministers, the Welsh Ministers and the Northern Ireland Ministers.”
This amendment would require the Secretary of State for Health and Social Care to obtain the consent of the devolved governments before the powers granted by Schedule 16 clause are exercised.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Amendment 139, page 216, line 5, in schedule 16, at end insert—
“(da) a drink product is ‘less healthy’ if it is an alcoholic product in accordance with the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or future versions of that guidance;”
This amendment ensures that alcohol is considered a “less healthy” product and therefore liable to the watershed proposed for TV programme services.
Amendment 140, page 217, line 3, in schedule 16, at end insert—
“(da) a drink product is ‘less healthy’ if it is an alcoholic product in accordance with the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or future versions of that guidance;”
This amendment ensures that alcohol is considered a “less healthy” product and therefore liable to the watershed proposed for TV programme services.
Amendment 141, page 218, line 27, in schedule 16, at end insert—
“(fa) a drink product is ‘less healthy’ if it is an alcoholic product in accordance with the Department for Health and Social Care’s Low Alcohol Descriptors Guidance, published in 2018, or future versions of that guidance;”
This amendment ensures that alcohol is considered a “less healthy” product and therefore liable to the online ban.
That Schedule 16 be the Sixteenth schedule to the Bill.
New clause 55—Nutrient profiling model—
“Before making any adjustments to the nutrient profiling model used for the purposes of regulations under the Communications Act 2003, or of any other enactment, the Secretary of State must undertake a full and open formal consultation.”
This new clause would insert a requirement for a consultation before any changes can be made to the Nutrient Profiling Model.
Dr Whitford
Basically, clause 125 is just schedule 16 —there is nothing very much in clause 125. I sat on the Health and Social Care Committee when we talked about trying to tackle obesity, which is a growing harm across the UK, giving rise to heart disease, diabetes and so on, and the difficulties of trying to regulate the advertising of unhealthy foods, particularly foods with high fat, salt and sugar. I welcome the fact that there is an attempt to tackle that issue in broadcasting, streaming and particularly online.
I have concerns that the exemption for small and medium-sized enterprises could be worked into a loophole at a later date by large companies simply employing multiple small advertisers or restructuring themselves to get away with still advertising. I would be grateful if the Minister could explain that exemption, because unhealthy food is just as unhealthy whether made by a small or a big company.
Broadcasting and online regulation are clearly reserved matters, and I totally respect that, but public health is devolved, so I would welcome clarification from the Minister on exactly how the devolved Ministers will be involved, how their public health policies will be respected, and how they will be consulted.
Proposed new section 368Z20(3) of the Communications Act 2003 gives power to amend by regulation Acts of the devolved Parliaments, and proposed new subsection (4) states that the Secretary of State can consult who they think appropriate. I am surprised that at that point there is no mention of consulting the devolved Governments. I totally accept that it would not be a matter of consent, but yet again there is absolutely no mention of consultation with or involvement of the Public Health Ministers in the devolved nations.
Alex Norris
It is a pleasure to speak to this important clause, which sets out restrictions on advertising less healthy food and drink. I echo what the hon. Member for Central Ayrshire said about its importance and the general commitment to it across the House. Importantly, it also gives me an opportunity to put on the record a message of thanks to the hon. Member for Bury St Edmunds (Jo Churchill) for all the work she did in this area while a Health Minister. She has moved to a new post during the Bill’s consideration, but she championed this provision for a long time and fought very hard for it, so I have no doubt that she will be glad to see it included in the Bill.
These measures form part of the Government’s obesity strategy, which is coming through the system bit by bit. The strategy has largely come through in secondary measures, so I welcome the fact that this provision has been included in the Bill, because it gives us an opportunity to propose improving amendments. Is the Minister able to explain why other provisions in the strategy have not been brought forward in this way? For example, we have considered a statutory instrument on showing calories on menus, which I dare say all Members will have received something about in their mailbags, because it is a contentious and emotive topic, with many shades of grey. That provision would have been improved if we had had a chance to amend it, so I am sad that we instead got a “take it or leave it” measure. I do wonder why the entire obesity strategy was not put through in this way.
Turning to what is before us, ensuring that we do not see the aggressive promotion of products high in fat, sugar and salt, particularly to our nation’s children, is an important step in reducing the obesogenic environment we live in. We know that one in three of our children leave primary school overweight and one in five are obese, and we know the lifelong impact that that has on physical and mental health, such as the links to diabetes, musculoskeletal ailments and depression. We also know the impact on children’s education, as they go to secondary school and beyond, and on their prospects in the world of work.
It is a well-established and long-standing precedent in this country that we try to protect children from exposure via the television by using a watershed, so it makes sense to consider these products within that scope. Of course, the nature of the content we all consume—children are no exception—has changed beyond all recognition in my lifetime. The explosion of the internet and its pre-eminence in our lives has provided new advertising space for traditional means—banner ads, pop-up ads and similar—but there is also a much broader platform. Today is probably not the day, certainly not in the witching hour of this Committee, to get into the influence of culture and how the entertainment landscape is changing—not least because I feel woefully underqualified to talk about it—but the point is that there are extraordinarily novel ways of connecting with people, especially young people. It is therefore right that we in Parliament enter this space to try to create the safest possible environment.
I will say, alongside this, that I am surprised that we have not yet seen the online harms legislation—it seems to have been coming through the system for a very long time indeed—because it would sit very neatly with this. I hope there will be a sense of trying to weave this in with that in due course.
The Government’s answer here goes beyond a watershed and into full prohibition. I hope that the Minister will take us through how that decision was reached. I understand from my conversations with industry, particularly those working in digital media, that they have offered a solution that would act as a de facto ban for children without being an outright ban. Given that we genuinely lay claim to being world leading in advertising in general, and in digital media in particular, we ought to listen if there are more elegant ways of doing that. I hope the Minister can cover the conversations being had with the sector and why this approach was chosen, not a slightly more nuanced one. Perhaps it was considered too complicated, but we need to know that.
As the hon. Member for Central Ayrshire says, clause 125 inserts schedule 16 into the Bill. As that is where the meat is, I want to probe the Minister on a couple of points. First, on the fines regime, what are the sanctions in the Government’s mind? Secondly, the schedule provides for regulations to follow. I suspect we will see a full regime, but when are we likely to see it? How far along are we, and what sort of consultation will there be? Thirdly—again, this will be a matter for regulations, but I hope the Minister might be drawn on it now as a concept—who does the burden fall on? Is it the advertiser or the platform? It might be both, and obviously it could not be neither. That will be a very important point going forwards.
Adding to the case the hon. Member made about small and medium-sized enterprises, we supported that conceptually in the statutory instrument on calories on menus because there was agreement that it was reasonable to say that these things would be a significant burden for a small operator, which might have only one or two members of staff. I do not think that applies in the advertising space. Again, we would be keen to understand how the Minister and his colleagues reached the conclusion they did.
Amendments 139 and 141 deal with alcohol. One of the few parts of the obesity strategy where we have departed from the Government’s view is the curious decision to remove alcohol, particularly with regard to calories and labels. We all know that alcohol is a less healthy product—I may well be the billboard for that, certainly when it comes to weight—so why has it been left out? Our amendments are more probing than an attempt to actually change the Bill, because I hope that alcohol has already been covered. However, in the obesity strategy in general, it seems to have disappeared, which seems very odd. I hope that the Minister can explain his thinking on that.
New clause 55 seeks to protect the nutrient profiling model. According to gov.uk, the NPM
“was developed by the Food Standards Agency in 2004-2005 as a tool to help Ofcom differentiate foods and improve the balance of television advertising to children. Ofcom introduced controls which restricted the advertising of HFSS foods in order to encourage the promotion of healthier alternatives.”
So far, so good. We would say that that principle is sound today and will be sound going forward; that is why we are keen to see it in the Bill. It is crucial that we continue to uphold those standards, but we know that foods change. We know that our understanding of what different nutrients mean for us or our children changes over time. We know that the biggest prize in this space is about reformulation, as much as it is about anything else, which would put more stresses on the NPM. I am keen to hear a full commitment from the Minister today that before meaningful changes are made to the NPM, they will be put out to proper consultation and that industry and consumer groups will be properly engaged, along with anyone else who may have an interest.
I will finish with amendment 113, in the name of the hon. Member for Central Ayrshire. I have made the arguments around engagement through consent, mutual good faith and co-operation from Ministers multiple times, and I hope to hear that in closing.
Clause 125 is very important, and we would like to know a bit more about schedule 16. I would be keen to hear that the issues raised in our amendments are covered elsewhere or at least to have a commitment to that. Finally, I would like to hear a bit about the nutrient profiling model.
Edward Timpson
Briefly, on clause 125 and schedule 16 in particular, I want to pick up where the hon. Member for Nottingham North left us, on the issue of obesity. I think we all share concerns that a rising number of children continue to leave primary school either overweight or obese. Much of the answer to tackling that lies in making physical education and sport part of the core curriculum in schools, but we need to look at all measures, including on what children look at and are exposed to in the changing and more digital age in which we live. I welcome measures to tackle that head on, particularly in primary legislation, although I recognise that regulation will flow from that.
Hywel Williams
I will not repeat the points that my hon. Friend the Member for Central Ayrshire made about what is sometimes called the jagged edge of devolution—in this respect, that public health is devolved, but the regulation of broadcasting is not. I am not contesting that this afternoon, but I seek assurance that the Welsh Government, along with the Scottish Government, will be properly consulted, and their views listened to.
I will make two points on schedule 16. On the point that the hon. Member raised about small and medium-sized enterprises, in Wales, particularly rural Wales, food and drink businesses are overwhelmingly microbusinesses employing one, two or three people. It would be unusual indeed to have such a company employ more than 250 people, which I think is the definition of an SME. I therefore assume that those small producers will not be affected by the schedule, and will be exempt.
A point that has been made to me—perhaps the Minister could give me an answer to this—is that there are umbrella bodies that promote certain foods. The one that springs to my mind is Hybu Cig Cymru—the red meat authority in Wales—which promotes lamb and beef. It promotes red meats extensively, and advertises, particularly on S4C, the Welsh language channel, which I think helpfully has lower advertising rates. Would that particular umbrella or trade body, and others, be affected by the legislation?
Edward Argar
This is an important clause and set of amendments, so I fear I may detain the Committee on them for a little while. However, it is important that we air a number of points. I am grateful to my hon. Friend the Member for Eddisbury, the hon. Member for Ellesmere Port and Neston and others, because when we talk about digital platforms, including in other pieces of legislation and, indeed, in democracies around the world, we are essentially grappling with whether they are platforms or publishers responsible for content. I think it is fair to say that that debate continues in legislatures around the world, which presents a fundamental challenge.
I will pick up on a few questions while they are fresh in my head, and I suspect that I will cover the others in my prepared remarks. The hon. Member for Ellesmere Port and Neston asked why there is no watershed equivalent online, and how that might operate. The short answer is that it reflects the nature of online media: it is on demand, rather than linear, as with a terrestrial or satellite broadcast, though we see slight changes to that now, with Sky boxes—other online platforms are available for TV—the ability to record things, catch up, and so on. The situation is changing, and is not quite as binary as it used to be, but that is the primary reason.
If it is agreeable to you, Mr McCabe, I will discuss the amendments first, then turn to clause 125 and schedule 16. I hope that, with my extensive notes, I will be able to mop up and scoop up a number of the questions asked. If I do not, I will ask my officials to have a scan of Hansard, and I will endeavour to write to hon. Members prior to Report to cover any points that I omit. I will then address new clause 55, which relates to the clause and schedule.
I am grateful for the opportunity to discuss amendment 113, which would require the Secretary of State for Health and Social Care to obtain the consent of the DAs before any of the regulation-making powers granted by schedule 16 of the clause were exercised. As I am sure members of the Committee will be aware, the provisions in clause 125 and schedule 16 on advertising less healthy food and drink will extend to the whole of the United Kingdom.
We consider the provisions in this part of the Bill to be primarily focused on online services and broadcast restrictions, which are not devolved realms of responsibility. I appreciate that the hon. Member for Central Ayrshire and her colleagues in the Scottish Government might have a different interpretation of the same point—it is in the nature of the constitutional settlement that such discussions occur—but telecommunications and internet services remain reserved matters under the devolution settlement. The UK Government have made it clear that the primary purpose of the provision on the advertising of less healthy food and drink on TV and internet services is to regulate content on reserved media, internet and broadcasting. On that basis, we hold to the view that it is reserved. The purpose is not incidental—hence our argument that it does not fall within the devolved provisions and the devolved remit—but I suspect that we may return to this debate in the coming months.
Dr Whitford
I totally recognise, as I recognised in my remarks, that this area is reserved, both as regards broadcasting and online, but obviously the nations consider taking different public health approaches. Given that this is a UK-wide approach, it is important that it is joined up. I totally accept that the Minister is not interested in accepting consent, but there is no mention in the clause of consulting. I would have thought it important that there be discussion of the public health approaches of the four nations, in order to ensure that centralised policy in this Parliament lines up and reflects policies across the UK.
Edward Argar
I take the hon. Lady’s point. Although we did not think it necessary to put “consult” in the Bill, I accept that a joined-up approach to public health matters across the four nations of the United Kingdom is beneficial. I expect close working at both official and ministerial level to continue, and I therefore expect consultation and discussion to be ongoing.
As I am sure members of the Committee would agree, the restrictions on advertising on TV and internet services are crucial in contributing to the Government’s goal of tackling childhood obesity, and I welcome what I think is cross-party support for that goal. Through these provisions, we have the opportunity to remove up to 7.2 billion calories per year from children’s diets in the UK. None the less, for the reasons that I have set out, the Government believe that amendment 113 is not appropriate in this context, so I hope the hon. Lady will withdraw it.
I am grateful for the opportunity to address amendments 139 to 141. As the Committee will know and as I have said, tackling obesity is a priority for the House, irrespective of which side one sits on. That has been brought into sharp focus throughout the covid-19 pandemic. Introducing advertising restrictions for less healthy food and drink products is one of the many policies that the Government are bringing forward to tackle this issue. Following extensive consideration of the evidence submitted and comments made by stakeholders during the consultation exercise, we have announced that we will introduce a 9 pm TV watershed for advertising for less healthy food and drink products, and a restriction on paid-for advertising of such products online.
Amendments 139 to 141 would expand the definition of “less healthy products” to include alcohol, which would have the effect of making alcohol advertising liable to the watershed proposed for TV programme services, and to the online restriction of paid-for advertising. The UK Government are committed to ensuring that children and young people are suitably protected from alcohol advertising and marketing through a set of rules in the UK advertising codes. Restrictions and limitations laid out in the UK advertising codes provide that alcohol advertising may not be featured in any medium where more than 25% of the audience is under 18. Alcohol advertising must not be likely to appeal strongly to young people under 18, reflect or associate with youth culture, or show adolescent or juvenile behaviour—I make no comment there about the behaviour of the House on occasions. No children, and no one who is or appears to be under the age of 25, may play a significant role in advertising alcoholic drinks. The advertising codes apply to broadcast media and non-broadcast media, including online advertising. We do not believe it is necessary to consider alcohol a less healthy product in this context, or to apply the new restrictions to it.
As we will discuss in more detail shortly, clause 125 and schedule 16 are aimed at reducing the exposure of children to advertising for less healthy food and drink, and at reducing the impact of such advertising on child obesity. Less healthy food and drink products are unique, as they are not age-restricted at the point of purchase, unlike alcohol.
Dr Whitford
I do not plan to press my amendment to a Division, but I encourage the Minister to put in the Bill the consultation that is required. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 125 ordered to stand part of the Bill.
Schedule 16 agreed to.
Clause 126
Hospital food standards
Alex Norris
I beg to move amendment 137, in clause 126, page 107, line 18, leave out “hospital”.
This amendment would make the power to impose food standards applicable to all premises within the remit of the Care Quality Commission, rather than just hospitals.
The Chair
With this it will be convenient to discuss the following:
Amendment 138, in clause 126, page 107, line 28, leave out paragraph (c).
This amendment is consequential on Amendment 137.
Clause stand part.
Alex Norris
It is a pleasure to speak on the important topic of hospital food standards. We very much support the substance of the clause, and its inclusion in the Bill. What we consume before, during and after we engage with a hospital can have a profound impact and long-lasting effects on the ailment that brought us there, and affects our experience while we are there.
Even prior to being in hospital, malnutrition is a feature in many people’s lives. It affects about 3 million people in the UK, and health and social care expenditure on malnutrition is estimated at more than £23 billion a year across the UK. Around one in 10, or 1.3 million, older people are malnourished or at risk of malnutrition, and older people are disproportionately represented in malnourished groups. Of course, malnutrition plays a significant role in hospital admissions; around one in three patients admitted to hospital are malnourished, or at risk of becoming so.
This is the right time to act on this issue. We ought to expect that a person’s time in hospital will be used as well as possible, and what a person consumes while they are there should be seen as part of their care, reablement and rehabilitation. It is a good idea to make sure that our hospitals promote that view, and we therefore support the clause. Our amendments 137 and 138 would improve it, and I hope to find the Minister in listening mode on this.
The whole point of the Bill is that while hospitals are one element of our health and social care system, there are many other places in the system that people are more likely to find themselves in. They may be in community-based care facilities, in step-up or step-down care, or a care home, which could be their permanent home. We argue that anything within the purview of the Care Quality Commission ought to adhere to the standards set out in the clause. The evidence bears that out. Somewhere between a third and 40% of patients admitted to care homes, and one in five patients admitted to a mental health unit, are at risk of malnutrition, so clearly they would need this sort of support.
For those in long-term care settings, nutrition is a vital part of their care. Research has shown the importance of good nutrition to people with dementia; it slows the loss of independence or functional decline. Research shows that nearly 30% of dementia patients experience malnutrition, and that is associated with a much more rapid functional decline over five years. It is really important that we make sure this provision is in place for them; it is fundamental to their life and their future.
Of course, the issue with the two amendments and the clause is resourcing. I am interested to hear from the Minister how the Government intend to resource the clause, because we do not want pressure on hospital settings—and settings in the community, if our amendments are accepted—to make cuts elsewhere. It would be a pyrrhic victory if the clause led to better nutrition but worse care. We need to see the measures as not only the right thing to do—of course, it is what individuals should expect when in the care of the state—but a good investment that will bring us a good return. This is an important issue, and I look forward to hearing the Minister’s response.
Edward Argar
As matters stand, the enforcement of standards for food and drink in hospital is not on a statutory footing. That has resulted in variance in compliance across the sector. The clause will grant the Secretary of State the power to make regulations imposing requirements and improved standards for food and drink provided and sold on NHS hospital premises in England to patients, staff, visitors or anyone else on the premises. As the hon. Gentleman set out, providing good-quality, nutritious food is a cornerstone of patient care, and placing these requirements on a statutory footing will ensure a level playing field when it comes to compliance across the sector with nutritional standards in hospitals.
The Care Quality Commission will ensure that any requirements in regulations made under the clause are fulfilled, pursuant to its existing statutory powers of enforcement under the Health and Social Care Act 2008. The clause demonstrates that we are committed to acting on a key recommendation from the independent review of NHS hospital food, published in October 2020, to ensure that hospital food standards are enshrined in law and sufficiently enforced .
To address amendments 137 and 138, as I have set out, the clause has been drafted specifically in response to the independent review of NHS hospital food, which was published on 26 October 2020. That independent review was announced in August 2019, following the deaths of six people linked to an outbreak of listeria in contaminated food in hospitals. The review’s aims were to improve public confidence in hospital food by setting out clear ambitions for delivering high-quality food to patients and the public. The review was intentionally limited to hospitals only because specific issues had been identified in relation to hospital foods that necessitated a prompt and meaningful response by the Government.
The report was prepared following considerable research, investigation, hospital visits and expert advice from within and outside the NHS specifically in relation to the provision of hospital food. The review recommended that ambitious NHS food and drink standards for patients, staff and visitors be put on a statutory footing. We support that recommendation and have included the clause in the Bill because we believe that giving the Secretary of State powers to place hospital food standards on a statutory footing sends a clear message about the importance of standards for the provision of good hydration and nutrition in the NHS. Covid-19 has highlighted the importance of good nutrition in recovery and rehabilitation, were such a reminder needed.
I reassure hon. Members that the Government are committed to the health and wellbeing of patients in all healthcare settings. Each setting presents unique issues and challenges. Although there may be some common themes, if the clause were to be broadened beyond hospitals, the provision of food in other healthcare settings would need to be researched, investigated and carefully considered in the context of those individual settings and in consultation with their service users and stakeholders to ensure that the legislation was fit for purpose and met their individual needs. Challenges affecting the provision of food in other healthcare settings were not considered as part of the scope for the independent review of hospital food. Therefore, although there are common themes, we cannot be sure that the amendment would adequately and fully meet their needs and requirements.
The recommendations from the review, and the introduction of the clause, form a key part of our policy to improve public confidence in hospital food. I commend the intention behind the amendments to expand the clause to capture all premises within the remit of the Care Quality Commission.
The CQC already has some important powers over other healthcare settings. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 provide the CQC with powers to prosecute providers that do not provide people in their care with nutrition and hydration to sustain life and good health and reduce the risks of malnutrition and dehydration while they receive care and treatment. That power ensures that basic nutrition standards are provided.
The clause goes further and is not about basic provision. The root-and-branch independent review made recommendations on how NHS trusts could prioritise food safety and provide more nutritious meals to staff and patients. The clause is a key component of our plan to fulfil the recommendations of the review. I reassure hon. Members that the CQC remains vigilant about the provision of nutrition and hydration in other healthcare settings, as evidenced by the CQC’s powers.
For these reasons, I urge the hon. Member for Nottingham North not to press the amendments. Ultimately, the clause cements the Government’s commitment to patients in this regard and sends a clear message about the role that food plays in patient care and recovery. I commend it to the Committee.
Alex Norris
I appreciate the Minister’s response. I understand that the genesis of the clause was a hospital setting. The case that the Minister mentioned was exceptionally serious, and it is right that action was taken, but I feel that there is a slight lack of ambition to say that the activity must stop at hospitals—it is a slightly blinkered approach. I heard the point that extending the provision to broader care settings would take research and careful consideration. I probably support that principle, but I would like to have heard that that process is under way, and I did not hear that.
At the end of the day, the goalposts do not move that much. Basic nutritional and hydration standards are either being met or they are not. Taking the learning from hospital settings should have made it easier to widen the process, rather than harder. The point that the CQC inspects those settings is true and fair. It is also true of hospital settings. Setting some standards would probably have been prudent. I will not press the amendment, but I think we will return to the issue at some point. I hope the Minister and his officials will reflect on the opportunity to go further with the provision .
Edward Argar
I am always happy to reflect on the sensible suggestions made by the hon. Gentleman.
Alex Norris
I am grateful for that and, on that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 126 ordered to stand part of the Bill.
Clause 127
Food information for consumers: power to amend retained EU law
Question proposed, That the clause stand part of the Bill.
Edward Argar
I can reassure the Committee that I will be a little briefer than in my remarks on clause 125.
Clause 127 amends the Food Safety Act 1990 to make provision for domestic legislation to modify retained EU regulation 1169/2011 concerning the labelling, marketing, presentation or advertising of food and the descriptions that may be applied to food. The current powers to amend the regulation are limited in scope. This power will afford the Government an additional necessary lever to introduce domestic changes that better suit and support consumer needs and priorities for food information. We know that consumers want transparency and clear information about the food and drink that they are buying, and such information can inform people’s choices. Scientific information and evidence on labelling and consumer needs continue to evolve. We want the ability to respond quickly to those changes and that changing evidence base as and when required.
Retained EU regulation 1169/2011 sets requirements on labelling and food information in the UK. It was designed to apply to EU member states. Now that we have left the EU, primary legislation is required to modify the retained legislation. Clause 127 will help us to settle this issue by conferring powers on the Secretary of State in England, and Ministers in Scotland and Wales, to modify requirements on food labelling using regulations. The regulations made under this power will be subject to the affirmative procedure, which will ensure that any changes introduced are debated and actively approved before implementation.
The clause will be vital in supporting the Government to deliver on a range of policies being developed as part of our obesity strategy, which includes commitments to consult on front-of-pack nutrition labelling and whether to mandate alcohol calorie labelling. The power will enable us to make improvements to food and drink information more effectively while retaining a level of scrutiny on any proposed changes. The clause can also help us to deliver on wider Government objectives, including options for the forthcoming food strategy White Paper, which sets Government ambitions and direction for food system transformation. I commend clause 127 to the Committee.
Alex Norris
The Minister and I have had these Brexit-type statutory instruments time and time again, so I am not going to get too involved in the conversations that we have had. As we said in the discussion on clause 146, we would like to see greater safeguards. We are glad about the use of the affirmative procedure but we do not think that there is a strong mandate for Ministers to march across the statute book. I hope to hear that this power will be used to the minimum extent necessary to implement the decisions that we have taken.
Edward Timpson
I want to put on record my support for the clause and for the opportunity that it presents for our domestic market and the promotion of locally grown produce, the high standards of animal welfare across the UK and our eco credentials. We do not want to make labelling too complicated for people––we want to make it accessible and simple to decipher––but this power is a chance to put that to the forefront so that consumers get produce that is good for them but also good for the UK market.
Edward Argar
I just want to give the shadow Minister the assurance he seeks that I believe that the powers under this clause would be used sparingly and proportionately.
Question put and agreed to.
Clause 127 accordingly ordered to stand part of the Bill.
Clause 128
Fluoridation of water supplies
Alex Norris
I beg to move amendment 149, in clause 128, page 108, line 22, at end insert—
“(za) in subsection (3)(a)(i), after “Secretary of State” insert “or relevant local authority”;”
The Bill removes the ability of local authorities to commence fluoridation schemes and gives that ability to the Secretary of State. This amendment, together with Amendment 150, seeks to allow local authorities to commence schemes as well as the Secretary of State.
The Chair
With this it will be convenient to discuss the following:
Amendment 150, in clause 128, page 108, line 26, after “Secretary of State” insert “or relevant local authority”.
See explanatory statement to Amendment 149.
Amendment 151, in clause 128, page 108, leave out lines 33 to 36.
This amendment would remove the ability of the Secretary of State to pass the cost of fluoridation onto another public body.
Clause stand part.
Clause 129 stand part.
Alex Norris
I am really pleased that we have reached clauses 128 and 129, on fluoridation of water supplies. This is something that I am personally very enthusiastic about, so I want to make a few points on it. Fluoridation is a very important venture. Oral ill health can be a hidden and very personal but insidious ailment. It is the single biggest reason for hospital admission among our children. A 2015 review of children’s dental health found that a quarter of five-year-olds have decayed teeth, with an average of 3.4 per child.
Dr Whitford
I wonder whether the hon. Member, like me, is surprised that the opportunity offered by this Bill has not been used to introduce a child dental health programme in England similar to Childsmile, which has existed in Scotland since 2007, or the scheme that Wales has had since 2011. Although there was agreement a couple of years ago to establish pilot sites across England, data on the impact in Scotland, where many areas had significantly poor dental health, has been available for four years. I am just surprised that something like that has not been included in this Bill, when we are talking improving the dental health of children and addressing the fact that, as the hon. Member mentioned, dental clearance—the removal of significant numbers of teeth—is the commonest reason to administer a general anaesthetic to a child. That is quite a shocking indictment.
Alex Norris
I am grateful for that intervention; I was going to turn to that issue next. Not only have opportunities been missed over the last decade to invest in oral health, but we are actually going backwards. Supervised tooth brushing and other high-quality evidence-based interventions, such as the models that the hon. Member mentioned, have disappeared because of this Government’s cuts to the public health budget. Of course, the savings from those cuts are hoovered up very quickly by the costs that they generate elsewhere in the system. It is very sad, it results in a lot of pain and lost potential for the individual, and it is bad for the collective.
Fluoridation is one element in trying to put that right. Putting fluoride in our water is a really good, evidence-based intervention that is proven to work. For every pound spent in deprived communities, there are savings of nearly £13 within just five years, and of course every independent review of fluoridation has affirmed its safety. As a nation, we ought to be creating new fluoridation schemes targeted at the communities that would benefit the most. The current system does not work, as I remember well from my time in Nottingham. Currently, a local authority has to decide to enter into this space, build support, and then, with support from Public Health England and the Secretary of State, move to implementation. However, that generally fails for two reasons.
First, our political boundaries do not match up very accurately with our water boundaries, so where we would physically tip in the bag of fluoride does not fit with our political geographies. That creates issues between authorities such as mine, where the case would be very strong because of our oral health outcomes, and bordering authorities that would have less interest because they have better oral health outcomes. Secondly, this issue is contentious. Local authorities have an awful lot on, and it is very hard for a local council to make this the one totemic fight in its four-year term. There are only so many big things that a council can take on at once, and fluoridation gets beyond the bandwidth of local authorities.
We support the principle behind clause 128; bringing the Secretary of State into this is a very good idea. The position of the Secretary of State, once removed from the entire country, can make different geographic decisions sensibly align with water boundaries. He is perhaps also in a stronger position to help with some of the political issues, so in concept we support that.
Amendments 149 and 150 are a pair. Why are the Government keen to swap the current local system for one that is nationally driven, when we could have both? As I have said, we support adding the heft of the Secretary of State to the local expertise of our councils, but why remove councils from the process? Although clause 128 gives new powers to the Secretary of State, our argument is that local authorities should be able to retain their powers in the event that they might want to use them. This is a cost-free proposal. It merely expands the range of possible approaches and paths towards fluoridation, and it promotes local decision making.
Clause 128(2)(d), which inserts new subsection (6B) into section 87 of the Water Industry Act 1991, is a little bit naughty, and amendment 150 seeks to address it. According to page 43 of the Government’s community water fluoridation toolkit, if a local community can successfully get itself together to get a scheme going, Public Health England is required to meet the reasonable capital and operating costs. I presume that that responsibility ported to the new Office for Health Improvement and Disparities when it came into force at the beginning of this month. However, subsection (6B) removes that provision and instead allows the Secretary of State to direct another body—I presume it will be the local authority—to pay for the scheme. Therefore, instead of being paid for nationally, the scheme will be paid for by a body chosen by the Secretary of State. That will be a barrier to the creation of a scheme.
I think that local authorities will be less keen to engage with the Secretary of State in implementing a scheme if they feel that they will have to pay for it. Their budgets are exceptionally stretched—I suspect they will not get much support tomorrow—and the benefits do not generally go back to local authorities. Of course, the benefit goes to the community in general, but in terms of organisations and cashable benefits, they would be health service benefits rather than local authority benefits. I do not think that the proposal promotes integrated thinking. The amendment seeks to address that, and I hope that the Minister will reflect on it. As I have said, I think that, broadly speaking, the clauses do the right thing, but their current effect will be to replace a locally led system with a nationally led one, when actually we could just have both.
To conclude, over the past year we have stood shoulder to shoulder with the Government in expressing to communities up and down the country that vaccines are not only safe but necessary. The objections that we receive come from those who argue in the face of evidence or who rely on conspiracy theories. The same is true of arguments against fluoridation. It is an evidence-based, safe and highly effective intervention. That is not to say that it is easy to do. It does not require behaviour change but it has a remarkable impact, so I am keen to hear from the Minister not only that the Government want to put this in the Bill, but that they want to get on with doing it in communities such as mine, which will benefit. If they do that, we will stand shoulder to shoulder with them again, and I think it will be an exceptionally important breakthrough in oral health in this country.
Edward Argar
The hon. Gentleman is absolutely right in the points he makes about fluoridation and the parallels he draws with the vaccine. Although there have been times over the past 20 months when he and I, and our respective Front-Bench teams, have not necessarily agreed on every aspect of the response to the pandemic—that is appropriate, as the Opposition seek to challenge and question the Government—may I pay tribute to him and his colleagues in the shadow health team for what they have done to highlight the importance of the vaccine and to counter the misinformation that some have spread about it?
I will speak to amendments 149 and 150 together, as the former is consequential on the latter. They would allow for local authorities to bring forward proposals for new fluoridation schemes and to enter into arrangements with water companies. As has been set out, tooth decay is a significant, yet largely preventable, public health problem. In 2019-20, more than 35,000 people aged 19 or under were admitted to hospital for the extraction of decaying teeth. In the same year, the cost of hospital admissions for tooth extractions among that age group was estimated to be £54.6 million.
As we know, fluoride is a naturally occurring mineral found in water and some foods, and at the right levels it has been shown to reduce tooth decay. If five-year-olds in England with low levels of fluoride drank water containing at least 0.7 mg of fluoride per litre, the number experiencing decay would fall by 28% in the most deprived areas, and the number of hospital admissions for tooth extractions due to decay would reduce by up to 68%.
We have seen no new water fluoridation schemes implemented for the past 40 years. Both major parties in the House must accept our responsibility for that. That is not a fault of the NHS or local government, but because responsibility in our view has sat fundamentally at the wrong level for driving forward such a health intervention. Local authorities currently have the responsibility to initiate new water fluoridation schemes or to propose that existing schemes are varied or terminated. We have heard their frustration with the overly burdensome and complex processes in place for initiation and variation of schemes. The steps we are proposing to take through the Bill are intended to make it simpler to expand schemes. We all share the same ambition.
Transferring responsibility to central Government will allow us, for the first time, to move away from the limitations of local authority boundaries and to look more strategically across the country, to where oral health is the poorest. Subject to funding being agreed, we will be able to expand schemes across larger areas to make an impact on a bigger scale. We know it is less cost-efficient to operate schemes across individual local areas.Allowing local authorities to continue to bring forward schemes and to enter into arrangements with water companies separately would run counter to our ambitions to manage expansion at a higher level, again adding extra complexity, which we are eeking to remove.
We understand that some local authorities have begun the process to bring forward schemes, and we appreciate that they are passionate about their schemes and the benefits that they would bring to the populations they serve. I want to provide assurance that we share the ambition to expand schemes so that more of the population can benefit from water fluoridation, which we know is both safe and effective.
Any plans to expand schemes will of course take into account oral health across the country as well as areas that have already began to progress schemes. We want to engage and listen to local areas so that together we can make the biggest impact on oral health improvement that we know fluoridation will provide. For those reasons, I ask the hon. Member for Nottingham North to consider withdrawing his amendment.
On amendment 151, we are taking powers in the Bill to remove the operational burden associated with bringing forward new schemes. Prior to 2013, both the NHS and local authorities had, at different times, responsibility for funding both revenue and the capital cost associated with fluoridation schemes. There are no current proposals for cost sharing, but given the cycle of legislation and the infrequency with which such opportunities present themselves, we have taken the decision to include such measures in the Bill.
We have discussed the provisions with both NHS England and NHS Improvement and the Local Government Association, and I can assure the Committee that should we bring forward any plans to cost share in the future, we would seek to fully engage with relevant groups at the earliest opportunity. Under the Bill, any plans to cost share with public sector bodies would be subject to regulations on which there is a requirement to consult.
A precedent has been set over the decades for the funding of water fluoridation schemes. We believe that, to move forward, it would be best to have the flexibility to work collaboratively across industry and the public sector to effect what could be the most significant improvements in oral health that we have seen to date. For those reasons, I ask the hon. Member for Nottingham North to consider not pressing the amendment to a Division.
Clause 128 would transfer the power to initiate, vary or terminate water fluoridation schemes to the Secretary of State. The clause also allows for the Secretary of State to make regulations that will enable the sharing of costs for fluoridation schemes with water undertakers and/or public sector bodies that may receive benefit from such schemes. However, before making any such regulations, the clause imposes a duty on the Secretary of State to consult. The clause also requires the Secretary of State to consult water undertakers on whether any proposal for new fluoridation schemes, or whether any termination or variation of an existing scheme, is operable and efficient prior to undertaking any public consultation, for which there will also continue to be a duty.
The clause requires us to set out in regulations the process for consulting the public, for example on any new proposed schemes. That will ensure that those affected will continue to have a voice. In September, the chief medical officers for England, Scotland, Wales and Northern Ireland made a joint statement confirming that water fluoridation is an effective public health intervention for improving the oral health of adults and children. Such schemes have been in operation for more than 60 years, and no credible evidence that they cause health harms has emerged. It is time we take action that will enable us to reduce the oral health inequalities across the country, and I commend clause 128 to the Committee.
I turn briefly, and finally, to clause 129. We have a number of existing water fluoridation schemes across England that have been in place for decades. We want to ensure that those existing arrangements can be treated in the same way as any new schemes created using the powers in clause 128. Clause 129 simply provides for the existing arrangements to be treated as if they were made under the new statutory regime for fluoridation. The clause also provides that all previous England fluoridation arrangements shall be treated as if they were entered into between the Secretary of State and the water undertaker. The Secretary of State has the power to modify the detail of these existing arrangements to give effect to this, provided he first seeks to agree the modifications with the water undertaker.
I therefore commend these clauses to the Committee.
Alex Norris
I take the Minister’s point about current powers. I agree that they are clearly at the wrong level, because these schemes simply are not coming through, so the system is obviously not working. As I say, I would rather we added what we are putting in the Bill today to what we already have, but I have probably made my point, so I do not intend to press amendments 149 or 150 to a Division.
The Minister has made the point that there are currently no schemes in the system. I hope that when it decides which schemes to prioritise or pilot, the Department might at least look fondly on local authorities—such as the city of Nottingham—that have made such commitments in their council plans.
Finally, on amendment 151, I have heard what the Minister said about cost sharing. That gave me some comfort, so I will not press that amendment to a Division either. I beg to ask leave to withdraw amendment 149.
Amendment, by leave, withdrawn.
Clauses 128 and 129 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Subsidy Control Bill (Second sitting)
(2 years, 10 months ago)
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The Chair
We will now hear from Dr Roger Barker, director of policy and corporate governance at the Institute of Directors, who is appearing virtually. We have until 2.30 pm for his evidence. Will the witness introduce himself for the record?
Dr Barker: Certainly. My name is Roger Barker. I am director of policy and governance for the Institute of Directors.
The Chair
Would you like to make an opening comment?
Dr Barker: I would, yes. Probably the most important comment I can make to start is that, from IoD members’ perspective, we are seeking a subsidy regime that is easy to navigate; does not result in too much delay; and has predictable outcomes that are reasonably legally certain and are not challenged or reversed too often. Of course we want a nimble system, but we do not want one that is so nimble that decisions are vulnerable to challenge because the public body has perhaps not followed the right process. That would make the whole system too uncertain and unpredictable. That is the basic point underlying our perspective.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
Q
Thank you for giving evidence to us today, Dr Barker. I shall start with a more general question about your view of the Bill and the regime as a whole. Where do you see the opportunity for small businesses to work towards the Government’s objectives of levelling up and net zero that have been talked about?
Dr Barker: I do think this is an opportunity. It provides a framework to undertake the type of policy approach that you describe, but as to whether it will actually be used for that purpose is still somewhat uncertain. Historically, the UK has granted subsidies to companies much less than the EU, for example. EU countries, the United States and Asian countries continue to use subsidies in a major way to encourage key areas such as semiconductors, artificial intelligence and quantum computing—the industries of the future. Despite the difficult historical experience that we had in trying to pick winners during the 1970s, we probably have to ask what it is that our more successful competitors have realised about the use of subsidies that we have not.
From the IoD’s perspective, our view is that we should recognise that an effective subsidy regime does have an appropriate role to play for small and medium-sized enterprises to build a tech revolution in the UK, and a green industrial revolution. That will require Government and business to work together, as to some extent they have during the pandemic. The subsidy regime will be part of that—the changes will not just happen spontaneously.
Seema Malhotra
Q
Dr Barker: I do not think it does. At the moment, the framework that is being described is like an empty husk that could be used in a variety of ways. It does not really indicate how it will be used in a more detailed policy sense. Some aspects of the structure of the framework could get in the way of some of the policy agenda. The particular area where we have some concerns relates to compatibility with the levelling-up agenda. There is a clear principle in the Bill that any subsidy should not displace investment or business activity from one part of the UK to another, but you can see that having some potential conflict with the levelling-up agenda, which is trying to promote disadvantaged regions of the UK. You can see the potential for legal challenges occurring as one region says “Well, actually, you are not creating new business here, with these subsidies; you have actually displaced business activity from our region.” I think we could benefit, within the Bill, from more clarity to prevent that type of conflict from happening.
Seema Malhotra
Q
Dr Barker: Yes. I think there should be scope to do that within the framework of the Bill. I do not have a very specific proposal on the wording of the legislation, but that displacement principle should certainly be qualified to the extent that it allows this kind of regional policy—or levelling-up agenda—to actually take place.
Seema Malhotra
Q
Dr Barker: We would like to see transparency throughout the system. It is important for everyone to have trust in the system. That applies to all the different processes that one might go through to win a subsidy; there are different processes identified, depending on the nature of the subsidy, from those requiring quite a detailed due-diligence process from the Competition and Markets Authority to those that, as you state, are on a kind of fast-stream process to subsidy.
Transparency is incredibly important. Competitor firms and other enterprises want to be able to see what sort of subsidy is being granted to their competitors; they want to see how that is justified and whether they might want to make some kind of legal challenge against that decision. If any of this process is seen as happening within a black box, where each subsidy decision is not properly justified and explained, that will simply create mistrust in the system and undermine it.
Seema Malhotra
Q
Dr Barker: I would not say whether it is too high or too low. I think that there should be transparency at every level of subsidy, but I think it is reasonable to have a threshold in defining a faster-track decision-making process. That seems reasonable but, regarding transparency, I do not think that should be related to the size of the grant.
Simon Baynes (Clwyd South) (Con)
Q
Dr Barker: That is potentially welcome, but now we are extending subsidy-granting powers to a large number of bodies—about 500 in total. That will create a requirement that each of those bodies understands the principles for granting the subsidy and the processes that need to be gone through. They need to have some degree of expertise to guide business through the process in a confident way. In practice, that will probably mean that the subsidy advice unit in the CMA will be called on a good deal from a lot of those bodies for advice, information and to try to get an indication of whether the process being followed is the right one.
I am slightly concerned that consulting the subsidy advice unit may become a kind of quasi-obligatory stage in the subsidy approval process. The question is, will that delay things? Will it take away the nimbleness of the system? Does the subsidy advice unit have the necessary resources to deal with the hundreds of public bodies that will be consulting it? That is an uncertainty and a concern.
Stephen Flynn (Aberdeen South) (SNP)
Q
Secondly, we know that historically the UK’s spend when it comes to state aid, as it is more commonly known, has fallen well below that of European partners. Do you think the Bill will change that in any way, shape or form? Is there any indication in the Bill as it stands that it will change, certainly from a business perspective?
Dr Barker: I do think that more clarity is needed around a number of the concepts in the Bill. The need for more detail increases with the number of public bodies that are being empowered to grant subsidies. To give some examples, there is uncertainty around what would constitute a subsidy of particular interest, which is a subsidy that requires much more detailed pre-assessment by the CMA. Will that apply to a significant proportion of potential subsidies, or will that be done just on an exceptional basis? The answer will affect the nature of the entire system. At the other end of the spectrum, I think we still lack detail about the streamlined subsidies that can benefit from fast-track approval.
Another area that is important, particularly for IoD members, is the extent to which this regime can facilitate the support of start-ups, particularly those companies that do not have a long-standing financial track record and are still some way from generating profit or even revenue. I think that the proposed regime in this respect is preferable to the previous European Union regime, which had a prohibition over supporting undertakings in difficulties, which really ruled out start-ups. Within this measure, the only thing that is ruled out is the support of ailing or insolvent companies, which increases the scope of what can be supported. However, we still need clarity about what kind of going-concern assessments will be conducted to ensure that a potential recipient is eligible.
To answer your first question, there is still some way to go to provide all the interested parties with more clarity about how the system will operate. With your regard to your second question—do I think that this framework indicates that we will have more state support of business?—in itself, the answer is no. As I said before, it provides a framework in which that kind of policy could be pursued, but there is nothing about it that necessarily implies that it will be pursued. As I have said previously, in certain sectors there is a need for a changed approach to match those of our key competitors. That is really how the IoD is viewing it—is it going to be useful for that purpose? The answer is that it could be.
Bill Esterson (Sefton Central) (Lab)
Q
Dr Barker: Yes. To address your first point, the factors that will ultimately make this most predictable include, first, guidance on the principles under which subsidies will be granted. It is a tricky balance between providing guidance that is too prescriptive, which becomes difficult to penetrate and understand, and, on the other hand, principles and advice that are too sparse and which try to be nimble but leave too much uncertainty on the table in specific instances. It is about finding the balance.
Secondly, it is about the subsidy advice unit operating effectively and being really useful, informative and timely in being able to assist the various parties and point them in the right direction. The third part of the process is the tribunal. One would hope that the number of cases coming to tribunal is minimised, but at least it provides timely, transparent and understandable rulings that assist parties in future in how they assess their ability to give subsidy. Those are my answers to that question.
Bill Esterson
Q
Dr Barker: I think that that is reasonable. It will need to evolve. As it evolves, hopefully confidence in the system will grow, along with predictability based on past rulings and decisions. That is the key thing that we are trying to get to—a degree of predictability so that everyone concerned knows how it is going to work and whether or not it is going to work without having to resort to a more legal framework.
On your second question, yes, we do need to learn the lessons of other major countries that seem to be doing a better job than the UK in terms of building technology companies and science-intensive-type enterprises. What is it that they are doing that we are not? I do not think they have achieved their success entirely by business acting alone and Governments simply stepping out of the way. A lot of the industries of the future are those that require very close collaboration between business and Government. Certainly, the green industrial revolution that we are all seeking to work towards in order to achieve net zero is also something that will require a lot of partnership between business and Government, so for me, an effective subsidy system can be part of that.
Bill Esterson
Q
Dr Barker: Certainly in the United States, which on the face of it is a free market-oriented economy, there is still a significant degree of public subsidy going into sectors such as artificial intelligence and quantum computing, for example. The EU is subsidising to a high degree the development of semiconductor manufacturing capability, and of course Asian countries also provide many examples.
Bill Esterson
Q
Dr Barker: That is right. The CMA is increasingly playing a central role in many aspects of our economic life, and we are asking it to do more and more, not least in the digital space. It would be incredibly beneficial to this new regime if the CMA and its advice unit had the capacity to really assist the process.
Stephen Kinnock (Aberavon) (Lab)
Q
Dr Barker: They are aware of this issue in each of the devolved nations. The IoD as a whole does not take a view, for example, on whether the subsidy regime should be a devolved matter or a reserved matter for the UK central Government, but they certainly are concerned to ensure that that does not get in the way of a levelling-up agenda that could be very needed in, and very beneficial to, a country such as Wales.
Stephen Kinnock
Thank you. It is a question about aid intensity: you will be well aware that under the European Union rules, there were ceilings for how much state aid could be put into businesses, particularly small and medium-sized enterprises, according to certain themes. If you look at the regional aid theme, for example, the ceiling for SMEs was set at a 10% to 20% supplement. Do you think that the ceilings for aid intensity should be raised in the legislation—that is obviously not in the Bill and will probably end up being in the guidelines—so that you can make the kind of contribution that would make a difference to the business choices and models that are being put in place, rather than just putting money into something that would probably be happening anyway?
Dr Barker: I feel that this framework should permit the flexibility to allow those kinds of changes. Policy priorities will change over time and the Bill must not be so rigid so as not to permit that. It needs to offer a flexible framework.
The Chair
I will bring the Minister in now—I ask him to be conscious that Kirsty Blackman also wants to come in.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)
I am happy to let Ms Blackman go first.
Kirsty Blackman (Aberdeen North) (SNP)
Q
Dr Barker: That is what I said, yes.
Kirsty Blackman
Q
Dr Barker: This is why I was arguing for transparency. Transparency is an important part of that. A lot will depend on how quickly and effectively the system operates and how much trust there is in the system. If you are potentially a competitor and you can see that there is a clear justification, based on widely understood principles, for a subsidy—it is something that is not being covered up and that is openly stated—and if you have trust in the decision-making process, the system is going to work well, and there is probably going to be less legal challenge from competitors. But as soon as that trust is lost—because things are taking too long, because there is a lack of transparency, because decisions are being made on a very unsafe basis, or because officials do not understand how to apply the principles—that is going to build mistrust and that will then lead to more legal challenge and more problems from the system. It is very important that all the components of the system have the right resources and the right clarity in terms of guidance, and that there is transparency.
Paul Scully
Q
Dr Barker: Yes. For us, it is very much about finding the balance. We absolutely do not want a highly prescriptive, bureaucratic regime. We really do see the benefits to our members of nimbleness. It is finding that balance between being nimble and not too nimble, such that decisions are made that then subsequently fall through. It is finding that sweet spot that we need to search for.
Paul Scully
Q
Dr Barker: Yes, we do. I realise that various options were considered, but we agree with that option.
The Chair
That brings us to the end of this panel. I thank Dr Barker for his evidence this afternoon.
Examination of Witness
George Peretz QC gave evidence.
The Chair
We will now hear from George Peretz QC from Monckton Chambers in person. We have until 3 o’clock for this session. Could the witness please introduce himself for the record? If you would like to make a brief opening statement, please do so.
George Peretz: I am George Peretz QC. I practise at Monckton Chambers. I was the co-founder of the UK State Aid Law Association a few years ago and am currently also co-chair of the Joint Working Party of the Bars and Law Societies of the United Kingdom on Competition Law, and we have contributed to the debate on subsidy control as well.
Seema Malhotra
Q
George Peretz: There is an issue about the position of subsidies that are not recognised by the granting authority as subsidies. It has always been true under EU state aid rules and World Trade Organisation subsidy rules, and it will be true under the definition of subsidy in the Bill, that there is room for considerable disagreement and argument about whether certain types of measures are subsidies at all. Two well-known examples are tax measures decisions by the tax authorities as to the tax treatment of particular corporations. If those are over-generous, they give rise to subsidies under WTO rules, EU rules and under the Bill. You also have situations where Government bodies enter into commercial transactions—loans, contracts or grants—that are over-generous. They are not the sort of transaction that a market operator would enter into, but the public authority wants to claim that they are the sort of transaction that a bank or another market operator would be prepared to enter into.
You will appreciate that there is scope in both of those areas for considerable argument and for genuinely different views to be taken about whether what is being done is a subsidy at all. You can certainly have such a situation, and these situations will arise fairly frequently when public authorities have to take a view as to what they are doing in granting a loan, or in the case of Her Majesty’s Revenue and Customs deciding on the tax treatment for a particular company, is a subsidy at all. They will quite often take the view that it is not, but that view will be contestable. Sometimes the view is completely wrong and the measure is in fact a subsidy. Those cases will not be placed on the transparency database, and it seems to me that there is a bit of an enforcement gap in dealing with them.
We have an obligation under the trade and co-operation agreement to ensure that things that are subsidies are dealt with properly as subsidies, so I think that there is a bit of a weakness. One thing that the CMA could be given the job of doing is, probably most easily, investigating on its own initiative, rather than necessarily in response to a complaint, cases where it looked as if there may have been a subsidy, but where a subsidy was not in fact placed on the transparency database. That would have to be on its own initiative because the whole starting point in the Bill is that things go on the transparency database, so if they have not other mechanisms do not really kick in.
Seema Malhotra
Q
George Peretz: There is a lot in that, yes. It is also worth looking at clause 60, on proposed award referrals, because quite often these cases will arise after the measure has come into effect, so it will be a post-award referral. Clause 60 and clause 55, on call-in directions, both talk about the power of the Secretary of State to request a report in relation to a proposed subsidy or subsidy scheme. It is not entirely clear what happens in a case where the Secretary of State thinks there might be a subsidy scheme but is not actually sure. It is possible that he could make a reference in that situation. The first question for the CMA in either case would be, “Is what we are dealing with really a subsidy?” The granting authority will be saying, “No, it isn’t.” If the intention is for the Secretary of State to have powers to catch things that are subsidies but have not, for one reason or another, been placed on the transparency database, it would better for the wording to say something like, “a proposed subsidy or subsidy scheme, or something that the Secretary of State considers to be a subsidy or subsidy scheme.”
There is a second point behind both those provisions: whether it is right for that power to be held only by the Secretary of State, who is of course a politician. Realistically, politically, in what circumstances is the Secretary of State likely to be keen to scrutinise decisions of central Government? He may or may not, but clearly politics will come into that in a way that might not be entirely desirable. There is a wider argument, which I think I have made elsewhere, that it might be worth widening out the category of people who can make post-award referrals and call in directions, at least to include the devolved Ministers, but that is a slightly separate issue.
To return to your question, it seems to me that it is worth looking at the wording of clauses 55 and 60. Then there is the broader question of whether it should just be the Secretary of State who has that power.
Seema Malhotra
Q
Secondly, public interest bodies that you might normally expect to be able to look at and challenge decisions are currently not defined as interested parties. How important do you think it is to revisit the definition of interested parties?
George Peretz: There are two points there. One is the position of the devolved Governments, particularly in relation to clauses 55 and 60, vis-à-vis the position of the United Kingdom Government. The whole point of clauses 55 and 60—you can see it in the text—is that a reference is made to the CMA in situations where the measure creates a risk of negative effects on competition or investment within the United Kingdom. Plainly, the power is intended to catch a situation whereby the Secretary of State considers that a measure undertaken by the Scottish Government or Welsh Government creates highly distortive effects in England. One can see the possibility of that, but if that is the intention, it is hard to see why sauce for the goose is not sauce for the gander. In a situation where an English local authority, the Secretary of State or another UK Government body acting as an English Department does something that is designed to benefit England but causes serious concern in Scotland or Wales, why should the Welsh or Scottish Ministers not be able to do the same thing if the concern is with competition or investment within the United Kingdom? I find it slightly hard to see what the argument against that is.
A second, slightly different point is about the definition of “interested party”, which is in clause 70(7). This says that
“interests may be affected by the giving of the subsidy”.
“Interest” is a wide phrase—what does it cover? Is it just financial or commercial interests? I think any court, in construing that, will look at paragraph 6 of article 369 of the trade and co-operation agreement, which seems to be where this comes from. That refers to both parties being obliged to make sure that interested parties have a right to challenge. It then defines interested parties as including competitors, trade associations and a couple of other things. However, they are all people with very direct commercial interests in subsidies, most obviously competitors who feel that the subsidies will make life difficult for them when they compete.
When one goes back to article 369, the argument that we have put is that it does not cover bodies such as concerned next-door local authorities and the Scottish and Welsh Ministers. The Secretary of State is automatically defined as an interested party, so it is not a problem for him, but it would be a problem for any other Government authority in the United Kingdom that has concerns. There is then also an issue about whether the wider bodies concerned with public interest litigation would be able to claim an interest; it looks as if the intention is to exclude those from having the right to go to the CAT.
I say “right to go to the CAT” because there is a subsidiary question, which is if the definition of interested parties is confined to and is rather narrower than the caste of people who would normally have the ability to challenge public law decisions such as this in the judicial review courts, as I think it may be, there would be an argument open to someone who was not an interested party—a public interest group—to go to the High Court and say they have a right to challenge this decision as a matter of ordinary public law. They would say that because they do not have standing under the Subsidy Control Bill to go to the CAT, they have no alternative remedy. It seems to me to be quite likely that the courts would accept that argument. I am not entirely certain that that is what is intended. If it is intended that all subsidy control appeals go to the CAT, I am not sure that is really achieved.
Stephen Kinnock
Q
“Subsidies may be granted for the development of disadvantaged or deprived areas or regions. When
determining the amount of subsidy, the following may be taken into account: the socio-economic situation of the disadvantaged area concerned; the size of the beneficiary; and the size of the investment project.”
I would be interested in your view as to whether that constitutes an actual obligation to have an assisted area map, or some way of defining disadvantaged areas based on the terms of the TCA?
My other question was around article 10 of the Northern Ireland protocol; I am sure you will not be surprised to hear that, we have discussed it many times. What is your sense now of the state of play around article 10 of the Northern Ireland protocol? To what extent could it be interpreted so broadly as to effectively drive a coach and horses through this legislation?
George Peretz: I will deal with the regional aid map first. The schedule to the TCA is permissive. It allows the parties to do things: it does not require them to do anything. If the UK Government just did not think that regional aid was appropriate at all, they are entirely free not to do it—ditto the EU. There is also a bit of a danger in holding on to old state aid law thinking. The position of regional aid maps in the state aid law regime was there because there was a basic prohibition on state aid unless it went through the process of going to the Commission and getting cleared, unless it fell within block exemptions. Regional aid maps played their role within the block exemptions. They meant that if you were giving a grant that fell within the conditions of regional aid in certain areas, you could give grants in an area that benefited from assisted area status that you would not be allowed to give, for example, in Guildford without going through the process of notification and clearance. If you did it in an assisted area, you could just do it without going through that process.
Structurally, that does not really fit into the new regime, because it does not have that basic prohibition element in it. Instead, it requires all public authorities to think about the principles, which will inevitably apply in a somewhat different way. They are bound to be affected by the region in which they are given. For example, the principle in paragraph A(b) of schedule 1—
“address an equity rationale (such as social difficulties or distributional concerns)”—
will apply very differently in the Welsh valleys than in Guildford, because the social difficulties and distributional concerns are different.
One possibility that could arise under the structure of the Bill is that the Government might well issue streamlined schemes that make reference to the areas concerned—something that a streamlined scheme could certainly do. They could say, “This scheme applies,” and effectively there is automatically no risk of the CMA having to look at it, and you do not have to go through the process of thinking about the application of the subsidy control principles for grants in Pontypridd, as you would were you making the grant in Guildford. That is where something like the regional aid map might come back in, but it is not in the Bill; it will depend on what the Government decide to do about streamlined subsidy schemes.
I have probably written far too much on article 10. The current state of play is that, if I am advising a client such as a local authority or a subsidy recipient, my immediate problem is that I have to look at two sets of guidance—one issued by the European Commission and one by the Department for Business, Energy and Industrial Strategy—that in some important respects tell me very different things. If I am advising a client who is the prospective recipient of a grant from an English local authority, but my client sells a significant quantity of goods in Northern Ireland, the Commission guidance essentially tells me that article 10 is likely to apply. The BEIS guidance tells me that it is unlikely to apply. I am capable of making up my own mind about that, but I would obviously have to draw my client’s attention to the different guidance, and if it ever got to court the court would be entertained with the different guidance and would have to decide what to do, so there is a difficulty.
The fundamental problem is the effect on trade test. Assuming that it is meant to mean the same sort of thing as it means in the EU state aid law rules, which is probably, though not certainly, right, it catches an awful lot of things. It famously caught the question of whether taxi cabs in London could drive in bus lanes, according to the European Court, even though one might struggle to see quite why that affected trade between member states.
The real problem is that the European Court has consistently upheld reasoning on effect of trade, which is extremely thin, based on assumptions, and it does not really include much of what any economist would recognise as economics. An effect on trade has been deduced and that makes it a bit difficult. The boundary line is therefore just obscure. The Bill effectively says that anything that falls under that regime is excluded from the Bill, but you do have the problem that the boundary line is not very clear.
Bill Esterson
Q
George Peretz: We have touched on a couple of the main issues. The devolution issue that we have discussed is quite important. There is an issue with enforcement, particularly in relation to measures that are not regarded by the public authority as being subsidies, but are just a grey area—and that view could simply be wrong—and how those are dealt with. The Bill does not really address on its face how those will be dealt with. One can sort of work out how they are likely to be dealt with but it would be better if that situation was more expressly catered for and dealt with.
There is an enforcement problem in that, ultimately, unless the Secretary of State decides to refer things to the Competition and Markets Authority—of course, there will be cases where things have to go to the CMA—the mechanism does very much rely on private enforcement by, at the moment, interested parties, who are going to be commercial operators and probably not public interest ones or local authorities. You cannot always rely on commercial operators to enforce things like this. There are all sorts of reasons why they may not. Quite a lot of commercial operators are hoping for the same subsidy themselves, so they will keep quiet, or they get the same subsidy themselves and will therefore be quiet, whereas actually there is a real public interest problem.
You will get situations with quite small companies who are concerned about subsidies being given to a much bigger competitor. They will understandably be reluctant to annoy both the granting authority, probably, and the bigger competitor. There are also the inevitable costs and risks of litigation. In a new regime, those costs and risks are greater, because various points have to be sorted out and decided in the first few cases until you get some case law on it. So inevitably the risks and costs are greater. There is more chance that you will end up in the Court of Appeal on a point than there would be once the regime has bedded in.
All of those will be quite off-putting to a lot of private enforcement. Ultimately, that is the keystone on which the whole enforcement mechanism depends, because if nobody brings challenges to this, public authorities will often get away with pretty sloppy reasoning and genuflection to the principles rather than serious engagement with them. I think that is a concern.
Kirsty Blackman
Q
George Peretz: That is absolutely a fair point. If the subsidy measure comes from central Government or even if it is BEIS that is the granter, is it realistic to expect the Secretary of State to call it in or make a post-award referral? You are obviously going to be concerned, from a Scottish perspective, with the possibility that you have a BEIS decision—there is serious concern about this in Scotland—that has an adverse effect on the Scottish economy in some way or another. That is the point I was making. It does seem to me right, as matter of principle, that in those circumstances the Scottish Ministers at least—and potentially other people—would have the right to send the matter off to the CMA to consider.
Bear in mind that the CMA report is not binding, so in a situation where the Secretary of State wanted to say, “Well, I hear what the CMA says, but I just disagree: I still think that this measure is wholly compliant with the principles and the CMA has just got it wrong in suggesting that I change it”, he can go ahead. It is then a risk of litigation—it might be better if the Scottish Ministers had a clear right to bring that litigation too, but that is the current position.
Kirsty Blackman
Q
George Peretz: It certainly generates work, so I look at it not entirely unfavourably, but yes, from anyone else’s perspective it is a bad thing. There is certainly an issue, and not much that the Bill can do about it. Given the way article 10 stands, the Bill does the only thing that can be done, which is simply to exclude from the Bill measures falling within the scope of article 10, but you do then have that issue.
When we were members of the EU in the old days, you would advise on something that was state aid, or was certainly likely enough to be state aid that the beneficiary—they tend to be quite cautious because they do not like to receive money that they then have to pay back—said, “We are rather concerned that it is state aid, but it does not seem to fall within the any of the block exemptions and has not been notified and cleared.” In the old days, if the grant were a from local authority, the beneficiary would go off to BEIS, which would take a look at it, and if there was a real risk that it was state aid, they would be notified. That happens now, but there is a bit of a suspicion that BEIS will take a somewhat conservative view of what article 10 covers, because that is the UK party line. That is fine, but the UK party line may not actually be right and may not be what a UK court would decide.
If you are the beneficiary of a grant from a local authority in the situations that I have described, and you are concerned that your competitor may challenge that as an article 10 measure in the UK courts, as they are entitled to do, the BEIS guidance says that it should be fine, and although the court may read that guidance, it certainly would not be bound by it. Ultimately, if a UK court is uncertain, it will refer the matter to the European Court of Justice, about which we have heard rather a lot in recent days, and it will decide, or at least decide the parameters within which that decision is to be taken. It is all a bit of a mess.
Paul Scully
Q
George Peretz: No, not a company boss. I think a company, a competitor, would.
Paul Scully
Q
George Peretz: That is a live question. It seems to me that any court, when reading clause 70(7)(a), is likely to go back and have a look at the trade and co-operation agreement because the concept of “interested party” is a concept of that agreement, as it contains a definition of “interested party”. I do not have the provision before me and cannot remember the exact words off the top of my head—
Paul Scully
Q
George Peretz: The Secretary of State is automatically an interested party because of clause 70(7)(b). The Secretary of State does not have to demonstrate a role; all he has to do is say, “I am the Secretary of State”—he has an interest.
Paul Scully
Q
George Peretz: That may or may not be right. That seems to be an issue. Other local authorities, or other sub-governmental bodies, are not listed in the relevant provision of the TCA—
The Chair
Order. I am sorry, but that brings us to the end of the time allotted for the Committee. I thank the witness very much for his evidence.
Examination of Witnesses
Jonathan Branton, Alexander Rose and Richard Warren gave evidence.
The Chair
We will now hear from Jonathan Branton, partner at the DWF Group; Alexander Rose, director at the DWF Group; and Richard Warren, head of policy and external affairs at UK Steel. They are all here in person. We have until 3.40 pm for this session. Can the witnesses please introduce themselves in turn for the record—perhaps we will go left to right, starting with Mr Rose—and give a brief opening statement? I will then move to Seema Malhotra for questions.
Alexander Rose: I am Alexander Rose. I am a director at DWF working day to day on subsidy control.
Jonathan Branton: Hi. I am Jonathan Branton, a partner at the DWF Group. I have been head of competition and practising in this area for over 20 years. I have spent a long time in Brussels.
Richard Warren: I am Richard Warren, head of policy and external affairs at UK Steel, which is the trade association representing the steel industry in the UK. The steel industry is a recipient of various forms of state aid approved under the EU regime, so we have an active interest in the system that replaces it.
Seema Malhotra
Q
Richard Warren: I would probably be best placed to start with the opportunity side of things, rather than transparency. As we see it, the opportunity for the Bill, briefly, is that it creates a more flexible and light-touch regime, which I am sure many of your witnesses have already spoken about.
The EU system, certainly the way we view it, effectively says, “State aid or subsidy is banned, except for a list of things that you’re allowed to do.” The new UK regime seems to take the opposite approach and says, “Basically everything is allowed apart from a select list of things that we ban.” At least ostensibly or theoretically, the Bill, as we see it, sets out a regime that will give us considerably more flexibility and room for manoeuvre in what we are able to do.
Some of the regimes that we are recipients of—the most beneficial for the UK steel sector—are around some of the subsidies and exemptions we receive on the costs of renewables and carbon taxes in relation to electricity prices. That is a really big issue for the steel sector. The UK steel sector pays between 80% and 100% more for its electricity than its counterparts in the EU. Those exemptions have reduced our electricity prices. There is a still a big gap, but they are really important to improving competitiveness in the UK.
The system in the EU has a very complicated, convoluted way of saying, “You can do this. If you introduce this scheme, you have to follow this rule. You can’t do this. This is the percentage that you are allowed to reward, etc. etc. etc.” Now the UK may choose to follow that, and it may not simplify the rules, but at least theoretically it can say, “I don’t have to follow any of your rules. I have a complete clean slate to redesign the process,” and award the compensation or the exemption in a targeted fashion that is most beneficial to the UK sector. Without giving too many other examples, although I have a long list if people want to hear them at a later date, the main benefit is that the framework is transparent.
The second element is the process for providing approvals if a local authority or national Government want to introduce a scheme. From our perspective, it is a lot more light touch and a lot more straightforward. There are a number of examples that we can give where the UK introduced or tried to introduce a system to benefit the steel industry. It was either blocked by the EU Commission or it said, “You need to go back and change this regulation.” You have actually got examples where state aid had been stuck in consideration or investigation for two years before eventually being given up on by member states. The process where you can actually approve schemes should be a significant benefit.
The final thing I would say before handing over to others on the panel is that that is all theoretical and I am sure questions will be posed at a later point. I think probably the biggest barrier to the use of state aid in the UK has not necessarily been the EU rules, although they have proven tricky at times. It has perhaps been a culture in the UK that says that state aid is not necessarily what we want and perhaps a last resort. The data bear that out; we tended to use about a third of the amount of state aid that Germany has and about half the amount that France has used. The proof of the pudding will be more in the answer to whether there is a different approach or a different cultural approach within the UK to wanting to use state aid.
Jonathan Branton: Shall I pick up? First, to talk about the opportunity, it is really important to set the context of the Bill in the fact that we already have a new regime away from the EU regime. The opportunity of the Bill is to take forward the regime that has come out of the trade and co-operation agreement, which is already in force and in use. The fundamental point is how the Bill takes that and improves upon it to help to pursue the UK’s interests in a safe and secure way.
The TCA has already diverged massively from the EU state aid regime and created a whole lot of flexibility and ability to do things at speed, which is supposedly what the UK is particularly interested to secure. In terms of the opportunity presented by the Bill, there is an opportunity to improve upon that framework to make it better fit for purpose to monitor and secure a subsidy-controlled platform in the UK in a way that preserves competition, but also enhances the ability of Government and various different public authorities up and down the land—I do not just mean central Government, but regional government and local government—to influence policy and to make active interventions in order to achieve positive outcomes. There is an enormous opportunity to do that better, but also a risk of compromising some of the freedoms and flexibilities that have been achieved by the TCA in the first place. It is important to put that in context.
In terms of transparency, that is one of the bedrocks of an effective regime if you look at it from the perspective of maintenance of competition and the ability of third parties to come forward and to be able to challenge that subsidies have been carried through in a clear and effective way, through sound decision-making and appropriate thought as per the commitments within the TCA to respect the common principles that have been set out.
For the level playing field to be preserved, if you like, it is vital that there is a remedy, an enforcement system. That system can only come out when there is public knowledge of what is going on. Such public knowledge is also generally seen to enhance decision making on account of the scrutiny that it necessarily brings to the process as a result. Primarily, the main point of the transparency is to enable people to come forward and say, “Okay, this particular subsidy has created a negative effect,” and make sure that that is scrutinised by a suitably empowered authority, in this case the national courts.
Transparency is super important to that process. What has happened already is that there are commitments to transparency via the TCA—those are minimum commitments that the UK has made—and they must be respected because they are international commitments. What has happened in practice, however, is that a national transparency register has been established, but when you look at that register and at the relevant rules around it, you do not see that it is functioning well.
A lot of the entries there at the moment look somewhat incomplete, and you will notice that lots of the entries have a zero for the amount of money that is committed, all of which leads to an inability for the market to be able to see what is actually going on. If you cannot see what is going on, you do not know what to challenge, or even if to challenge.
The other point about the transparency register is its brevity, frankly. Given how long the new regime has been in force, which is the best part of 10 months, and given the number of public authorities that are out there making interventions on this, that and the other form, it is clear that not everything that has been awarded in that 10 months is in that register—not by a long shot. Something is going awry in terms of the implementation of that particular transparency register.
Seema Malhotra
Q
Jonathan Branton: On the challenge point, I think one month is too short, because that requires people to be extremely alert about checking things. The database is not readily searchable. It does not send prompts when particular information is put on at a sectoral level. If you were keeping an eye on it, you would have to be checking it every other day to see that something was coming forward about which you were concerned.
In terms of searching for amounts and dates on which things have been recorded, all that is not regulated. What we really need—I will hand over to Alex in a second as I know he has strong views on this—is something that sets out in very clear detail exactly what needs to come in on every entry. Then, in practice, when you actually come to making those entries, it must require you to put in the correct answers to those questions in order for the entry to go live on the website. If that does not happen, you should get pushed back. That is clearly not working well enough.
Alexander Rose: As Jonathan says, essentially, the key piece of information on that website is the date the entry is made, and the reason that is so important is that the challenger has as little as a month to challenge once that information is placed on the website. To put some numbers on what Jonathan said, first and foremost there are only 501 entries. There are a lot of subsidies, so there is no way that only 501 subsidies have been awarded since 11 pm, 31 December 2020.
Secondly, of those 501, some 257 are recorded as having a zero or nil value. In order to bring a digital review—
Kevin Hollinrake (Thirsk and Malton) (Con)
Q
Alexander Rose: Two hundred and fifty seven out of 501. In order to bring a digital review challenge, you are probably going to have to spend between £25,000 and £40,000, so if you are seeing a nil value, you are very unlikely to bring a claim.
Some of those are going to be schemes, and I will bring out some of the schemes on that website at the moment. SC10261, the Tees Valley Capital Grant Scheme, is listed as having been posted on the website on 1 April 2020, but the website did not exist on 1 April 2020. SC10388 is a real estate grant of £675,000 in Girton in Cambridgeshire—I picked this one because it is the last—and that one does not have a date at all. There is no way that somebody wanting to challenge would be able to know that date unless, as I have personally done, they have been saving the spreadsheets and comparing them.
Now, essentially, what we have here, therefore, is a mousetrap that is lacking a spring. Unfortunately, the Bill does not fix that. The way to fix it is at clause 32, which relates to the database, and it must expressly say that there needs to be two things. First and foremost, that information has to be included—the date it is actually entered and/or modified. Secondly, I think you need to end up having a search function that gives you three pieces of information. You need to have the date an entry was entered or modified; the name of the funder, because that is currently not searchable; and the name of the beneficiary, which is on there at the moment. Those are the three key pieces of information. The other element is, in order to capture that scenario where people simply are not putting into the database, you need to have some sanction if you fail to put it on.
The other issue that needs to be considered is that, at the moment, you have up to six months to put that information on the database. A large enough subsidy could make a business insolvent within that six months, so it feels to me that the period needs to be shorter. Likewise, the period to challenge needs to be longer. There is no obvious reason for having a shorter period for what is rightly described as the most important piece of post-Brexit legislation than for a planning permission judicial review. It should be longer. The next point is that there should be some level of sanction if that information is not put online. For example, maybe a sensible level would be the challenge period is extended to six months.
Jonathan Branton: The challenge period is not validly started if the right information is not put online. That is one way of looking at it. If it is not validly started, it never ends.
Stephen Flynn
Q
Alexander and Jonathan, if I may say so, you gave quite a devastating indictment of current practices and we would all hope that the Bill will improve on that situation. Do you think it will, as it stands?
Alexander Rose: First and foremost, I think that the general structure of the Bill is good. I think it is quite sensible. My concern is in terms of those details. I think there is capacity to refine the Bill so it is better. I agree that transparency is a concern.
The other area I am very concerned about is the ability to create schemes because the schemes can then only be challenged in the period they are set up. Why that nil point is so important is that, essentially, you have got a situation where there is an unlawful aid––an unlawful subsidy––but you can only challenge it within the month the subsidy is set up. I struggle to see how an organisation could ever really know that it is going to be affected by that subsidy scheme unless it identifies the competitors who are going to get a subsidy and the amount.
Clause 70(2) needs to be amended to add some wording at the end along the lines of providing that, at the time of entry of information about the subsidy scheme on the subsidy database, sufficient information has been made available for an interested party to make an informed decision as to whether and to what extent their interest may be affected. To my mind, the transparency database and the addressing the schemes point are the two issues that will most damage the award of subsides in future if not rectified.
Jonathan Branton: I would second that. The transparency register is relatively easily fixed, I would have thought. The schemes point is a potential loophole that, if not closed, could lead to some frankly bad schemes being adopted and then being impervious to challenge on the basis that the time had passed since the scheme had been published, but the actual awards pursuant to that scheme were somehow protected.
That is at odds with the fundamental principle that interested parties ought to be able to see what is out there and affecting them so that they may challenge it, and they cannot see that until an actual award has been made to a competitor or another party in which they are interested. Until cash is parted with, they do not see that, and that is arguably at odds with at least the spirit of the TCA provisions around schemes, and I think that could be very much tightened up.
Broadly, the Bill does a good job. It will help the regime to mature and become more effective, but it must be recognised in huge part that it puts in place a framework to achieve a whole load of things that have not yet been decided. There is talk of streamlined subsidy schemes, referrals to the CMA and so on, but the Bill does not say what will be in a streamlined subsidy scheme or what will be the subject of a referral, so all those details will come in the future. I absolutely applaud the creation of the framework to be able to implement a streamlined subsidy scheme. What will matter—the proof of the pudding—will be what is actually within that scheme in due course.
A final point: a lot of people have mistaken the detail of the Subsidy Control Bill and the subsidy control framework regarding their effectiveness for remedying, levelling up, or whatever might be the question of the day. The Bill does not set the division of funding to different places and activities, which is a fundamental part of the redistribution of wealth. A lot of misconceptions suggest that the Bill should achieve all that, but the fundamental point of how the cash is carved up and distributed is not necessarily a question for subsidy control law.
Richard Warren: Just to go back to the question about problems that might arise with a light-touch approach, from our perspective the difficulties we have had with the system that we are replacing—the European system that we removed ourselves from—have been on the more prescriptive side. When we have asked the Government to introduce x, y and z, the response has often been, “The EU doesn’t say you can do it, so we assume you can’t.”
Other Governments have taken a different approach. When we proposed to the Government that they should provide an exemption from the cost of the capacity market within electricity pricing, BEIS said that as EU state aid law did not provide explicit rules on that, it could not introduce an exemption. The Polish Government took a different approach, saying, “We’ll come up with one and introduce it.” The more prescriptive approach in the EU has been limiting, certainly as the UK Government approached it, so we feel that we will be more empowered as industry to bring forward proposals with greater confidence that they will be within the UK scheme for subsidy control because, as I said in response to a previous question, everything is allowed apart from what is explicitly not allowed, so we will be in a stronger position to be confident of saying, “Actually, this is allowed by UK subsidy control rules.”
My final point is that the biggest barrier has probably been the UK’s culture of not using the power. Time and again, the reason why we cannot do x, y and z that has been given by either Ministers or officials is that the state aid rules will not allow it. We have often taken a different view, but that excuse has been an almost permanent barrier to doing things. The new regime might reveal whether the excuse has been something to hide behind, or if there is a general culture of preferring not to use state aid rules or subsidy. That is probably a more important point for the steel sector than the Bill, which broadly provides the right framework—we have no major concerns about it.
Let me briefly touch on the regional point that Jonathan made. It is valid, in that the new system opens up a huge amount of flexibility for regional development. Historically, the UK has not done a huge amount of regional development. If we look at the split of what we have spent in the past few years, barely anything has been spent by the UK on regional development in terms of state aid. The system gives us an awful lot of flexibility to redefine which areas we want to give regional development to.
Under the EU system, the map of which areas of the UK were considered to be category A was pretty limiting. One of them happens to be where Port Talbot is based, but it has been a slightly moot point because it has not received a lot of regional aid anyway. The point is: the Government can redesign it, and that will be a key element if they are to use their new subsidy control regime to the maximum flexibility to pursue their levelling-up agenda.
The Chair
Before I bring in Simon Baynes, may I remind panellists that five more Members wish to ask questions? Could we keep the answers succinct, please?
Simon Baynes
Q
Alexander Rose: Absolutely. In terms of improving, you are starting from a relatively low base, so it is quite easy. There are plenty of databases, but ultimately it is about service functions. For example, I receive updates every day from Government on what they are doing. That kind of technology is there and it is ready to be put in place.
Jonathan Branton: I would second that. It is really difficult to argue against transparency and say, “Why wouldn’t you have transparency about the dispensation of public money in this way?” There is an overwhelming case for having a strong database that is searchable by whatever means anybody wants to search it, quite frankly. You can insist on that and be very plain. All the enforcement and strength flows from that later.
Stephen Kinnock
Q
We will achieve net zero in this country only if our steel industry transitions towards it. Mr Warren, what kind of state aid support do you think would be needed for that? Do you think there should be more explicit guidance in the Bill about how to achieve the transition to net zero as part of this overall strategy?
Jonathan Branton: I will start with the levelling-up question. I think you were asking whether it is possible to do something there without the equivalent of a regional aid map. The short answer is yes. You do not have to have a map of the country with shades of different colours for different levels of qualification in order to do something similar. The point is to give some form of preference or favouritism to areas based on some kind of measure of comparative disadvantage.
You could quite easily do that if you established a series of criteria. If you found that a given area had exhibited one or more of those criteria—and there would obviously need to be quite some thought given to what they were—that would be a means establishing that somewhere is regionally disadvantaged. Obviously, you can layer that with all sorts of different complications and grades of disadvantage, if you wish. That might be complicated or overly political, but you can establish the fundamental point of something being disadvantaged or not by reference to, I would like to think, a set of criteria, which would not be too hard.
For the relocation point, the wording in the Bill talks about something prohibiting subsidy that was given as a condition of relocation. In some ways, to my mind, that invites somebody to give a relocation that is not a condition, but achieves it anyway. Maybe that is just lawyers being cynical. Perhaps it is not fit for what it seeks to achieve, but is that a good thing anyway? I have seen a number of situations where a relocation has taken place, which has been positive for several reasons—perhaps someone relocates to make physical space for an infrastructure project, for example. Linking that back to levelling up, relocations can be advantageous and good in the grand scheme of things, and definitely positive for redistributing wealth. Having a prohibition in the Bill, even a badly worded one, is potentially too blunt a tool, which might backfire.
Alexander Rose: I have a slightly different position on clause 18. I think the way to resolve it would be to put in a value figure—maybe £20 million. I also agree that relocations can be hugely beneficial. Schedule 1 outlines the common subsidy principles and paragraph F is designed essentially to avoid competitions developing within the internal market.
I think that the issue trying to be resolved here is avoiding what would be regarded as a distortive subsidy. The way to deal with that is to define distortive subsidy and say that that would then be referred to the CMA, or however that works. That leaves you with the potential to include a replacement additional principle—you mentioned levelling up and net zero. I note that the strategy announced last week requires all civil servants to take account of net zero, yet these rules will be used by more than 550 public bodies. That is a great opportunity to instil that kind of thinking in every single subsidy.
Jonathan Branton: Without necessarily preventing them.
Richard Warren: To answer very briefly, yes, undoubtedly decarbonisation of the steel sector will require considerable subsidy or state aids, however we wish to term it. In sectors such as the power sector, we see billions of pounds’ worth of subsidy to decarbonise, and the steel sector will need precisely the same. Net zero or low-carbon forms of steel production will add anything from 30% to 50% to the costs of steel production, depending on which route you go down. If other countries are not moving at precisely the same speed or putting the same constraints on their industries, you will need some sort of intervention to correct that market failure.
There are two key areas where we would like to see additional movement. Again, I come back to competitive electricity prices. Fixing the issue there will require some sort of intervention. Secondly, we need pretty hefty support for capital investment in carbon capture and storage, hydrogen or even new electric arc furnaces. That will require hundreds of millions of pounds of investment.
On your final point about whether we need anything further in the Subsidy Control Bill to direct us towards that, I think that the light-touch approach is the right way to go. It does not exclude the Government from doing anything and it leaves open a huge number of options.
For example, the clean steel fund of £250 million that we hope will be confirmed in the spending review tomorrow is perfectly legitimate under the current regime. Maybe under the EU system, which says, “You can do this, you can’t do that”, you would have had to go through a more complicated approvals process. By the time you start introducing explicit requirements for certain industries, you will get a bunfight where everyone wants something mentioned in the Bill. You may end up down a route of, “If it’s not mentioned, maybe we shouldn’t be doing it”, so I think that the light-touch approach is the best way to go.
Kevin Hollinrake
Q
Jonathan Branton: I think probably yes. In terms of the small amounts of financial assistance, it is basically double what the EU’s de minimis has been. The feedback I have had so far across the piece is that the doubling has been a sensible, long overdue move. Frankly, that has been set by reference to what the TCA sets anyway, so we do not have a lot of flexibility to play around with that. Setting it at a fixed, sterling level is immediately sensible. There can be no debate about that.
In terms of the transparency, yes, you have to draw the line somewhere and the £500,000 seems like a sensible, rounded figure. I certainly do not have a strong view that it should be put at a different level—not yet, anyway.
Alexander Rose: The £500,000 is for schemes. I think that the question ultimately is that if you amend clause 70(2) in order to address this gap in terms of, essentially, accountability, you will need some level of incentive to use schemes. It appears that transparency has been chosen as that route.
Personally, I think that the £500,000 seems quite high, but you do need some kind of incentive; otherwise, people will not go down the route of using schemes, when clearly a decision has been made that that is a good idea.
Bill Esterson
Q
Looking at the other things you have said, rather than saying in general terms that the reporting period should be less than six months, do you have a particular figure in mind? Similarly, do you have a figure in mind to replace the one-month opportunity to appeal?
Jonathan Branton: I will take those questions in reverse order. There is the clearest possible case for extending as soon as possible the period in which someone can appeal—but not to more than three months, which is the standard time limit for judicial review. I think that is relatively clear.
On the six months, I have yet to hear a really persuasive case for why you need that long to publish the fact that you have made a award. Why do you need six months to get yourself together to publish that something has been done? I would think that that could possibly be as much as halved.
Bill Esterson
Two lots of three months, then.
Jonathan Branton: Yes—without compromising anything, it seems to me.
In terms of other bits of the Bill that ought to be in primary legislation, that gives rise to the question: what would the streamlined subsidy schemes be? There is certainly a case for making a number of different ones. The obvious thing is to go down the path of the old block exemption—the general block exemption regulation, or GBER—which made non-controversial interventions easy. That was the good thing about that regime: you knew that if you were well within those limits, you could just get on and do it and you were not blocked from anything. If anything has been lost in the new regime, it is that those easy interventions now seem more difficult and require more thought and more risk, in the sense that nobody is quite sure if they have ever hit the mark or not.
You could go into some quick and easy streamlined subsidy schemes. I am thinking of areas like arts and culture. Regional aid and levelling up is possibly more complicated and will require a bit more thought, but something like arts and culture is easy and obvious. Research and development is easy and obvious—I think everybody agrees that that is a priority. Employment, training and skills are also the sorts of areas in which you might do it. I do not see why we would need to wait around and overthink those. The key with a streamlined subsidy scheme is to make it quick, easy and simple.
Alexander Rose: I completely agree with what Jonathan has said. On the elements where it would be useful for there to be greater clarification, presumably in primary legislation, I think there is a gap in terms of the interested party. It would be useful for public bodies to be able to challenge. If, for example, employment in their area is going to be significantly affected by an unlawful subsidy, it feels right that they should have the ability to challenge in that scenario. It would be good to address that.
Another element is the issue in clause 55 whereby only the Secretary of State can call in these subsidies. At the moment, that seems to be rather strangely limited to prospective subsidies, which does not seem particularly sensible. You could almost end up in a cat-and-mouse game whereby subsidies are issued quickly, so that no one can be called in. That does not seem like a good idea.
Likewise, however, it does not seem particularly sensible to limit the ability to call in the subsidy to the largest awarder of subsidies in the country. Therefore, it would seem that we need some kind of alternative—
The Chair
Order. I am sorry to have to cut you off, but that brings us to the end of the time allotted for this panel. I am sorry to those Members who did not get to ask questions. I thank the panel for their evidence, and we will move on to the next witness.
Examination of Witness
Daniel Greenberg gave evidence.
The Chair
We will now hear from Daniel Greenberg, Counsel for Domestic Legislation at the House of Commons. We have until 4 pm for this session. Will you introduce yourself, Mr Greenberg, and perhaps outline which areas you are able to talk on for us, please?
Daniel Greenberg: Chair, thank you. Yes, I am Daniel Greenberg, Counsel for Domestic Legislation. I was given an indication that the Committee would like me to talk about some of the technical aspects of the devolution interest in the Bill. I am happy to give that and any other technical analysis that the Committee would find helpful. Obviously, I am not here to defend or attack the policy of the Bill in any way.
Seema Malhotra
Q
Daniel Greenberg: Thank you. Chair, would it be convenient if I answered that question by contextualising it in the overall structure of the Bill and said a few words about how devolution appears in the Bill not on the surface, but underneath it, and requires to be brought in in relation to the principles mentioned?
The Chair
I think that would be very helpful, thank you.
Daniel Greenberg: Where I would like to start is to look at the shape of the Bill by reference to the concept of subsidy as set out in the Bill. I hope that the Member who asked me the question forgives me: this is an answer to your question. It will be slightly long, but I am hoping that at the end I will have answered most of the questions on devolution that Members have.
To take you back to what a subsidy is, we can see in clause 2 that the focus of the Bill is inevitably on things that affect the United Kingdom as a whole, or things that go on within the United Kingdom between the different components and parts of the United Kingdom. If we look at subsection (1)(d)—page 2, lines 16 to 21 —it explains a lot about the shape of everything that follows in the Bill.
I keep mentioning “shape”, because I want the Committee to understand that the Bill inevitably reflects macroeconomic policy. That is what it is there to do. Inevitably, there will be lots of connections, co-ordination, consultation and interaction of lots of different kinds—I will come back to some specifics soon—under the surface of the Bill. It may be that the question I have just been asked and other questions on devolution arise because, on its surface, the Bill is arguably a little short on explanation of some of the systems and mechanisms that will inevitably be required to go on underneath the surface in order to reflect the economic competencies of the devolved Administrations and the devolved legislatures.
To put it in a nutshell, everything that is required by way of accommodating, reflecting and understanding those devolved competences and powers is capable of taking place with the shape of the Bill as it is now, but it perhaps needs to be brought out more, either on the face of the Bill or in the explanatory materials.
Chair, I hope I am not yet trespassing on your patience. Am I still close enough to the question to be allowed to continue?
The Chair
indicated assent.
Daniel Greenberg: I mention explanatory materials because I expect that as well as the principles in schedule 3, you may want to ask me about the relationship between the United Kingdom Internal Market Act and this Bill, and indeed the relationship between this Bill and the Northern Ireland protocol, all of which are key devolution areas. It is arguably surprising that the relationship between the Bill and the internal market Act is not addressed more expressly on the face of the Bill, but whether or not it is addressed expressly, the shape of the Bill allows it to be accommodated. I do not know whether as a Committee, as you move forward, the interplay between the sides will encourage the Government to put more of this on the face of the Bill, but what I do think is that all members of the Committee may consider whether the explanatory notes could helpfully be enlarged to explain how these different mechanisms fit together.
Coming back to the specifics of the question, because the shape of the Bill is about subsidy that is macroeconomic, it has to focus on international obligations, and international obligations are obligations of Her Majesty’s Government. That brings us to the next point: throughout the Bill, you see “Secretary of State, Secretary of State, Secretary of State”—all powers of HMG—and you think, “Hold on, the devolved institutions are also public authorities. They appear in the list of public authorities in clause 6, so why is it that they do not also share Secretary of State powers?” The answer is very simple: when you are dealing with international obligations of the UK, that has to be dealt with by central Government but, again, doesn’t that have to be done in consultation with the devolved Administrations? Of course it does. With co-ordination with the devolved Administrations? Of course it does. With mechanisms for encoding that co-ordination and consultation into the way the Bill operates? Of course.
At the moment, I am absolutely sure that the Government intend that to work under the Bill, and it can work under the Bill. Whether that could be shown more on the surface of the Bill or in the explanatory notes is a matter for the Committee. Does that help at all?
Seema Malhotra
Q
Daniel Greenberg: The extent to which it needs to be made clearer is obviously for the Committee as it proceeds through the Bill. That is why I specifically mention explanatory material, because I would remind the Committee that it is so much easier to have things made clear in explanatory notes, explanatory memorandums, memorandums of understanding, quasi-legislation generally and explanatory material than it is to secure an amendment to the shape of the Bill, particularly because the simple answer to the question you were implying—“Could these powers be used to interfere with devolved autonomy?”—is “Of course they could. No question.” The question for you, therefore, is “Are there mechanisms by which they will not be used to do that?” Clearly, this sits alongside the United Kingdom Internal Market Act. It does not repeal that Act. It sits alongside the Northern Ireland protocol. Clearly, the Government expects and intends for them to operate in unison. The question for you is: can that dovetailing be addressed more expressly?
Seema Malhotra
I had a question about the Northern Ireland protocol, but I am conscious of the time.
Kirsty Blackman
Q
“whose interests may be affected”.
In your view, could we ensure that Scottish Ministers, Northern Irish Departments or Welsh Ministers have that ability by amending that section, by the Minister saying in Committee that that is the case, or by changing the explanatory notes? Would those all be routes that would allow those three authorities to have the ability to refer as well?
Daniel Greenberg: From a purely technical perspective, I think that is on the cusp of the things that I would be comfortable encouraging you to simply put in the explanatory notes. It either is an interested party or it is not. If it is not, saying in the explanatory notes that you hope it is may not be enough to get you over the line, in contrast to the Minister helpfully saying so to the Committee.
If I may briefly speak about the difference between explanatory notes and a Pepper v. Hart statement, Chair? The official explanatory notes are a source that the courts will have regard to in determining doubts and questions about the law. A Pepper v. Hart statement is the law: it is part of the legislative intention when the Act is passed, so it is more powerful.
However, if the Act says “dog” but the Minister says to the Committee, “We meant cats as well”, that will not help. You can have all the ministerial statements you like, but if it don’t go woof, it isn’t covered. However, if you have a clear understanding that it is expected that interested parties are to include the devolved Administrations, then the Minister saying that that is the Government’s legislative intent in using that phrase gets you well over the line. Would you then need an amendment? No.
Kirsty Blackman
Q
Daniel Greenberg: Yes, okay, there is a bit of a shift, but it has been quite slow. People have been complaining about the increase in skeleton Bills by successive Governments since I started in public service 150 years ago. So, there is an increase, but it has been gradual.
However, if I may say so, you should not be complaining about that here. My whole point is that this is inevitably a Bill about structure and shape. Those of you considering the devolved institutions and other interests want to ensure that you have the flexibility to move forward while balancing everybody’s interests. The best way to do that without having to come back to Parliament each time is to ensure you have powers with a mechanism for consultation and co-ordination. Then, you know that that process of co-ordination will have the powers necessary to give effect to it through subordinate legislation and quasi-legislation. You should not be complaining on this occasion, because the Bill needs to be skeletal in order to give the flexibility for the ongoing relationships between the different powers concerned by the substance of the Bill. Does that help?
Seema Malhotra
Q
Daniel Greenberg: You are not asking me for a compatibility opinion, and I would not give you one, but I will draw your attention and the attention of the Committee to a point for your consideration as you go forward, which is to be sure that you understand the focal points of the protocol in relation to this Bill.
Primarily, we have to have regard to article 6 of the protocol and remind ourselves that the protocol is designed to ensure that it does not prevent market access within the UK and that the international requirements and commitments are protected. One of the issues about article 6 is that it does have the kind of mechanism that we were discussing before, because the protocol has of course the Joint Committee, which is going to be very significant.
So you start off by looking at article 6. You ask yourself, “Will those protections be consistent with this Bill, and how will the Joint Committee be capable of applying its mechanisms in a way that join up with the mechanisms that you develop in relation to the Bill?”
Then we move to article 10, which in substantive terms is the key article for you, because it deals with state aid. The question to ask in relation to compatibility is this: is there anything in the Bill that insists upon a measure, in respect of measures that affect trade between Northern Ireland and the Union, that being the test in article 10? As I have already said—I am perhaps slightly risking something close to an opinion here—I do not see anything, because the mechanisms of the Bill are deliberately so wide.
Perhaps it is helpful to say that we often have this in law. You look at something and you say, “Hold on—the Minister could exercise that in a way that is incompatible with human rights and the protocol.” That does not matter—that is not the question. The question is, “Would the Minister be obliged to exercise it in a way that is incompatible?” If the Minister would not be obliged to exercise it in a way that is incompatible, then in itself it is not incompatible, and your next question is, “Do we have mechanisms built in to make sure that the powers are only exercised in the way that is compatible?” That is article 10.
Finally, on the article 16 safeguards and the exception, which was of considerable controversy earlier on this year, that looks at economic, societal or environmental difficulties that are liable to persist and allows unilateral action as safeguarding measures in relation to those difficulties. I think you will want to ask yourselves, not is this compatible—it clearly is—but how continued compatibility would be assured in a case where the article 16 safeguards were being invoked. For me, that is the more interesting question for you.
The Chair
Thank you very much for your contribution, Mr Greenberg. That brings us to the end of the session.
Examination of Witness
Rachel Merelie gave evidence.
The Chair
Q
Rachel Merelie: Thank you for the opportunity to appear in front of this panel. As you say, I am the senior director for the Office for the Internal Market at the Competition and Markets Authority, but perhaps more relevant for you today is that I am the senior responsible officer for the project to set up the subsidy advice unit, should the Bill make its way through Parliament in its current form.
I want to make a couple of opening remarks. Obviously, we will operate within the framework set by the Government and by Parliament. The role that we have been given is an advisory one. I know that Members understand that, but it is really important and relevant to us. We have two particular roles to fulfil. One relates to the review function. We will have a very targeted review of the most complex and potentially distortive subsidies that we are asked to look at. The second is a more general and wider monitoring function. We will look at the way in which the regime is operating on a five-yearly basis, so that will enable us to look more generally at the subsidy control regime.
My second point is that in order to fulfil our functions we need to ensure that we have access to the appropriate information. We will have information-gathering powers in relation to the wider monitoring function, and we believe that with appropriate definition of the information to be supplied by the public authorities we should have the appropriate information to undertake our review functions. Should our role change, we would want to ensure that we had the appropriate powers.
Seema Malhotra
Q
Rachel Merelie: As you know, that wider role is not what is currently envisaged. Under the current proposals, we can look only at the subsidies of interest and subsidies of particular interest that are referred to us, although as I mentioned in my opening remarks we have a wider monitoring role, which will allow us to take a broader view on the regime as a whole. We can, of course, also look at subsidies that are called in by the Secretary of State, so that might to some extent help to address the question of subsidies that we might want to look at, as you referred to.
Were we take on a broader role, looking at things under our own initiative, as you were discussing, we would have to really understand the implications of that in terms of resources, as you mentioned, and the powers that we have. Ultimately, of course, it is not really for us to decide. It will be for Government and Parliament to decide whether that is a role that you want to give us. I think that was your first point. Could you remind me what the second point was?
Seema Malhotra
It was about whether there is sufficient resourcing.
Rachel Merelie: Yes, of course. We have been given money in the 2021-22 settlement to take on a number of new functions. Previous witnesses referred to the fact that the CMA has three new functions that we are currently setting up. We have the Office for the Internal Market, the Digital Markets Unit, and potentially the subsidy advice unit. We were given a sum of money in the 2021-22 settlement to start to staff up and resource all three of those functions. We now have a bid in for the spending review for the next three years, and we should hear more about that formally tomorrow.
Seema Malhotra
Q
Rachel Merelie: Perhaps I will start with the second question. The database is being set up by the Department for Business, Energy and Industrial Strategy and it is not something that the CMA or the subsidy advice unit will be operating—at least at the moment there is no intention for that to be the case. Our focus will be on those very specific, more complex subsidies—the subsidies of interest and of particular interest—rather than the wider set of subsidies that are contained on the database, although you are right that we will want to look more broadly when we undertake our monitoring role. Because we have the information gathering powers we have been given for that, I think we will be able to gather relevant information when we need to, to get a wider understanding of the subsidies that have been awarded.
Your first question was around governance and the way in which the Office for the Internal Market and the subsidy advice unit had been set up. You are right that they are slightly different, in the sense that the Office for the Internal Market has a chair and a panel that are in the process of being appointed by BEIS. There is an opportunity for the devolved Administrations to offer their views on the appointments of the chair and the panel members. That is entirely appropriate; we are talking about a function that is inherently involved in understanding the trade and relationships between the four nations.
For the subsidy advice unit, what is currently envisaged is a sub-committee of the board, so we would have the opportunity to draw on board members, non-execs, panel members and others, as well as the staff from around the four nations. It is important to emphasise that the CMA does have staff in all four nations, and a growing presence across the UK. We think that is incredibly important to be able to run the subsidy advice unit properly.
Seema Malhotra
Q
Rachel Merelie: Perhaps, again, I will pick up on the second one first. Yes, at the moment, given that the database sits within BEIS, it would be most appropriate for that sort of checking function to be part of its remit. Obviously, if it were decided for that database to sit with the CMA, we would need to have the requisite resources and powers associated with it.
On representation from all four nations, as you say, there is currently no formal requirement in the Bill. The CMA, as I said, is a pan-UK body. It does have good relationships across all four nations, and is very used to working with them. We are not the policy makers here—that is important to underline—we take on board and do our best to implement the policy set by the Government and by Parliament.
Kevin Hollinrake
Q
Rachel Merelie: That is a very good question. I think we will need to understand how that database is operating, and I am sure you are right; that will be one of the ways in which we will gather information. We may also be going directly to public authorities to ask them questions. I guess we would also be doing some market analysis, some desktop analysis, and so on, of how the subsidy regime is operating more widely. I think there will be a number of different ways in which we gather information, but you are absolutely right—the database will be an important part of that.
Bill Esterson
Q
Rachel Merelie: Sorry—I did not quite understand. Did you ask what we will do with information that we get when our monitoring role identifies things that we are doing right?
Bill Esterson
If things are not working, or you identify a problem, what will you do with the information?
Rachel Merelie: Well, in our monitoring role, we will be producing a report on a five-yearly basis, which will be published. That will give information about our understanding of how the regime is working. It will then be for Government to decide whether they want to make any adjustment—for example, to the definitions of the subsidies of interest or particular intertest, or to the streamlined groups, or any other mechanism—based on both what we identify in our monitoring report and, of course, other information that they may also choose to look at.
Bill Esterson
Q
Rachel Merelie: There are also the enforcement mechanisms that will be in place for subsidies to be challenged in the tribunal. That will be a more immediate way of looking at the impact of individual subsidies. If we are asked by the Secretary of State to provide insights sooner than that, we can do that too, so I think the opportunity to offer advice more quickly than that is there. Again, we are the disposal of BEIS, if you like, on that.
Bill Esterson
Q
Rachel Merelie: There are two parts to our process. First, there is the review mechanism on the individual subsidies, on these particular subsidies of interest and particular interest. On that one, we will be assessing the assessments carried out by the public authority against the subsidy principles and, where relevant, against the environmental and energy principles. On those ones, there is a rapid, 30-day process that we have to operate. We have to publish a report within that timescale on the specific subsidy of concern. That is the sort of short-term mechanism—
Bill Esterson
Q
Rachel Merelie: Absolutely right.
Bill Esterson
Q
Rachel Merelie: I do understand that concern. I think what you are saying is that at the moment we do not have any powers to look at specific subsidies under our own initiative where there might be an issue, other than through that broader monitoring role.
Bill Esterson
Q
Rachel Merelie: The figure that I think we have publicly is that there is around £20 million for the three new functions in ’21-22. Obviously the majority of that is not for the subsidy advice unit, because we are only just setting that up now. I think it will be more relevant to look at the numbers that we get through the spending review, which will be agreed tomorrow.
Bill Esterson
Q
Rachel Merelie: It is a very good question. As you say, it is difficult to get a reliable estimate of the workload. The BEIS impact assessment has so far estimated that if the current definitions of subsidies of interest or particular interest were applied to the last few years’ worth of data, we would be looking at, I think, between five and 20 in each of those categories. However, it is quite difficult to know the extent to which subsidy giving will change under the new, more flexible, faster and more agile regime that is being put in place, so that is one question.
Also, there may be a tendency for public authorities to choose to send subsidies of interest to us, even though those are not mandated. In the early days they might be cautious about awarding subsidies without going through the advisory process with us. There are therefore quite a few uncertainties about our likely workload, but we have modelled our requirements based on the upper end of each of those—so assuming that we might get around 40 references a year. With the recruitment plans that we are putting in place, we think that we will be able to service those, alongside performing our longer-term monitoring role.
Bill Esterson
Q
Rachel Merelie: On the second one, it was BEIS carrying out the consultation. We have not actually been in the frontline of engagement with stakeholders yet, partly because we are at this quite early stage of the Bill’s passage through Parliament. We will obviously be engaging with public authorities much more actively post Royal Assent, and perhaps in the run-up to Royal Assent as well. We do not yet have that information; BEIS may be able to answer that question.
On the question about how long an investigation would take, we have a very tight deadline for the reviews that we are undertaking of subsidies of particular interest. We are being asked to do those in 30 days, so there will be a bit of a run-in period—a pre-notification, to make sure that we have all the relevant information. Once we have published, I think there is a five-day cooling-off period and then the ability for the public authorities to implement their subsidies. They are quite tight timescales. You could imagine a team having a maximum of a couple of months on a particular review, then moving on to another one.
Simon Baynes
Q
Rachel Merelie: Thank you for the question. It is really important that all granting authorities are treated fairly and equitably, regardless of whether they are in the devolved nations or in England. Yes, certainly the spreading of the load across the different granting authorities, and the ability for the subsidy advice unit to engage with each of those on an equal footing, is very important.
Kevin Hollinrake
Q
Rachel Merelie: We will be taking the submission from the public authority, and it will be assessing its subsidy against the seven principles that are set out. It will then be for us to look at whether it is providing the evidence that we need to take a view on the strength of its assessment against those principles. That is what we will be relying on in order to do our assessment. Where necessary, we will be able to ask questions of third parties, but in the time available, we will be largely reliant on the public authority giving us the information we need.
Kevin Hollinrake
Q
Rachel Merelie: In the way the Bill is currently set up, that wider monitoring on a day-to-day basis is not something that we will be involved in.
Seema Malhotra
Q
Rachel Merelie: That is a very good question. I am sure that you are right—there will be quite a process to educate and support the public authorities as they embrace the new regime. I think that a lot of this will come from central Government and the guidance that they will publish. The subsidy advice unit, I suspect, will need to flesh out that guidance with respect to the very large subsidies and the information that we will need to carry out our assessment. We are keen to work with public authorities to make sure that they understand what will be required. Yes, we are aware of the need to do that guidance, which is one reason why, I suspect, it will take a little time between Royal Assent and the commencement of the Act, as there will be a need to get that guidance and detail out there and give confidence to those who want to operate under the regime to do so.
Seema Malhotra
Q
Rachel Merelie: I think the guidance will be incredibly important. Doubtless, there will need to be a series of roundtables and communication with public bodies to ensure that there is as good an understanding as there can be. The other point to emphasise is that this is going to be a bit of a learning experience for everyone in the first days of the operation of the new regime. We cannot expect it all to work entirely smoothly from day one, although we will do our very best to make that happen. There will be a need as time goes on to adjust, to iterate and to develop our processes.
Seema Malhotra
Q
Rachel Merelie: Yes, I can see that as a question. At the moment, the Bill allows for the Secretary of State to ask for advice more frequently or when required. There may be an argument that says that we will provide some advice on a shorter timescale than five years, with the set point being the five-year report. Again, that is a question that we are entirely open to discussing further.
Seema Malhotra
Q
Rachel Merelie: I think that this is an area where quite a lot more work needs to be done to understand the relationship between the subsidy schemes, the individual subsidies and the information that we will have to analyse. I do not have concerns at the moment, but that is partly because this is a pretty early stage in articulating how that will work.
The Chair
Thank you, Ms Merelie, for your evidence this afternoon. That was beautifully timed, and we will now move on to the final panel.
Examination of Witness
Ivan McKee gave evidence.
The Chair
We are going to hear from Ivan McKee, the Scottish Government Minister for Business, Trade, Tourism and Enterprise, who is appearing virtually. We have until 5 pm for this session. Would the witness introduce himself for the record and give us a few opening comments?
Ivan McKee: Thank you very much, Ms Nokes. Thank you for the opportunity to set out the views of Scottish Ministers on the proposed legislation. For the record, my name is Ivan McKee. I am the Scottish Minister for Business, Trade, Tourism and Enterprise.
I look forward to taking questions, but would like to briefly outline a few concerns that the Scottish Government have about the Bill. The first is the sweeping powers of the Secretary of State, which ignore the devolution settlement and do not grant the equivalent powers to Scottish Government and other devolved Administration Ministers. The second concern is the absence of formal regulatory and enforcement arrangements. The third is the inclusion of agriculture and forestry in the provision. Those are our main concerns, but I am happy to take questions from members of the Committee.
Seema Malhotra
Q
Secondly, what do you see as the impact of moving away from more formal assisted areas on the ability of the Scottish Government to support more deprived regions? Would you say that there could be flexibility in the Bill to enable you to make those decisions as you might wish, in line with Scottish Government objectives?
Ivan McKee: First, for the record, it is well known but it is worth stating that leaving the European Union was a mistake and we look forward to the day, hopefully in the not-too-distant future, when we can rejoin the European Union and all the advantages that it gave to Scotland and, frankly, the rest of the UK.
As for the specifics of the Bill, given that we are where we are, we recognise the need for a Bill, notwithstanding the concerns I have raised already. Many of the specifics have still to be nailed down. As we see the final shape of it emerge, we will comment on the specifics.
As for being able to support different parts of Scotland, given that we have responsibility for economic development in Scotland, clearly we are keen to be able to do that. The EU rules obviously allowed different parts of Scotland to be treated differently depending on the circumstances and allowed us to make decisions on how we saw fit to spend money and take action within those rules. It was a slightly different system, but we do not see any specific advantages to the current proposals in this Bill.
Seema Malhotra
Q
Ivan McKee: A four-nations approach clearly has to take recognition of areas of devolved responsibility, be that for agriculture, forestry, fisheries, environment, economic development and so on. A range of areas on which the Bill impinges are devolved under the settlement. So clearly that is a concern.
I suppose another concern about the Bill’s general operation is the lack of the option, or requirement, under the EU regime for pre-notification or advance approval. In advance of an award or a subsidy being made, that gave certainty that it was aligned with the rules in place. The absence of that in this Bill creates a great deal of uncertainty as to what is allowable and what is not in advance of any subsidy decisions being made.
Robin Millar (Aberconwy) (Con)
Q
Welcome to this Committee of the UK Government, Mr McKee. We are discussing a UK Government instrument and within that there are provisions made for the role of the devolved Administrations. Clause 10 gives the devolved Administrations scope to set their own scheme of subsidies. Is that your understanding? Do you feel that that provides the Scottish Government with the powers to do what they need to do?
Ivan McKee: No, because the Secretary of State has powers over devolved areas that Scottish Government Ministers do not have, and that impinges on the devolution settlement. That settlement is quite clear on areas that are reserved and devolved, and it is the Scottish Government and Scottish Ministers who have the power to act and operate in those devolved areas. The Bill gives those powers to the Secretary of State and the UK Government, but it does not give equivalent powers to Scottish Government Ministers to operate likewise in devolved areas.
Robin Millar
Q
Ivan McKee: As I have said before, we believe that we should be in the European Union. The scope that we had within the European Union to be able to give subsidy, within a controlled environment, was very clear. We were able to get clarity in advance of making any subsidies as to whether it complied or not. There was clarity about that process that does not exist under the current proposals.
Robin Millar
I think the point you are making—
Ivan McKee: To answer your question, we don’t know. We do not know until we have made a subsidy and then someone decides that they want to challenge that at some point down line. Until then, we will not know whether we have the authority to do what we think we might like to do.
Robin Millar
Q
Ivan McKee: No, because that would be open to challenge potentially further down the line, and we would not have clarity in advance about whether it was open to challenge or not, and what the conclusion of any challenge may be.
Robin Millar
Q
We have just had very interesting evidence from Mr Greenberg, who is the Parliamentary Counsel for the House of Commons concerned with domestic legislation. He said that we should not be complaining about a skeleton Bill because we should not be focused on detail so much as on ensuring that it gives us the freedoms that we want to do the things we do. I just come back to clause 10 and I wonder again what your response is to that. Do you feel that the clause gives you freedoms?
Ivan McKee: Again, I don’t think that that is the case, because there is no advance approval. At the moment, there are several proposals on my desk that we are considering, and have done in the past. The process is that you go through a consideration, and then assess and get clarification on whether it would be allowable, or would breach state aid rules. If we are in an environment where you go ahead and do things and then you may get called up later on it because there is no clarity in advance as to whether it complies, clearly you can say that we must do something, but if it is then ruled non-compliant at a later stage because you did not know that in advance, that is a freedom that is not worth much.
Robin Millar
Q
Ivan McKee: No, I would be happier if there were clear rules for everybody across the UK that had been agreed with all parts of the UK, so that everybody knew exactly what that level playing field was, everybody knew what the rules were in advance, and there was a process for clarification before you took very important decisions about subsidies and economic development for very good reasons: to support businesses, industries, communities and parts of Scotland. I would be happy if we knew in advance that those things were clear and allowable, and if the Bill respected the powers of the devolved Administrations with respect to the devolution settlement.
Stephen Flynn
Q
Secondly, I would be grateful if you could expand upon your concerns in relation to agriculture, because I know it has been spoken about at length.
Ivan McKee: With regard to your first point, yes, of course that is a concern. It is lopsided, it is asymmetrical and it gives BEIS powers in devolved areas that it does not give to the devolved Administrations. Those are, to say the least, problematic with regards to devolved Administrations operating in areas of devolved competency. That is clearly of significant concern. I did not hear all the earlier evidence—I dipped in and out of some parts—but I am aware that those comments you referred to were made, and that does support the view that we have. It is not just ourselves: the Welsh Government and, I believe, the Northern Ireland Executive also have concerns regarding the powers that the Bill gives to the Secretary of State in devolved areas that are not reflected with equivalent powers for Scottish Government Ministers.
With regards to agriculture, our concern is that income support mechanisms for agriculture that would have been outside the scope of an EU subsidy control regime are inside the scope of the Bill, which raises concerns about the extent to which we can apply such income support mechanisms within the agriculture sector in Scotland, and of course elsewhere. That is a concern for us: we believe that agriculture should be excluded from the Bill, and I understand that an amendment could be coming forward with that objective in mind.
Stephen Flynn
Q
Ivan McKee: The proof of the pudding will be if an amendment comes forward in that regard and is accepted. We have not had confirmation that such an amendment would be accepted, so we will see where that goes. In answer to your question, we have not had confirmation from the UK Government that they would accept the exclusion of agriculture from the Bill at this point in time.
Paul Scully
Q
Ivan McKee: Clearly the Bill sets out where we go in the future. Agriculture is devolved, so we would be concerned if a scheme or support that we put in place was deemed to be within scope, and could not be put in place as a consequence of the Bill. That would be a concern, obviously.
Paul Scully
Q
Ivan McKee: I am very happy to engage, Paul, as you know, and to have those conversations at ministerial and official level. The issue is not so much the engagement; it is where the engagement leads. Our concerns have been clearly articulated, and if we do not see movement on them, clearly the engagement and discussion has not led to a solution that we find satisfactory. The challenge on the devolution settlement and the scope of powers is extremely concerning. We are glad that we continue to talk on this, but the real nub is the outcome. If the Bill continues to ignore the devolution settlement, clearly that is of significant concern to us.
On specifics, one thing that could help as part of that engagement process would be early sight of draft guidance and draft regulations; a lot of that has still to be nailed down. As we go forward with these discussions at ministerial and official level, any early sight of those things would facilitate discussions.
Simon Baynes
Q
Ivan McKee: As I say, our main concern is the assault on the devolution settlement; it takes control away from Scotland in devolved areas. That is a significant concern. It is not acceptable for the UK Government to behave like that. Powers in devolved areas should lie with Scotland, and that is our main concern.
Simon Baynes
Q
Ivan McKee: The main issue we have is around the devolution settlement. It is quite clear: UK Government Ministers can have authority over devolved issues, which should be decided on in Scotland as per the devolution settlement. That should not be trampled on. That is something we are very concerned about, and we are opposed to that.
Simon Baynes
Q
Ivan McKee: Clearly, it depends on what it is. In the devolution settlement, local government is obviously a devolved area, and those areas are for Scotland to decide on.
Kevin Hollinrake
Q
Ivan McKee: Not really. Look at the calling-in powers, for example, that the Secretary of State has that we do not. The streamlined subsidy schemes, which have not been clarified yet, can be made only by the Secretary of State, not by the devolved Administrations. The cooling-off period, again, has no equivalent powers for the devolved Administrations. Requesting a report from the CMA cannot be done by the devolved Administrations. Referring to the CMA’s subsidy advice unit can be done only by the Secretary of State and not by the devolved Administrations, so the Secretary of State has a range of powers that can operate in areas where the devolved Administrations do not have the authority to do those things as well. That asymmetry in devolved areas is something that we are concerned about.
Kevin Hollinrake
Q
Ivan McKee: In terms of designing the scheme, clearly it is open to challenge within the scope of that. As I have outlined, the Secretary of State has a range of powers that the devolved Administrations do not.
Kevin Hollinrake
Q
Ivan McKee: It does not give us the same powers as the Secretary of State, which are much more wide-ranging than those that you mentioned.
Kevin Hollinrake
Q
Ivan McKee: That is true as far as it goes, but that is not the point. The point is that we do not have the same powers that the Secretary of State has under section 55.
Seema Malhotra
Q
Secondly, I was not fully clear on what your view was in relation to local authorities. It seemed that it was more for the Scottish Parliament to decide what local authorities in Scotland may or may not do, rather than local authorities across the UK being able to make subsidies if they felt that they were in line with the subsidy control principles, and beneficial for their area. I was slightly confused on what your view was about local authorities being able to make subsidy decisions in Scotland. Perhaps you could come back on both those points, and put in writing what specific changes you want to see.
Ivan McKee: On the specifics of what our asks would be, I am very happy to put that in writing. In broad terms, it centres around, as I said, the requirement to not have the Secretary of State able to operate in devolved areas, as per the devolved settlement, and for the Scottish Government and Scottish Ministers to be able to do that. For us to have equivalent powers as it refers to devolved areas would be the ask, in broad terms. I have outlined some of that verbally, but I am very happy to come back to the Committee in writing with the details on specifically what that means.
Local authorities have always been able to grant aid within the rules that exist, so effectively nothing changes there. What changes with regard to the Bill is the authority that it gives the Secretary of State that it does not give in devolved areas to Ministers in the devolved Administrations. That is our concern.
Kirsty Blackman
Q
Ivan McKee: Experience has shown us over recent years that the commodity of trust is in short supply. We would be very concerned if the issues that we are talking about were not dealt with in the Bill. I think we would be in a very difficult place if we were relying on guidance that might come out later to give us the comfort that we require that this was not a challenge to the devolution settlement, and the powers of the Scottish Government and Scottish Ministers.
Kirsty Blackman
Q
Ivan McKee: I would not like to comment. We do what we think is right for the people, communities, regions and businesses in Scotland. I am sure that the UK Government will do what they think is right for businesses in England.
The Chair
If there are no further questions, I thank you, Mr McKee, on behalf of the Committee for giving evidence to us today.
Ordered, That further consideration be now adjourned.—(Michael Tomlinson.)
Nationality and Borders Bill (Tenth sitting)
Tuesday 26th October 2021
(2 years, 10 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 26 October 2021 - (26 Oct 2021)
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 7 - Question accordingly negatived.
The Chair
I have been asked to remind Members and staff that they are asked by the House to have a lateral flow test twice a week if coming on to the parliamentary estate. That may be done either at the testing centre on the estate or at home.
Clause 18
Priority removal notices
Amendment moved (this day): 60, in clause 18, page 22, line 26, leave out “10(1) or (2)” and insert “10”.—(Tom Pursglove.)
This amendment is consequential on clause 43 of the Bill.
The Chair
I remind the Committee that with this we are discussing the following:
Government amendment 61.
Clause stand part.
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
I was about to conclude by saying that paragraphs (a) and (c) of subsection (7) suffice to capture every scenario. Removing paragraph (b) does not affect how the clause operates or who it impacts. I commend the amendments and the clause to the Committee.
Bambos Charalambous (Enfield, Southgate) (Lab)
We intend to oppose the clause standing part of the Bill. The clause is an entirely new provision. Its stated aim is to reduce the extent to which people may frustrate removals through sequential or unmeritorious claims, appeals or legal action. It does so by providing for a priority removal notice, or PRN, to be served on anyone who is liable for removal or for deportation. Factors might include where a person has previously made a human rights or protection claim.
According to the explanatory notes, subsection (3) defines a PRN. It states that the notice imposes a duty on the claimant to provide a statement setting out the reasons for wishing to enter or remain in the United Kingdom, any grounds on which they should be permitted to do so, and any grounds on which they should not be removed or required to leave the United Kingdom. The notice also requires them to provide any information relating to being a victim of slavery or human trafficking as defined by clause 46.
The notice also requires them to provide any evidence in support of any reasons, grounds or information. The statement, grounds, information and evidence must be provided before the PRN cut-off date included within the notice. Intended as a warning to the person that they are being prioritised for removal, the notice gives them a period of time—the cut-off period—within which to access legal advice and to inform the Home Office of any grounds or evidence that they want to provide in support of a claim to be allowed to remain in the UK.
The clause and the introduction of priority removal notices are part of wider proposals to fast-track claims and appeals, and to create a one-stop process for claims to asylum to be brought and considered together in a single assessment up front. The consequences of the clauses related to priority removal notices will make it harder for people to bring evidence after making an initial asylum claim and penalise delayed disclosure. Indeed, if anything required by the PRN is provided after the specified cut-off date, a decision maker—when determining a protection or human rights claim, or making a decision as to whether the person is a potential or actual victim of trafficking—will treat it with scepticism and it will be considered damaging to the person’s credibility and their claim.
The requirements related to the PRN are extensive. It requires all manner of claims and evidence to be provided, covering all grounds for resisting removal and all evidence in support. When implemented, that could have incredibly damaging consequences for people seeking asylum, as it requires them to provide extensive supporting evidence by a specified date. For example, it will seriously disadvantage vulnerable people and victims, such as those who suffer from post-traumatic stress disorder, or those who have been trafficked, as well as those who are LGBTQ, as I have mentioned previously.
The introduction of priority removal notices fails to acknowledge the reality of situations that people seeking asylum may encounter. There are many reasons that evidence may be provided late but in earnest, as we have explored already, for example with traumatised victims. The ultimate consequence of people not being able properly to present evidence relating to their claim, or being deemed to lack credibility as a result of failing to present such evidence on time, is that claims may be rejected and people may be wrongly subject to removal. The Opposition are very concerned that these measures may give rise to a significant risk of refoulement and will consequently abandon the UK’s obligations under international law.
In short, the proposals are unacceptable. They form a package of measures that seek to create a one-stop process for asylum claims and fail to do so in a fair or humane way. They are widely condemned by the sector. The Opposition are vehemently opposed to the introduction of priority removal notices and, when they are taken in conjunction with the series of clauses in part 2, are incredibly concerned about these measures. Its potentially strict application risks having a severe impact on asylum seekers and refugees, in terms of both procedural fairness and ensuring that people are protected by the refugee convention. We therefore oppose the clause.
Amendment 60 agreed to.
Amendment made: 61, in clause 18, page 22, line 28, leave out paragraph (b).—(Tom Pursglove.)
This amendment removes a superfluous paragraph (any person within paragraph (b) would in any event fall within either paragraph (a) or (c)).
Question put, That the clause, as amended, stand part of the Bill.
Tom Pursglove
I beg to move amendment 62, in clause 19, page 22, line 43, leave out paragraphs (a) and (b) and insert—
“(a) the PRN cut-off date, or
(b) if later, the day on which any appeal rights of the PRN recipient in respect of a relevant claim are exhausted.”.
This amendment and Amendments 63 and 64 provide that a priority removal notice will remain in force for 12 months after a PRN recipient’s appeal rights are exhausted in relation to any protection or human rights claim brought while the notice is in force.
The Chair
With this it will be convenient to discuss the following:
Government amendments 63 to 66.
Clause stand part.
Tom Pursglove
This clause is supplementary to clause 18, which we have just discussed. It makes provision for the validity and effect of a priority removal notice. A priority removal notice imposes requirements to provide any reason and supporting evidence as to why a person should be allowed to remain in the UK. This will reduce the extent to which removal can be frustrated.
Where a priority removal notice has been issued, it will remain in force for a period of 12 months after either the cut-off date specified in the notice or after the recipient has exhausted their appeal rights. A period of 12 months will provide sufficient time for the person’s removal to be enforced. Following the service of a priority removal notice, any previous evidence notice, slavery or trafficking information notice, or notice under section 120 of the Nationality, Immigration and Asylum Act 2002, will cease to take effect. Any appeal right arising from a protection or human rights claim received after the cut-off date will be subject to the expedited process as provided for by clause 21, unless the claimant provides good reasons for late disclosure.
The amendments are minor and technical and are intended to ensure that the new priority removal notice will work as effectively as possible. Amendments 62 to 64 provide for a priority removal notice to remain in force for a period of 12 months after the recipient’s appeal rights are exhausted. Amendments 65 and 66 clarify that a priority removal notice will remain in force where the recipient is no longer liable to removal or deportation from the UK. This makes it clear that where the recipient of a priority removal notice makes an application to the EU settlement scheme that is later refused, they will remain subject to the priority removal notice.
Bambos Charalambous
The Opposition will oppose the clause standing part of the Bill. It forms part of the Bill’s new PRN regime, as initially set out in clause 18, and states that the PRN will remain in force until 12 months after the cut-off date or the person’s appeal rights become exhausted, whichever comes last. The Opposition believe that preventing people from being able to bring further evidence for 12 months after they have been issued with a PRN is wrong. It is unfair and it fails to consider the reasons for delayed disclosure, which range from psychological and cultural barriers to the crucial fact that those who are seeking asylum have fled their homes and may not have access to evidence immediately.
When applied narrowly and in conjunction with other clauses in part 2, the proposed provisions potentially risk significant breaches of the refugee convention and the principle of non-refoulement. For those reasons, and reasons discussed in the debate on clause 18, we will be voting against clause 19.
Amendment 62 agreed to.
Amendments made: 63, in clause 19, page 23, line 3, at end insert—
“(1A) In subsection (1) ‘relevant claim’ means a protection claim or a human rights claim brought by the PRN recipient while the priority removal notice is in force.”
See the explanatory statement to Amendment 62.
Amendment 64, in clause 19, page 23, line 4, after “rights” insert
“in respect of a claim”.
See the explanatory statement to Amendment 62.
Amendment 65, in clause 19, page 23, line 11, at end insert—
“(2A) A priority removal notice remains in force until the end of the period mentioned in subsection (1) even if the PRN recipient ceases to be liable to removal or deportation from the United Kingdom during that period.”
This amendment clarifies that although a priority removal notice can only be served on a person if they are liable to removal or deportation, the fact that the person ceases to be so liable does not mean that the notice will cease to have effect.
Amendment 66, in clause 19, page 23, line 23, leave out subsection (6) and insert—
“(6) Expressions used in this section that are defined for the purposes of section 18 have the same meaning in this section as in that section.”—(Tom Pursglove.)
This amendment is consequential on Amendment 65.
Question put, That the clause, as amended, stand part of the Bill.
Paul Blomfield (Sheffield Central) (Lab)
I beg to move amendment 139, in clause 20, page 23, line 40, at end insert—
“(3A) For the purposes of subsection (3) ‘good reasons’ include, but are not limited to—
(a) evidence of post-traumatic stress,
(b) potential endangerment to the PRN recipient caused by collecting evidence for anything mentioned in subsection (1)(a) before the PRN cut-off date.
(3B) The Secretary of State must publish guidance including a non-exhaustive list of ‘good reasons’ within the meaning of subsection (3) within 30 days of this Act receiving Royal Assent.”
This amendment would illustrate potential interpretations of “good reasons” for late compliance and require the Home Secretary to publish a non-exhaustive list of potential “good reasons” to aid asylum decisions.
The Chair
With this it will be convenient to discuss the following:
Amendment 154, in clause 20, page 23, line 40, at end insert—
“(3A) The Secretary of State or competent authority must accept that there are good reasons for the late provision of anything mentioned in subsection (1)(a) where—
(a) the PRN recipient’s protection or human rights claim is based on sexual orientation, gender identity, gender expression or sex characteristics;
(b) the PRN recipient is suffering from a mental health condition or impairment;
(c) the PRN recipient has been a victim of torture;
(d) the PRN recipient has been a victim of sexual or gender based violence;
(e) the PRN recipient has been a victim of human trafficking or modern slavery;
(f) the PRN recipient is suffering from a serious physical disability;
(g) the PRN recipient is suffering from other serious physical health conditions or illnesses.”
This amendment defines “good reasons” for the purposes of subsection (3).
Amendment 41, in clause 20, page 23, line 38, leave out
“, as damaging the PRN recipient’s credibility,”
This amendment would mean that – whilst late provision of information would still be taken into account – it would not necessarily be deemed as damaging the claimant’s credibility.
Paul Blomfield
I will try to be brief, because the amendments cover ground similar to our previous discussion. Clause 20 seeks to damage the credibility of claimants producing evidence outside the time period dictated by a priority removal notice. There is a general point to make here. As we all know well, completing processes in time is not really the Home Office’s strong point. What is worrying is that the provision makes things worse. As Women for Refugee Women has pointed out:
“As well as causing harm to women in desperate need of safety, these clauses are likely to lead to greater unfairness in the system, an increasing number of incorrect decisions and ultimately therefore an increase in the backlog of asylum cases.”
That is something we all seek to avoid.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does the hon. Gentleman accept that not all the delays are down to the Home Office? In many people’s view, the thousands of judicial reviews that are done, the vast majority of which fail, are there to buy more time for the applicant possibly to come up with a reason for an article 8 application.
Paul Blomfield
There is an exception to every rule, so I am prepared to accept that not all the problems are down to the Home Office. We discussed that issue earlier. The fact that some people may seek to abuse the system does not mean that the system should be changed to focus on those cases. We should operate on the basis that everybody has a right to access and utilise the judicial processes that are available.
As I was saying, the backlog has risen at a time when the number of asylum applications for the year ending June 2021 fell. We know that is reflected across the system; it is not just a problem with asylum. In the relatively straightforward area of EU settled status, recent data from the Home Office in response to a freedom of information request showed that, in June, more than 26,000 EU citizens had been waiting for more than a year for a decision; more than 216,000 had been waiting for more than six months; and more than 680,000 had been waiting for more than three months.
The problem of delays is endemic in the Home Office, and there were no JRs involved in those numbers. In the asylum process, delay is not only seriously detrimental to the individuals, but—we have returned to this point a number of times, and will again—hugely costly to the taxpayer, so any measure that will exacerbate rather than correct the issue is unconscionable.
The assumption behind the measures in clause 20 and related causes is that those trapped in the system are to blame, as was echoed in the exchange we just had. Blaming others is a common approach of the Government on a wide range of issues such as covid, where GPs are the lightning rod for discontent, and Brexit, where we blame everybody going other than those who negotiated the deal. That ignores the reality that those trapped in the system want decisions to be expedited as soon as they can. They want to move on with their lives. Those who are successful want to take the opportunity to work and contribute to our society.
We need more resources from the Home Office to tackle the backlog. It is welcome that there has been some acknowledgement of that. I saw that the permanent secretary said at the Home Affairs Committee last month that the Home Office is planning to almost double the number of caseworkers, which is extremely positive. It is delayed recognition of where the problem might lie, but they should not be seeking to undermine applicants, which subsection (3) of clause 20 does by specifying that the Secretary of State or the competent authority must consider evidence being brought late as damaging to a claimant’s credibility unless there are good reasons why it was brought late. We come again to this issue, which we debated in relation to an earlier clause, of good reasons.
As there is no explanation before us, either in the legislation or in the explanatory notes, of what might constitute good reasons, amendment 139 seeks to help the Government, in a collegial spirit, by inviting the Secretary of State to publish a framework that allows the consideration of the effect of post-traumatic stress and potential endangerment on the provision of evidence. I do not think that any of us could object to the idea that post-traumatic stress and potential endangerment would be good reasons, so I will be interested to hear the Minister explain, if in fact he does not embrace the amendment, why that is the case, because we go on to suggest that he might also publish the other factors that would be seen to be good reasons.
The clause serves to shift from a presumption of guilty until proven innocent, again echoing an earlier discussion, back to our legal system’s norm of innocent until proven guilty. As it stands, unamended, it is not in the spirit of the law or of British values, and it should not be in the Bill.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to serve under your chairship again, Ms McDonagh. As the hon. Member for Sheffield Central said, clause 20 instructs decision makers to take into account
“as damaging the PRN recipient’s credibility…the late provision”
of information and evidence. I absolutely support the hon. Gentleman’s amendment to explore “good reasons” for evidence, including post-traumatic stress. Our amendment 154 provides other examples, such as mental health issues or where a person has been a victim of torture or other crimes that can impact on their ability to provide information. That is similar to debates we have already had.
Amendment 41 revisits earlier arguments about taking into account all the evidence, including lateness in providing it, when assessing a case. It is not appropriate to tell decision makers what conclusions to draw. We say decision makers will often find people to have credibility if lots of new information is provided with respect to that explanation. That is a matter that should be left to them. It is not for parliamentarians to tell decision makers how to analyse claimants.
Bambos Charalambous
Clause 20 introduces the concept of a priority removal notice and, under subsection (3), specifies that the Secretary of State or the competent authority must consider evidence being brought late as damaging to a claimant’s credibility, unless there are good reasons why it was brought late.
As we have made clear during the course of the Bill’s passage, the Government are trying to make it harder for refugees and asylum seekers to gain protection here in the UK. That is undeniable. The priority removal notices regime is part of a package of measures and provisions to achieve that end, both in deterring refugees from seeking protection and in making it more difficult for refugees admitted to the UK to be recognised as such.
One of those measures is directing decision makers, including judges, to doubt an applicant’s credibility if they fail to provide evidence under the strict conditions described in clauses 18 and 19. It is worth noting that the Home Office and the courts have always been able to consider the timing of a claim as a factor in determining credibility, and that might determine an appeal. None the less, clause 20 seeks to reduce the weight that is given to any evidence that is submitted after the cut-off period stipulated by the PRN.
According to the Immigration Law Practitioners’ Association:
“Rather than allowing decision-makers to sensibly consider whether the late provision of evidence is a reason to doubt its credibility, weighing all the evidence on the whole, the government proposes to strait-jacket decision-makers with a series of presumptions. The caveat that decision-makers will be allowed to use their own judgment if there is a ‘good reason’ why evidence was provided late does not mitigate these concerns.”
Indeed, there are many so-called bad reasons that evidence might be provided late that do not indicate dishonesty, and many more reasons that it may not be possible for someone to present all relevant information in support of their claim at the earliest opportunity. We have already heard in detail the problems felt by certain groups and individuals with this approach, such as LGBTQ asylum seekers and victims of torture, sexual or gender-based violence, or trafficking.
One long-standing concern for the sector, which we have yet to cover in detail, is failings within the asylum process itself, particularly poor-quality, shortened or inadequate interviews. The consequences of poor interviews conducted with an individual can be devastating in the moment and potentially have grave long-term effects, including the risk of being returned to persecution because the Home Office did not have the information it needed to make a fair and informed decision.
For the Home Office, asylum appeals have been rising steadily over the last decade, which points to the importance of protecting asylum appeals as a vital safeguard for the most vulnerable and to the fact that the Home Office often gets decisions wrong first time. More widely, a system that relies on the appeal process to correct its errors is inefficient, costly and inhumane. For that reason, we can describe the asylum system in the UK as broken, and we can point to the last 11 years of Conservative government as a reason for us having that broken system.
Mr Goodwill
Would the hon. Gentleman include foreign national offenders who are being removed, who may have committed crimes including rape and murder or been involved in the drugs trade, among the people who should be given the sort of latitude he is talking about?
Bambos Charalambous
Priority removal notices will apply to all people to whom they apply. If they qualify, they will qualify under that regime. I do not think people can be distinguished on the basis on their offences.
Clause 20 and the wider proposals around priority removal notices will penalise the most vulnerable and those who have been failed by the system by reducing the significance of any evidence submitted after the applicant has been through the one-stop process. That could include independent expert medical evidence, such as medico-legal reports, which often prove determinative in asylum appeals.
Ultimately, the provision around late compliance risks people not being given protection even though they deserve it and are in need of it. For the reasons I have specified, we will oppose clause 20 standing part of the Bill.
Tom Pursglove
By introducing the statutory requirement to provide information or evidence before a specified date, clauses 16 and 18 will contribute to the swift resolution of protection and human rights claims, enabling decision makers to consider all the evidence up front and, where appropriate, grant leave. It is right that where evidence or information is provided late, that should impact on a person’s credibility, and that the decision maker must consider whether to apply the minimal weight principle, unless there are good reasons why it was brought late.
Clauses 20 and 23 both recognise that it may be harder for some people to engage in the process and provide evidence before a specified date. That may be the result of trauma they have experienced, a lack of trust in the authorities or the sensitive and personal nature of their claim. Amendment 41 removes the possible credibility implications stemming from late evidence in response to a priority removal notice. It is right that where evidence or information is provided late, that should impact on a person’s credibility, unless there are good reasons why it was brought late. Where there are good reasons that information or evidence was provided late, the penalties in clauses 20 and 23 will not apply.
Clause 20 recognises that there may be good reasons that evidence was provided late. Where there are good reasons, the associated credibility provisions in clauses 20 and 23 will not apply. Therefore, amendment 41 is unnecessary, as the clause already meets its aim that late evidence should not necessarily be damaging to the claimant’s credibility. As with amendment 39, by removing the possible credibility implications stemming from late provision of evidence, amendment 41 would make such a measure inappropriate for primary legislation and render it pointless. Amendment 154 places a statutory obligation on decision makers to accept that there are good reasons for late evidence where an individual’s claim is based on certain factors, or the individual falls into a particular category. That would apply to Home Office decision makers and, under amendment 154, the competent authority as well as the judiciary.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
This comes back to the point that we were discussing this morning about PTSD. The Minister seems to be saying that if PTSD were on the list and someone could not prove that they had it that would advantage those who could prove that the condition had been diagnosed while disadvantaging those who had not had a diagnosis. However, they would not get a diagnosis within the timeframe specified in the legislation. Perhaps a means to address that anomaly is the Government providing their own list of good reasons that could be used to distinguish between cases—on a case-by-case basis—based on how long someone has been in the process and whether they are undergoing assessment for PTSD. That could be a way to resolve that predicament. As it stands, the Minister seems to be saying that he cannot accept the amendment because it would advantage those whom the Government’s plans disadvantage.
Tom Pursglove
Our intention is to publish guidance to help operationalise the measures in the Bill that will set this out in more detail. We would expect, as I have said in relation to several amendments and clauses, that caseworkers will consider those factors properly when reaching judgments about individual cases.
Mr Goodwill
I am sure the Opposition understand that when someone is given a police caution when they are about to be arrested they are told, “It may harm your defence if you do not mention when questioned something you later rely on.” Is the clause not basically about the same principle being applied to immigration cases?
Tom Pursglove
I will take an intervention from the hon. Member for Sheffield Central.
Paul Blomfield
I am trying to explore the contradiction in what the Minister has just said. He said that the Government intended to produce guidance that set out what good reasons were subsequent to the legislation, but he cautioned against requiring good reasons, because that would exclude some people from justice. Would he square that circle for me?
Tom Pursglove
We think that the appropriate place to be clear about these matters is in the guidance, rather than the Bill. As I say, I would expect decision makers to take into account all the relevant factors at play in an individual case when making decisions relating to it. Rather as we have discussed in relation to other clauses and amendments, there is flexibility in certain circumstances, where good reasons can be shown as to why evidence would not be produced sooner. We recognise that people may be in difficult circumstances and that issues arise in their lives. We want the system to be responsive to that and to take proper account of it, which is why we are proposing to proceed as we are doing.
To return to the point that I was making on amendment 139, it would perpetuate the issues that the clauses are designed to address to the detriment of genuine claimants, undermining their usefulness. Amendment 139 would also introduce a requirement to publish guidance on good reasons within 30 days of the Bill receiving Royal Assent. That is an arbitrary deadline and it is not necessary to include it on the face of the Bill. As I have indicated, good reasons will be set out in published guidance for decision makers and will be made available when the measures come into force.
Neil Coyle
It is a brief intervention. I am reminded of what the right hon. Member for Scarborough and Whitby said about being cautioned by the police. Will the good reasons clauses cover children specifically? We need to know, given that they represent almost a quarter of asylum claims, and given the issue of age and maturity.
Moreover, what evidence would a gay man trying to escape Iran or another oppressive have to provide in order to prove his circumstances? What would the threshold be, given how hard it has been to provide proof in multiple cases under the existing system?
Tom Pursglove
I can confirm that it will refer to children. To conclude my remarks, I respectfully invite the hon. Member for Sheffield Central to withdraw the amendment.
On clause 20, the unnecessary provision of late evidence, statements and information delays justice for those with genuine claims, and wastes valuable resources. Clause 20 will work in parallel with clauses 18 and 19 to support the new priority removal notice. Its focus is on encouraging persons liable to removal or deportation to provide at the earliest opportunity any information or evidence in support of their protection or human rights claim, or, for potential victims of modern slavery, in relation to a decision by the competent authority. Where information or evidence is provided on or after the cut-off date, as set out in the priority removal notice and without good reason, it is right that that should be taken into account as damaging to the person’s credibility. I hope that the Committee will agree to the clause standing part of the Bill.
Paul Blomfield
I am afraid that I am unconvinced by the Minister’s response, so I wish to press amendment 139 to a vote.
Question put, That the amendment be made.
Stuart C. McDonald
I beg to move amendment 155, in clause 21, page 24, line 21, at end insert—
“(2A) The Secretary of State must accept that there are good reasons for P making the claim on or after the cut-off date where—
(a) the PRN recipient’s protection or human rights claim is based on sexual orientation, gender identity, gender expression or sex characteristics;
(b) the PRN recipient is suffering from a mental health condition or impairment;
(c) the PRN recipient has been a victim of torture;
(d) the PRN recipient has been a victim of sexual or gender based violence;
(e) the PRN recipient has been a victim of human trafficking or modern slavery;
(f) the PRN recipient is suffering from a serious physical disability;
(g) the PRN recipient is suffering from other serious physical health conditions or illnesses.”
This amendment defines ”good reasons” for the purposes of section 82A(2) of the Nationality, Immigration and Asylum Act 2002 (as inserted by this Bill).
If someone makes a protection claim after the PRN cut-off, then unless the Secretary of State is satisfied there are good reasons, she must certify the appeal right and it will be subjected to an expedited appeal straight to the upper tribunal. Tribunal procedure rules, then, must make provision for this. If it is in the interests of justice for an appeal not to be expedited, the tribunal may order that it is no longer subject to that process. This, too, prevents any onward appeal.
In the next debate I will set out our opposition to the clause as a whole, but amendment 155 sets out a situation where the Secretary of State must accept there has been a reasonable excuse, similar to before. It would surely be wrong to subject survivors of human trafficking, or gender-based violence or torture—to use but three examples—to an accelerated appeal, simply on the grounds that they were late making a claim in response to a PRN. We have heard very powerful reasons already today, including in Home Office guidance, why that can be an incredibly difficult process.
I suspect the Minister will again reject this amendment on the same grounds as before, but it is at least useful for him to state on record that these are the types of claimant that he envisages should not be pushed through any accelerated appeal process. I will listen carefully to what he has to say in that regard.
Tom Pursglove
I thank the hon. Gentleman for tabling amendment 155, which seeks to define good reasons for the purposes of proposed new section 82A(2) of the Nationality, Immigration and Asylum Act 2002. I appreciate the concerns this amendment is attempting to address but the Government must oppose it. The amendment would result in all individuals who meet any of the descriptors listed being exempt from the expedited appeal process, even where their reason for lateness may be completely unrelated and make redundant any need to submit a claim by the date specified in the PRN.
I acknowledge that the experiences and circumstances listed in the amendment can inform why a person has made an application late. However, the duty on the Secretary of State will see all and any reasons for lateness being considered. Guidance for decision makers will be published and made available when these measures come into force. For that reason, I invite the hon. Member to withdraw his amendment.
Stuart C. McDonald
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Tom Pursglove
I beg to move amendment 67, in clause 21, page 24, line 27, after “are” insert “brought and”.
This amendment and Amendment 68 clarify that the Tribunal Procedure Rules establishing the new expedited appeals process must aim to ensure that both the bringing of an appeal and its determination are expedited.
The Chair
With this it will be convenient to discuss the following:
Government amendments 68 and 69.
Amendment 42, in clause 21, page 24, line 37, leave out subsection (2).
This amendment would protect the right to an onward appeal from an expedited appeal decision by the Upper Tribunal in certain cases.
Clause stand part.
That schedule 2 be the Second schedule to the Bill.
Tom Pursglove
The Government propose three amendments to clause 21. Two amendments relate to the timeframe for bringing an expedited appeal. Accordingly, they clarify that the tribunal procedure rules must provide that an expedited appeal is brought more quickly than a standard appeal. That will ensure that individuals bring appeals promptly. The third amendment provides that, where the upper tribunal exercises its discretion to order that an expedited appeal should not be treated as such, the appeal will be transferred to the first-tier tribunal. This amendment provides an important clarification about the impact of the upper tribunal’s discretion to remove a case from the expedited appeal route. I therefore urge the hon. Members to support the Government amendments.
I thank the hon. Members for tabling amendment 42, which concerns the finality of decisions by the upper tribunal in expedited appeals. However, the Government oppose the amendment. The expedited appeal process provides effective access to justice while protecting the appeals system from abuse by individuals who deliberately act to prolong their case, thereby delaying a final decision.
We believe that where recipients of a priority removal notice who have received an offer of enhanced legal advice bring a late human rights or protection claim without good reason, any subsequent appeal should be dealt with expeditiously by experienced senior judges, and that their decision should be final. We believe that that strikes a balance, ensuring that appellants have access to justice, while protecting the appeals system from abuse. Section 13 of the Tribunals, Courts and Enforcement Act 2007 provides for various upper tribunal decisions to be excluded from onward appeal. It is appropriate that expedited appeals are included within the list of excluded decisions that are not appealable.
Mr Goodwill
When we discussed the previous clause, there were a lot of complaints about the time it took to process people whose claims were rejected and who were removed, and those who had genuine claims. Should the hon. Gentleman not welcome the expedited process because it will enable people to get their decisions more quickly and stop those whose vexatious use of the law delays things?
Bambos Charalambous
There is such welcome generosity from Conservative Members. The measures will do no such thing; all they will do is clog up the upper tribunal system, which I will address later.
The Bill’s system of penalisation includes curtailing appeal rights, as set out in clause 21. The clause creates an expedited appeal route for those who have been served with a priority removal notice and who have provided evidence or a claim after the PRN cut-off date. Most importantly, the right of the appeal will be limited to the upper tribunal.
According to the Law Society, the proposals would essentially result in single-tier appeals with increased pressure on judges and more appeals to the Court of Appeal, as well as undermining access to justice, which is crucial in asylum cases. The Government’s proposals on priority removal notices and expedited appeals risk impinging on people’s rights and access to justice. In many instances, asylum seekers are highly vulnerable and may experience difficulties when it comes to the legal intricacies of the asylum process—studying legal determinations, gathering evidence and preparing submissions for appeals, for instance.
It is also worth clarifying that when unfounded or repeat claims are made, accelerated procedures as part of the asylum process are necessary and important safeguards. The difficulty is that more complex cases—where there are legitimate reasons for evidence being provided at a later date, for example—may be included in those accelerated processes, with devastating consequences. The Committee has heard some of examples of that today.
The Committee heard from Adrian Berry of the Immigration Law Practitioners Association about clause 21 during our evidence session. It is worth revisiting his evidence and the severe concerns that he raised on 23 September. First, he spoke about the expedited appeal, which begins in the upper tribunal. Therefore those who introduce a claim for asylum and provide evidence after the cut-off date in a priority removal notice receive an expedited appeal and lose their right of appeal and a hearing in the first-tier tribunal. Secondly, he raised concerns that the upper tribunal hearing is final. There is no onward appeal to the Court of Appeal. That is wrong for a number of reasons.
Mistakes, unfortunately, do happen in asylum claims, but under the current provision, individuals would be left, in the words of Adrian Berry, “one shot” to appeal and correct the mistakes. The fact that the first instance tribunal decisions cannot be reviewed has serious implications for the rule of law. It also creates a wider time-pressured, accelerated decision-making process operating on the tribunal system, which is likely to have a negative effect on the quality of decisions made. That is well documented and an issue that we have touched on previously, but it is worth repeating for the benefit of the Committee.
Appeals have been rising for many years. Between 2016 and 2018, 57% of first-tier tribunal asylum appeals were dismissed. It was only 52% in 2019-20. The right of appeal is fundamental in protecting individuals’ rights and preventing potential miscarriages of justice.
I should like to cite an example to illustrate that point and wider concerns about the priority removal notices regime introduced in part 2. I will call my example AT, a Gambian national who unsuccessfully sought asylum in the UK. He was married to a Gambian woman who had been granted indefinite leave to remain in July 2016 as she was unable to return to Gambia. His wife was heavily pregnant with their child but their relationship had not been raised or considered by the Home Office as part of his asylum claim. He was given a “notice of liability to removal” and was detained after the notice period had ended. Before his detention, he was unsuccessful in securing an appointment with his solicitors.
During AT’s detention, his wife gave birth to their son—a British citizen. The Home Office refused AT’s human rights claim based on his family life, focusing on the late stage at which he raised it. He was removed from the UK before he could access legal advice and challenge that decision. His subsequent judicial review proceedings were successful and he was allowed to return to the UK to exercise his right of appeal to the first-tier tribunal against that decision. The Home Office subsequently conceded his article 8 family life claim, and granted him leave to stay in the UK with his wife and son. If the priority removal notice provisions of the Bill had been in force in this case, AT’s right of appeal, even after he had succeeded in a judicial review, would have been severely circumscribed. He would only have been able to appeal directly to the upper tribunal. The appeal would have been decided on an expedited basis and the tribunal would have been required to treat AT’s claim to a family life as lacking credibility. If the upper tribunal had found against him, he would have had no right of appeal to the Court of Appeal.
That case highlights some of the severe consequences of clause 21. Are Committee members, on all sides of the debate, happy to put speed over justice? That is what the Bill’s attempts to expedite appeals seeks to do, and without acknowledging the harm that that will cause. It risks people having their human rights violated as a result of a truncated appeals process for asylum claims.
Clause 21 has serious consequences for the rule of law, procedural fairness and the rights of individuals. It will inevitably lead to the wrong being decisions made that will then go unchallenged. Closing off avenues for appeals risks closing off access to justice. An incorrect decision can cost an individual their safety, security and livelihood. Therefore the clause presents an unacceptable risk of breaching the UK’s non-refoulement obligations under the refugee convention and the European convention on human rights. As such, the Opposition will oppose that clause 21 stand part of the Bill.
Stuart C. McDonald
I agree with everything the shadow Minister said. I want to speak in support of amendment 42, which would preserve onward rights of appeal in certain circumstances.
The overall danger of clause 21 is that it risks expediting appeal processes so that mistakes are made and people are denied justice. Given the dangers that are posed by speeding up such processes, it is all the more important that there is access to the supervisory jurisdiction of the higher courts in case errors are made. We are not talking about minor issues; these are matters of life and death. Assessments have been made about a risk of persecution. Errors will have catastrophic consequences for individuals concerned.
All tribunals make mistakes, so in such circumstances, it seems reckless not to have any right of appeal. I absolutely accept that there can be restrictions and that the grounds for such an appeal can be phrased in a way to try to prevent abuse, but to exclude it altogether goes way beyond what can be justified. Expedited appeals without any possibility of onward appeals creates a double danger of getting those decisions wrong. The fact that claims are made late does not remotely mean that they are necessarily without merit, nor does it mean that they can be decided any quicker than another claim and it should not automatically lead to accelerated appeals processes.
Again, I think that all this is missing the point. The tribunal was actually functioning pretty well. It is the Home Office that has to focus on getting its house in order, and the whole clause is completely misconceived.
Amendment 67 agreed to.
Amendments made: 68, in clause 21, page 24, line 28, after “be” insert “brought and”.
See the explanatory statement for Amendment 67.
Amendment 69, in clause 21, page 24, line 32, leave out from “is” to end of line 33 and insert
“to be continued as an appeal to the First-tier Tribunal and accordingly is to be transferred to that Tribunal”.—(Tom Pursglove.)
This amendment is a drafting amendment to clarify that where the Upper Tribunal is satisfied that it is in the interests of justice to do so it has power to order that an expedited appeal is instead to be heard subject to the usual procedure by the First-tier Tribunal.
Amendment proposed: 42, in clause 21, page 24, line 37, leave out subsection (2). —(Stuart C. McDonald.)
This amendment would protect the right to an onward appeal from an expedited appeal decision by the Upper Tribunal in certain cases.
Question put, That the amendment be made.
Tom Pursglove
Clause 22 provides for legally aided advice to be available to all individuals who have received a priority removal notice. The priority removal notice is designed to give advance notice to individuals who are being prioritised for removal from the UK, and requires them to raise any reasons why they should not be removed. It is essential that individuals have access to free and impartial legal advice upon receipt of a priority removal notice. Those individuals need to understand what the notice is and what it is asking them to do, and they need the opportunity to go through their individual circumstances with a qualified lawyer and confirm whether there are any reasons why they should not be removed from the UK, and how to raise those reasons. Access to this legal advice will be free to the individual, with the only criterion for the advice being receipt of the priority removal notice.
Bambos Charalambous
Clause 22 provides for up to—but no more than—seven hours of legal aid to be available to those served with a priority removal notice, enabling them to receive advice on their immigration status and removal. This provision is necessary due to the new priority removal notices regime introduced in part 2 of the Bill, and while we welcome the introduction of the legal aid requirement in the Bill, it does not go far enough. Seven hours is not enough time for a legal representative to take instructions from, advise and represent individuals who are often among the most vulnerable people in society.
The Government’s one-stop approach to asylum claims means that there is a significant risk of claimants being unable to obtain legal advice properly despite the provisions set out in the clause, because they have not been given enough time to develop a relationship of trust with their legal advisers and the legal authorities. We know about the difficulties many asylum seekers—for example, those who are victims of torture, sexual gender-based violence, or trafficking—face in disclosing evidence, and the time constraints imposed by clause 22 will likely negatively impact people who have difficulty disclosing information related to their claim due to an initial lack of trust in the advisers or authorities.
More widely, organisations in the sector have rightly made the connection between the Government’s offer of legal aid to the recipients of PRNs in this clause and the broader cuts to legal aid in the immigration sector that have become the hallmark of the Government’s time in office. According to Bail for Immigration Detainees,
“This meagre provision comes after the gradual decimation of the legal aid immigration sector since the legal aid cuts in 2013”,
and the clause
“will not be a sufficient safeguard to ensure access to justice”.
It is, of course, essential that people who need legal advice can access that advice in practice, and support must be provided for those who need help navigating the system. In many instances, asylum seekers are highly vulnerable, and may experience difficulties when it comes to the legal intricacies of the asylum process, such as studying legal determinations or preparing submissions for appeals. It is equally clear that the wider proposals in part 2 of the Bill will not achieve the Home Office’s aim of creating an immigration system that is fairer and more efficient. As we know from reading the Bill, clause 22 comes alongside a set of sweeping legislative changes that, for example, limit access to appeals, speed up the removal process and penalise late submissions of relevant evidence. These measures can hardly be described as fair, and they fail to make the system more efficient.
We must take the proposals about legal aid in clause 22 in conjunction with other clauses in part 2 that seek to fast-track asylum claims and appeals, and make conditions harder for asylum seekers and refugees here in the UK. When implemented together and in strict draconian fashion, the Bill’s provisions therefore inhibit access to justice, risk inherent unfairness, are contrary to the common law and violate procedural requirements. Most importantly, they may give rise to a significant risk of refoulement, which would violate the UK’s internal obligations.
While we welcome the introduction of legal aid, we do not believe that the clause goes far enough: we believe that much more should be done to provide more legal aid, particularly in relation to the immigration sector.
Neil Coyle
Members will be pleased to know that I will be brief, not least because my hon. Friend the Member for Enfield, Southgate has been so comprehensive, but also because I spoke on this issue a lot this morning. However, I would like to ask some specific questions—three, I think.
If children are covered by clause 22, perhaps the Minister will take the opportunity—despite failing to do so on the two previous chances I have provided—to outline what the equality impact assessment means when it says,
“We will also provide increased access to legal aid.”
As I have explained, the Ministry of Justice seems to be unaware of this extension, and there are previous answers I have yet to exploit. However, it would be useful to know—indeed, I believe we are entitled to know—what cost to Government this will have. What is the cost of this extension to the taxpayer? Is it relevant to clause 22, and how many children or people will benefit from such an extension as we go forward? I hope that the Minister will be able to answer that or, at least, send another letter. I am enjoying our correspondence so far.
My second question is about the organisations that might be providing this advice. Is it the Government’s intention, under clause 22, to have a defined list of organisations that will be willing to provide it? As I mentioned, at an asylum hostel in my constituency yesterday, there appeared to be a Home Office list of legal aid providers that is given to asylum seekers in an induction pack. That should be made public, so that we can explore whether those are the best organisations and whether the list could be expanded. I hope the Minister will tell us whether that list will be published, and whether clause 22 will involve a defined set of organisations.
Thirdly, if the Government are serious about genuinely tackling the delays and the pace of these cases, perhaps they would consider expanding legal aid to all cases to make it a genuinely fast, fair and effective system. That is sadly not what we have before us today.
Paul Blomfield
Similarly, I want to ask a couple of questions of the Minister on why the opportunity has not been taken to go beyond the provisions in the clause, because there is a real problem with access to legal aid. Research by Refugee Action has shown that, since the changes introduced in 2012, it has been much more difficult to secure legal aid. There is also a vast difference in provision across the country, with provision concentrated in metropolitan areas such as London and Birmingham, and not in dispersal areas, where it is particularly difficult to access legal aid. Refugee Action’s report recommended that the Government should commit to ensuring that everybody in the asylum system who is eligible for legal aid representation has access to it. What are the Government proposing in respect of that?
If the clause is about ensuring that issues are resolved at the appropriate stage, why are the Government not extending legal aid to all stages of the process? If cases are successfully resolved at an earlier stage, surely it is to everybody’s benefit.
Tom Pursglove
I will try to respond to the various points that have been raised as best as I am able. I will, of course, happily feed through the views that have been expressed to Ministry of Justice colleagues who have direct responsibility for legal aid within their portfolio.
On the initial point about the seven hours, it is worth saying that the power we are proposing will allow the Lord Chancellor to amend the number of hours of advice available under the clause. The Lord Chancellor will have to lay affirmative legislation to ensure that Members of this House and the other place have full sight of the proposed changes. That power is necessary because the priority removal notice is a new process and, as with all new operational processes, it will take time to bed in. We must be able to change the number of hours to ensure that the purpose of the clause works how we intend in practice. Providing individuals with access to free legal advice ahead of their potential removal from the UK is clearly important. That is why we are making that commitment in the Bill.
I was asked what this extension of legal aid will cost. The estimates are in the region of £4 million to £6 million, so it is a significant increase to meet the need resulting from the new measures we are introducing. If, at the end of the seven hours, more advice is needed—and there are circumstances which dictate that—there is legal advice available for asylum claims and appeals.
Neil Coyle
Is that £4 million to £6 million just for the civil legal services under clause 22 for people under priority removal notices?
Tom Pursglove
Yes. That provision is made precisely for those in receipt of a PRN. I was making a point about the extension. It is worth making the point that, if people find that they require further advice at the end of the seven hours, any individual needing more legal advice on an immigration matter can apply for in-scope legal aid, such as for asylum advice or through the exceptional case funding scheme, subject to passing the relevant means and merits tests. I will make sure that colleagues in the Ministry of Justice are aware of the points raised today on legal aid more generally within the immigration and asylum system.
There was a question about access to justice in dispersal areas. The hon. Member for Bermondsey and Old Southwark asked where information about legal aid provision is provided. My understanding is that it is published online, so it is readily accessible to people. As hon. Members would expect on the issue of dispersal areas, the MOJ monitors the market capacity and works with the Home Office to ensure supply in dispersal areas. If the hon. Member for Sheffield Central wants to write to me with specific concerns on that matter in his community, I would be glad to look at those and make sure that they are considered by Ministers appropriately.
Paul Blomfield
I will take the Minister up on his offer, but I want to press him on another point. He talks about legal aid being made available for the new provision for a priority removal notice. However, the Home Secretary has the opportunity to issue a priority removal notice, but is not required to do so—it might not be done in all cases. There will potentially be people who are served with a notice of removal who have never received a priority removal notice. They will not have the opportunity to access the seven hours of free legal aid. What is the justification for that?
Tom Pursglove
The hon. Member is seeking to extend the provision we are proposing in the Bill. We are very clear that the clause makes the legal advice available to those who have been served with priority removal notices. We do not propose to extend the offer beyond that. However, I will make sure that his concerns are flagged with ministerial colleagues in the Ministry of Justice.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Clause 23
Late provision of evidence in asylum or human rights claim: weight
Stuart C. McDonald
I beg to move amendment 43, in clause 23, page 26, line 38, leave out subsection (2) and insert—
“(2) Where subsection (1) applies, the deciding authority must have regard to the fact of the evidence being provided late and any reasons why it was provided late in considering it and determining the claim or appeal.”
This amendment would remove the provision which states that “minimal weight” should be given to any evidence provided late.
The Chair
With this it will be convenient to discuss the following:
Amendment 38, in clause 23, page 26, line 40, at end insert—
“(2A) Subsection (2) does not apply where—
(a) the claimant’s claim is based on their sexual orientation or gender identity; or
(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom.”.
This amendment would remove the direction to the deciding authority to give minimal weight to evidence provided late in cases where an asylum claim or human rights claim is based on issues of sexual orientation or gender identity; or where the claimant was under 18 when they arrived in the UK.
Amendment 131, in clause 23, page 26, after line 40, insert—
“(2A) The deciding authority must accept that there are good reasons why the evidence was provided late where—
(a) the claimant’s claim is based on sexual orientation, gender identity, gender expression or sex characteristics;
(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom;
(c) the claimant’s claim is based on gender-based violence;
(d) the claimant has experienced sexual violence;
(e) the claimant is a victim of modern slavery or trafficking;
(f) the claimant is suffering from a mental health condition or impairment;
(g) the claimant has been a victim of torture;
(h) the claimant is suffering from a serious physical disability;
(i) the claimant is suffering from other serious physical health conditions or illnesses.”
This amendment sets out the circumstances where the deciding authority must accept that there were good reasons for providing evidence late.
Amendment 44, in clause 23, page 27, line 13, at end insert—
“(6B) This section does not apply where the evidence provided proves that a claimant is at risk of persecution by the Taliban.”
This amendment would disapply Clause 23 (under which minimal weight is given to any evidence provided late) in respect of claimants who are at risk of persecution by the Taliban.
Clause stand part.
Stuart C. McDonald
The clause is similar in nature to clauses we have debated already, and most of the amendments address similar issues. It is about penalties for providing evidence after a specified cut-off date. Amendment 43 makes the point, again, that we regard it as legitimate to ask a decision maker to take account of the fact that evidence was provided late and the reasons for that, but it should not tell a decision maker what to conclude. We have also added our names in support of amendment 131, which seeks to ensure an acknowledgement of how difficult the process of the provision of evidence can be for certain categories of claimant, and the inappropriateness of fixing hard and fast deadlines.
Bambos Charalambous
I will speak to amendments 38 and 131, and will seek to press amendment 131.
We do not believe that it is fair that some evidence is deemed to have minimal weight when there are practical and psychological reasons that it cannot be disclosed by a particular date. We have grave concerns about the clause, in particular because of the awful impact it could have on vulnerable women and other groups such as the LGBT+ community. That is why we have tabled the amendments. We want a cast-iron and legal guarantee that groups who have good reasons for late evidence are protected under the law. Otherwise, there is a danger that the persecution they have fled will be compounded by the inappropriate disregard of their late evidence.
The clause instructs decision makers to give regard to the principle that minimal weight be given to later evidence unless there are good reasons, which are undefined in the Bill and are therefore left entirely to the discretion of the Home Secretary. There are many good reasons why, for instance, women who have fled sexual and gender-based violence cannot share relevant experiences right away. This is even acknowledged in Home Office guidance that refers to
“guilt, shame, and concerns about family ‘honour’, or fear of family members”.
The same guidance acknowledges that women who have been trafficked to the UK may be facing threats from their traffickers at the time of their interview, such that they are unable to speak openly. Some women who have fled persecution because of their sexual orientation are not able to disclose their sexuality during the time of their initial claim. They may still be coming to terms with it themselves—a process that can take years. Other women or people who have fled sexual violence or torture may be suffering from post-traumatic stress disorder, and may experience disassociation from their experiences, which is a well-known psychological phenomenon in the aftermath of sexual violence.
Women therefore already face significant barriers to the full investigation and recognition of their protection claims. The clauses on late evidence will worsen those obstacles if they are not given additional protections. As well as causing harm to women in desperate need of safety, if unamended the clause will lead to greater unfairness in the system, an increasing number of incorrect decisions and ultimately, therefore, an increase in the backlog of cases.
With reference to women and late evidence, the Bill taken as a whole goes directly against Home Office policy, which states that late disclosure should not automatically prejudice a woman’s credibility. The backlog of asylum cases urgently needs addressing, but restricting the ability of vulnerable women or other vulnerable people to bring evidence is neither a fair nor an effective solution. That is why we believe the amendment that provides the specific categories as set out is so needed.
Introducing a rigid deadline for providing evidence and penalising those who provide late evidence also risks negatively impacting trans people specifically from applying for asylum. Trans people already face difficulty in “proving” their gender identity, due to the innateness of someone’s gender identity together with social expectations and stereotypes ostracising a population of trans people from protection. We see a similar difficulty in respect of other LGBT+ identities in so far as it is by nature next to impossible to prove something so intimate, without its becoming disproportionately invasive. Therefore we believe that these groups, too, are adversely impacted by the provisions around late evidence.
For people under 18, there are obvious reasons why their evidence may be late. It seems ridiculous that without amendment, the clause seriously suggests that we punish children by giving their evidence less weight if they cannot meet an arbitrary date. How on earth is it appropriate that children who may have escaped the worst imaginable situations, and who are likely to be suffering from trauma, are then further traumatised with arbitrary conditions placed on evidence and its weight?
Clause 23 creates the principle that a decision maker must give minimal weight to evidence raised late by a claimant, unless there are good reasons why that evidence was provided late. We are deeply concerned about the clause and the impact of the Bill’s measures around delayed disclosure in part 2. There are many reasons why it may not be possible to present all information in support of an asylum claim at the earliest opportunity. Women who have been trafficked to the UK may be facing threats from their traffickers at the time of interview. Others who have fled persecution because of their sexual orientation may be unable to disclose their sexuality during the time of their initial claim. They may still be coming to terms with themselves—a process that can take years.
If implemented, the Government’s proposals would adversely impact those vulnerable people. We propose that the Government introduce a cast-iron legal guarantee that groups that have a good reason for late evidence are protected under the law. Failing to do so risks penalising the most vulnerable people and those who have been failed by the system.
Neil Coyle
Clause 23 is deeply pernicious and comes at a time that suggests that the Government have rushed this legislation. Last Tuesday, there was a meeting between the Prime Minister’s special envoy for freedom of religion or belief and the right hon. Member for Gainsborough (Sir Edward Leigh). That meeting was to discuss the case of Maira Shahbaz, a 15-year-old Christian who has fled Pakistan having been kidnapped, forced to convert religion and forced to marry one of the men who kidnapped her. She managed to escape and is seeking asylum, but she was held for a significant time, so she would not necessarily meet the original timeframe and she might fall foul of the measures in this legislation.
For the Prime Minister’s special envoy to be willing to meet and discuss that case suggests that there should be a process by which someone in those circumstances is able to avoid the provisions of this legislation. I am deeply concerned that one bit of the Government are off having discussions elsewhere, while the Home Office is bringing forward plans that could prevent someone in those exact circumstances from benefiting from any exemptions they might have discussed in that meeting last Tuesday. It suggests once again that this is more about culture wars and headlines than it is about the practical reality of the system that exists or building towards a system that is fairer, more effective and faster.
I wanted to quickly raise issues around sexuality. I am deeply grateful to Rainbow Migration, who provided some examples and evidence for the Committee to all members. It said that clause 23 specifically
“would be acutely detrimental to LGBT+ people because of the difficulties in gathering and providing evidence that helps confirm their sexual orientation or gender identity. Many LGBT+ people may have spent a long time trying to hide their sexual orientation or gender identity from other people…in the UK”,
never mind in regimes where it is specifically illegal or unlawful, and could be punished.
Earlier, I asked the Minister what a gay man would need to provide to meet the initial evidence threshold, to avoid PRNs and to avoid being punished by clause 23. If someone has been persecuted on the grounds of their sexuality—persecuted for having the temerity to fall in love with someone of the same gender—in their country of birth, they may inevitably worry about revealing that identity, having managed to escape such an horrific regime.
I ask the Minister again to explore some of the practical realities of those circumstances before penalising someone specifically on the grounds of sexuality, because I think that it will fall foul of existing UK law, if not other international obligations. I am very mindful that I have a live case of a gay man trying to flee Lebanon where he is being forced, as the only son in a family, to marry against his wishes. He is seeking to escape Lebanon in order to not be forced to subjugate his sexuality in the interests of his family’s wishes.
I hope that the Minister can give more information on what the burden of proof would be, because I do not understand. Producing a boyfriend or girlfriend, or a love letter from someone still living in a regime where it is impossible to do that, will not necessarily be possible; yet the Government are legislating to penalise people in exactly those circumstances. Members across the House are deeply worried about the implications of such a measure.
On 3 February 2020, the Home Office was asked in question 11509 when it
“plans to update the House on the progress of the review into the way asylum claims based on religious grounds and LGBT+ grounds are assessed.”
The response was:
“The review into the way asylum claims on the basis of religious and LGBT+ grounds are assessed has been completed.”
That review has never been published. The Government refused to publish it in February last year, and they have refused to do so in answer to many subsequent questions. It is troubling that, while the Government withhold information on how existing processes have not necessarily dealt with faith and sexuality-based cases very well, we now have measures before us that deliberately penalise people who will find it harder to prove discrimination or persecution on faith and sexuality grounds. I hope that the Minister will agree that the review should be made public during the Bill’s passage, and certainly before anyone is penalised and has their case impeded on those grounds.
We talked about PTSD. Under clause 23 someone could face having their case undermined before their PTSD symptoms were, importantly, fully diagnosed. I will not repeat what I said this morning, but it would be ludicrous to legislate that someone be forced to have that diagnosis when they cannot access healthcare and not all symptoms will necessarily be evident.
Finally, the Anti Trafficking and Labour Exploitation Unit has provided a case of a Nigerian woman whom it has just listed as “X”. Promised a career in the UK as a hairdresser, she was forced into sex work, when in the UK, for nearly a year before she managed to escape. She was unable to meet the time limit, could be subject to a PRN and could be subject to clause 23 if she finally makes a case. The Minister had said that trafficking victims would not be subject to those provisions; but the Home Office initially declared that specific woman, X, not to be a victim of trafficking. By the time the Home Office had admitted its mistake, she could have gone through that process. She could have had the PRN imposed before the Home Office was willing to accept that, and before she had the legal advice to support her to make the case that proved she was the victim of human trafficking. I see no safeguards before us today that would prevent her from being subject to clause 23, and having less weight applied to her case or being removed from the country before she could make that case. The Government need to come forward with more safeguards before they progress these measures any further.
Tom Pursglove
I thank hon. Members for raising these important issues. We all recognise that young or particularly vulnerable claimants, sufferers of trauma such as sexual violence or ill-treatment on account of their sexual orientation or gender identity, and survivors of modern slavery or trafficking need to be treated with care, dignity and sensitivity. It is important that they are able to participate fully in the asylum process so that, in the case of a genuine applicant, their claim for protection can be recognised and their status settled at the earliest opportunity. That is in the best interests of the claimant and the overall functioning of the asylum system.
At the same time, we recognise that it may be harder for some people to engage in the process. That may be because of their past experiences, because of a lack of trust in the authorities or because of the sensitive and personal nature of their claim. That is why clause 16, together with clauses 17 and 23, provides for good reasons why evidence might be provided late. What constitutes “good reasons” has not been defined in the Bill, because to do so would limit the discretion and flexibility of decision makers to take factors into account on a case-by-case basis. It would be impractical to legislate for every case type where someone may have good reasons for not previously disclosing evidence in relation to their protection claim.
Good reasons may include objective factors such as practical difficulties in obtaining evidence—that may be where the evidence was not previously available, or where an expert report is not available. Good reasons may also include subjective factors, such as a claimant’s particular vulnerabilities relating to their age, sexual orientation, gender identity or mental health. Decision makers, including the judiciary, will be better placed to identify and assess those factors on an individual and case-by-case basis.
Amendment 43 would effectively remove the minimal weight principle; it would disapply the requirement for a decision maker to have regard to the principle that minimal weight should be given to late evidence for two categories of people. The amendments fail to take into account the fact that decision makers will have discretion in how they apply the principle that minimal weight should be given to late evidence, and that they may choose not to apply the principle in any given case. Clause 23 does not create a provision whereby decision makers are required to give late evidence minimal weight; they are required only to have regard to the principle, which they can choose to disregard.
Amendment 131 would place a statutory obligation on decision makers to accept that there are good reasons for late evidence where an individual’s claim is based on certain factors, or the individual falls into a particular category. That would apply to Home Office decision makers as well as the judiciary. Compelling a judge to accept good reasons for late evidence based solely on the grounds of the person’s claim raises significant issues and interferes with their fact-finding role. It also ignores the possibility that a claim may fall within a particular category or a person may identify as one of the listed categories, but their evidence may be late for unrelated reasons. The amendment would therefore create a blanket acceptance of late evidence in specific prescribed circumstances, and yet a vulnerable individual who did not fall within the specified groups might have late evidence and face a different test for whether or not they have good reasons. We feel that is unfair.
On amendment 44, this country has a proud history of welcoming with open arms those who require its protection. That includes circumstances where, as in Afghanistan, a significant change in circumstances means a sudden shift in a country’s security situation. Where evidence is brought late on account of such a change, that is clearly capable of falling within the “good reasons” consideration, so there is no need to make specific provision in relation to a fear of the Taliban.
Stuart C. McDonald
But what would happen in the hypothetical example I gave, where there was not good reason? The guy was a bit stubborn and did not think he should have to go through this process; he thought he should have had some automatic leave. I am still at a loss to understand what it means for the decision maker to have regard to the principle that minimal weight should be given to the evidence. I do not understand the expression. How does that work in the context of the hypothetical example I gave?
Tom Pursglove
I will come back to that point and try to give the hon. Gentleman some further clarity, which I hope will be helpful. I will make the point again that, in the current circumstances that we find ourselves in regarding Afghanistan, people are not being removed there.
Of course, all the relevant information is taken into consideration when reaching decisions on individual cases. For example, if there is an assessment that a particular country is safe but for a particular individual there are grounds whereby it is not safe for them in their circumstances, that is reflected in the decisions that are taken.
To finish the point about amendment 44, it would create a system where those with a fear of the Taliban were treated differently from all other asylum seekers, no matter the risks they faced or the vulnerabilities of the individuals involved, simply on the basis of where they were from. That is discriminatory and cannot be right.
On the point about how decision makers can be told that they must apply minimal weight to evidence, clause 23 does not create a requirement for Home Office decision makers or the judiciary to give late evidence, following the receipt of an evidence notice or a priority removal notice, minimal weight. In protection and human rights claims, decision makers must have regard to the principle that minimal weight will be given to any late evidence, but they can consider the principle and determine that it should not be applied in a particular case.
Tom Pursglove
I have made that point previously and I have reiterated it now for the record. I will give way to the hon. Gentleman, but I have made the point pretty clear.
Neil Coyle
The Minister suggests there is clarity where no clarity exists. If the clause is not to reduce the weight that the evidence is given, what exactly is it there for? Is he suggesting that he will withdraw it?
Tom Pursglove
No, that is not for a moment what I am suggesting. The point that I am making is that, as I have alluded to on many occasions in relation to the clauses that we have considered, we want decision makers to have the appropriate discretion within the framework that we are establishing through the Bill. We think that is the right approach to reach the right decisions in individual cases, taking into account all the relevant circumstances and all the relevant information that is provided. We think that is the right way to proceed. More detail will of course be set out in the guidance.
The hon. Gentleman earlier alluded to very difficult circumstances that a particular individual has found challenging to talk about and disclose. I repeat that caseworkers are trained to be sympathetic to circumstances. The burden of proof, as he described it, will be set out in the guidance that follows. Again, I want to see proper discretion and proper consideration of cases on a case-by-case basis. That is the right and proper way to address such matters.
All individuals should be treated with respect by having proper consideration given to their case. As I said, the detail will be established in the guidance. There will also be training for decision makers, but there is already training for decision makers to ensure that they are sympathetic to the sorts of issues that the hon. Gentleman has raised.
Neil Coyle
With the best will in the world, no amount of training will change the fact that, even if someone has come out in the UK, the Bill makes it harder for gay men in particular from certain countries. What do they need to provide to prove that they would face homophobic persecution if they went back? What do they need to show or do? I want a practical example of how it will work in practice. I cannot believe that one even exists at the moment.
Tom Pursglove
I am sure the hon. Gentleman will understand why it is difficult to set out in the Bill all the circumstances that would capture all the situations that individuals face in relation to such matters. It is just not possible to do that, which is why we are saying that we will establish that in the guidance that will be published if and when the Bill becomes law, as I hope it will. The guidance will set out the circumstances and the way that cases will be considered. Again, that discretion, flexibility and consideration will be shown to individual cases.
Tom Pursglove
I am conscious that we are going over this ground repeatedly, but I will give the hon. Gentleman the opportunity to intervene again.
Neil Coyle
Is the Minister saying that the guidance will set out what a gay man needs to provide in order to prove that they will face persecution? I think and hope that is what he is saying, and I hope that he will say why the Home Office has not published the review it has already undertaken of the existing process and when it will be published.
Tom Pursglove
I am not familiar with the review to which he refers, but the hon. Gentleman will appreciate that I have been in this role only for the past four weeks. However, I will go away and look into that.
I can only repeat the point that we will set out in guidance the relevant factors that will be taken into consideration when cases are determined. I would expect there to be sympathetic consideration of people’s individual circumstances. I have also made that point at the Dispatch Box when we have talked about the operationalisation of the policy. Of course, it is right that that information is established in full. With that, I encourage the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw his amendment.
Stuart C. McDonald
I am grateful to the Minister for his answer. At points, he did sound almost reassuring, but the problem is that he sounds reassuring when he says, essentially, “This clause will not have any effect,” suggesting that decision makers will be able just to have regard to all the circumstances on a case-by-case basis. That is what decision makers do anyway without the need for this myriad of statute provisions telling them what to think about a, b, c and the weight to be applied to evidence here, there and everywhere. While I take at face value his intention—I think we probably intend the same thing—that my Afghan example would not end up with conclusive evidence being disregarded because the man was stubborn or behaved in a stupid way because he was at risk, I still find the wording in the clause troubling. I hope the Home Office will think again.
In the meantime, we have pressed similar amendments to a vote, so I do not need to do so again. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 131, in clause 23, page 26, after line 40, insert—
“(2A) The deciding authority must accept that there are good reasons why the evidence was provided late where—
(a) the claimant’s claim is based on sexual orientation, gender identity, gender expression or sex characteristics;
(b) the claimant was under 18 years of age at the time of their arrival in the United Kingdom;
(c) the claimant’s claim is based on gender-based violence;
(d) the claimant has experienced sexual violence;
(e) the claimant is a victim of modern slavery or trafficking;
(f) the claimant is suffering from a mental health condition or impairment;
(g) the claimant has been a victim of torture;
(h) the claimant is suffering from a serious physical disability;
save-line2(i) the claimant is suffering from other serious physical health conditions or illnesses.”—(Bambos Charalambous.)
This amendment sets out the circumstances where the deciding authority must accept that there were good reasons for providing evidence late.
Question put, That the amendment be made.
Stuart C. McDonald
I beg to move amendment 45, in clause 24, page 28, leave out lines 9 to 11.
This amendment would remove the requirement for detainees to give their notice of appeal within 5 working days.
The Chair
With this it will be convenient to discuss the following:
Amendment 46, in clause 24, page 28, line 22, leave out “may” and insert “must”.
This amendment would require (rather than merely empower) the Tribunal or the Upper Tribunal to cease to treat cases as accelerated detained appeals where it is in the interests of justice to do so.
Clause stand part.
Government new clause 7—Accelerated detained appeals.
Stuart C. McDonald
Clause 24 establishes a system of fast-track appeals for those in detention. The explanatory notes state that in 2019-20 it took almost 12 weeks on average for detained immigration appeals to progress from receipt in the first tier tribunal through to disposal, and the aim is for faster decisions in certain cases
“to allow appellants to be released or removed more quickly”.
That sounds almost benign, and who does not want appeals to take place as quickly as possible? But the key issue is whether they can be decided fairly within the timeframe set down in the clause. We are talking not about trying to take three or four weeks off the average time, but about reducing it by almost three quarters. Clearly, the Government believe that the tribunal is wasting a lot of time but I do not see any evidence for that, and I do not see any analysis of why that 12-week average exists.
Five days is an incredibly short timeframe in which to launch an appeal, particularly when a person is detained in an immigration detention facility, often in the middle of nowhere, and where the chances of securing proper legal advice and consultation in that time are incredibly slim. Amendment 45 would delete that requirement.
Amendment 46 would also mean that the tribunal would be required to stop treating an appeal as an accelerated appeal if it was in the interests of justice to do so. Again it is not clear to us why the tribunal should be empowered to continue an accelerated appeal when that is not in the interests of justice. More generally, the clause gives rise to the question of why the Secretary of State should have any say in which appeals can be disposed of expeditiously. Why is she not required just to assess the fairness of a case or give consideration to how complex a case is? Why not leave the tribunal to make those determinations? It would be far better placed to make that assessment.
As Members will know, in 2015 the Court of Appeal found similar rules to be unlawful and held that they created a system in which asylum and human rights appeals were disposed of too quickly to be fair. The Court said that the timetable was
“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.
It also said that the policy did not appreciate the problems faced by legal representation obtaining instructions in such cases or the complexity or difficulty of many asylum appeals, and the gravity of the issues raised by them. I have absolutely no reason to think that the proposed policy is any better than that one.
The Government now intend to replace the entire clause with new clause 7, principally it seems to expand the categories of appeal that could be subject to the proposed procedure. My party opposes that expansion and opposes the clause.
Bambos Charalambous
We oppose the clause. It seeks the return of the detained fast-track system and to recreate it in primary legislation. The clause imposes a duty on the tribunal procedure rules committee to make rules for an accelerated timeframe for certain appeals made from detention that are considered suitable for consideration within that timeframe.
In the explanatory notes, an accelerated detained appeal is defined as being
“an appeal brought by an appellant who…received a refusal of their asylum claim while in detention…remains in detention under a relevant detention provision…is appealing a decision which was certified by the Secretary of State as suitable for an accelerated detained appeal”.
That system previously existed but was found to be illegal by the High Court in a landmark case brought by Detention Action. The system was found to be unfair as asylum and human rights appeals were disposed of too quickly to be fair. The Court of Appeal described the timetable for such appeals as
“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.
It also emphasised, perhaps instructively for this Committee, that speed and efficiency must not trump justice and fairness—something of a feature of part 2 of the Bill. Indeed, hundreds if not thousands of cases have had to be reconsidered by the Home Office or the tribunal because they were unfairly rushed through the process that the Government now seek to recreate. Those cases include survivors of trafficking and torture and other individuals who, on the basis of a rushed and unfair procedure, will have been removed to places where they fear persecution or are separated from their families. There was no adequate system for ensuring that such people were removed from the fast track and given a fair opportunity to present their claims.
Despite that background, the Bill aims to create this unjust and ineffective procedure by reintroducing the detained fast-track process through this clause. It will put that same system, which was deemed unlawful in 2015, on a statutory footing, which will insulate it against future legal challenges.
The clause provides for the Secretary of State to certify a decision if she considers that an appeal would be disposed of expeditiously. It requires the tribunal procedure committee to introduce the following time limits: a notice of appeal must be lodged no later than five working days after the decision was received; the tribunal must make a decision no later than 25 days after the appeal date; and an application for permission to appeal to the upper tribunal must be determined by the first-tier tribunal not later than 20 working days after the applicant was given notice of the tribunal’s decision.
The clause would deny access to justice. First, five days is insufficient to prepare an appeal against a negative decision, particularly where the individual is detained and where their access to legal advice is poor and an individual’s wellbeing may be affected by their detention. For those detained in prison, the situation is even worse. For example, in a case in February of this year, the High Court declared the lack of legal aid immigration advice for people held under immigration powers to be unlawful. More widely, Home Office decision making is frequently incorrect or unlawful. As we know, half of all appeals against immigration decisions were successful in the year leading up to June 2019. It is therefore vital that people are able to effectively challenge decisions through the courts.
The detained fast track is unjust. It is also unnecessary. As the Public Law Project and Justice have pointed out, the tribunal has adequate case management powers to deal with appeals expeditiously in appropriate cases and already prioritises detained cases. The Home Secretary should not be trying to force the hand of the independent tribunal procedures committee to stack the cards in her favour in appeals against her decisions. The Bill does not learn the lessons of the past and seeks to resurrect an unworkable system of accelerated detained appeals. The clause proposes that the appeals process be fast-tracked. I am very worried that provisions in part 2 of the Bill will therefore disadvantage the most vulnerable.
By allowing the Home Secretary to accelerate appeals when she thinks they would be disposed of expeditiously, the clause is clearly unjust. Once again, it also seems to violate the refugee convention. As my hon. Friend the Member for Warwick and Leamington (Matt Western) said on Second Reading:
“It is more than regrettable that the convention appears now to be held in such little regard by this Government.”—[Official Report, 19 July 2021; Vol. 699, c. 769.]
For those reasons, we will oppose that the clause stand part.
Tom Pursglove
I understand the motivation behind amendment 45. However, the Government oppose the amendment, as it is contrary to our policy intention and would undermine the effective working of the accelerated detained appeals process.
The period of five working days strikes the right balance, achieving both speed and fairness. The detained fast-track rules put in place in 2003 and 2005 allowed only two days to appeal. The 2014 rules set the same time limit. The current procedure rules allow a non-detained migrant 14 days to lodge their appeal against a refusal decision.
On amendment 46, I can assure hon. Members that it is not necessary, as the Bill already achieves the objective sought. The Government’s aim is to ensure that cases only remain in the ADA where it is in the interests of justice for them to do so. The consideration of what is in the interests of justice is a matter of judicial discretion. Where a judge decides that it is not in the interests of justice to keep a case in the ADA process, we would expect that they would use their discretion to remove the case. The current wording of the Bill—“may” rather than “must”—is consistent with the drafting of the rules that govern all appeals considered in the immigration and asylum chamber.
For these reasons, I invite the hon. Member for Enfield, Southgate to withdraw the amendments. On the detained fast track and wider points about the Government’s intentions, although the courts upheld the principle of an accelerated process for appeals made in detention, we have considered the legal challenges to the detained fast track carefully. We are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. All Home Office decisions to detain are made in accordance with the adults at risk in detention policy and reviewed by the independent detention gatekeeper. Changes made to the screening process, drawing on lessons learned, will enable us to identify appellants who are unsuitable for the accelerated detained appeals route at the earliest opportunity. Suitability will be reviewed on an ongoing basis and the tribunal will have the power to transfer a case out of the accelerated route if it considers that that is in the interests of justice to do so.
The timescales proposed for the accelerated route are longer than under the previous detained fast track. Appellants will have more time to seek legal advice and prepare their case. We are confident that the new route will provide sufficient opportunity to access legal advice. I am also conscious that Members are interested in what happens in the eventuality that a migrant misses the deadline to appeal a refusal decision. Provided that there are no other barriers to return, removal will be arranged. It is open to a migrant and/or their legal representatives to submit an appeal after the deadline and ask a judge to extend the time and admit the appeal late.
On new clause 7, the Government are committed to making the asylum appeals system faster, while maintaining fairness, ensuring access to justice and upholding the rule of law. In particular, it is right that appeals made from detention should be dealt with quickly, so that people are not deprived of their liberty for longer than is necessary. New clause 7 sets out a duty on the tribunal procedure committee to make rules for the provision of an accelerated detained appeals route. That will establish a fixed maximum timeframe for determining specific appeals brought while an individual is detained.
Currently, all immigration and asylum appeals are subject to the same procedure rules. Appeals involving detained appellants are prioritised by Her Majesty’s Courts and Tribunals Service but there are no set timeframes. It often takes months for detained appeals to be determined, resulting in people being released from detention before their appeals are concluded.
Changes to procedure rules are subject to the tribunal procedure committee’s statutory consultation requirements and procedures. However, the Government’s intent is to ensure that straightforward appeals from detention are determined more quickly. Under a detained accelerated process all appellants will benefit from a quicker final determination of their immigration status, spending less time in limbo, and getting the certainty they need to move forward with their lives sooner.
Those whose appeals are successful will have their leave to remain confirmed earlier than if the standard procedure rules had been followed. Meanwhile those with no right to remain will be removed more quickly, as they can be detained throughout the process, which reduces the risk of absconding.
The courts have been clear in upholding the principle that an accelerated process for asylum seekers while detained, operated within certain safeguards, is entirely legal. I made that point earlier. We have considered the legal challenges to the previous detained fast track carefully and we are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. We will ensure, through regulations and guidance, that only suitable cases will be allocated to the accelerated route. Cases will be assessed for whether they are likely to be able to be decided fairly within the shorter timeframe, and individuals will be screened for vulnerability and other factors that may impact their ability to engage fairly with an accelerated process.
As an additional safeguard, the clause makes it clear that the tribunal can decide to remove cases from the accelerated route if it considers it is in the interests of justice to do so. The new accelerated detained appeals route will contribute significantly to the timeliness with which appeals are decided for those in immigration detention. It will allow us to swiftly remove from the country people found not to need protection, while those with valid claims can be released from detention more quickly.
Stuart C. McDonald
I am grateful to the Minister for his response. I still have serious concerns about the provisions in the clause, particularly the short timeframe of five days to launch an appeal, and particularly when it could be the Secretary of State who has decided somebody has to go through that process. If she gets that decision wrong, by the time there is any ability to apply to the tribunal to move away from the fast-track process, it could be too late. In that case, a removal attempt will have been made, and a vulnerable person who was unable to contact a solicitor in time is completely without any chance of rectifying what the Secretary of State has done.
I maintain my opposition to what is proposed. I think that the safeguards fall way short, but I do not see any point in putting my amendment to a vote, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
I will now put the question that clause 24 stand part. I understand that the Government will vote no.
Craig Whittaker
I thought we were voting for clause 24 to stand part of the Bill.
The Chair
As Chair, I do not wish to stop you voting as you wish to. I understand that the Government have indicated that they would vote to leave out the clause.
Tom Pursglove
To be clear, we are seeking to remove clause 24 and replace it with new clause 7.
The Chair
If that is the Government’s intention, far be it from me to tell them what to do.
Clause 24 disagreed to.
Clause 25
Claims certified as clearly unfounded: removal of right of appeal
Question proposed, That the clause stand part of the Bill.
Tom Pursglove
Protection or human rights claims that are certified as clearly unfounded are those so clearly without substance that they are bound to fail. The refusal of such claims can currently be appealed after the person has left the UK. By contrast, there is no right of appeal against the rejection of further submissions received after a protection or human rights claim has previously been refused, where those submissions do not create a realistic prospect of success. That approach is right: there should be no right of appeal unless there is something of real substance for the tribunal to consider.
The clause removes the out-of-country right of appeal under section 94 of the Nationality, Immigration and Asylum Act 2002 for those whose protection or human rights claims are certified as clearly unfounded and bound to fail, bringing them into line with how we treat further submissions that have no realistic prospect of success. It will apply only to claims that are certified after the clause comes into effect. I would like to be clear that removing the right of appeal for certified claims does not prevent a person from applying for a judicial review to challenge a certification decision. It provides a necessary and effective safeguard in the event that a claim is incorrectly certified as clearly unfounded.
Bambos Charalambous
It is ironic that we are debating this clause as the Judicial Review and Courts Bill is receiving its Second Reading. We oppose the clause. We have heard time and again that the Government are aiming to make it harder for a person in the UK to establish their refugee status and entitlement to asylum. Clause 25 further restricts appeal rights for people seeking asylum. This clause removes the in-country and out-of-country rights of appeal for human rights and protection claims certified as clearly unfounded. It is concerning as, once again, it seeks to limit the rights of individuals, while failing to increase efficiency in the system and in turn decreasing fairness, with regrettable consequences for individuals. In respect of articles 6 and 8 of the ECHR, it represents a clear breach and will give rise to legal challenge. That was seen in the case of Kiarie and Byndloss v. the Home Secretary in 2017. At present, where the Home Secretary certifies a case as clearly unfounded, any appeal may be brought only after removal from the UK. In cases concerning protection claims or article 3 human rights claims, such appeals are incapable of providing an effective remedy, because the feared harm will have eventuated before the appeal can be heard.
As the explanatory notes to the Bill acknowledge, the right of appeal is rarely exercised; instead, challenges are brought by way of judicial review. This provision therefore contributes to the general trend in immigration and asylum law away from rights of appeal to the First-tier Tribunal and towards unappealable decisions, which are amenable to judicial review.
For the reasons specified in my speech, we will oppose clause 25 standing part of the Bill.
Question put, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 159, in schedule 3, page 62, line 39, at end insert—
“(2D) Notwithstanding subsection (2A), a person who is particularly vulnerable to harm must not be removed to, or required to leave to go to, a State falling within subsection (2B) or any state to which Part 2, 3 or 4 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 for the time being applies.
(2E) For the purposes of subsection (2D), a person is particularly vulnerable to harm if they—
(a) are suffering from a mental health condition or impairment;
(b) have been a victim of torture;
(c) have been a victim of sexual or gender-based violence;
(d) have been a victim of human trafficking or modern slavery;
(e) are pregnant;
(f) are suffering from a serious physical disability;
(g) are suffering from other serious physical health conditions or illnesses;
(h) are aged under 18 or 70 or over;
(i) are gay, lesbian or bisexual;
(j) are a trans or intersex person.”
This amendment would prevent persons who are particularly vulnerable to harm from being removed to, or required to leave to go to, a state falling within subsection (2B).
That schedule 3 be the Third schedule to the Bill.
New clause 18—Removal of asylum seeker to safe country—
“Schedule N makes amendments to section 77 of the Nationality, Immigration and Asylum Act 2002 (no removal while claim for asylum pending).”
This new clause introduces the proposed NS2.
New schedule 2—Removal of asylum seeker to safe country—
“In section 77 of the Nationality, Immigration and Asylum Act 2002 (no removal while claim for asylum pending), after subsection (2) insert—
‘(2A) This section does not prevent a person being removed to, or being required to leave to go to, a third State if all of the following conditions are met—
(a) the removal is pursuant to a formal, legally binding and public readmission agreement between the United Kingdom and the third State;
(b) the State meets the definition of a safe third State set out at section 14 of the Nationality and Borders Act 2021, as shown by reliable, objective and up-to-date information;
(c) the person has been found inadmissible under section 80B of the Nationality, Immigration and Asylum Act 2002;
(d) the third State in question is the State with which the person was found to have a connection under Section 80B of the Nationality, Immigration and Asylum Act 2002;
(e) taking into account the person’s individual circumstances, it is reasonable for them to go to that State; and
(f) the person is not a national of that State.’”
This new schedule modifies the circumstances in which a person can be removed to, or required to leave to go to, a safe third State.
Tom Pursglove
This Government have been clear that claiming asylum in the first safe country reached is the fastest route to safety. We must dissuade all those considering making dangerous journeys to the UK in order to claim asylum. We are working closely with international partners to fix our broken asylum system and discussing how we could work together in the future.
Clause 26 introduces schedule 3, which aims to reduce the draw of the UK by working to make it easier to remove someone to a safe country, where their claim will then be processed. It amends existing legal frameworks in order to support our future objective to transfer some asylum claims to a safe third country for processing.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
What my hon. Friend the Minister is saying about deterring these dangerous journeys is even more poignant given the rescue operation that took place today off Harwich, where I understand five Somalis were in a small inflatable boat. As I understand it, two have been rescued, but three are feared drowned. That brings starkly into all our minds the need to deter these dangerous journeys and the desperate people who face these terrible things. I am sure the condolences of the whole Committee go to all those involved—not only those actually in the boat, but the rescue services, which must have had a fairly tough time.
Tom Pursglove
I am grateful to my right hon. Friend for his intervention. It is fair to say that I am very mindful of the enormous risks that we are finding people taking in trying to cross the channel at the moment. We have debated the matter extensively in this Committee up to this point, and no doubt that debate will continue. I am very concerned to hear about the situation that he has described. I have asked to be updated, and to be kept updated as to the progress of the operation to try to find the individuals who, it would seem, have been lost at sea. Of course, we send our thoughts and best wishes to those who are caught up in that terrible tragedy, and we hope for the best for them. This absolutely and without question underlines the gravity of the risks that people are taking by getting into small boats and trying to cross the English channel to get to the United Kingdom.
The Bill contains a suite of measures designed to protect those in genuine need while breaking the business model of criminal gangs who profit from people trafficking and exploit vulnerable people for their own gain. Our aim is to disincentivise people from seeking to enter the UK by dangerous means, facilitated by those criminal smugglers, with a clear message that those who arrive via an irregular route may be eligible to be transferred to and processed in another safe country not of their choosing.
Stuart C. McDonald
Is schedule 3 confined to applicants who arrive via irregular and dangerous routes, or could it be applied, in theory, to pretty much anyone who is claiming asylum?
Tom Pursglove
If I may, I will set out the detail that underpins schedule 3 in the course of my remarks.
Clause 26 is designed to be part of a whole-system deterrent effect to prevent illegal migration. Access to the UK’s asylum system should be based on need, and not driven by the actions of criminal enterprise. Under current policy, it is too easy for removals of individuals with no right to remain in the UK to be delayed as a result of speculative and, in some cases, unfounded article 3 human rights claims.
Consequently, schedule 3 will also introduce a presumption that specified countries are safe, because of their compliance with obligations under article 3 of the European convention of human rights.
Neil Coyle
Earlier today, the Minister mentioned that Albania, from where we accept many asylum cases, could be considered a safe country. Can he tell us about other safe countries? Gibraltar, which was touted by the Government, has said categorically that it will not be a safe country for these purposes. Ghana and Rwanda have ruled themselves out, despite being touted by the Government. Morocco and Moldova have appeared in the press as potential examples, but the FCDO has said:
“No north African country, Morocco included, has a fully functioning asylum system”.
The Foreign Office stated that Moldova has “endemic” corruption, and that
“If an asylum centre depended on reliable, transparent, credible cooperation from the host country justice system we would not be able to rely on this”
in Moldova. Can the Minister tell us which safe country he is talking about?
Tom Pursglove
One thing I will say is that the measures are not about opening camps on overseas territories. I will not get into a running commentary about the negotiations or discussions that may or may not be taking place with individual countries.
Claimants will be required to present strong evidence to overturn this presumption to prevent removal. That will support the aim of swiftly removing individuals who have no basis to remain in the UK by preventing unnecessary delays where speculative article 3 claims are made prior to removal to safe countries. Adding to the existing removal power, schedule 3 will also provide the Secretary of State with a power to add countries to the safe list. That will ensure that the list of safe countries remains accurate.
Schedule 3 also ensures that rights of appeal are not afforded either to asylum seekers on the basis of removal to safe countries, or to clearly unfounded human rights claims, thus preventing unnecessary appeals for unsubstantiated claims.
Neil Coyle
The Minister says that he does not want to get into a running dialogue—that is fine—but can we have just a rough idea of how many countries are currently in bilateral negotiations with the Home Office? That may be useful. I think it is only right and proper that the Committee has an idea of the costs involved, because they will vary massively depending on the country—or indeed the continent, given some of the ludicrous examples that have been touted by people as high up as the Home Secretary. How many countries are in those negotiations, and how much can the public expect to pay for this particular part of this ridiculous Bill?
Tom Pursglove
The hon. Gentleman is a crafty parliamentarian who will, I have no doubt, try to elicit that information from me, but I am afraid that he will be unsuccessful in that endeavour, however hard he tries. The bottom line is that I am not going to get into a running commentary in this Committee about discussions that may or may not be taking place with countries around the world in relation to this policy.
Tom Pursglove
I will give way, but the hon. Lady will get the same response if she is trying to extract the same information from me.
Holly Lynch
I am grateful to the Minister for giving way. He might remember that I asked previously whether he had any examples of returns to third countries. He responded in writing with an update this morning. He updates Committee members that
“4,561 ‘notices of intent’ were served to individuals, informing them that inadmissibility action was being considered in their cases.”
So we are not discussing hypotheticals here. The wheels are in motion for individuals. Can he understand that we have got to do our due diligence in pushing for the details, because the consequences for these people who have had notices of intent are very real? That is why we need to put those questions to him.
Tom Pursglove
I would make a few points in response. Obviously, removals and deportations generally have been much more difficult to organise during the last 18 months, as a direct consequence of covid-19. That is not unsurprising, and of course it is reflected in the fact that we have seen fewer removals and deportations than we would have expected. It is not the Government’s intention to apply retrospectively the inadmissability measures we are talking about. That is an important point in providing clarity for the Committee.
We are committed to upholding our international obligations including under the 1951 refugee convention, and that will not change. While people are endangering lives making perilous journeys, we must fix the system to prevent abuse of that system and the criminality associated with it. Our aim is that the suite of measures in the Bill, including those in clause 26 and schedule 3, will disincentivise people from making dangerous journeys across Europe to the UK, and encourage people to claim asylum in the first safe country they reach.
Stuart C. McDonald
The Minister has scuttled over the idea that the Government are keen to abide by their international obligations. The UNHCR is absolutely clear that the clause rides a coach and horses—I paraphrase slightly—through the convention. Can he say a little bit more about how he possibly believes that this is consistent with what the refugee convention provides?
Tom Pursglove
I am actually meeting the UNHCR tomorrow, and I am obviously looking forward to that meeting. No doubt we will cover a range of topics during that discussion and engagement, which I most certainly value. I repeat to the hon. Gentleman the point that I have now made several times in relation to the provisions in the Bill: we believe that they are compliant with our international obligations. I have made that point previously and will continue to make it.
Mr Goodwill
Does my hon. Friend agree that the principle of a safe country is well established? When we were members of the European Union, removals to EU countries were permitted because of that particular situation. Does he further agree that countries that seek to be candidates to join the European Union will have to bring their standards up to those equivalent to the European Union, so there is a list of countries, particularly in the Balkans and elsewhere, that may well meet those criteria before they join the European Union?
Tom Pursglove
My right hon. Friend raises various points on the back of his experience covering at least part of the role that I now cover. I would build on that by making the point that we do not remove people to countries where they would be unsafe. Of course, we are also talking here about countries that are compliant with the obligations set out under the refugee convention. That is an important point to re-make.
I thank those who drafted amendment 159 for their contribution to the debate thus far. Let me begin by being clear that this Government are wholly committed to ensuring that removals of individuals are done in accordance with our international obligations, and that the safety of those transferred is at the forefront of our actions. However, we simply cannot support any amendment that seeks to limit our ability to remove individuals to safe third countries. I assure the Committee again that we would only ever remove an individual to a country that we are satisfied is safe for them. However, the amendment is overly restrictive and therefore could not be used flexibly to consider the circumstances in the country in question. By way of illustration, the amendment would mean that we could not remove someone who is gay, lesbian or bisexual to France or Italy.
Committee members can be assured that the amendment is superfluous given the safeguards already in the Bill. Indeed, we will only ever send individuals to countries where we know that their removal will be compliant with the UK’s international legal obligations, including those that pertain to potential victims of modern slavery. Even where we are assured that a particular state is safe, changes made by the Bill make it clear that every individual in scope for removal to that state will be able to rely on the protection of article 3 of the ECHR to demonstrate why that state may not be safe in their unique circumstances. That is to prevent any individual from being transferred to a country where they would genuinely be at risk of inhumane and degrading treatment.
Stuart C. McDonald
The Minister keeps referring to safeguards in the Bill and consideration of individual applicants’ safety, but none of that is in schedule 3, which does not require a finding of inadmissibility or a connection with the state. There is no consideration of the reasonableness of the transfer. The country might not even be a signatory to the refugee convention or offer refugee protection or the chance to secure the full rights that refugees are entitled to. Will he talk us through the safeguards?
Tom Pursglove
I would argue that I have already set out those safeguards.
The Government are clear that we must consider all options to break the business model of people smugglers and prevent people from putting their lives at risk by making perilous journeys from safe countries. Changes in schedule 3 are a key component of the wholescale system reform that we are committed to undertaking to prevent irregular migration. For those reasons, I ask hon. Members not to press amendment 159.
On schedule 3, the Government have been clear that the fastest route to safety is to claim asylum in the first safe country reached. We must dissuade all those considering making dangerous journeys to the UK to claim asylum. We are working closely with international partners to fix our broken asylum system and are discussing how we could work together in the future.
Tom Pursglove
I have been generous to the hon. Gentleman, but I will give way one more time.
Neil Coyle
I thank the Minister—he is being generous. On the first safe country, the Government might have more standing and the public more confidence in them had they not abandoned their obligations. Pakistan, for example, is seeing a cut of £62 million in aid from the UK to help manage the refugee crisis spilling over the border from the Taliban. Turkey is seeing a cut of £16 million in aid from the UK, Lebanon is seeing a cut of £71.5 million and Syria is seeing a drop of £105 million. If the Government were serious about people being able to stay nearer to their home country, those cuts, which certainly were not in their manifesto at the last election, would not be happening.
Tom Pursglove
In recent years, UK aid in crisis circumstances has made a significant difference in relation to properly caring for and ensuring—
Tom Pursglove
Let me finish the point. We have regularly made additional aid available in crisis circumstances to help relieve particular pressures that have arisen, and UK aid has been essential as part of the global effort. I have been proud of the crisis measures we have put in place in relation to those circumstances as they have arisen. No doubt we will continue to have a commitment to that going forward.
Tom Pursglove
No, I am going to make some progress because I am conscious that we have still got some way to go.
Schedule 3 aims to reduce the draw of the UK by working to make it easier to remove someone to a safe country where their claim will be processed. It amends existing legal frameworks to support our future objective to transfer some asylum claims to a safe third country for processing. The Bill contains a suite of measures designed to protect those in genuine need while breaking the business model of criminal gangs who profit from people trafficking and exploit vulnerable people for their own gain. We aim to disincentivise people from seeking to enter the UK by dangerous means facilitated by these criminal smugglers with a clear message that those arriving via an irregular route may be eligible to be transferred to another safe country not of their choosing to be processed.
Stuart C. McDonald
I just do not understand why the Minister tries to suggest that the provision will apply only to people who are not in genuine need. The Government do not know that because they are not looking at the cases before removing them to a third country. How is he circumscribing those who will be subject to this procedure, which we utterly oppose? How can he keep on saying that it will apply only to those who do not have genuine need?
Tom Pursglove
Schedule 3 is designed to be part of a whole system deterrent effect to prevent illegal migration. Access to the UK’s asylum system should be based on need, and not driven by the actions of criminal enterprise. Under current policy, it is too easy for removals of individuals with no right to remain in the UK to be delayed as a result of speculative, and in some cases unfounded, article 3 human rights claims. Consequently, schedule 3 will also introduce a presumption that specified countries are safe, due to them being compliant with their obligations under article 3 of the ECHR. Claimants will be required to present strong evidence to overturn that presumption to prevent removal. This will support the aim to swiftly remove individuals who have no basis to remain in the UK by preventing unnecessary delays where speculative article 3 claims are made prior to removal to safe countries.
Schedule 3 will also provide the Secretary of State with a power to add countries to the safe list—that is in addition to the already held removal power. This will ensure that the list of safe countries remains accurate. The schedule also ensures that rights of appeal are not afforded to asylum seekers on the basis of removal to safe countries nor to clearly unfounded human rights claims, thus preventing unnecessary appeals for unsubstantiated claims.
We are committed to upholding our international obligations, including under the 1951 refugee convention. That will not change. While people are endangering lives making perilous journeys, we must fix the system to prevent abuse of the asylum system and the criminality associated with it. Our aim is that the suite of measures contained within this Bill, including those within schedule 3, will disincentivise people from making dangerous journeys across Europe to the UK and encourage people to claim asylum in the first safe country they reach.
I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for proposing new clause 18, which introduces new schedule 2. I agree wholeheartedly with the importance of ensuring the safety of those who are removed from the UK to third countries. However, we cannot support the proposals, which seek to limit our ability to remove individuals to a safe country. This Government have made our position clear throughout today’s debate: people should claim asylum in the first safe country that they reach. That is the fastest route to safety. I would like the Committee to consider each of the conditions in new schedule 2 in turn.
Neil Coyle
This comes back to the first safe country. The Minister makes the point that we both agree on—we are proud of the UK’s contribution to humanitarian support and of military interventions that prevented refugees from being created in the past. The Conservative manifesto said that the Army would not be cut and aid would not cut, but voters have been betrayed by the Government’s actions since. They have reneged on those manifesto promises. And asylum seekers have been betrayed by those same cuts. The Bill does nothing but compound that betrayal.
Tom Pursglove
On 3 September, we announced £30 million of life-saving aid to Afghanistan’s neighbouring countries to help those who choose to leave Afghanistan. That is part of the Government’s efforts to support regional stability. The hon. Gentleman spoke earlier about resources being made available to help in-region. Yet again, this country has demonstrated that commitment to try to help provide stability as far as possible, and to help to ensure that as much support as possible can be provided in the vicinity of where crises arise. I think that—
Tom Pursglove
I will not take another intervention from the hon. Gentleman on that point.
Tom Pursglove
I have been very generous to the hon. Gentleman. I think that aside was a little bit unfair on his part, given the number of interventions that I have taken. I know that it was not meant in an unpleasant spirit, so I will move on.
I invite the Committee to consider each of the conditions in new schedule 2. Regarding the form of a transfer arrangement, we are currently in discussions with our international partners to consider the shared challenge of irregular migration. I do not wish to pre-empt the form or content of future arrangements as that could tie the hands of our negotiators, but I can assure the Committee that the Government will act in accordance with our international obligations, considering both the content and form of any arrangement reached. Furthermore, that condition would have the perhaps unintended consequence of preventing the removal of individuals in ad hoc cases, which has been a long-standing process within our asylum system to which I have alluded in response to earlier questions.
Bambos Charalambous
The Labour party will oppose clause stand part. Clause 26 opens the door to offshoring by permitting the removal of asylum seekers from the UK while their claim is being determined or while the UK decides whether to take responsibility for the claim.
The clause introduces schedule 3, which allows the Government to remove people who are seeking asylum to countries outside the UK, and hold them in detention there while their asylum claims are being processed—in other words, offshoring. It is our strong belief that the clause should be deleted, and we will vote against clause stand part and against schedule 3. We believe that, through the clause, the Government are seeking to emulate the Australian system as a model. It has been reported that the Home Office is in talks with Denmark to share costs on an offshore detention centre in Rwanda, and a number of other places have also been mentioned.
It is worth examining the available empirical evidence on the ideas underpinning the clause. In 2015, a United Nations report found that Australia’s offshore detention regime was systematically violating the international convention against torture. In addition, in 2020, the prosecutor of the International Criminal Court said the regime was “cruel, inhuman or degrading”, and unlawful under international law.
We are deeply concerned that the Government’s plan appears to emulate a failed system that has been widely condemned for its human rights abuses. When we look in more detail at the Australian model that the Government seem to want to emulate, we find more causes for concern. In 1992, the Australian Government introduced mandatory indefinite detention for asylum seekers who arrive by boat—that policy remains in place. In 2001, they introduced the Pacific solution, whereby boats were intercepted by the navy and taken to processing centres on Manus and Nauru. In 2008, the Australian Labour Government ended that practice, branding it an “abject policy failure”, only to reintroduce offshore detention in the early 2010s. Approximately 4,180 people were transferred offshore between 2012 and 2014, at which point the transfers stopped.
Conditions and events inside the centres were secretive; journalists and legal representatives were generally banned from entering. That created the conditions for the systematic abuse of asylum seekers by those running the facilities. In 2016, The Guardian released records of more than 2,000 incident reports from Nauru—known as the Nauru files—documenting widespread abuse and neglect in offshore detention. That included systematic physical and sexual assault on children and adults, the use of blackmail by guards, and attacks and harassment by people on Nauru or Manus Island. At least 12 people are reported to have died in the camps, with the causes of death including medical neglect, suicide and murder by centre guards.
Aside from the immeasurable human cost, this failed system has been dismantled by its own architects. A recent research report by the Kaldor Centre found that there is no evidence that the policy achieved the stated aim of “stopping the boats” and that since 2014 the Government have been trying to distance themselves from the policy. Thanks to the powerful stories of the people affected, it has been increasingly rejected by the Australian public. It has cost billions of Australian dollars. The policy has clearly failed disastrously, and we are deeply concerned that this Government are seeking in this clause to bring the policy to the UK.
The impact of offshore detention on mental health cannot be overstated. In the Australian example, conditions in offshore detention centres have been inhumane and unfit for human habitation. The mental and physical health impact of offshore detention has been colossal. In 2014, the Australian Human Rights Commission found that 34% of children in detention suffered from mental health disorders of a seriousness that would require psychiatric referral if the children were in the Australian population, and paediatricians reported that the children transferred to Nauru were among the most traumatised they had ever seen. Medical experts working with the UNHCR found rates of mental illness in people in offshore detention to be among the highest recorded in any surveyed population. Médecins Sans Frontières reported that the suffering on Nauru was some of the worst that it had ever encountered. There is absolutely no way, in our view, that the UK Government should be risking huge harm against children in terms of their mental health by emulating that failed policy.
Furthermore, the financial cost of the Australian system is astronomical and regularly more than $1 billion a year. The Refugee Council of Australia compiled a detailed breakdown of offshoring costs and found that it had cost the Australian Government $8.3 billion between 2014 and 2020. The annual cost per person of holding someone offshore in Nauru or Papua New Guinea has been estimated to be $3.4 million—per person. Again, we are deeply concerned that the UK Government are seeking to emulate a policy that is extremely likely to have extortionate costs in financial terms. The financial impact of this policy will be huge. That all these increased costs go simply to stopping boats, as a deterrent, which the Minister alluded to, shows that it is a failed policy. This is fiscal incompetence from the Government: in their own prediction of what the policy costs, they have estimated exceeding that every year. It will be a budget impossible to predict, based on the number of people whom they propose to offshore. We have the Budget tomorrow, so I will be interested to see what provision the Chancellor of the Exchequer has made in relation to that and the comprehensive spending review.
Let us look in more detail at what the Government are risking with this policy in terms of the human cost. There are countless stories of the lives destroyed by the policy of offshoring. Loghman Sawari, whose story was covered by The Guardian, is still detained, despite having been accepted by Australia as a refugee in 2014. Eight years after the initial detention, he told The Guardian that the days have begun to run one into another and his memory is failing. The Maghames family arrived in Australia by boat in 2013 and were detained on Christmas Island before being transferred to Nauru in March 2014. Hajar Maghames, along with her parents and younger brother, has been in detention ever since, despite being granted refugee status in 2019. In 2020, they were transferred to Australia so that her father could receive medical care, and they are now in cabins at the back of Darwin airport. They are now the only people held there.
I would be grateful if the Minister clarified whether people being processed wherever they are offshored will, if their claim is successful, be brought back to the UK, and what estimate he has made of the cost of that.
To continue with my examples, Reza Barati, who, like the family to whom I just referred, had fled Iran, is one of the 18 people to have died in offshore detention. He was beaten to death by guards and other workers on Manus Island after a protest turned violent and the centre was attacked. He died four days after his 24th birthday. His family are suing the Australian Government and G4S for negligence. During the same incident over two days in February 2014, 70 refugees and asylum seekers were injured. One lost his right eye. Another was shot in the buttocks. One man was attacked from behind by a G4S guard who slashed his neck, causing a 10 to 12 cm horizontal slit across his throat. There have been many others, including the high-profile cases of author Behrouz Boochani or the Tamil family from Biloela, whose harrowing stories have ultimately helped to turn public opinion against this policy.
Offshoring in large accommodation centres poses particular risks to LGBT+ people seeking asylum because of their particular vulnerability. Organisations such as Rainbow Migration and Stonewall have raised concerns that housing people in such centres outside the UK will result in systemic verbal, violent and sexual abuse of LGBT+ people who are in need of protection and who have higher rates of self-harm and suicide.
There is much evidence that LGBT+ people already experience systemic abuse and harassment in the UK’s current accommodation and detention system, led by staff and others with whom they are housed or detained alongside. The problems tend to continue, even when people are moved to a new property. Documented examples provided by organisations that deal with victims have included unwanted sexual advances, threats, invasions of privacy, verbal abuse, being prevented from sleeping, pranks and sexual assault.
It is therefore deeply worrying that offshore processing centres are likely to escalate the homophobic, biphobic and transphobic abuse that LGBT+ people experience in existing asylum accommodation and detention centres. It is even more shocking when one considers that many refugees in the LGBT+ community have fled their home countries specifically because of abuses and persecution that they have experienced there.
Offshoring also presents a significant risk of harm to women who have survived rape and sexual exploitation. It is difficult to see how women who have survived such atrocities would be exempt from offshoring because it is clear that the Government’s key objective for offshore detention is deterrence. According to the Government’s logic, there can be no exceptions to this policy, because otherwise the objective of deterrence is undermined.
This was seen when offshore detention was reintroduced by the Australian Government in 2012. All people seeking asylum who arrived by boat were liable for removal to the islands of Nauru or Manus
“even if they...had characteristics warranting special consideration, such as being an unaccompanied minor, a survivor of torture and trauma, or a victim of trafficking”.
It is clear that the UK Government, by introducing such provision for offshoring, must be willing to subject children, pregnant women, survivors of trafficking and other vulnerable people to offshore detention.
Tom Pursglove
I hope that I can help the hon. Gentleman somewhat by making it very clear that children will not be transferred overseas for their claims to be processed.
Bambos Charalambous
I am grateful to the Minister for clarifying that point, but there are still others with vulnerable characteristics, including pregnant women and survivors of trafficking who will be subject to offshore detention.
I hardly need to outline the inhumanity of this policy as it applies to women victims of rape and sexual violence. I am deeply concerned about the conditions in which women will be held, and particularly the risk to them of further sexual violence and abuse. In detention centres in the UK, where there are a range of safeguarding mechanisms in place, it has not been enough to protect people in detention from abuse. The 2015 Lampard report on Yarl’s Wood, which until last year was the main detention centre for women in the UK, highlighted that between 2007 and 2015, 10 members of staff had been dismissed for incidents involving “sexual impropriety” towards women held there. Such “impropriety” included the repeated sexual harassment and abuse of a 29-year-old woman by a male healthcare worker.
When it comes to offshoring, the UK Government will have even less control over the treatment of detainees in offshore detention centres. The risk to women of sexual violence and abuse in such centres will be increased. The sexual harassment and violence to which women detained offshore by the Australian Government were subjected has been well documented.
There is no empirical evidence to support the effectiveness of offshoring as a deterrent strategy in respect of those fleeing persecution. A recent report by the Kaldor Centre for International Refugee Law highlights that in the year following the Australian Government’s reintroduction of offshore detention
“more than 24,000 asylum seekers arrived in Australia by boat. This number was considerably more than at any other time since the 1970s, when boats of asylum seekers were first recorded in Australia. Moreover, as the months passed, and news of the policy presumably reached some of those who were contemplating travelling by sea to Australia, there was no noticeable change in the rate of arrivals, with boats of varying numbers of people (from two to more than 200) continuing to arrive on average several times per week.”
That brings us back to the fundamental fact, discussed earlier in reference to other clauses, such as clauses 10 and 11, that policy measures that rely on deterrence assume that people have a choice in the decisions they make. People who are forced to flee their countries because of violence and persecution have no such choice. Therefore, deterrent measures will not stop them making the journey to find safety. The likelihood is that offshoring will be completely ineffective in its aims, as well as deeply inhumane.
Stuart C. McDonald
I will speak briefly in support of amendment 159, new clause 18 and new schedule 2.
I echo everything the shadow Minister said. This is a terrible clause. I echo in particular all that he said about Australia. I take a tiny crumb of comfort from the fact that the Minister, despite the Home Office’s having adduced evidence in relation to the Australian example, did not mention it during his speech. Perhaps the Home Office is learning that it should run a million miles from the Australian offshoring scheme, because it was awful.
I did not recognise the clause from what the Minister said. He kept referring to safeguards and asserting that it was absolutely consistent with our international obligations. My reading of schedule 3 and clause 26 is the polar opposite. Schedule 3 drives a coach and horses through the principle that people cannot be removed while they have a claim outstanding. It allows removal to anywhere if some very basic safeguards are met. The person might have no link to the country to which they are removed—they might have been nowhere near it. It is clearly nothing to do with responsibility sharing between states. Like clause 14, it is just about offloading responsibility.
We are not saying that no one can ever be removed to have a decision made on their claim elsewhere. While not perfect, the Dublin scheme allowed for the transfer of a claim and the removal of a claimant in appropriate circumstances and with appropriate safeguards. We have set out the criteria that would put in place similar safeguards in new clause 18 and new schedule 2. They include a formal, legally binding and public readmission agreement with the state; a requirement that the person has a connection with the country in question; that it is reasonable in the circumstances for the person’s case to be considered there; and that all the requirements and safeguards that we said should have been in place around clause 14 are present, such as the proper implementation of the full refugee convention, protection against harm, access to fair and efficient asylum processes, and so on.
Again, all those protections are informed by the UNHCR’s public commentary on and critique of the Bill. I appreciate that the Minister expressed sympathy for what we are trying to achieve, but I suspect that when he has his discussions with the UNHCR, it will urge him to go further and to adopt some of these safeguards.
There are huge differences between what we propose in new schedule 2 and what appears in schedule 3. The absence of so many crucial safeguards in the latter shows why the clause should not form part of the Bill. Schedule 3 does not even require a finding of inadmissibility or a connection with the state. There is no consideration of the reasonableness of the transfer. The country might not even be a signatory to the refugee convention, offer refugee protection, or offer the chance to secure the full rights to which refugees are entitled under the convention.
To use the UNHCR’s own words:
“Transferring asylum-seekers or recognised refugees to territories with which they have no prior connection and without an individualised consideration of safety, access to fair and efficient asylum procedures and to international protection, or reasonableness is at odds with international practice and risks denying them the right to seek and enjoy asylum, exposing them to human rights abuses and other harm, delaying durable solutions to forced displacement, and encouraging onward movement. To transfer asylum-seekers and refugees to countries that are not parties to the Refugee Convention, and without any expectation, let alone commitment, that they will provide a fair asylum procedure and treatment in line with the Refugee Convention would be an abdication of the United Kingdom’s responsibilities under international law towards refugees and asylum-seekers under its jurisdiction.”
That is the UNHCR’s commentary on schedule 3. That is why we have tabled our new schedule, new clause and amendment, and I hope that the Minister will—not today, obviously—give that further thought.
We know that this is essentially about offshoring. We oppose the clause and the schedule because we are completely and utterly opposed to that concept. It is unlawful, unethical and, as the experience in Australia shows, it does not work. As the shadow Minister highlighted, it did not discourage arrivals by boat. The Kaldor Centre for International Refugee Law went into great detail on that in its submission to the Committee, which is absolutely spot on. It highlighted the humongous cost and, more than anything else, the humanitarian disgrace that those camps represent. Doctors Without Borders has talked about
“some of the worst mental health suffering we have ever encountered in our 50 years of existence, including in projects that provide care for torture survivors.”
Finally, on amendment 159, it is good that the Minister has said that children would not be subject to that procedure. However, as the shadow Minister said, there are still various categories of vulnerable people who must be removed from the scope of the clause and schedule. If the Home Office insists on taking that terrible step, surely to goodness it will not subject pregnant women, disabled or sick people, torture victims, victims of trafficking or gender-based violence, LGBT people or the young and old to that procedure. Perhaps the Minister could accept that amendment, just to give us a tiny crumb of comfort.
Tom Pursglove
I will briefly pick up on a few points that have been raised during the debate on clause 26. The Government argue that the suite of measures are intended to have a deterrent effect. The measures under the clause are just one part of system-wide reforms that make clear our position that individuals must claim asylum in the first safe country they reach. I recognise that there are fundamental differences of opinion in the Committee about some matters, but we argue that that is the fastest route to safety.
I want to clarify the situation. Although we are, of course, working with our international partners to meet our joint challenges, I assure Committee members that we are not working with Denmark to open an offshore detention centre. It is important to be clear on that point.
Tom Pursglove
I will give way, although I gave quite a bit of clarity in what I just said.
Neil Coyle
The Minister has given some clarity by saying that the Government are not working with Denmark, but, as he has already said today, he cannot tell us which countries the Government are working with. We know that Albania, Ghana, Rwanda and Gibraltar have all said, “No, thanks”, and that, frankly, we look like we have fewer friends than North Korea on this issue. However, the Minister cannot tell us which countries the Government are negotiating with or how much the measures will cost. When we are supposed to be going through a very costly and controversial set of plans in line- by-line scrutiny, I think that is a dereliction of duty.
Tom Pursglove
I reject the hon. Gentleman’s characterisation of the situation. The truth is that a very particular point was raised about the United Kingdom establishing an offshore detention centre with Denmark, which is not the case. It is important to be clear about that on the record.
A number of issues were raised about vulnerabilities. Again, I want to make it very clear that we will only ever act in line with our international commitments and legal obligations, including the ECHR. Any particular vulnerabilities will be taken into account. Flexibility is already built into the system to ensure that individual circumstances are properly taken into account, and that will continue to be the case.
To conclude, the shadow Minister sought further clarification on the Government’s intentions on clause 26. Changes in the Bill are not about housing people offshore while their asylum claims are considered under the UK’s asylum system. The measures in the Bill support our future objective of removing someone to a safe third country where we intend their claims to be admitted and processed under the third country’s asylum system. I am very happy to provide the clarification he sought.
Question put, That the clause stand part of the Bill.
Stuart C. McDonald
I beg to move amendment 152, in clause 29, page 30, leave out subsection (2) and insert—
“(2) The decision-maker must first determine whether there is a reasonable likelihood that—
(a) the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
(b) if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—
(i) they would be persecuted for reason of the characteristic mentioned in subsection (a), and
(ii) they would not be protected as mentioned in section 31.”
This amendment would remove the “balance of probabilities” phrase from the Bill and would maintain the status quo.
The Chair
With this it will be convenient to discuss the following:
Amendment 48, in clause 29, page 30, line 45, leave out subsections (2) and (3).
This amendment would remove the requirement for the decision-maker to assess, on the balance of probabilities, whether a claimant’s fear of persecution is well-founded.
Amendment 132, in clause 29, page 30, line 45, leave out
“, on the balance of probabilities”
and insert
“whether there is a reasonable likelihood that”.
Amendment 133, in clause 29, page 31, line 1, leave out “whether”.
Amendment 134, in clause 29, page 31, line 5, leave out paragraph (b) and insert—
“(b) if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—
(i) they would be persecuted for reason of the characteristic mentioned in subsection (a), and
(ii) they would not be protected as mentioned in section 31.”
The amendment would maintain the status quo and bring the bill back in line with UNHCR standards and UK jurisprudence.
Clause stand part.
Stuart C. McDonald
The clause makes fundamental changes to important aspects of what it means to be a refugee under the convention. It seeks to require that important elements of the claim are to be established on the balance of probabilities before the decision maker goes on to make an overall assessment of real risk. Previously an overall assessment of the reasonable degree of likelihood of persecution was applied.
We regard this as a hugely dangerous and possibly very confusing clause. It fails to take into account the challenge of evidence and facts that arise many thousands of miles away, or facts to which only the claimant’s testimony can speak to. If, for example, a claim is made on the grounds that a person is LGBT, it can be hugely challenging to prove that to the standard of the balance of probabilities. As the UNHCR has explained:
“Some claimants, because of the shame they feel over what has happened to them, or due to trauma, may be reluctant to identify the true extent of the persecution suffered or feared.”
Similar issues will arise with many other groups that we have already spoken about this morning.
What is proposed is really dangerous. If a decision maker is certain, for example, that LGBT people in general are at risk of persecution on return to a particular country, and even if that decision maker thinks that there is a reasonable likelihood that this particular applicant is LGBT, that would no longer be enough to justify an award of refugee status.
Mr Goodwill
The hon. Gentleman is absolutely right that it is very difficult to prove some of these things. It is also difficult to disprove them. Is he aware that asylum seekers from places such as Uganda may well claim to be gay when they are not because they see that as the route to getting a good result quickly?
Stuart C. McDonald
I am not aware of the evidence of that, so I cannot comment. At the end of the day we are talking about people who are at risk. We are not talking about a road traffic case, a minor bump or the small claims court. We are talking about people whose lives are at risk, or they are at risk of serious harm and persecution. That is why we have to be very, very careful about requiring evidence beyond the standard that is internationally accepted.
Let us say that a decision maker is certain that LGBT people in general are at risk of persecution on return to a particular country. Even though the decision maker thinks there is a reasonable likelihood that a particular applicant is LGBT, that will not be enough to secure refugee status. The decision maker could be 49% certain that the applicant is LGBT and 100% certain that an LGBT person returned to a particular country will be tortured and killed, but that 1%—that tiny little bit of doubt—means that the balance of probabilities threshold will not be met, and that case will be rejected. The implications are huge.
Amendment 152 seeks to maintain the status quo. Let us not mess with a long-established principle, and let us be very, very careful that we are not denying refugee status to people who we know should be awarded it.
Tom Pursglove
I thank hon. Members for tabling the amendments. I agree about the importance of the UK carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under article 1A(2) of the refugee convention. However, we do not agree with the amendments, which, when considered together, will leave decision makers with a lack of clarity on how to consider whether a claimant has a well-founded fear of persecution.
Clause 29 is currently drafted to introduce a clear, step-by-step process for decision makers considering whether an asylum seeker has a well-founded fear of persecution. Currently, there is no clearly outlined test as such. While there is case law, policy and guidance, the current approach leads to a number of different elements being considered as part of one overall decision. The reforms that the Government want to introduce create distinct stages that a decision maker must go through, with clearly articulated standards of proof for each. I am confident that hon. Members will agree that that will lead to clearer and more consistent decisions. That is desirable for all involved.
The amendments include what is already in subsection (4) of clause 29, and it is unclear how they are proposed to fit with subsections (3) and (5). That therefore creates a lack of clarity and defeats the clarificatory purpose of the clause. As identified by hon. Members, clause 29 also raises the standard of proof for one element of the test to the balance of probabilities. Whether an asylum seeker has a characteristic that causes them to fear persecution, also referred to as a convention reason, will be tested to the balance of probabilities.
Stuart C. McDonald
There is one further issue that I did not raise earlier. The Minister has spoken about whether an appellant has a convention characteristic. How does the clause deal with imputed characteristics—that is, when a person is not LGBT but is perceived to be, or a person who does not have a political opinion but is treated and thought of as having such an opinion? That is quite an important concept and it seems to be absent.
Tom Pursglove
Obviously, we are clear that our proposal is entirely consistent with our obligations under the convention. However, I will happily write to the hon. Member with further detail on that point. It is important to give clarity, and I am keen to do so.
At the clause’s core, we are asking claimants to establish that they are who they say they are and fear what they say they fear, to a balance of probabilities standard. That is the ordinary civil standard of proof for establishing facts—namely, more likely than not. Surelyit is reasonable that claimants who are asking the UK for protection are able to answer those questions.
We have looked carefully at the difficult situations from which many claimants come and the impact on the kinds of tangible evidence they may be able to provide as a result of that. We consider that our holistic approach to making decisions, which includes a detailed and sensitive approach to interviewing as well as referring to expert country guidance, allows all genuine claimants an opportunity to explain their story and satisfy the test. The raising of the standard of proof for this distinct element of the test is appropriate to ensure that only those who qualify for protection under the refugee convention are afforded protection in the United Kingdom.
Stuart C. McDonald
On the hypothetical example that I gave, if a decision maker is 49% certain that somebody is LGBT or that their membership of a political party meant that they would definitely be persecuted on return, is the Minister not uncomfortable that that small shortfall from 50% would mean that their whole claim would be rejected, given the consequences?
Tom Pursglove
On the concerns around LGBTQ+ individuals, we have acknowledged that it may be more difficult to prove such claims compared with individuals making applications based on other convention reasons. We already have specific asylum policy instruction on considering such claims, which sets out in detail how caseworkers should fully investigate the key issues through a focused, professional and sensitive approach to questioning. As part of the operationalisation of the programme, we will seek to update the training and guidance provided to decision makers. That will concentrate on interviews, to ensure that they are sufficiently detailed to enable claimants to meet the standard. I hope that gives the hon. Member some reassurance. I will of course write to him on his earlier point.
The second element of the test—whether the claimant would be persecuted if returned to their country of origin or their country of former habitual residence—remains at the reasonable degree of likelihood standard of proof. The subjective element—the future fear—is naturally harder for the claimant to demonstrate. Consequently, a lower standard of proof is appropriate.
Responses to the public consultation as well as recent reports from non-governmental organisations have warned of the effects that the clause will have on those with certain protected characteristics, including those with LGBT+ claims. The Committee should be assured that we have considered that carefully, and there are several ways in which we will ensure that such individuals are not disadvantaged by the change. It is worth reflecting on the points I made and the explanation I set out in response to the hon. Member’s intervention. In the light of those points, I hope he will agree to withdraw the amendment.
Stuart C. McDonald
I am grateful for the offer of a letter, but I am not remotely reassured about the new higher standard, which will lead to marginal cases being sent away to persecution, torture and all sorts of terrible consequences. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Stuart C. McDonald
I beg to move amendment 49, in clause 30, page 31, line 47, leave out “both” and insert “either”.
This amendment would mean that – in order to be defined as a particular social group for the purposes of the Refugee Convention – a group would only have to meet one (not both) of the conditions set out in subsections 3 and 4.
I have a short but important point to make. The clause concerns the definition of a particular social group, which is an important concept in refugee law and has been crucial to its ongoing relevance across many decades. The clause is controversial because it makes an important change to how a particular social group is defined. In the House of Lords case of the Secretary of State for the Home Department v. Fornah, a long-standing argument about whether the tests in subsection (3) of the clause should be cumulative or alternative was addressed and it was decided that there was no need to meet both of those conditions; one or the other would suffice. However, in the Bill, the Government have decided to change that approach. It now demands that both conditions are met, and that seems to contradict established case law in this country. I simply ask the Government to explain why they have taken a more restrictive approach.
Tom Pursglove
Clause 30 aims to clarify an area where there has been a degree of contradiction and confusion. There is a clear mismatch between how the concept of “particular social group” is set out in current legislation, Government policy and in some tribunal judgments, against the interpretation taken in some case law. That is unhelpful for all those working in and engaging with the asylum system, and who most of all want clarity and consistency. Defining how key elements of the convention should be interpreted and applied is vital in creating a robust system that can generate consistency and certainty, which ultimately will drive efficiency. I trust that members of the Committee will agree with that principle. The historical confusion demonstrates perfectly why what we are doing in this clause is so important and is a desirable law reform.
I cannot agree to the change proposed by the hon. Gentleman. First, it is important to state that the conditions set out in the clause reflect current Government policy; it is not a change. The amendment would mean that a group need only meet one of the conditions to be considered as a particular social group. That significantly broadens the scope of who may be covered by the convention. It would erode the concept that people deserve and need protection based on fundamental characteristics that go to the core of who they are, such as their faith or sexuality. It proposes instead to broaden the definition to cover potentially transient factors that can perhaps be changed, but that fundamentally misunderstands the very basis of what it means to be a refugee, as envisaged by the refugee convention, and why we have a system to offer protection. I hope my explanation has reassured colleagues across the Committee, and I urge the hon. Gentleman to withdraw the amendment.
The hon. Gentleman has mentioned established case law on the correct definition of “particular social group”, so I will say something briefly about that. As with many of the key concepts of the refugee convention, case law has developed over the years on how to apply the term “particular social group” for the purpose of considering whether a claimant has a convention reason. Despite significant judicial interest in the interpretation of “particular social group” in case law, there is no established case law on the point. There is, however, conflicting tribunal-level case law and obiter comments by the House of Lords in the case of Fornah. Consequently, the clause seeks to provide clarity on the UK’s interpretation of a particular social group, to ensure that it is applied consistently among decision makers.
Stuart C. McDonald
I agree with the Minister that we need clarity, but there are two different ways of providing clarity: we can either combine the requirements or use them as alternatives. I say that we should provide clarity by using them as alternatives. That is how the House of Lords interpreted the convention in the case of Fornah, and that is what the tribunal did recently as well, so I wish to press the amendment to a vote.
Question put, That the amendment be made.
Stuart C. McDonald
I beg to move amendment 157, in clause 34, page 33, line 20, at end insert—
“(1A) Subsection (1) shall not apply to any refugee—
(a) whose claim for asylum is on the basis of sexual orientation, gender identity, gender expression or sex characteristics;
(b) whose claim for asylum is on the basis of gender-based violence;
(c) who has experienced sexual violence;
(d) who is a victim of modern slavery or trafficking;
(e) who is suffering from a mental health condition or impairment;
(f) who has been a victim of torture;
(g) who is suffering from a serious physical disability;
(h) who is suffering from other serious physical health conditions or illnesses.”
This amendment would exempt certain groups from subsection (1).
The Chair
With this it will be convenient to consider amendment 158, in page 33, line 34, at end insert—
“(2A) Subsection (2) shall not apply to any refugee—
(a) whose claim for asylum is on the basis of sexual orientation, gender identity, gender expression or sex characteristics;
(b) whose claim for asylum is on the basis of gender-based violence;
(c) who has experienced sexual violence;
(d) who is a victim of modern slavery or trafficking;
(e) who is suffering from a mental health condition or impairment;
(f) who has been a victim of torture;
(g) who is suffering from a serious physical disability;
(h) who is suffering from other serious physical health conditions or illnesses.”
This amendment would exempt certain groups from subsection (2).
Stuart C. McDonald
The clause relates to article 31 of the convention, which provides refugees with immunity from certain penalties. It is an important protection that the Government are seeking to limit by, in my view, reinterpreting and undermining article 31, and setting out expectations of where and when individuals should claim that go beyond the letter and spirit of the convention.
The amendments take us back to this morning’s discussion about why it was especially inappropriate to place these requirements and expectations on particular groups, including victims of trafficking, sexual violence and torture. They are designed to pose a question to the Minister: why is he seeking to strip such groups of their immunity from penalties that the refugee convention provides?
Tom Pursglove
Again, I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for all their hard work in this area and in producing these amendments. As they will know, the provisions they are seeking to amend are crucial to the Government’s intention to uphold the first safe country of asylum principle. In this respect, these clauses are designed to deter dangerous journeys across Europe by no longer treating migrants who come directly to the UK and claim without delay in the same way as those who do not. I am sure they will agree that we must do everything in our power to stop people putting their lives in the hands of smugglers and making extremely perilous journeys across the channel.
Amendments 157 and 158 would apply to clause 34, which is closely related to clause 10 in that it sets out the UK’s interpretation of certain criteria within article 31(1) of the refugee convention. The criteria in article 31 provide the basis for the legal framework we are using to differentiate within clause 10. The intention of the amendments is to seek statutory carve-outs from differentiation for a wide range of cohorts.
I absolutely understand where this is coming from. I would like to reassure hon. Members that the powers in clause 10 do not compel the Secretary of State to act in a certain way, and leave discretion to impose or not impose conditions as appropriate, depending on the individual circumstances. We will of course set out our policy in immigration rules and guidance in due course. The policy will be exercised with full respect to our international obligations and will most certainly be sensitive to certain types, some of which are referenced in the amendment, such as having been trafficked.
I would note that blanket carve-outs are an attractive option to ensure protection of the most vulnerable, but ultimately I do not believe it would appropriate to do this in the way amendments 157 and 158 seek. In reality, blanket carve-outs would simply encourage people coming by small boat to claim they belonged to an exempted cohort. Most importantly, this would of course prevent us from protecting those people who do genuinely have those characteristics. By creating this perverse incentive, it would also undercut the entire purpose of the policy to serve as a deterrent. Indeed, people could then simply continue to make dangerous journeys to the UK and not claim in the first safe country because they know they can avoid group 2 refugee status simply by saying that they are LGBT+ or have a mental health condition.
For all these reasons, I invite the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East not to press their amendments.
Stuart C. McDonald
Obviously, we maintain a fundamental opposition to the whole scheme proposed by this clause and clause 10. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stuart C. McDonald
I beg to move amendment 50, in clause 34, page 34, line 1, leave out paragraph (b) and insert—
“(b) in subsection (3), after (b), insert—
“(ba) entry in breach of a deportation order, entry without leave, remaining in the United Kingdom without leave, or arriving in the United Kingdom without entry clearance under section 24 of the 1971 Act”;
(c) in subsection (4), after (c), insert—
“(ca) entry in breach of a deportation order, entry without leave, remaining in the United Kingdom without leave, or arriving in the United Kingdom without entry clearance under section 24 of the 1971 Act””.
This amendment would mean that individuals who committed these offences (and the other offences set out in section 31 of the Immigration and Asylum Act 1999) would be able to use the defence set out in section 31 of that Act, even if the offence was committed in the course of an attempt to leave the UK.
Again, I want to prompt the Government—perhaps optimistically—for their thinking on the compatibility of these provisions with the convention. The amendment would mean that individuals charged with certain offences could still rely on defences provided by the convention, even if the offence was committed in the course of an attempt to leave the UK. It is important that the Government explain clearly why they think that removing that possibility is consistent with the convention. To be honest, I am struggling to understand the Government’s reasoning.
Tom Pursglove
Amendment 50 is extensive. I thank the hon. Member for the considerable thought he has put into the amendment, which would list the illegal entry, arrival without clearance and remaining in the UK without leave offences as subject to the statutory defence against prosecution. However, the express statutory defence under section 31 of the Immigration and Asylum Act 1999 has never applied to the existing offences referred to in amendment 50. We do not consider the new arrivals without entry clearance offence needs to be referred to expressly for the same reason. Where relevant in a particular case, the Crown Prosecution Service will take into account the UK’s obligations under article 31 of the refugee convention.
Another effect of amendment 50 would be to reverse our clause 34(4) and reintroduce a defence from prosecution for those transiting through the UK having entered illegally and intending to go and claim asylum elsewhere, such as Canada or the USA. I disagree that the statutory defence should extend to those who have tried to exit the UK without first seeking asylum, but I reassure hon. Members that that does not mean that every asylum seeker who tries to exit the UK will be prosecuted. We are targeting for prosecution those migrants where there are aggravating factors involved—for example, causing danger to themselves or others, including rescuers; causing severe disruption to services such as shipping routes or closure of the channel tunnel; or where they are persons who have previously been removed from the UK as failed asylum seekers.
We have of course been very clear that people seeking protection must claim in the first safe country they reach. That is the fastest route to safety. In the same way that we will not tolerate smugglers exploiting vulnerable people to come to the UK when a claim could easily be made in another safe country, we will also not tolerate those migrants who transit through the UK, having previously travelled through European countries, to reach other places. They must claim in the first safe country they reach. For those reasons, I invite the hon. Member to withdraw his amendment.
Stuart C. McDonald
It is useful to have that on the record. I will go away and give it some further thought. We maintain our fundamental opposition to the whole scheme, but, in the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 ordered to stand part of the Bill.
Clause 35
Article 33(2): particularly serious crime
Stuart C. McDonald
I beg to move amendment 51, in clause 35, page 34, line 1, leave out sub-paragraph (i).
Under this amendment, persons receiving certain prison sentences in the UK shall be presumed (as at present) but not automatically deemed (as proposed in the Bill) to have committed a particularly serious crime.
The Chair
With this it will be convenient to discuss the following:
Amendment 53, in clause 35, page 34, line 21, leave out “12 months” and insert “four years”.
Under this amendment, persons shall be deemed to have committed a “particularly serious crime” if they receive a prison sentence of more than four years in the UK (as opposed to two years at present, or 12 months as proposed in the Bill).
Amendment 52, in clause 35, page 34, line 24, leave out sub-paragraph (i).
Under this amendment, persons receiving certain prison sentence outside the UK, or persons who could have received such a sentence had they been convicted in the UK, shall be presumed (as at present) but not automatically deemed (as proposed in the Bill) to have committed a particularly serious crime.
Amendment 54, in clause 35, page 34, line 27, leave out paragraphs (b) and (c) and insert—
“(b) in paragraph (b), for “two years” substitute “four years”;
“(c) in paragraph (c), for “two years” substitute “four years””.
Under this amendment, persons shall be deemed to have committed a “particularly serious crime” if they receive a prison sentence of more than four years outside the UK (as opposed to two years at present, or 12 months as proposed in the Bill), or if they could have received such a sentence had they been convicted in the UK.
Clause stand part.
Stuart C. McDonald
The amendment is a probing one. The basic point is that if someone is at risk of persecution, we must be incredibly careful when creating gaps, loopholes and exceptions that would still see that person subject to removal to the very place where they would be at risk. The convention creates and recognises very specific exceptions to the fundamental principle of non-refoulement.
If someone is a danger to security here or has committed a particularly serious crime, they constitute a danger to the community. The amendment challenges the attempts in the clause to broaden the scope of the exceptions so that persons are automatically deemed and not just presumed to have committed a serious offence if they are sentenced to one year in prison, rather than two years. We have particular concerns about the circumstances where the crime has been committed overseas. How do the Government intend to be sure about the safety and appropriateness of prosecution, conviction and sentence?
Nobody is saying that refugees should not face appropriate punishment for their crimes, but the danger is that those sentenced to one year or more face an additional punishment that puts them at risk of persecution, torture and death. That is way beyond what is merited by the crime. The withdrawal of refugee rights should not be done in anything other than the most serious circumstances. We fear that the clause goes beyond what the convention envisages.
Bambos Charalambous
I just wish to add to the points made by the SNP spokesperson. The whole UK criminal justice system is based on having magistrates courts that deal with the less serious offences, which have a maximum sentence of up to 12 months, and we then have the Crown court, which deals with the more serious offences, with a sentence above 12 months. Defining something as serious with 12 months’ imprisonment seems to be contrary to other aspects of our judicial system.
Labour also has concerns about people who have been trafficked who may have been forced to commit offences. They may have been convicted of a criminal offence as a result of their trafficking, whether that is because of drugs, prostitution or another such offence that might attract a penalty above 12 months. We have some concerns about the redefinition and I wonder whether the Minister can clarify what might happen to someone who has been trafficked, has committed an offence and has received a sentence of 12 months. Would the clause apply to them, because that does raise concerns about it? I do not know whether he will be able to assist in that regard.
Tom Pursglove
I am afraid that we simply cannot agree to amendments that would allow individuals to remain in the United Kingdom despite being convicted of offences that are even more serious than those described under the current legislative framework. This Government cannot support provisions that allow dangerous foreign national offenders to remain in the United Kingdom, and if it means putting the public at risk.
This Government are committed to continuing to meet our international obligations, in particular those under the refugee convention and European convention on human rights. A key principle of the refugee convention is non-refoulement, also referred to as removal, of refugees to a place or territory where there is a real risk that their life or freedoms would be threatened. But the convention itself recognises that there have to be exceptions to this. Article 33(2) of the convention allows refugees to be returned when they have committed a particularly serious crime and as a result, constitute a danger to the community, or are a danger to the security of the UK.
The aim of clause 35 is to redefine a “particularly serious crime”. I would like to reassure Committee members that we have looked carefully at the type of offending that may be caught by a new lower threshold. It is that that has contributed to the Government’s position that offences with 12 months’ custody or more should be considered as being particularly serious.
It is worth taking a moment to consider some of those offences for which the Sentencing Council’s guidelines indicate that a year’s custody is the starting point. They include causing a child to watch sexual activity, inciting a child to engage in sexual activity and carrying a firearm in a public place, in certain circumstances. Hon. Members surely agree with me that they and the public would consider those crimes as particularly serious. Clause 35 as drafted, like all clauses in the Bill, is fully compliant with our obligations under the refugee convention.
I turn specifically to amendments 51 and 52. They seek to make the first limb of the article 33(2) assessment, that is whether an individual has committed a particularly serious crime, rebuttable. That would mean that an individual who had been sentenced to 12 months or more in prison could argue that their crime was not in fact serious. That is despite a court of law, based on all the facts in the case, taking into account mitigating and aggravating factors, determining that the offending was so serious that an individual should be deprived of their liberty for 12 months or more.
If we are agreed that a year’s imprisonment means someone has committed a crime that society clearly considers serious, this amendment seemingly gives offenders a second bite of the cherry to disagree with the ruling of the criminal courts in the UK—some of the most respected legal bodies in the world. The Government propose in clause 35 that a crime which has been punished by 12 months or more imprisonment is an appropriate definition, ensuring that all particularly serious crimes are captured. Such a sentence, which limits the freedom of an individual for a considerable period, would be inappropriate if the crime was not particularly serious.
I also stress that there is a safeguard in the process. If an individual commits a particularly serious crime, the bar on refoulement is not automatically lifted. The individual has an opportunity to rebut the presumption that they are a danger to the community in the UK. Only individuals who are unable to rebut the presumption will be considered for removal. I also flag the UK’s other international obligations, in particular those under the European convention on human rights. An individual would not be removed from the UK if doing so would breach our obligations under the convention. Instead, they would be granted shorter, more restricted forms of leave to remain, and would be removed at the earliest opportunity, when it is safe to do so.
Mr Goodwill
Is the Minister aware that in the Representation of the People Act 1981 the same 12-month sentence would disqualify a Member of Parliament—so what is sauce for the goose, I guess?
Tom Pursglove
My right hon. Friend puts the matter in a way that only he can. To raise the definition to a level that captures only crimes that have resulted in a sentence of four years or more imprisonment would be reckless, and would undermine the aims of the new plan for immigration to build a fair but firm immigration system. It would clearly send the wrong, and dangerous, message that the UK welcomes and rewards serious offenders. I do not believe that the people of the UK want that. The amendments would mean that individuals who commit some of the most serious crimes would continue to receive the generous benefits of refugee status in the United Kingdom. Their continued presence in the UK could also lead to avoidable reoffending. The Government would not be upholding their responsibility to protect the public of the United Kingdom by supporting the amendments.
The hon. Member for Enfield, Southgate queried the process for a person who has been trafficked. I can confirm that such a person will be tested under the second limb for whether they amount to a danger to the community. With regard to offences committed overseas, section 72(3)(c) of the Nationality, Immigration and Asylum Act 2002 contains a provision to ensure that any convictions abroad would result in a sentence of 12 months or above in the UK for a similar offence.
In the light of those points, I hope that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will withdraw the amendment, and that the Committee agree that the clause stand part of the Bill.
Stuart C. McDonald
It is useful to have that on the record. I do not think that all the points were addressed, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 35 ordered to stand part of the Bill.
Clause 36
Interpretation of Part 2
Stuart C. McDonald
I beg to move amendment 55, in clause 36, page 35, line 14, at end insert—
“‘protection in accordance with the Refugee Convention’ means a legal status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention”.
This amendment would define – for the purposes of Part 2 of the Bill – what constitutes protection in accordance with the Refugee Convention.
The Chair
With this it will be convenient to discuss amendment 135, in clause 36, page 35, line 27, at end insert—
“‘protection in accordance with the Refugee Convention’ means a legal status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention.”
This amendment would clarify the meaning of “protection in accordance with the Refugee Convention” and ensure that it includes the positive rights and obligations necessary to ensure durable and humane solutions, and not merely protection against refoulement.
Stuart C. McDonald
Certain very important provisions in the Bill refer to a state providing protection in accordance with the convention. In particular, it is incredibly important to the inadmissibility provisions in justifying removal to so-called safer countries. We need to define it, and we would do so through amendment 55 by referencing all the rights set out in the refugee convention. We thereby seek to ensure that the standards of that convention have been fully upheld. The amendment poses the question to the Government of whether they are a champion of the full range of rights in the convention, or are requiring people to claim asylum in countries where little more than lip service is paid to it, and nothing more than a protection against refoulement is provided. That is the issue at stake, in a nutshell.
Bambos Charalambous
In order to save time—I know that we have had a very long day—I will bear in mind that the wording of amendment 135 is almost identical to that of the amendment tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. He did it justice when speaking to it, and we will support it.
Tom Pursglove
I thank hon. Members for tabling the amendments. I have listened carefully to the arguments that they have put forward. I agree about the importance of the United Kingdom continuing to meet its obligations under the refugee convention, including through the rights that we provide to refugees. The amendments to clause 36 relate to the inadmissibility provisions set out in clause 14. I understand the spirit of the amendments in wishing to define protection in accordance with the refugee convention where we may seek to remove an individual to a safe country. However, clause 14 as drafted ensures that the principles of the refugee convention should be met if we are to remove an individual to that country.
If individuals have travelled via, or have connections to, safe countries where it is reasonable to expect them to have claimed asylum, they should do so. They should not make unnecessary and often dangerous onward journeys to the UK; however, if they do, we will seek to remove them to a safe country. We will only ever return inadmissible claimants to countries that are safe and where the principles of the refugee convention are met. For those reasons, I cannot support the amendments, and I ask that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraw amendment 55.
Stuart C. McDonald
Again, it is useful to have that on the record. The Minister defends the clause as it is by referencing the protection that clause 14 provides on the principles of the refugee convention, but when I asked him what that meant earlier I was not remotely satisfied by the answer. It is another clause that is completely undefined, so I wish to press amendment 55 to a vote.
Question put, That the amendment be made.
Building Safety Bill (Fifteenth sitting)
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Eddie Hughes)
I beg to move, That the clause be read a Second time.
The new clause is technical and ensures that the hard stop to occupation intended at gateway 3 will apply when high-rise residential buildings that are 18 metres or more in height, or at least seven storeys, are occupied in phases. These are defined in part 4 of the Bill as higher-risk buildings. Dame Judith Hackitt’s recommendation was that duty holders meet applicable building regulation requirements before starting work and before occupation begins. Gateway 2 will take place at the current deposit of plans stage, before building work starts. Gateway 3 will take place at the current completion certificate stage when building work is complete. At gateway 3 the duty-holder will make a completion certificate application, reflecting the “as built” building. The Building Safety Regulator will assess the application, carry out a final inspection of the building work and, if satisfied, issue a completion certificate as evidence that the building work complies with all applicable building regulation requirements. Once a completion certificate has been issued, the principal accountable person will be able to register the building and legally commence occupation. The Bill therefore creates a hard stop, via clause 73, which makes it an offence to occupy two or more units of a higher-risk building before registration.
The registration of higher-risk buildings will be a one-off. As buildings are often occupied in stages, that means that there would not be a hard stop for subsequent phases of occupation. That does not meet the policy intent of ensuring that building work is signed off as compliant with building regulation requirements before the building, or parts of it, is occupied. The new clause would therefore make it an offence for an accountable person to allow occupation of a single residential unit, or more, in part of a higher-risk building unless a completion certificate has been issued for the relevant building work. That will apply to new builds and extensions to higher-risk buildings, or to works that create a higher-risk building. The prohibition would apply to any new residential units created. Additionally, we wish to make an accountable person liable if they permit occupation of the building, or parts of it, without a completion certificate, with the principal accountable person’s knowledge.
The Chair
Just for my pedanticness, may I say that Members may take their jackets off if they so wish?
Mike Amesbury (Weaver Vale) (Lab)
It is a pleasure to serve under your chairmanship once again, Mr Dowd. The new clause is technical and the Opposition do not wish to oppose it.
Ian Byrne (Liverpool, West Derby) (Lab)
It is a pleasure to serve under your chairmanship, Mr Dowd. May I ask the Minister, where would the completed certificate be displayed within the building so that residents might see it?
Eddie Hughes
In line with other elements of the Bill, the certificate would be displayed in a prominent location.
Question put and agreed to.
New clause 21 accordingly read a Second time, and added to the Bill.
New clause 3
Duty on the Secretary of State to report on designations under Part XVI of the Housing Act 1985
“(1) Within the period of six months beginning with the day on which this section comes into force, the Secretary of State must—
(a) consider the financial impact on leaseholders in England and Wales of building safety advice given by his department since 14 June 2017; and
(b) in conjunction with the Treasury and the Prudential Regulation Authority, consider the impact of building safety advice given by his department since 14 June 2017 on the supply of mortgage finance for leasehold flats in England and Wales; and
(c) publish a report setting out his determination, in light of the factors identified in paragraphs (a) and (b), as to whether designations under section 528 or section 559 of the Housing Act 1985 would improve conditions for leaseholders, or would improve the supply of mortgage finance for leasehold flats in England and Wales.
(2) If the Secretary of State’s report under subsection (1) concludes that designations under section 528 or section 559 of the Housing Act 1985 would improve financial conditions for leaseholders in England and Wales, or would improve the supply of mortgage finance for leasehold flats in England and Wales, then at the same time as publishing his report he must—
(a) make arrangements to provide all necessary funding;
(b) make the appropriate designations under section 528 of the Housing Act 1985; and
(c) advise local housing authorities to make appropriate designations under section 559 of the Housing Act 1985.
(3) Before making any regulations bringing into force any section in Part 4 of this Act, the Secretary of State must make arrangements for—
(a) a motion to the effect that the House of Commons has approved the report prepared under subsection (1), to be moved in the House of Commons by a minister of the Crown; and
(b) a motion to the effect that the House of Lords to take note of the report prepared under subsection (1), to be moved in the House of Lords by a minister of the Crown.
(4) The motions required under subsections (3)(a) and (3)(b) must be moved in the relevant House by a Minister of the Crown within the period of five calendar days beginning with the end of the day on which the report under subsection (1) is published.
(5) If the motion tabled in the House of Commons is rejected or amended, the Secretary of State must, within 30 calendar days, publish a further report under subsection (1) and make arrangements for further approval equivalent to those under subsection (2).
(6) The Secretary of State shall make a further report under subsection (1) at least every 90 calendar days beginning with the day of any rejection or amendment by the House of Commons under subsection (5) until otherwise indicated by a resolution of the House of Commons.
(7) In this section—
‘leaseholder’ means the registered legal owner of a long lease; and
‘long lease’ has the same meaning as in section 76 of the Commonhold and Leasehold Reform Act 2002.
(8) This section comes into force on the day this Act is passed.—(Daisy Cooper.)
This new clause places a time-limited duty on the Secretary of State to consider making designations under Part XVI of the Housing Act 1985 to provide funding for cladding and fire safety remediation and for Parliament to approve the plans for doing so.
Brought up, and read the First time.
Daisy Cooper (St Albans) (LD)
I beg to move, That the clause be read a Second time.
It is a pleasure to serve under your chairmanship, Mr Dowd. The new clause places a time-limited duty on the Secretary of State to consider making designations under part 16 of the Housing Act 1985 to provide funding for cladding and fire safety remediation and enables Parliament to approve the plans for doing so.
The principle behind the new clause will be well known to Committee members and, indeed, Members from right across the House. It comes from the eye-watering costs faced by fire safety victims. Earlier in Committee proceedings, we took evidence from Alison Hills, Stephen Day and End Our Cladding Scandal. All talked about the enormous bills they face and the fact that they simply cannot afford to pay them. The new clause requires the Government to report on whether the process of designating these premises as defective could improve leaseholders’ financial position. The 1985 Act presents an interesting precedent of a Conservative Government intervening to establish a scheme to reimburse people who later found themselves to be living in defective premises. The grant funding under the Act covered only 90% of remediation costs; alternatively, it would purchase the home for 95% of the defect-free value.
As drafted, the new clause, tabled in the name of the hon. Member for Stevenage (Stephen McPartland), has a couple of challenges, but neither is insurmountable. The 1985 Act scheme applies only to homes purchased from a public authority, but I am sure the Government can find a way to amend that Act—through primary legislation or perhaps by accepting the new clause—so that it applies to the current crisis and bring forward a new proposal to include defective private homes.
The other issue is that the definition of defects in the 1985 Act focused on modes of construction, rather than the specific defects that need to be remediated. It would be a little tricky, but not impossible, for the Government to capture all the fire safety defects they would want covered under the new clause. Indeed, they could introduce statutory instruments that list them, or they could put a duty on the new Building Safety Regulator to report to the Secretary of State on what should and should not be included.
There are obstacles to overcome, but as I say, they are not insurmountable. The question is whether the Government want to overcome them. If the Government continue to refuse to resolve this crisis, Back-Bench Members will continue to find every opportunity to use the Bill to make sure that we can protect leaseholders from these enormous, eye-watering costs. Thatcher’s Government had the compassion and foresight to ensure that those who bought their homes under the right to buy were not left with defective homes through no fault of their own. If even Thatcher’s Government could do that, we hope that Johnson’s Government can finally step up and do the same.
Mike Amesbury
Her Majesty’s Opposition support the new clause. Fundamentally, and collectively, we will use every opportunity to try to protect leaseholders from historical remediation charges. As the hon. Member for St Albans argued, where there is a will, there is certainly a way.
The Minister for Housing (Christopher Pincher)
It is a pleasure to serve under your chairmanship, Mr Dowd, and I welcome the Committee to the last day of its deliberations on the Bill—and also, may I say, the 70th anniversary of the re-election of Sir Winston Churchill’s 1951 Government, which of course was a great home-building Government.
I thank the hon. Member for St Albans for having raised this important matter, and I entirely understand the motivations that lie behind her attempts to insert this new clause into the Bill, but I am afraid that I will not be able to accept it. Let me explain why, but first, by way of parenthesis, remind the Committee of the unprecedented commitment that the Government have already made: £5 billion of taxpayers’ money invested in grant funding for cladding remediation in buildings of 18 metres and above. As we know, that will protect hundreds of thousands of leaseholders from the cost of remediating unsafe cladding on their homes. We are also stepping in to provide a generous finance scheme for the remediation of lower-rise and, to that extent, lower-risk buildings, which we will say more about later.
I am afraid that our assessment of this proposed new clause is that, although it is well intentioned, it is disproportionate and does not strike the right balance between funding from the private and public purse. If passed, this new clause would mean that private and social buildings of any height could potentially be designated as defective and be eligible for grant funding of 90% of the property’s value, or repurchase by the local authority if we take the two measures together. New clause 3 lacks detail about the types of dwelling covered and clarity about the types of remediation or remediation works to be covered, which provides ample scope and grounds for all sorts of legal interpretation. It is important that our funding decisions are proportional, to ensure that taxpayers’ money is used effectively and protected as far as possible.
I should also point out the unintended—and I am sure that it is unintended—but necessarily consequential effect that this new clause would have on local government. It would place a responsibility on local authorities to purchase defective properties, which in a number of cases would place significant strain on those local authorities. In the past two years, Wandsworth has seen an average uplift in funding of 4.5%. The figure in Lewisham is 5%, and in Enfield it is 4.8%. The Committee needs to recognise the excessive burden that potential costs may impose on local government.
The hon. Member for St Albans mentioned the Housing Defects Act 1984, which is the predecessor of the 1985 Act that this new clause seeks to amend. That Act was designed for very different conditions: the policy was introduced due to issues with the post-war social housing stock. If we compare the costs of the 1984 scheme to which she referred with those of today, we see that the cost burden then was substantially lower than the estimates for remediation required now. In today’s money, the Housing Defects Act was about three times less costly in terms of grant funding than present remediation costs.
The hon. Lady said in her remarks—I entirely understand why she made them—that there are obstacles to the success of this new clause, and that it is for the Government to find a way. I gently say to the Committee that it is for whoever tables a new clause to find a way to make it work, because it is not the job of this Committee to make bad or defective laws, suggestions or reports to the House of Commons. Proposed new clauses or amendments need to be able to work; otherwise it is the Committee’s duty to ask the proposer to withdraw the motion or to vote against it because it does not do the job for which it is intended. I am grateful to the hon. Lady for her suggestions, but I respectfully ask that she withdraw the proposed new clause.
Daisy Cooper
I will respond briefly before deciding. I thank the Minister for his considered response. He said that the funding required under the new clause would create a disproportionate burden on the public finances. He will of course be aware that new clause 4, which we will discuss next, proposes a mechanism to enable the Government to recoup some of the costs from those responsible.
The Minister’s second point was about the excessive burdens that would stem from the new clause, but if those burdens do not fall on the state, they fall on leaseholders, who are the innocent parties—the only innocent parties—in all this, so I ask him and the Government to reflect on that.
The Minister’s third point was that it is not the role of the Committee or the Government to fix the new clauses. I respectfully say that it would be entirely possible for the Government to fix this particular problem without requiring any amendments or new clauses at all, because they have set up the building safety fund without creating legislation. They could extend the fund and get on with the job of making people’s homes safe within months, but they choose not to, which is why it falls to Back Benchers to bend over backwards to find ways of forcing the Government to do the right thing. None the less, I am happy at this stage of proceedings to beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 4
Building Safety Indemnity Scheme
“(1) There shall be a body called the ‘Building Safety Indemnity Scheme’ (referred to in this Act as ‘the Scheme’).
(2) The purpose of the Scheme shall be to collect money from levies and to disburse the money raised from those levies in the form of grants to leaseholders to pay all or any part of the following types of costs—
(a) remediation of any defect in any external wall of any building containing two or more residential units; or
(b) remediation of any defect in any attachment to any external wall of any building containing two or more residential units; or
(c) remediation of any internal or external defect other than a defect described in paragraphs (a) or (b); or
(d) any building safety works carried out by an accountable person under section 84; or
(e) any other cost of a type specified by the Secretary of State in regulations made under this section.
(3) The Scheme may disburse money for the benefit of leaseholders in any type of building, whether or not a higher-risk building and whether or not the building was completed before the coming into force of this Act.
(4) The levy imposed by the Scheme shall be determined by reference to each of the following—
(a) the Scheme’s best estimate of the reasonably likely total cost grants to cover any type of cost described in subsection (2);
(b) the Scheme’s best estimate of the costs of raising and administering the levy; and
(c) the Scheme’s best estimate of the costs of processing applications for grants to leaseholders and disbursing funds to leaseholders from monies raised by the levy.
(5) Members of the Scheme subject to levies shall include the following—
(a) any person seeking building control approval from the Regulator;
(b) any prescribed insurer providing buildings insurance to buildings containing two or more residential units, whether or not the buildings are higher-risk buildings;
(c) any prescribed lender providing mortgage finance in the United Kingdom, whether or not secured over residential units in higher-risk buildings; and
(d) any other person whom the Secretary of State considers appropriate.
(6) The Scheme is to consult with levy paying members before determining the amount and duration of any levy.
(7) The Scheme must provide a process by which leaseholders, or persons acting on behalf of leaseholders, can apply for grants for the types of costs specified in subsection (2).
(8) The Scheme must provide an appeals process for the Scheme’s decisions regarding—
(a) the determination of the amount of any levy; or
(b) the determination of any grant application.
(9) A building control authority may not give building control approval under the Building Act 1984 to anyone unless—
(a) the person seeking building control approval is a registered member of the Scheme, or that person becomes a registered member of the Scheme; and
(b) the person seeking building control approval pays all levies made on that person by the Scheme under subsection (3).
(10) Any liability to pay a levy under this section does not affect the liability of the same person to pay an additional levy under section 57 of this Act.
(11) Within a period of 12 months beginning with the coming into force of this section, the Secretary of State must make regulations providing for—
(a) the appointment of a board to oversee the Scheme;
(b) the staffing of the Scheme;
(c) the creation and maintenance of a register of members of the Scheme;
(d) the preparation of the best estimates described in subsection (3);
(e) the amount, manner and timing of payment of the levies on members of the Scheme under this section;
(f) the process of joining the Scheme;
(g) the process of leaseholders applying to the Scheme for grants towards any of the types of costs specified in subsection (2);
(h) the process for handling any appeals against decisions of the Scheme on any levy or any grant;
(i) the Scheme to make an annual report to Parliament; and
(j) any other matters consequential to the Scheme’s operation.
(12) Regulations made under this section are to be made by statutory instrument.
(13) A statutory instrument under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(14) In this section—
‘building’ has the same meaning as in section 29;
‘building control approval’ has the same meaning as in paragraph (1B)(2) of Schedule 1 to the Building Act 1984;
‘building control authority’ has the same meaning as in section 121A of the Building Act 1984;
‘defect’ means anything posing any risk to the spread of fire, the structural integrity of the building or the ability of people to evacuate the building, including but not limited to any risk identified in guidance issued under Article 50 of the Regulatory Reform (Fire Safety) Order 2005 (S.I. 2005/1541) or any risk identified in regulations made under section 59;
‘external wall’ has the same meaning as in Article 6 of the Regulatory Reform (Fire Safety) Order 2005 (S.I. 2005/1541);
‘higher-risk building’ has the same meaning as in section 59;
‘prescribed’ means prescribed by regulations made by the Secretary of State;
‘remediation’ means any step taken to eradicate or to mitigate a defect, including employment of any person to temporarily assist in evacuation of any part of a building, and whether or not the defect in question existed at the date any residential unit in the building was first occupied. Remediation does not include anything required in consequence of omitting to effect reasonable repairs or maintenance to all or any part of the building over time, or anything which is the responsibility of an occupant of a residential unit within the building;
‘residential unit’ has the same meaning as in section 123.
(15) This section shall come into force on the day this Act is passed.”—(Daisy Cooper.)
This new clause would require the government to establish a comprehensive fund, equivalent to the Motor Insurers’ Bureau, to provide grants to remediate cladding and fire safety defects of all descriptions, paid for by levies on developers, building insurers and mortgage lenders.
Brought up, and read the First time.
Daisy Cooper
I beg to move, That the clause be read a Second time.
The new clause would require the Government to establish a comprehensive fund, equivalent to the Motor Insurers Bureau, to provide grants to remediate cladding and fire safety defects of all descriptions, paid for by levies on developers, building insurers and mortgage lenders. The End Our Cladding Scandal campaigners have made it clear that they would like the Government to find, fix and fund all historical fire safety defects, or, as I have put it on a number of occasions, stump up the cash, make homes safe and go after those who are responsible. New clause 4 is an attempt at doing that last bit—going after those responsible.
The Minister mentioned in his answer to the previous debate on new clause 3 that the Government have put forward £5 billion, but he will be aware that the Select Committee on Housing, Communities and Local Government estimates that the cost of remediation could be from £10 billion to £15 billion, and that in the absence of a scheme to legislate to ensure that those responsible pay those sums of money, they will fall on the shoulders of innocent leaseholders.
We do not know the exact figure, because we still do not have the full data on all dangerous cladding on buildings under 18 meters. There is no complete data for non-ACM cladding on buildings of all heights. There are numerous fire safety issues beyond flammable cladding where the data has not been collected: missing firebreaks, flammable balconies, non-compliant fire doors and so on. In Victoria, Australia, as we have learned, they moved quickly to find it, fix it and fund it.
In the new clause the hon. Member for Stevenage has proposed another solution that could be adopted to fund the remediation. The building safety fund of £5 billion is insufficient. The Government have so far refused to tell us whether they agree with the polluter pays principle, on which we took evidence from Steve Day. I tabled a parliamentary question a while ago asking the Government what assessment they had made of the polluter pays principle, and the answer is overdue.
We have also heard mixed messaging. On the one hand, Ministers tell us that they are considering in detail the proposal for the polluter pays principle. On the other hand, they tell us that they are not sure it will work. It would be useful for the Committee to hear the Minister clarify what the Government’s thinking is on the polluter pays principle. None the less, the new clause is before us.
Of course, there are drafting concerns with this new clause, but they could probably be fixed in the fullness of time. However, I repeat that this is an attempt by Back-Bench MPs to find a way to fix the cladding and fire safety scandal and to go after those who are responsible.
Mike Amesbury
I thank the hon. Member for St Albans for introducing and explaining the new clause. Again, Labour supports the fundamental principle of rectifying the situation for the hundreds of thousands of people caught in the building safety scandal—to find, fund, fix and recover, using the polluter-pays principle.
Christopher Pincher
Again, I am grateful to the hon. Member for St Albans for the new clause and for how she comported herself. She mentioned the outstanding parliamentary question and, once the Committee concludes today, I will search for it, search for the answer, and ensure that she receives it as quickly as possible.
While I understand the intent behind the new clause, I am unable to accept it today. I believe it is unnecessary, as its intention is already being met. As the hon. Lady said, and as I have expressed previously, significant funding for leaseholders and for remediation is being made available, and I will unpack some of that for the Committee.
The hon. Lady will know that we are spending a significant amount of money on the remediation of in-scope high-rise buildings that are clad with ACM. For 97% of ACM-clad buildings, remediation has either happened or is under way. For socially owned ACM-clad buildings, 100% have been or are being remediated. We have also made available money through the building safety fund to ensure that non-ACM-clad buildings are made safe. So far, £734 million has been allocated. A significant number of buildings have begun their remediation process and 689 have been allocated support.
We have also said that we will bring forward proposals to ensure that appropriate support is available to leaseholders and building owners in the 11 to 18-metre cohort. We are doing further work to assess the prevalence of such buildings, and that will inform the final solution that we land on. We are considering all options to ensure that leaseholders are protected and helped.
The hon. Lady asked whether we believe in the polluter-pays principle. It is a rather—how can I put it?—crude term, but we certainly want to ensure that those who have the responsibility for the defects that have bedevilled so many buildings, and those who own them, pay what they are due. That is why we have announced a residential property developers tax, which we estimate will raise £2 billion. Clause 57, which we have agreed to, gives powers for a building safety levy on high-rise developers. We estimate that that will account for some half a billion pounds of income, and that is due at the gateway to approval stage for the new building safety regime. We certainly believe that those who have the broadest shoulders and those who are responsible for the defects that affect a great many buildings should pay their way, but we believe that the new clause will not work because implementing it will be costly, slow and disproportionate to the financial returns and their timely receipt, and that the Government will need to create a new administrative board to manage the fund.
I should tell the hon. Lady and the Committee that the new clause also risks the mortgage and insurance industries bringing significant and protracted legal challenges. We want them to undertake a much more proportionate and sensible approach to value ascription and risk definition, rather than the risk-averse, computer-says-no approach that they have taken to date. I think this amendment would obscure that sensible and simple objective.
Ruth Cadbury (Brentford and Isleworth) (Lab)
Why is something along the lines that the hon. Member for St Albans proposes not appropriate here but appropriate for the Motor Insurers Bureau? What else is the Minister doing to address the retrospective challenge of those buildings that are already built? The proposal he mentioned is for new buildings that will be completed only once this legislation is enacted.
Christopher Pincher
The hon. Lady is simply wrong; what I am saying is entirely retrospective. The £5.1 billion we have allocated for high-rise in-scope buildings is already allocated, and that is for buildings that already exist. The funding mechanism we will bring forward for buildings in the 11 to 18-metre cohort is for buildings that already exist, and the moneys that will be collected through the levy and the tax can be used for buildings requiring remediation that already exist.
Ruth Cadbury
With respect to the Minister, the point that this amendment makes is to ensure that the polluter pays. The grant from the Government appears to be all taxpayers’ money and, from what I can tell, the Government are taking no action to hold to account financially those developers and builders who are the cause of the problem for residents now.
Christopher Pincher
Again, the hon. Lady is wrong; the residential property developer tax is a tax on the developer sector. The high-rise levy is a levy on the developer sector. We want to ensure we have a mechanism, and we believe we do have one, that is speedy, targeted and suitably flexible to meet the challenges of what we know to be a new—in the sense that it was not recognised until the Grenfell disaster—and evolving terrain.
Daisy Cooper
On the point about the residential property developer tax, which has been leaked to the press in advance of tomorrow’s Budget, can the Minister confirm whether that will bring in additional money beyond the £5.1 billion that the Government have put forward, or will the residential property developer tax bring in money that will then add up to the £5.1 billion? Is it new money on top of that, or will it reduce the amount of money the Government have to spend?
Christopher Pincher
Whatever the hon. Lady has read in the newspapers before the Budget and the spending review, I can assure her that I will not add to the Chancellor’s woes or indeed the annoyance of Mr Speaker by making further comments about it before it takes place.
With respect to the new clause, we believe there is a risk that it will not allow us to levy moneys effectively from the builders insurance and mortgage sectors. We do not believe that the design and implementation challenges of the amendment will result in a material return for the resources that will be expended to deliver it.
Finally, there may be an unintended and undesirable further outcome, which is that a levy on insurers and lenders could very well—indeed, probably will—affect insurance premiums and the cost of borrowing for leaseholders. Given the challenges they already face, that is something I am sure we would wish to avoid.
Mike Amesbury
The hon. Member for St Albans asked whether the levy, the proposed tax that was leaked to the press by Her Majesty’s Treasury, made up part of the £5.1 billion. I note that the Minister did not answer that point, but it would be useful in terms of the journey of today’s new clauses if he could answer that question.
Christopher Pincher
I am happy to say that we expect that to be additional funding, but I will certainly not comment further on what the Chancellor may or may not say in his remarks—[Interruption.] It is in the newspapers; it is not on the record. The hon. Member for Weaver Vale is heckling from a sedentary position, but he needs to recognise the essential difference between what Ministers say and what newspaper journalists interpret them as saying, even before they have said it. There is a fundamental difference. He may be sitting at the feet or bending the knee at the altar of Lord Mandelson, but we must not do that.
In effect, by levying on builders and mortgage providers, the cost will rightly fall on the doorsteps of all homeowners, and potentially on those in the rental sector too. I entirely understand where the hon. Member for St Albans is coming from, and where she wants to go to, but I respectfully request again that she withdraws the new clause, not least because—finally—a number of such amendments and new clauses have been tabled over the past several months, some of which were associated with what is now the Fire Safety Act 2021.
Those proposed amendments were wide-ranging in their ambit and would have allowed, potentially, for a leaseholder to claim for a defective fire alarm that was 10 years old—defective potentially as a result of their own action. We would all—most reasonable people—accept, and those who are suffering the terror, the horror, of being trapped in a building they cannot sell because of this terrible scandal would also accept, that such a liability on a freeholder or builder would be unfair and improper, and might indeed risk what one might call a remediation industry building up, which would not help anyone. I am afraid that the wide ambit of new clauses such as this present an opportunity for that sort of misuse to occur.
I understand all the points that the hon. Lady has made, but I invite her again to withdraw her new clause.
Daisy Cooper
I was particularly struck by an analogy on “Newsnight” last night. A Facebook whistleblower was asked about how Facebook responds to accusations. She said, “It is a bit like my partner saying to me, ‘Have you done the washing up?’, and my answering, ‘I have done the washing up 150 times in the past year and I have spent £3 billion on washing-up liquid’, which is of course a way of not answering the question whether I have done the washing up.”
In answer to the first question, therefore, I was struck that the Minister was at pains to point out the progress that had been made on removing, specifically, ACM Grenfell-style cladding on high-rise buildings—very specific progress. In being at pains to highlight that progress, he sidestepped—I would say, respectfully—all the other fire-safety defects that exist and on which we have taken evidence through the proceedings on the Bill so far.
I was particularly disappointed that there was no answer to how constituents such as mine, who are expecting to receive bills of between £80,000 and £100,000 for fire safety and cladding remediation work, should foot those bills. The Minister’s third point was on the polluter-pays principle. I was a little confused to hear it described as a crude term. It is a very well-established legal principle that exists in other pieces of legislation, notably in domestic and international environmental law. Given the clarity of the situation—innocent lease-holders who have done everything right being left to pick up the tab versus everybody else in the industry, who are to varying degrees responsible for failures—it is actually a very simple principle that is quite easy to understand.
The Chair
With this it will be convenient to discuss new clause 19— Review of Hackitt recommendations—
“(1) Within one year of the day on which this Act is passed the Secretary of State must carry out and publish a review on the Government’s implementation of the recommendations of Building a Safer Future, the final report of the Independent Review of Building Regulations and Fire Safety, published May 2018.
(2) The review must include an assessment of how legislative changes and Government policy have affected the wider building industry culture in respect of building safety.
(3) A report setting out the conclusions of the review as set out in subsection (1) must be laid before each House of Parliament no later than one year after the day on which this Act is passed.”
This new clause would ensure the Government publish an assessment of the Government’s implementation of the Hackitt recommendations.
Mike Amesbury
The two new clauses speak to the recommendations of the Hackitt review—one more generally, and one on a specific point raised in the review. I will speak first to new clause 8, tabled by my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams). She has raised the issue before, and I believe she will do so again in the passage of the Bill. The new clause does not require any immediate action from the Government, other than carrying out a review of the impact on building safety of payment practices and associated commercial practices such as lowest-price bidding and onerous contracts. It embraces concerns expressed by Dame Judith Hackitt in chapter 9 of her May 2018 report, “Building a Safer Future”.
In her review, Dame Judith Hackitt lamented the lack of any “requirement or incentive” to prioritise building safety in procurement decisions, stating that the situation is further aggravated by
“unhelpful behaviours such as contract terms and payment practices which prioritise speed and low-cost solutions”.
The new clause requires the Secretary of State to review the impact of lowest-price procurement, poor payment practices and onerous terms and conditions on building safety, and to make recommendations to Parliament for regulatory and policy changes. It presents an opportunity not just to reset the regulatory framework but to address the commercial behaviours that compromise building safety.
New clause 19 was tabled in a similar spirit, despite its wider scope. The Government committed to implement the recommendations of the Hackitt review at the end of 2018. The Bill holds many of the reforms that were recommended. The new clause simply ensures that the Government publish an assessment of their implementation of the Hackitt recommendations within a year of the Bill passing. Given its centrality in implementing the recommendations alongside the Fire Safety Act 2021, and the significant amount of secondary legislation yet to be published even in draft form to support it, it is right that we take stock of how well it reaches its intended goal of implementing the findings after the regulations come into force.
As well as the issues covered by the new clause, there are questions to be asked about the extent of the review’s implementation of aspects including the regulation of building control for buildings under 18 metres and changes to the future testing regime for construction products—both important parts of Dame Judith’s recommendations. The new clause also includes mention of the need to assess changes to the construction culture in parts of Hackitt’s recommendations—something shared by all members of the Committee throughout the last three weeks. It is mentioned more than 40 times in the Hackitt report as an essential factor, alongside changes to regulation, developing good practice and ensuring well-built and safe homes in the future.
I ask the Minister to accept the new clause.
Christopher Pincher
I am grateful to the hon. Gentleman for raising this important issue. I understand his intent and desire, through new clause 8, to ensure that common practices in the way that payments are charged and made within the built environment industry are incentivised so that building safety and quality are central to decision making. I also recognise—I think we all do—the argument that poor, adversarial practices can lead to unsafe, low-quality building safety outcomes, as well as poor value for money. Let me assure the hon. Gentleman that we agree that this is an important issue.
Work with the industry to ensure fair and prompt payment and procurement practices is being addressed across several Departments. The Government’s construction playbook, which captures commercial best practices, is resetting the relationship between the construction industry and the Government. Making the process more strategic and collaborative, and focused on delivering a more sustainable, modern industry, better able to deliver high-quality built assets for its clients, is essential and crucial.
The Construction Leadership Council also has a business models workstream, whose work includes collaborative contractual practices; adoption of fairer payment practices; eliminating the need for retentions; and supporting the introduction of other complementary procurement approaches, such as the value toolkit and the construction playbook, which I have already mentioned.
The hon. Gentleman mentioned the Hackitt report. Following the Hackitt report, we also set up the procurement advisory group to advise on procurement practices in higher risk buildings and to provide independent advice on implementing the recommendations of chapter 9 of the report, which focuses on procurement. As part of that, we have sponsored the creation of guidance on how the industry can implement collaborative approaches to procurement, to deliver those safe buildings and to tackle poor behaviours across the supply chain. It will outline how those approaches support the future regulatory regime as set out in the Bill.
The group will then work with the industry to implement the principles of the guidance as widely as possible. The guidance will be iterative and will be reviewed in line with any amendment to the Bill ahead of Royal Assent; of course, as the hon. Gentleman will know, amendments can be tabled on Report as well as in the other place.
Our approach is to support the industry to develop industry-led solutions, rather than further regulation: creating regulation when that is necessary, rather than when we can do it. We want it to be meaningful and owned by the industry, which is vital in order to create the leadership and culture change we have agreed is needed to support the important changes introduced in the Bill.
Through our engagement, we encourage a focus on obtaining the best value, rather than the lowest cost in procurement practices. We recognise the importance of setting clear parameters for how construction services are procured at the start of a project, and how that drives the correct behaviours throughout the project supply chain. We encourage those involved in procurement practices to show leadership in that regard and to embed good practice.
The competence of those involved in procurement was also considered in detail by the industry-led competence steering group, and we encourage the industry to continue to develop and implement the competence framework for the sector. The Bill already ensures accountability for safety throughout the lifecycle of a building—I think we have agreed on that—and that risks are held and managed by the appropriate people. Our efforts are therefore rightly focused on delivering a more risk-proportionate building safety regime where life safety risks are tackled swiftly, but disproportionate caution and excessive costs are avoided.
We do not believe it would be proportionate to legislate for the way the construction industry charges or for the payment practices of private and commercial businesses. The new clause would be a significant expansion of the scope of the Bill, and could risk the timetable of our introduction of the new regime. I thank the hon. Gentleman for raising this important matter, and I do not for a moment dispute his commitment to it. However, I respectfully ask him to withdraw the new clause.
I will briefly cover new clause 19. The Committee knows that the Bill provides a widely-framed review of the whole building safety regime, covering in-scope higher-risk buildings and out-of-scope buildings in clause 139, which was debated and agreed last Thursday. By comparison, the new clause would provide for a limited, one-off review within a year of Royal Assent. I do not believe that would practical, or that it would allow sufficient time for the new building safety system to be established or give the new building safety regulator the opportunity to deliver against the recommendations set out in the independent review of building regulations and fire safety. Therefore, I do not think that requiring an early review would have the intended effect.
The Government believe it is important to protect the independence of the review. As a result, we have not specified with whom the reviewer must consult when conducting the review and have allowed them to consult as widely as they see fit. The independent reviewer may choose to accept evidence from any interested party.
Clause 139 requires the Secretary of State to appoint a reviewer within five years of the Bill receiving Royal Assent and, thereafter, within five years of the previous appointment. It also allows the Secretary of State, in extremis, to ask for an earlier review within that five-year cycle. Therefore, unlike new clause 19, which is a one-off assessment, we are providing for an ongoing check on the building safety and construction products regulatory systems throughout their lifespan.
Given the establishment of a new system of regulation for building safety, including fire safety and defect remediation, it may not be practicable to conduct another comprehensive review similar in scope to the one undertaken by Dame Judith Hackitt sooner than the five-year limit stipulated by clause 139, unless in extremis the Secretary of State directs otherwise.
Mike Amesbury
I thank the Minister for his response. Assessment planning implementation reviews are essential components of good policy. Given the significance of what we are collectively trying to achieve in Parliament and beyond this place, a review is vital. We argue that that five-year mark, while crucial and hard-wired into the proposed Bill, needs further checks and balances and assessment. However, in the spirit of co-operation and collaboration that we have had so far, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 9
Devolved Building Safety Standards Co-operation Review
“(1) The Secretary of State must conduct a review exploring how a formal mechanism of co-operation and information sharing on building safety standards across the United Kingdom could operate.
(2) The review as set out in subsection (1) must include reviewing—
(a) the feasibility of establishing a duty to consult with the government of Northern Ireland and Scotland on the best practices for building safety, including on—
(i) funding;
(ii) grants;
(b) the provision of funding of fire safety remediation work, and
(c) the provision of funding in place to prevent costs being passed to leaseholders.
(3) A report setting out the conclusions of the review as set out in subsections (1) must be laid before each House of Parliament no later than 3 months after the day on which this Act is passed.” —(Daisy Cooper.)
This new clause would require the Secretary of State to conduct a review of formal co-operation on building safety standards across the United Kingdom, in recognition that sharing best practice could promote improved building safety standards in all four nations.
Brought up, and read the First time.
Daisy Cooper
I beg to move, That the clause be read a Second time.
New clause 9 would require the Secretary of State to conduct a review of formal co-operation on building safety standards across the United Kingdom, in recognition that sharing best practice could promote improved building safety standards in all four nations.
There are two reasons behind new clause 9. First, the UK Government could learn from our neighbours, particularly in Scotland. Although only one high-rise building in Scotland—in Glasgow—has been found to have the ACM cladding that was responsible for the Grenfell tragedy, all owners of flats who have cladding have been offered free safety assessments to see if other types of cladding need to be removed.
In addition, the Scottish Government have established a ministerial working group on mortgage lending and cladding; this includes homeowners, insurers, legal professionals, housing associations and the fire service. When we were discussing a previous new clause, the Minister made it clear that he wanted to look at these issues. New clause 9 would provide the forum within which the UK Government could look at this model, and see what could be learned from the ministerial group on mortgage lending and cladding.
The Scottish Government made swift moves to ensure that the unnecessary EWS1 form certification was no longer needed. Arguably, there is also the case that through a forum like this the UK Government could reflect on whether Scottish building regulations, which have diverged from UK-wide fire safety standards since 2005, were able to prevent a widespread crisis like the one we have had here in England.
There is a second, less obvious reason why the clause could establish improvements in building safety standards. During the course of the evidence sessions, we heard from the Fire Brigades Union, who described the current state of affairs as “pretty abysmal”. They gave as an example the fact that fire officers had, for many years, noticed that fires were starting to spread faster and there was no way of getting that information to those in power. They cited as the problem that the Central Fire Brigade Advisory Council, which was established by the Fire Services Act 1947, had been abolished by the Fire and Rescue Services Act 2004.
This new clause, which looks at best practices across all four nations, could perhaps be part of a new tapestry, where any new problems that arise in the future as a result of new materials or new modes of construction could quickly be discussed across all four nations and be brought to the attention of Government.
Christopher Pincher
The hon. Lady may find that a theme is developing here and it is one of collegiality—I trust she will agree. I thank her for raising this important matter. Given that it is a Union matter, it is sometimes rather more complicated and, shall we say, delicate. I applaud the intent of the new clause, but I again ask her to withdraw it rather than asking us to accept it, because I do not think that it would achieve its intended effect. It could also, we believe, impede already existing and pretty effective relationships with the devolved Administrations.
However, I assure the hon. Lady that the Government have already established very close official-level working relationships on building safety with the devolved Administrations, as part of the BSP—the building safety programme. In fact, meetings with representatives of all three devolved Administrations take place at least fortnightly, enabling the sharing of information and latest policy developments and intentions. I will give the Committee an example. We have been working closely with the Welsh Government, including in relation to applying part 3 of the Bill to Wales. We are also liaising closely with both Scotland and Northern Ireland.
As the hon. Lady will be aware, the Bill will create a stronger and clearer construction products regulatory regime, which will apply to the whole United Kingdom. Building safety is a devolved matter, but the products regime will apply to the whole UK, and that will pave the way for a national regulator for construction products with a UK-wide remit to lead and co-ordinate enforcement of the new rules.
In January this year, we announced that that national regulator will be established within the Office for Product Safety and Standards, which gave evidence to this Committee in the witness sessions and which will receive up to £10 million this financial year to set up the new function. There is in the Bill a range of other provisions that apply to one or all of Wales, Scotland and Northern Ireland and which we have debated previously.
As the hon. Lady will appreciate and as I have said already, unlike the regulation of construction products, building safety is a devolved matter and rightly, therefore, decisions on policy in that area ultimately rest with the devolved Administrations themselves. It is therefore important that we maintain the existing, well established relationships rather than perhaps foisting new and unexpected ones on those Administrations.
Taking all those factors into account and entirely understanding what the hon. Lady is trying to achieve, I hope that she will accept our assessment that formalising information-sharing and consultation mechanisms as she is suggesting could impede and slow down our existing mechanisms to ensure building safety standards in each of our four nations. I respectfully invite her to withdraw the new clause.
Daisy Cooper
I am grateful to the Minister for his reassurances about the close working relationship with the devolved nations, and interested to hear about the fortnightly meetings. If those meetings are happening every fortnight, that does, I say respectfully, beg the question as to why the Scottish Government have set up the ministerial working group on mortgage lending and cladding, and dealt with the EWS1 form, yet the UK Government are still battling with both.
The Minister mentioned that it is important not to step on the toes of the powers of the devolved nations. I absolutely, wholeheartedly agree with that, but my suggestion was that the UK Government could in fact learn from the devolved nations rather than imposing anything on them. None the less, I am grateful to have those reassurances and I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 10
Assessment of building safety and emergency status
“(1) The Secretary of State must, as soon as reasonably practicable, conduct an assessment of the overall state of building safety and building fire safety defect remediation in England and lay before Parliament a report of that assessment.
(2) The report must include an assessment of whether the matters in subsection (1) constitute an emergency for the purposes of Section 1(1)(a) of the Civil Contingencies Act 2004 (an event or situation which threatens serious damage to human welfare in a place in the United Kingdom).
(3) In conducting the assessment, the Secretary of State must consult—
(a) fire safety experts,
(b) leaseholders and their representatives,
(c) social housing tenants,
(d) local authorities,
(e) trade unions, and
(f) safety and construction industry bodies.”—(Daisy Cooper.)
This new clause would require the Secretary of State to conduct an assessment of the state of building safety and fire safety defect remediation in England.
Brought up, and read the First time.
Daisy Cooper
I beg to move, That the clause be read a Second time.
Colleagues will be pleased to hear that this is the last new clause from me. It would require the Secretary of State to conduct an assessment of the state of building safety and fire safety defect remediation in England, and to specifically assess whether it constitutes an emergency, as defined in the Civil Contingencies Act 2004.
We are now four years on since the Grenfell tragedy. We have heard that so many times in the Chamber and here in Committee. Not only are we more than four years on from the tragedy, but there are suggestions that, at the current rate of reform, it could potentially take up to 10 years to sort out all of the existing fire safety issues faced by existing leaseholders. That is simply not good enough.
It is clear that the fire safety scandal is an emergency. In Victoria, Australia, they treated it as a public health emergency. When we took evidence, everybody that we asked, “Do you consider this to be an emergency?” said, “Yes”. It is clear that the overall building and fire safety scandal
“threatens serious damage to human welfare in a place in the United Kingdom”.
That is part of the definition of what constitutes an emergency under the Civil Contingencies Act 2004.
We have seen, over the past 18 months, what can be done by Government when there is a crisis. We can see the scale and pace of change and reform when something is treated as an emergency. Waiting for two years, five years or 10 years is far too long, so I respectfully request the Government to reflect on whether four years so far, and potentially several years to come, is good enough; whether they could usefully use the Civil Contingencies Act; and whether the new clause—which would require the Secretary of State to conduct an assessment of whether the state of building safety and fire safety constitutes an emergency under the 2004 Act—would be a useful mechanism to ensure that we can move much faster and make all homes fire-safe within at least the next 12 months.
Mike Amesbury
I thank the hon. Member for St Albans for powerfully arguing the case for the new clause. As she stated, it is now nearly five years since Grenfell, when 72 people tragically lost their lives. A broad-scoped, urgent assessment is now needed, so the official Opposition support the new clause.
Christopher Pincher
If you will indulge me for a moment, Mr Dowd, I will briefly respond to a point that the hon. Member for St Albans made previously about the reasons behind the Scottish Government setting up a particular committee. Scotland has a different legal infrastructure and different financial mechanisms; that may well be one of the reasons why they have chosen to set up that committee, but that is, as I am sure she will appreciate, a matter for them.
I appreciate the hon. Lady raising this important point, in a similar vein to the hon. Member for Weaver Vale and new clause 8. However, in a similar vein, I trust that she will feel able to withdraw the new clause once I have concluded my remarks. The Bill already provides for a widely framed review of the whole building safety system. That will cover in-scope high-rise and higher risk buildings, and out-of-scope buildings through clause 139, which we debated and agreed to last week. By comparison, it is also rather akin to new clause 8. This new clause covers a more narrow subject matter, giving—entirely unintentionally, I am sure—no consideration to the independence of the review. When included alongside clause 139, which already stands part of the Bill, it would cause duplication and confusion.
As I said previously, I want to assure the hon. Lady that we recognise the intention behind her new clause, but we submit that it has been met in clause 139, which creates a non-prescriptive framework for the appointment of an independent person to review the work and the effectiveness of the Building Safety Regulator, the regulatory system for building safety, the national regulator for construction products, and the regulatory system for construction products. We therefore believe that the topics specified in new clause 10 are already covered by clause 139.
Daisy Cooper
I am grateful to the Minister for responding. I would highlight two points. The first is that the Minister suggested that new clause 10 was not necessary because of clause 139, but I respectfully highlight the fact that clause 139 relates to an independent review of the building regulatory regime and the regulation for construction products, so this is a process. Clause 139 relates to future regulation; it does not apply to the remediation of historical fire safety defects.
Secondly, although the Minister was at pains to highlight that he appreciates the urgency, I would highlight that clause 139, on the future review, requires only that the Secretary of State appoints a reviewer within five years of the Act passing. We have tens of thousands of innocent leaseholders who cannot wait another five years for their houses to be made safe so that they can get on with their lives. I said before that the purpose behind the new clause was to highlight the emergency and the urgency with which we would like the Government to act. Many of us feel as though the Government are not acting with the necessary urgency, but I hope the Minister hears that point. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 11
Assessment of mental health impact for leaseholders in dwellings with building safety risks
“(1) The Secretary of State must carry out a review of the impact of building safety issues on leasehold tenants’ mental health.
(2) The review as set out in subsection (1) must be laid before each House of Parliament within six months of the day on which this Act is passed, and must consider the effect on leasehold tenants’ mental health arising from but not limited to—
(a) residing or being a leasehold tenant in a building which has had or currently has building safety issues;
(b) any financial pressures on leaseholders as a result of charges due to building safety work, conducted based on advice given by his department since 14 June 2017;
(c) supply of mortgage finance.
(3) The review shall include recommendations on any mental health support to be provided to leasehold tenants’ as a result of findings under subsection (2).”.—(Ruth Cadbury.)
This new clause would ensure the Government publish an assessment considering the impact of the building safety risks on leaseholders, and whether further specific mental health support is required.
Brought up, and read the First time.
Ruth Cadbury
I beg to move, That the clause be read a Second time.
It is a pleasure to serve under your chairmanship again, Mr Dowd. The new clause seeks an assessment of the mental health impact for leaseholders in dwellings with building safety risks.
It may be normal in areas such as health, social care and justice to consider in legislation the mental health impact on victims, but it is unusual in matters of the built environment. I hope in my comments to address the impact that the crisis is having on the mental health of millions of people across the country. Any MP who has looked into their postbag will know the turmoil and trauma that the crisis has caused to leaseholders. As the hon. Member for St Albans said earlier, they are innocent parties—the only innocent parties—and they have had the sword of Damocles hanging over their heads.
The new clause makes three aspects clear. First, there is the trauma caused to people by living in a building that is unsafe and that they fear could go up in flames. Then there is the trauma of the financial bills that so many leaseholders face, which can run into tens of thousands for many. Finally, there is the trauma caused by being trapped and unable to sell or remortgage a home. That is a toxic trio that we know is impacting people’s mental health. Survey after survey has confirmed the huge impact.
In a survey for Which?, a leaseholder called Georgie said:
“I don’t know of any leaseholder whose mental health isn’t affected in some way due to this horrendous situation.”
That chimes with the findings in the landmark report by the Cladding Action Group, which found that nine out of 10 of those surveyed said their mental health had
“deteriorated as a direct result of the situation”.
Some 94% said they were anxious and worried, 83% said they were angry—rightly, I might say—and 59% felt abandoned, which is a point I will come back to later. People also said they had had to take time off work. Health conditions had been made worse. Many were seeking or planning to seek medical help for stress. Some 67% said their mental health had got worse since they were last interviewed. Those numbers should serve as a chilling reminder of the impact, toll and misery of this crisis—a crisis that this Government have effectively caused.
It is hard to convey just what the fear of living in an unsafe building must feel like—how it must feel for people to go to sleep at night not knowing if they are safe in their bed. A constituent who wrote to me after the fire at Grenfell told me that they went past and saw the fire raging from their bus. The images of that night are seared on that constituent’s brain, as it is in the minds of so many other people, even if we just saw it on the TV.
Grenfell was, of course, not the only residential fire with serious consequences. The Cube fire in Bolton and Richmond House in south-west London are just two in recent years. Locally, there are many more examples. Luckily, Sperry House in Brentford was caught in time before the fire raged across the full building—before life was lost. Thanks to the fire services, it was caught in time.
Mike Amesbury
Yesterday, Sky highlighted the case of Zoe, who lives in a cramped, one-bedroom flat with small children, but is unable to move out of the flat because of the toxicity of the building safety standards. That is having a huge effect on her mental health issues, including about schools in the future and just the anxiety my hon. Friend illustrates.
Ruth Cadbury
My hon. Friend gives yet another illustration of the stress and mental health impact of this crisis. On the subject of people almost frightened to go to sleep at night, people with disabilities and their carers face even greater anxiety and worry over fire safety risks and whether they would be able to get out of their home to safety. Many are struggling to get adequate personal emergency evacuation plans sorted with their building managers.
Paragraph (b) relates to those facing staggeringly high bills. Every day, we see more and more reports of the skyrocketing costs facing leaseholders. One of my constituents, who is a shared owner in Brentford, is facing a bill of £15,000, and says:
“I fear it will be significantly higher...I don’t have this money and it will bankrupt me. I fear homelessness...I’m going to lose the home I worked so hard for.”
Leaseholders across the country are facing staggering and life-changing bills to fix cladding and fire safety defects, and more. Service charges are skyrocketing and, for many, insurance premiums are also shooting through the roof. Two of my constituents are facing an extra £2,000 on their annual insurance bill. Many people face bankruptcy. That is bad enough in itself, because of course it means a lifelong impact, whatever one’s financial future. However, for accountants, lawyers and others, their professional status is permanently destroyed if they are declared bankrupt.
Overall, there is the fear of homelessness for people who got on the housing ladder—they did the right thing, as we often say—but are now falling to the bottom of the snakes and ladders board.
Ian Byrne
On the Housing, Communities and Local Government Committee, we had three sessions of evidence from many people across the country who have gone through covid, have lived since 2017 in unsafe buildings, as my hon. Friend has outlined, and are now in danger of bankruptcy and potentially losing their jobs through professional indemnity being withdrawn. It was heartbreaking to listen to the three sessions and see how life changing this was going to be and the consequences they will have in years to come, affecting their lives, their children’s lives and future generations of the family’s lives. The impact this is having on people’s mental health should not be understated. As I have said, it could not have come at a worse time, with covid, being locked in a house or a flat that was potentially dangerous during lockdown, or fearing for their own lives in a flat they believed was unsafe. They had the pressures of covid and of living in an unsafe building, so for me this new clause is hugely important, after having listened to the evidence sessions with my hon. Friend the Member for Luton South—
The Chair
Order. To clarify, if people are going to intervene, can they make it short and sharp? If they want to make an intervention, that is the way to do it. If they want to speak on the substantive issue, they can do, but this is an intervention, rather than a more substantive contribution.
Ruth Cadbury
I thank the Housing, Communities and Local Government Committee for the work it did on this important issue. It has put these issues on the public record in a way that we do not have time for today, so our thanks go to the Committee.
Paragraph (c), on mortgage finance, is about the inability to move as one’s family or job situation changes. Normally, one would be able to sell and move somewhere nearer a new job or more suitable to one’s current family situation. Being unable to move causes further stress, even for those in flats with minimal risks. End Our Cladding Scandal estimates that last year there were around 1.2 million mortgage prisoners, and that figure will be growing. All this is largely due to the Government’s inept handling of the EWS1 survey process—an issue that is still not resolved, despite the grandiose claims from Ministers every three months when they want an easy headline.
Rachel Hopkins (Luton South) (Lab)
It is a pleasure to speak under your chairship, Mr Dowd. I add my support for the new clause, for the reasons so well set out by my hon. Friend the Member for Brentford and Isleworth.
I believe that there needs to be an assessment of the mental health impact for all leaseholders. My hon. Friend spoke about the impact of the financial bills that many leaseholders face. I would like to add some points from the leaseholders I have spoken to in my constituency about their fear of bankruptcy and the pressure that is placing on them, particularly those who would lose their professional title. I have spoken to a teacher and a social worker, who in their day jobs are dealing with young children who are already in temporary accommodation, or are supporting the needs of the Afghan refugees who have been placed in Luton.
Those constituents are working incredibly hard, in incredibly important jobs, but they are struggling because they are fearful that if they cannot meet the costs of the bills that they might have to face, they will lose their professional titles, not be able to pay those bills, be made homeless and then fall on to the responsibility of Luton Council, which we already know is incredibly pressured when it comes to providing housing. Our council house waiting lists are huge, with people living in temporary accommodation for many years. I did not need to watch the “Dispatches” programme on television last night—these emails come into my office inbox every day.
Finally, there are also wider mental health issues for those living together as partners and considering whether to start a family, when they are living in a home that is not safe and when they have concerns about when they will be able to remedy that, given the lack of action from the Government. The new clause on the need for a mental health impact report is therefore hugely important, and not only for the benefit of the leaseholders.
Mike Amesbury
Yesterday, Sarah Corker highlighted the case of a leaseholder in a flat who was finally going through remediation after waiting for years. The flat was wrapped in plastic and there was very little wraparound mental health support. Does my hon. Friend agree that that should be within the scope of an assessment?
Rachel Hopkins
My hon. Friend makes an incredibly important point. I agree that we need to look at everything in the round and bring it into scope to understand the longer-term impacts of unsafe cladding, and the lack or slow progress of remediation, particularly on leaseholders.
I really feel for those who cannot start a family because of those deep concerns, and the pressure they experience because, as time ticks on, it becomes more difficult. I want to add my support for leaseholders who are struggling in those situations by supporting this incredibly important new clause.
Daisy Cooper
I will speak briefly to add my support for the new clause. Colleagues have covered many issues, but my constituents in St Albans have told me that their mental health has deteriorated because they do not feel safe in their own homes. Some cannot sleep at night and others have had to move out, so that they are paying not only for the mortgage on their flat, but for rent. That creates financial worries, which in turn worsens their mental health. Some can afford to buy those properties only with the support of the bank of mum and dad, who are possibly retired and have put their savings or their pensions into buying the properties, so we have people living in fire traps who are concerned for the welfare of their ageing parents.
As colleagues have pointed out, there is a concern about those who want to start a family. Some do not feel able to start a family because they feel too stressed to go through that process in the home that they are in, the flat is not large enough or they cannot afford in vitro fertilisation, given the eye-watering bills for remediation.
The mental health impact goes way beyond the people who live in the properties. It starts with them, but it has ripple effects on their families and the people in the community who know that the properties are not safe. Nobody wants to live in a community where they might see something even half as bad as Grenfell. The crisis has enormous and wide-ranging mental health impacts and I fully support the new clause.
Christopher Pincher
I am obliged to the hon. Member for Brentford and Isleworth for raising this important matter and to other Committee members for speaking honestly and eloquently on it.
The Government recognise—I certainly recognise—the difficult situation that many leaseholders have found or find themselves in, not least the financial implications and the emotional strain that it has placed on many people. We are aware of the research that has been conducted in the sector on the effects of building safety on leaseholders and their wider family and friends. The findings are sobering. They highlight the significant effect that building safety issues have on leaseholders and further demonstrate the importance of our work to improve building safety.
However, an important principle underpins access to mental health support: it must be based on clinical need. That must be right. It should be the right of everyone who needs that support to get it, without regard to any legislative or political pressure. If any individual, regardless of where they live, requires mental health support, they can contact their general practitioner to discuss those issues so that they may be referred to mental health services as appropriate. Information is available at GP surgeries and on the NHS website about how to access that. While I appreciate the points made by Committee members, we need to be careful, because the new clause cannot and, indeed, should not change the current approach to delivering these important services.
That is why, while I understand the motivation behind it, the Government cannot support the new clause, and why I will in due course ask the hon. Member for Brentford and Isleworth to withdraw it. It has implications not simply for building safety and my Department, but for how the NHS and the Department of Health and Social Care provide such services.
Making homes safer will benefit leaseholders, and that is what we must be and are focused on. The Government are fully committed to making homes across our country safer, and that is why we are implementing the recommendations of the Judith Hackitt report. We also want people to be safe, and that is why we have since 2017 invested in more mental health nurses and services.
Throughout the work to reform building safety, the Government have regularly and extensively engaged with leaseholder groups. My noble friend Lord Greenhalgh, his predecessor and his predecessor’s predecessor have done that extensively since the Grenfell disaster. We recognise and understand the effects on a leaseholder who lives or who has lived in an unsafe high-rise building. That is why the Government have taken a range of steps to support leaseholders.
Given the tone of the debate on the new clause, I will not reamplify and recapitulate the support that the Government have given, and will continue to give, to leaseholders. There may be some disagreement about that support, but there is common understanding of our intent.
Through the Bill, we have a common intent to bring through new stronger protections for leaseholders and residents, providing them with the assurance that their buildings and the risks are being effectively managed, and that they are well informed and are given the chance to participate in the decisions that affect their building’s safety. Where the performance of those responsible for building safety falls short, there will be a clear route to have concerns heard and dealt with, backed by the new Building Safety Regulator. The regulator will have the powers necessary to put things right and tackle underperformance, giving residents and owners peace of mind.
We do not believe that a Government review of the effect on mental health is an appropriate or practicable approach. The practical effect of such a report might well be to recommend that mental health service provision be made to all leaseholders and possibly the wider community.
Mike Amesbury
How will the Minister and the Department approach helping the 90% of leaseholders surveyed who are affected by anxiety and mental health issues? What co-ordination is there between the Department and, for example, the national health service or other appropriate services?
Christopher Pincher
The national health service has well-established means of providing services through both primary and secondary care to the people, based on need and at no cost to them at that point in time. That has been a well-established principle since 1948. GPs can signpost their patients to appropriate resources in the NHS to provide them with the services they need, as can services such as 111 or the Government website, which indicate how people with difficulties can use the NHS.
Ruth Cadbury
I thank the Minister for his response to new clause 11. I am not sure whether he truly understands the impact of the building safety crisis on people, or he does but has no intention of dealing with it. I fear sometimes that it is the former. Only yesterday, Department for Levelling Up, Housing and Communities Ministers were advocating shared ownership—a subset of leaseholders. They are advocating that more people get into this mess, rather than addressing the impact on those who are already in it.
My colleagues spoke about the impact of homelessness, which causes mental health stress. On that point, people never expected to be a burden on the state for their housing situation. People did the right thing and got on the housing ladder—an aspiration of over 90% of people in this country. They got a loan and are paying for their home. Sometimes they are paying less in mortgage payments than they were in rent. That was before the charges started going up, of course. When those people become homeless, they add to the numbers of those who are already homeless. That situation will only apply to those whom the council have a duty to house, such as those with school-age children or who are vulnerable in some way, adding to the pressures on councils and the taxpayer. Of course, it will also add to the pockets of many private landlords.
Homelessness has a mental health impact, but it also has other impacts. There is an educational impact on children, who have to move schools because the only home their family is given is miles away. Many have to give up their job because they have been moved so far away that they can no longer travel to work. The Minister said, very helpfully, that anybody suffering from mental health problems can make contact with their GP. Is he not aware of the pressure on GPs at the moment? When did he or a member of his family last get an appointment within two weeks, which is often the wait time?
Christopher Pincher
The hon. Lady seems to be conflating the timescale to the end of this difficult pandemic, the point at which the Bill will become law and when the report she asks for, if the new clause is accepted, will be made, and therefore the effect of the new clause on GPs. It is the case that GPs are under pressure. I am simply making clear the present process for people to access mental health services, which I think was the point that the hon. Member for Weaver Vale made to me.
Ruth Cadbury
The Minister was obviously not aware of the crisis in the primary care workforce before the health crisis; certainly, at our GP surgery, we were waiting more than two weeks for an appointment before March last year. The Government have known for years that there are too few GPs, and of course the pressure is getting even worse through covid. However, let us move on.
If one sees a GP because of a mental health concern and the GP accepts the seriousness of that concern, they will then have to do a referral. Waiting times for a clinical assessment, and beyond that, treatment, are growing all the time, and already were before covid struck.
Christopher Pincher
Will the hon. Lady explain how the making of a report will practically improve access to mental health services for the people who she quite properly says are affected by the building safety crisis?
Ruth Cadbury
First, it will acknowledge, in property law, that there is an impact on people of the lack of appropriate action by the Government. Secondly, when the Government actually accept the polluter pays principle, including builders and developers of existing homes, which is where the main concern is at the moment, they could recoup some of the costs from those builders and developers, which could contribute to additional mental health support. The importance of the new clause is to acknowledge that the building safety crisis is an awful lot more than a building safety crisis; it is a people crisis.
Shaun Bailey (West Bromwich West) (Con)
I want to understand this from a practical point of view, so could the hon. Lady clarify—I apologise if she has covered this; I am listening intently to what she says—who would draft these reports? More broadly, given the obviously untold scale mental health impact this crisis has had, what assessment has she made of the impact on existing services, from which we would have to take professionals out of stream to draft these reports? I am keen to understand that point.
Ruth Cadbury
If we were to push the new clause to a vote and it was accepted, the details of that are in there. This is not unique in legislation. It can be done and it can be enacted if the Government will is there. We are trying to establish whether the Government actually care about the people who are impacted by this crisis.
Mike Amesbury
When 90% of leaseholders surveyed by UK Cladding Action Group and End Our Cladding Scandal cite mental health and anxiety as a major concern, and when 25% have considered taking their own lives—suicidal thoughts—there is a big issue. It is nearly five years on from Grenfell. My hon. Friend, a good colleague, makes a powerful case for the new clause to be included in the landscape of the new building safety regime in this country.
Ruth Cadbury
My hon. Friend confirms the power of this issue. Finally, I will address the Minister’s point about the Building Safety Regulator. To be honest, the point of the regulator is not generally, as drafted, to be concerned about people. The Minister said that the regulator will engage with leaseholders, but engaging with a leaseholder does not actually make them feel better.
My other concern is the growing number. We talked about the UK Cladding Action Group survey. It will have surveyed people who are probably aware of the situation they are in, but we know that people are still buying flats in buildings and more and more people are becoming aware of these issues. I would not buy a flat in a leasehold block, particularly one with a term of less than 20 years, because I have been enmeshed in this issue as a representative MP since before Grenfell. I know what it is like, but too many people are not aware, and are continuing to buy, get mortgages, set up homes and settle down in buildings that they then find are affected. I met the son of a friend of mine a couple of months ago, and he asked, “Could you explain to me this EWS1 problem? I am not moving, but some of my neighbours want to sell, and they did not know anything about it.” I said, “Well, how long have you got?”
Daisy Cooper
A number of colleagues have asked what the practical effect of this clause might be. It seems to me that, as the hon. Lady has just said, there is a lack of understanding and information about the impact this situation has on those leaseholders who are caught up in it. We could imagine that, under subsection (3) of the new clause where it says,
“The review shall include recommendations”,
some of those recommendations could, for example, include mental health first aid training in the blocks of flats that are affected, particularly during times when those buildings will be wrapped in plastic. They could include providing information sheets about the impact on people’s lives that those who are affected could take to their GPs, their councillors or others, so a number of practical things could be recommended as a result of a review that could be conducted under this new clause.
Ruth Cadbury
The hon. Lady makes a useful suggestion. I feel conflicted when somebody tells me excitedly that they are moving, or that they have just bought, because what do I say? Do I say how pleased I am for them, or do I ask, “Have you thought about this? Did you know about this? Was your solicitor employed by the developer?” and so on. These issues will lead to the mental health problems of the future among people who now are very happy and excited.
I will not press this new clause to a vote, but I am concerned about the rising tide of mental health problems, particularly among leaseholders, but generally among all residents in these blocks. I do wonder how many suicides there have to be before the Government take this on as yet another aspect of the emergency. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 12
Assessment of the impact of building safety issues on access to insurance
“(1) Within one year of the day on which this Act is passed the Secretary of State must carry out a review of the impact of building safety issues, including the provisions of this Act, on access to insurance.
(2) The review as set out in subsection (1) shall include assessment of the United Kingdom insurance market.
(3) The review must consider the impact of building safety issues, confidence in the building safety industry and the impact of advice given by his Department on building safety given since 14 July 2017 on—
(a) the availability and cost of insurance for residential blocks;
(b) the availability and cost of professional indemnity insurance for workers in the building safety industry;
(c) requirements placed on buildings in order to access building insurance; and
(d) the wider insurance market.
(4) The review must make recommendation as to any further action needed by Government or the industry to improve access to affordable residential and professional insurance across the United Kingdom.”—(Mike Amesbury.)
This new clause would ensure the Government publish an assessment of the impact of the building safety risks on the UK insurance market for residential buildings and professional indemnity insurance for those working in building safety.
Brought up, and read the First time.
Mike Amesbury
I beg to move, That the clause be read a Second time.
Insurance costs are suffocating leaseholders up and down the country. I know that the Minister is keen for me to bring up casework during these sittings—indeed, the hon. Member for Bolton North East did so just last week—and it is a very relevant and appropriate piece of casework, so I make no apology for bringing it up. There is a development that is just outside my constituency, called The Decks. One part of the development is above 18 metres; the other part is below 18 metres, so one part is within the scope of the Building Safety Bill as it stands, and one is not.
The resident leaseholders in that development, regardless of whether they are in scope or out of scope, have faced a shocking rise in insurance premiums of 1,400% over the past two years. Their insurance rose from £34,000 in 2019, before the current problems with building safety were identified, to £254,000 in 2020. Despite the problems having been identified and work done with the local fire authority to put alarms in place to mitigate and reduce risk, the insurance then more than doubled yet again to £522,000 at the start of this year. Risk reduced, but premiums yet again going up—a situation mirrored the length and breadth of this country. That is just one case out of nine that I looked at in research published in The Sunday Telegraph this week, which provides a rough snapshot of the costs involved when leaseholders are hit by rocketing, sky-high, scandalous insurance premiums.
Christopher Pincher
I am grateful to the hon. Gentleman for again raising this important matter. I appreciate the issue that the new clause seeks to tackle: the challenge of freeholders and leaseholders of some residential buildings, in particular those that need remediation, who are struggling to obtain affordable buildings insurance; and the challenge faced by some construction professionals —the fire-safety professionals in particular—in obtaining affordable professional indemnity insurance.
As the hon. Gentleman said, engaging with the insurance sector and other relevant stakeholders—which the Government are doing on an ongoing basis—is vital to understanding the effects of building safety issues on insurance provision. We want—he has heard me say it before, and in no way do I apologise for saying it again— insurers to take a more proportionate approach in terms of the availability and cost of insurance, just as much as we want lenders to take a more proportionate approach with respect to mortgage lending.
The intention of the hon. Gentleman’s new clause—to improve access to affordable residential professional indemnity insurance—we believe should be met by other provisions in the Bill. Efforts to remediate existing buildings, as he knows, are supported by the building safety fund and other measures that we will bring forward shortly. A combination of those measures and this Bill ought to ensure that buildings are safer. Therefore, both professionals and residents should be able to access more affordable insurance. He will also know that Lord Greenhalgh and others have worked closely with the insurance sector to ensure that appropriate professional indemnity insurance in extremis is available to professionals so that they may carry out their duties.
Mike Amesbury
The evidence is crystal clear. Despite interventions by Lord Greenhalgh—just mentioned—premiums are still going up, regardless of whether a building is 11 to 18 metres or 18 metres-plus, which is in scope. Again, I urge the Government to accept the new clause and to add the amendment to the Bill.
Christopher Pincher
I understand where the hon. Gentleman is coming from, but I was going to say that the Government have of course spent £700,000 to ensure that more fire risk assessors are available to undertake risk assessments to evaluate the challenges to building safety, thereby also contributing to a more proportionate risk and lending regime.
The hon. Gentleman said that this was straightforward. On one level it is, but on another it is not, by which I mean that is hard to disentangle the effect of building safety issues on the availability and cost of insurance from other issues and where other market trends apply. For example, heavy rains or flooding can also have an effect on market trends, lending, and risk assurance availability and its price.
In conclusion—this is important—following Royal Assent to the Bill, and indeed before it, we will continue to monitor closely the provision of insurance and we will work with stakeholders, including freeholders and leaseholders, to encourage a much more proportionate approach for insuring, for pricing insurance, and for ensuring and delivering its availability.
Mike Amesbury
I thank the Minister for giving way again. He is generous with his time. To help focus minds in the insurance sector, will the Government consider a referral to the Competition and Markets Authority? For the life of me, I cannot understand how, when risks are reduced in some buildings up and down the country, we are seeing this pattern emerge of increases of 1,000%—
Building Safety Bill (Sixteenth sitting)
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
I remind the Committee that the House has asked Members and staff to take a covid lateral flow test twice a week if they are coming on to the parliamentary estate. Tests can be done at the testing centre or at home.
With the parish notices over, we will continue with new clause 12. The Minister was in the middle of his speech when we adjourned, so I invite him to complete his remarks.
New Clause 12
Assessment of the impact of building safety issues on access to insurance
“(1) Within one year of the day on which this Act is passed the Secretary of State must carry out a review of the impact of building safety issues, including the provisions of this Act, on access to insurance.
(2) The review as set out in subsection (1) shall include assessment of the United Kingdom insurance market.
(3) The review must consider the impact of building safety issues, confidence in the building safety industry and the impact of advice given by his Department on building safety given since 14 July 2017 on—
(a) the availability and cost of insurance for residential blocks;
(b) the availability and cost of professional indemnity insurance for workers in the building safety industry;
(c) requirements placed on buildings in order to access building insurance; and
(d) the wider insurance market.
(4) The review must make recommendation as to any further action needed by Government or the industry to improve access to affordable residential and professional insurance across the United Kingdom.”—(Mike Amesbury.)
This new clause would ensure the Government publish an assessment of the impact of the building safety risks on the UK insurance market for residential buildings and professional indemnity insurance for those working in building safety.
Brought up, and read the First time, and Question proposed (this day), That the clause be read a Second time.
Question again proposed.
The Minister for Housing (Christopher Pincher)
It is a pleasure to serve under your chairmanship, Mrs Miller. I was concluding my remarks in response to a comment from the hon. Member for Weaver Vale, who had asked about interventions that the Government may consider to ensure that the insurance industry is proportionate and fair in its pricing and its availability. He asked about the Competition and Markets Authority, and while I would not want to bind the hands of Her Majesty’s Government on one particular intervention, it is certainly the case that nothing is off the table as we try to ensure that the insurance sector lives up to its responsibilities to deliver a fair and proportionate insurance-based set of products to its customers.
In concluding my contribution to the debate, the Government believe that a one-off review, as proposed under new clause 12, is not necessary or proportionate, and may well add inflexibility to the Government’s response, which needs to be swift and flexible. I invite the hon. Gentleman to withdraw the new clause.
Mike Amesbury (Weaver Vale) (Lab)
It is a pleasure to welcome you to your place, Mrs Miller, for the final time on this Committee’s journey. I will withdraw the new clause, noting that we have the opportunity for more conversations on this matter on Report. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 13
Assessment of the impact of Act on access to mortgage finance
“(1) Within one year of the day on which this Act is passed, the Secretary of State must carry out a review of the impact of the provisions of this Act on access to mortgage finance for leaseholders.
(2) The review shall be laid before each House of Parliament.
(3) The review must consider the impact of building safety issues, confidence in the building safety industry and the impact of Government advice on building safety given since 14 July 2017 on—
(a) the availability and cost of mortgages and related financial services for leaseholders in the UK;
(b) difficulties accessing mortgage finance on the wellbeing of leaseholders; and
(c) the impact on the housing and housing finance markets.
(4) The review must recommend what industry changes and Government action are necessary to improve accessibility to mortgage finance for leaseholders.”—(Mike Amesbury.)
This new clause would ensure that the Government publish an assessment considering the impact of the building safety crisis on leaseholder access to mortgage finance and its impact on the wider housing market.
Brought up, and read the First time.
Mike Amesbury
I beg to move, That the clause be read a Second time.
New clause 13 would ensure that the Government look into the impact on access to mortgage finance and make recommendations to Parliament on policy changes. Some estimates of the number of properties affected by this scandal put it at 1.3 million flats, and some indications suggest a cooling effect on the market for flats—up to 60% compared with three years ago.
Over the weekend, the Bank of England announced that it is looking into the potential impact on mortgage providers and their ability to cope with the crisis should leaseholders be unable to keep up their mortgage payments—something leaseholders across the country have told me they are increasingly worried about given the costs pushed on to their shoulders by the crisis. It is therefore vital that the Government and the Minister seek to properly understand the impact of allowing the current situation to continue, in terms of both the effect on the overall property market and the devastating consequences for individual leaseholders. The Minister will point to the Government’s interventions—several interventions now—that announced the unlocking of the market by trying to create restrictions on which buildings need EWS1 forms and require remediation. The evidence suggests that those announcements have not worked.
It is clear that the market is still making its own decisions, with the media reporting only weeks ago that several of the UK’s largest mortgage lenders still require some buildings under 18 metres to obtain the EWS1 surveys. Some lenders have previously stated that they are waiting for the Government to withdraw advice note 14—something that the former Secretary of State promised would be coming within weeks at the start of last month, alongside everything that the Government need to do. However, it has not arrived.
The impact of the market impasse on the lives of individual leaseholders can be huge. Without being able to move, leaseholders are putting off having families, as has been documented throughout the passage of the Bill so far. Some are forced to sell their property at a discount to predatory cash buyers, and some even declare bankruptcy. Thanks to the slow roll-out of the building safety fund and the fact that the Government have still not announced the details of the loan scheme, more than eight months after it was first announced, leaseholders are trapped worrying that they will be left paying remediation costs—many are getting the bills as we speak.
The new Secretary of State has said he will look afresh at the situation, to ensure that the Department is doing everything it can to support leaseholders. I urge Ministers to accept the new clause, so that a full review can be carried out on what decisive Government action must be taken to fix this mess.
Christopher Pincher
To respond to something that the hon. Gentleman said earlier—that we might return to some matters in the future—the future, like the past, is another country. We will see what the Report stage has to offer us.
I can assure the Committee that the Government are working with industry to unlock the mortgage market for those in leasehold flats, to ensure that lenders act in a proportionate and sensible way. We are conscious that there are flat owners who cannot sell their properties and who remain stuck in them because of the excessive industry caution. Such people should not feel that they are living in homes that are unsafe.
To assess the effect of EWS1 on the market, we have secured an agreement from banks and building societies to publish aggregate lender EWS1 data, so that homeowners can see how the Royal Institution of Chartered Surveyors’ EWS1 guidance is being applied and the effect of the process on mortgage applications, and we will continue to challenge industry on the inappropriate use of EWS1 forms. We have seen the expert advice that we received earlier this year from Dame Judith Hackitt and Ken Knight, who said that the use of EWS1 forms has got out of proportion. The degree of risk aversion is out of proportion, and it needs to be brought back into proportion—for example, EWS1 forms should not be used for buildings beneath 18 metres in height.
That advice has been accepted by a number of lenders to whom we have spoken, but to support the sector as we transition into a new regime, we have commissioned the British Standards Institute to produce a publicly available specification, the PAS 9980, which is a code of practice for professionals undertaking external wall assessments. That will provide a standard for professionals to follow, encouraging a consistency in approach that we have not seen to date. When it is published by the BSI, it will set out a methodology for professionals to follow and explain when a detailed assessment of an external wall is necessary. That code of practice will set out a methodology for professionals to follow, enabling us to withdraw the consolidated advice note to which the hon. Gentleman referred. The flexibility that we want is in line with our overall message on proportionality and the work that we are doing to ensure that more proportionate assessments of the external wall are carried out.
The Committee is well aware of the funds that the Government have allocated to high-rise buildings above 18 metres, and of the support that we are proposing to provide for buildings below 18 metres and above 11 metres, on which more detail will follow. Support will also be provided as a result of the Bill’s passage. We are considering how residents’ voices can be further strengthened in the remediation process. I will perhaps be able to say more about that at a later date, but we are minded to increase the voice of residents.
The Government also recognise and understand that construction professionals are struggling to obtain adequate professional indemnity insurance. We will continue to encourage the market to provide greater availability of adequate PII, and we will also make sure that our in extremis backstop measures are in place.
In view of the measures that we have already undertaken to encourage a more proportionate approach by industry, and the Government funding that we have made available so that residents and leaseholders have the peace of mind that they desire, I trust that the hon. Member for Weaver Vale will recognise that the new clause is unnecessary and that he will withdraw it.
Mike Amesbury
Although we will withdraw the new clause, we may come back to this issue on Report. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 14
Agency to manage building safety works and funding
“(1) Within six months of the day on which this Act is passed, the Secretary of State must create an agency referred to as the Building Works Agency.
(2) The purpose of the Building Works Agency shall be to administer a programme of cladding remediation and other building safety works, including—
(a) overseeing an audit of cladding, insulation and other building safety issues in buildings over two storeys;
(b) prioritising audited buildings for remediation based on risk;
(c) determining the granting or refusal of grant funding for cladding remediation work;
(d) monitoring progress of remediation work and enforce remediation work where appropriate;
(e) determining buildings to be safe once remediation work has been completed;
(f) seeking to recover costs of remediation where appropriate from responsible parties: and
(g) providing support, information and advice for owners of buildings during the remediation process.”—(Mike Amesbury.)
This new clause would create a new body set up to oversee a programme of cladding remediation, including assessing the need for remediation, overseeing the process of remediation, managing funding of remediation and recouping costs where possible from appropriate parties.
Brought up, and read the First time.
Mike Amesbury
I beg to move, That the clause be read a Second time.
We have had the same strategy for at least 35 years. The Government’s laissez-faire approach simply picked at the edges of a scandal threatening to engulf the whole housing market, mimicking the deregulation and the lack of accountability that caused the scandal in the first place, and leaving leaseholders caught up in a perfect storm. The individuals least able to bear the costs are not responsible for those mistakes.
We have tabled a lot of amendments and new clauses because although in many ways the Bill represents a step forward—at last—we want to highlight the large areas of this ongoing scandal that are not covered and will not be fixed by the Bill. It is clear, from looking at the amendment paper and considering all the aspects of the crisis that we are trying to address, that what is really wrong with the Government’s approach is that there is no central plan. By tabling the new clause, we repeat our call for the Government to act across the piece to solve the crisis, to put in place a building works agency, and to do what should have been done in 2017. We need a more interventionist, hands-on approach.
We propose a team of experts to do what the Government have not done: to go from building to building to assess real risk and decide what needs to be fixed and in what order, use the building safety fund to get those buildings fixed, and oversee the work. Crucially, the Government could then sign off the buildings as safe and sellable, bringing certainty back to the market.
Finally, the Government could then take on those who are responsible for creating the crisis and who need to pay. That approach was put in place by a cross-party group of politicians and experts in Victoria, Australia, after the fire in Australia and, later, at Grenfell Tower. It requires our Ministers and the new Secretary of State to be prepared to step up, look afresh, as the new Secretary of State said, and lead from the front, rather than rely on a broken market and leaseholders on the precipice of bankruptcy. I hope that the Minister can accept the new clause. It will not be the last time that a variation of it is brought before the House.
Shaun Bailey (West Bromwich West) (Con)
It is a good to see you in the Chair again, Mrs Miller, on our final day of deliberations. I agree with the sentiments behind new clause 14, and what the hon. Member for Weaver Vale said about ensuring that, going forward, we do not face such issues. He mentioned the example of Victoria in Australia, which we have heard about a lot today. We have to be mindful that in the state of Victoria the number of properties that would fit within the category that we are talking about is 2,000, while in England it is 100,000. Although I see what he is saying, we cannot use the Victoria example as a direct crossover.
We also have to look at the structures in which the current remediation programme sits, because ultimately the new clause will effectively centralise the programme through the establishment of a building works agency and the prevention method. I agree with the sentiment: in the longer term, we will need to have a prevention mindset, as was touched on in the deliberations on previous clauses in this important Bill. However, we need to be mindful of the process in which remediation already sits. Clearly, enforcement is being done by local authorities at present.
Members from across the Committee have been very insistent, and we have had a lot of cross-party support—particularly from myself and the hon. Member for Liverpool, West Derby—when we have said that local authorities need to have the funding to follow through. I know what the hon. Member for Weaver Vale is trying to do with the new clause, which is effectively to say that, if we centralise it with a building works agency that not only deals with remediation but goes further to prevent the problem before it happens, we streamline the process. I can see the logic, but my concern is that we might end up, as an unintended consequence—we have talked a lot about unintended consequences in our deliberations—detract from the work that is already being done.
The new clause could come in within six months of the day on which the Bill is passed, but I am conscious that work is already happening to remediate ACM cladding in particular, which is obviously at the heart of this. My understanding from research is that 95% of the cladding either has already been remediated or is in the process of being remediated. As I said, from a philosophical point of view I am relatively comfortable, but we also have to be mindful of this measure being able to be utilised operationally. My concern is that we have a scheme in place at the moment that is not perfect and needs scrutiny but is working in its aim around remediation.
A big concern that the new clause attempts to address is the lag within that. Perhaps that is something that we need to be mindful of. It could be argued that centralisation, which is what the new clause seeks, could streamline the process, but we also have to be mindful of the reality that there will always be a delay between application and a decision on works and funding coming through. That is a practical reality. I do not know whether a new building works agency would completely eliminate that. That would concern me as well. We have got a process in place already, but does it really achieve the aims?
The Building Safety Regulator has been established. When we build new regulatory landscapes, we do not want to make them inaccessible and convoluted by bringing so many different players to the table.
Ian Byrne (Liverpool, West Derby) (Lab)
It is a pleasure, Mrs Miller, to serve under your chairship. I thank the hon. Gentleman for letting me intervene. He talks about this being “convoluted”, but we talked last week about a diagram to help the leaseholder understand where to go for help. Would not a single agency or body with oversight of funds, grants and levies, that controls the various streams of money and approves the schemes once completed, make it easier for the leaseholder to tap into what is there and have an innate understanding of what they can actually do? At the moment, as he rightly says, there are many agencies, and the aim of the new clause is to bring them all under one body.
Shaun Bailey
The hon. Member makes an interesting point. On the face of it, we could say that the new clause streamlines the approach, but I still have a concern. For example, why could the agency not sit within the BSR or within the new regulator that we have just established? Why do we need to establish another one? I get his broader point—
Daisy Cooper (St Albans) (LD)
Unless I have missed something, these are two entirely separate proposals for two entirely separate bodies that have two completely different functions. The Building Safety Regulator is there to regulate. The building safety works agency would oversee the remediation works. One regulates and one does the actual building work. They are two separate bodies. There is no confusion at all. A further amendment could put the building safety works agency within the regulator, but there is no need for that. They are two completely different bodies with two completely different remits.
Shaun Bailey
I can certainly see the hon. Lady’s point, but my point is: why do we need to bring so many actors to the table? We are trying to build a system that is accessible. I get what she says, but we both know that for vulnerable leaseholders, things might not seem straightforward. When someone is in distress and difficulty, they will not know the difference between the building works agency and the BSR. I can show her that from my casework.
Daisy Cooper
I think it became incredibly clear in our evidence sessions that there are many innocent leaseholders who have effectively become lawyers. They understand the legislation in great detail, and it is hugely disappointing that the hon. Gentleman thinks that many of these innocent leaseholders would not be able to understand the difference between two different bodies when they themselves have effectively become experts on the legislation. As I say, they are two different bodies. Leaseholders themselves are calling for a programme of find, fix and fund, and the building works agency would be there to do the fixing.
Shaun Bailey
We did see that, and I certainly do not want to undermine the work that individual leaseholders have done to get a grasp of the system. That is not what I am trying to say. I want to see a system that is as easy as possible to navigate. Yes, we have seen those examples and I completely get that, but I could equally refer to individuals in states of absolute emotional distress who would have to deal with this system, as we have touched on under previous new clauses.
Mike Amesbury
We have the Building Safety Regulator, as the hon. Member rightly pointed out, centralising what works in co-operation with the other stakeholders, including local fire services and local authorities, which my hon. Friend the Member for Liverpool, West Derby advocated for. We also have the building safety fund. However, there sometimes seems to be a black hole in things. Things disappear and drift, and there is dither and delay. The new clause is about turbocharging the process, providing that leadership and drive that not only leaseholder residents require, but us collectively as legislators of the nation require to deal with this scandal.
Shaun Bailey
I think that we agree with the idea of turbocharging and streamlining the process, but where we disagree is on how we go about doing that. I question whether a building works agency in the form prescribed in the new clause would do that. My other slight concern is that we are already part way through a process of remediation. I want to see that process improved in the ambits in which it already sits. That is the point that I am trying to hammer home.
My concern is about the practical application. The hon. Member for St Albans rightly said, and I do not disagree with her, that many people have had to learn to navigate these difficult systems. On the flip slide, there will be many people who are totally lost and because of the circumstances they find themselves in, they may not be able to navigate these systems in the same way—notwithstanding her point, which I totally take on board; she is right.
To reiterate, I do not disagree with the sentiments expressed by the hon. Member for Weaver Vale and other hon. Members who have intervened. We do need a system that is accessible to those who have been most affected. My concern is about the practical application of new clause 14 and how it would work. I am conscious that we are already going through a process of remediation. The focus should be on ensuring that my right hon. Friend the Minister gets it absolutely right in the first instance.
Mike Amesbury
This is an emergency and an urgent crisis. We have a new Secretary of State, so we can look afresh at the matter. We have looked across the water at something that works. I know that Ministers, shadow Ministers and other stakeholders have spoken to governments in Victoria and New South Wales, looking at what has worked and sharing notes to take things forward. This is a crisis, so I would hope that the new Secretary of State can work with all stakeholders and politely bash heads together at almost a building safety summit. I hope that the matter will be looked at seriously to drive the process forward.
Shaun Bailey
The hon. Gentleman is right in what he says about moving things forward in the longer term, which is how I took it. It is incumbent on me and him to get the new Secretary of State to ensure that this works in the way that those who have been affected would expect. I am sure that my right hon. Friend the Minister is waiting with bated breath for the representations that I will make to him to ensure that this works.
The hon. Gentleman has drawn on the example of the Australian state of Victoria and the conversations that have taken place. Of course, it is important that we look at international examples when we are deliberating the best way to solve this problem—he is right to label it as a crisis, because it is a crisis. I have already articulated this point, but my concern about drawing direct parallels with Victoria is the quantity and scale involved. As I said in my opening remarks, there are 2,000 properties in Victoria that fit the criteria and would fall within new clause 14, as opposed to 100,000 in England alone. My concern is about how we ensure that this system is practically operational, but I do not disagree with the philosophical sentiment behind new clause 14: the idea of streamlining the process, of having a culture in the longer term that is about prevention, and ensuring that those individuals who need to access the system can do so.
The Chair
I think the hon. Member for West Bromwich West can continue, and then when we come to the vote, I will note that the hon. Member for Weaver Vale wishes to withdraw the clause. Mr Bailey, do you want to finish your remarks?
Shaun Bailey
In light of the hon. Gentleman’s decision to withdraw the clause, I will conclude my speech. I would just like to get it on the record that I am very grateful for his intervention, and to all Members who have intervened. I do not disagree with the sentiment they have expressed: it is incumbent on all of us to work together to put pressure on Government to ensure that the Bill develops a system that works and looks after the most vulnerable.
Christopher Pincher
I will be brief. First, I congratulate my hon. Friend the Member for West Bromwich West: I do not think I have ever before seen the official Opposition withdraw an amendment at the behest of a Back-Bench Member. They usually wait until the Minister has spoken. That has put me in my place, if nothing else. [Laughter.]
I thank the hon. Member for Weaver Vale for withdrawing his new clause. I understand what he is attempting to achieve by it; I think I am right in saying that it was a manifesto commitment that the official Opposition made, and perhaps at the time it was a sensible and appropriate thing to do. However—it is sad to recall—that general election was nearly two years ago, and things have moved on.
A well-established remediation programme is already in place, as my hon. Friend the Member for West Bromwich West has mentioned: some 97% of buildings clad in ACM have either been remediated or are being remediated, and we believe that all ACM-clad buildings in scope have now been identified. As a result of the joint inspection team that we developed, which works with local authorities and housing associations to identify buildings with unsafe cladding that are in scope, that work is now over 80% complete, so it is hard to see how the time, effort and expense of setting up a new body to do that work would be well used.
I welcome the interest of the hon. Member for Weaver Vale in this matter. He raised the issue of Victoria, where—as my hon. Friend the Member for West Bromwich West has said—there are something like 2,000 buildings above three storeys. In England, we have something like 100,000 buildings above three storeys, and the hon. Member for Weaver Vale’s new clause calls for an assessment of buildings over two storeys, so we are talking about a very significant extra degree of effort that would take time, expertise and expense that would be better served pursuing the mechanism that we are presently utilising.
However, I am grateful to the hon. Gentleman, and I do not propose to spend any more of the Committee’s time debating this point, because I appreciate that we may vote very soon. I am sure we will come back to this point in future. Yes, we must knock some heads together and move rapidly to ensure that remediation is done as expeditiously as possible.
The Chair
The hon. Member for Weaver Vale has already indicated that he wishes to withdraw the new clause.
Clause, by leave, withdrawn.
New Clause 15
Waking watch
“(1) Within one year of the day on which this Act is passed the Secretary of State must carry out and publish a review of the impact of the advice of his department since June 2017 on—
(a) the implementation of 24 hour ‘waking watch’ fire patrols and other interim fire safety measures in residential buildings in England awaiting fire safety works;
(b) costs arising from waking watches and other fire safety measures on leaseholders; and
(c) building insurance premiums and safety requirements of building insurance;
(2) The review must include an assessment of the effectiveness of waking watch as an interim fire safety measures, and a comparison with other measures must be included.
(3) The review must recommend industry changes and Government action necessary to reduce reliance on waking watch and interim fire safety costs for leaseholders.”—(Ruth Cadbury.)
This new clause would ensure the Government undertake a review of waking watch policies.
Brought up, and read the First time.
Ruth Cadbury (Brentford and Isleworth) (Lab)
I beg to move, That the clause be read a Second time.
It is a pleasure to serve under your chairship, Mrs Miller. New clause 15, which stands in my name and those of my hon. Friend the Member for Weaver Vale and others, addresses waking watch. It says that within a year, the Secretary of State must
“carry out and publish a review of the impact of the advice of his department since”
the Grenfell fire on
“the implementation of 24 hour ‘waking watch’ fire patrols and other interim fire safety measures in residential buildings in England…costs arising from waking watches…building insurance premiums and safety requirements of building insurance”,
and the cost of other interim fire safety measures. Subsection (2) would require
“an assessment of the effectiveness of waking watch as an interim fire safety measures, and a comparison with other measures”.
Subsection (3) would require the review to
“recommend industry changes and Government action necessary to reduce reliance on waking watch and interim fire safety costs”
that leaseholders face.
After the Grenfell Tower fire, waking watches were one of the solutions—one then thought of as temporary—to the cladding and fire safety crisis in residential buildings. All involved assumed that the crisis would pass as either buildings were deemed safe or remediation works rendered them safe before too long. Sadly, more than four years on, too many residential buildings constructed in the last 20 years and awaiting remediation are still deemed by fire safety experts to be so unsafe that they require waking watch services—a 24-hour building patrol of at least two people, and more for larger buildings.
I will deal first with the other fire safety measures implied in the new clause. Subsection (1)(b) and (c) crucially focus on the costs that many leaseholders have faced because of waking watch programmes and others, along with the impact of insurance premiums, while awaiting a permanent solution to a building’s fire safety risk. As we have heard many times before, insurance is one among a mounting series of costs hitting leaseholders. Research in The Sunday Telegraph recently showed that insurance premiums have increased by up to 1,200%. For one of my constituents, the cost has risen from £234 a year to £1,734.
I will now address waking watches. One of my constituents, a leaseholder in a flat in Hounslow, wrote to me about their experience and that of their neighbours. They live in a small block of 25 flats, half of which are for social rent. The block is being charged £48,000 per calendar month plus VAT. My constituent described the £48,000-a-month service as “three men” who
“sit in a cleaning cupboard in the lobby and periodically patrol the small corridors connecting the flats and the stairwell to check for fires.”
We have heard many serious concerns raised about the quality and standards of waking watches in our postbags. A report in The Times found that staff had joked about running out of Netflix programmes to watch, and a report by Which? in 2020 found similar concerns about staff even sleeping when they were on site. In my constituency, when flammable cladding went up—cladding that was awaiting removal—the waking watch in the adjacent block did nothing. Residents called the emergency services, not the waking watch service being paid to do so.
However, this is not about individual staff members; rather, it is about the wider system. Are there basic standards for waking watch contracts in residential buildings, or numbers of personnel per floor or per 10 flats? Are there stated skill levels, a job description or on-the-job reporting? For instance, anyone using a toilet in a restaurant, or even in the Palace of Westminster, will know when it was last cleaned and what to do if they feel that it does not reach a specific health and safety standard. Do leaseholders have an equivalent assurance as to the safe operation of the waking watch in their blocks, which is somewhat more serious than the cleanliness of a toilet? Certainly, they do not feel safe, based on our postbags.
Is waking watch really an interim measure? For my constituents in one block, a new management company came in and slightly reduced the price of the waking watch. A new fire alarm was fitted, which they were told would get rid of the requirement for waking watch, but—such luck—new guidance issued by the Government meant that the waking watch had to remain, so they continue to pay for it. There is nothing to help people in this situation. It is a rather fitting epitaph for the Government’s approach not only to the cost of waking watch but to the fire and building safety crisis. As my constituent said,
“nothing has changed in terms of leaseholders incurring a monthly expense. The announcement last year of a £30 million Waking Watch Fund (which has yet to pay any money out) will do nothing to help people in this situation.”
Some buildings with a waking watch will soon be re-clad or their fire safety defects otherwise remediated; the owners will have done the right thing, or their building safety fund application will have been successful. However, sadly, too many buildings will continue to require a waking watch for the foreseeable future for a number of reasons, which in my constituency alone include: ineligibility for the building safety fund, as the fire risk is not one of inflammable cladding; the building being below 18 metres; or the owner or head lessee being in dispute with the builder over where the responsibility lies. If the owner or the head lessee is a housing association and some flats are for social rent, for which the building safety fund is not to be used, the housing association will have to fund the remediation from its precious capital fund, which is allocated to build new social rent housing, not to make good faults for which that housing association is not responsible, particularly when the block was built by a volume housebuilder and the housing association took over as part of a section 106 agreement. Finally, the other reason why waking watch may continue and safety defects go unrectified is if there is a disagreement between safety professionals as to the actual level of fire risk.
The specifics of each waking watch vary, but generally people are employed to monitor buildings, both internally and externally, for fire and to alert residents in the blocks should there be a fire—that is the theory anyway. A report by the National Fire Chiefs Council said that waking watches alone are
“impracticable for a long-term solution”,
yet they have become widespread and long-term. In London alone, nearly 600 buildings require a waking watch, and there are an estimated 1,000 buildings nationally. These waking watch services have to be funded somehow. The Minister will no doubt refer to the £30 million funding pot that is largely being spent on new alarms, but many reports have pointed out that that funding will not end the need for waking watches, as I pointed out.
I spoke this morning about the toll of the building safety crisis on the mental health of leaseholders. I know from listening to those in my constituency that widespread use of waking watch patrols only adds to their anxiety, on top of the rising bills. One constituent told me how hearing the footsteps is a constant reminder of the risk that so many leaseholders face. I urge the Government to consider the review that the new clause seeks and to provide real answers to the many thousands of leaseholders who hear those footsteps.
Christopher Pincher
I am grateful to the hon. Lady for raising this important point. I am aware that the use of waking watches, especially those put in place by building owners since Grenfell, is causing concern to residents. It is vital that they are used appropriately and only in the most limited circumstances. I hope that the hon. Lady will feel able to withdraw her amendment, although I understand the motivations behind it.
Ruth Cadbury
I thank the Minister for his considered response to new clause 15. He said that the review our amendment seeks provides no practical use to leaseholders. I would suggest that having a review and putting it on the public record would be very valuable, because it might expose some of the issues.
Christopher Pincher
I sat down a little prematurely. What I might have said is that, as the hon. Lady will know, the House of Commons has many and varied methods to bring Ministers to the Dispatch Box to address questions or answer debates. I think she will find a way for her voice and the voice of leaseholders to be heard in this matter if she thinks it appropriate.
Ruth Cadbury
I hear the Minister’s point. A review being incorporated into legislation would have a little bit more weight, particularly with a response being drafted by the Government, rather than through MPs bringing anecdotal evidence as part of their casework.
The Minister said that the waking watch mitigation is only there while the removal of unsafe cladding and the installation of fire alarms is awaited. As I have explained—he would know this if such a review was to take to place—the taking of those actions has not stopped waking watch being considered essential by the fire safety professionals employed by building owners and managers.
In the spirit of collaboration and collegiality, however, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 16
Monthly building safety updates
“(1) The Secretary of State must within three months of the day on which this Act passes and monthly thereafter lay before each House of Parliament a report on the progress of cladding remediation.
(2) The report must include an overview of—
(a) the progress of the remediation of non-ACM cladding;
(b) the remediation progress of—
(i) social residential buildings,
(ii) private sector residential buildings,
(iii) student accommodation,
(iv) hotels,
(v) hospitals,
(vi) care homes, and
(vii) publicly owned buildings identified has having in need of remediation due to unsafe cladding of any height,
(c) data collected from fire authorities, including—
(i) the numbers of waking watches,
(ii) other interim safety measures, and
(iii) fire alarms installed in residential buildings awaiting remediation or other building safety work.
(d) estimated dwelling numbers in all estimates.
(3) The report as set out in subsection (1) shall include—
(a) regional breakdowns of all data points;
(b) identify whether remediation has been funded through government funding, developer or freeholder funding, through warrantee or by other means; and
(c) detail what proportion of government funding has been allocated and paid out in the period since the last report was published.
(4) The report will no longer have to be published when all buildings identified as having cladding in need of remediation have completed remediation.”.—(Mike Amesbury.)
This new clause would ensure the Government provide regular written updates on the progress of the remediation programme of non-ACM cladding in line with what is currently published on ACM cladding.
Brought up, and read the First time.
Mike Amesbury
I beg to move, That the clause be read a Second time.
The new clause takes its lead from the Government’s statistics on ACM remediation. The most recent release, the September 2021 “Building Safety Programme: monthly data release”, covers 34 pages and breaks down in detail the types of building with ACM and the progress made in removing and replacing the dangerous cladding over time. It also covers the allocation of funding and gives an update on enforcement proceedings against owners of buildings yet to make their buildings safe. It is a detailed look at what progress is being made to tackle the ACM safety crisis.
We are not getting the same amount of information about non-ACM buildings. Instead, we receive an update covering the funding status of the 3,175 buildings that applied for the building safety fund. Although we are grateful that the Department is now releasing more information than previously on non-ACM funding, there is much more to be done to ensure that the Government’s progress in fixing the crisis is as transparent as possible without risking the security of individual buildings.
The new clause suggests one additional point to be included in a non-ACM monthly report, which could also be included in the ACM monthly report—information collected from local fire authorities outlining the interim safety measures that have been put in place. As we have just heard from my hon. Friend the Member for Brentford and Isleworth, waking watch and other interim safety costs are playing a large part in pushing leaseholders to the brink. It is important that they are included in released information on our progress fighting this crisis.
I would be grateful if the Minister could outline why there is a difference in the data release for ACM and non-ACM remediation funding and progress. Does he agree that transparency and being able to track the progress of remediation, as well as the safety measures involved, are necessary to build back trust in the system and in the Government’s interventions? If so, I hope that the Minister can accept the new clause.
Christopher Pincher
I hope that in responding relatively briefly to this new clause I can help the hon. Gentleman. I think that the new clause is unnecessary, and I want to assure him and the Committee that his intention has already been met by the Government, and will continue to be met.
In addition to the data released showing progress on ACM remediation, we also separately publish monthly data related to the progress of the building safety fund, covering remediation of unsafe non-ACM cladding, as well as monthly data on the waking watch relief fund. We will continually review the information we hold on cladding remediation and publish all appropriate information when it is ready, which involves undertaking necessary quality assurance. As we have done with the ACM database, we will expand the amount of data and analysis on remediation progress for buildings with unsafe non-ACM cladding when the data is available and once it has been appropriately quality assured.
The hon. Gentleman asks if we will do more; the answer is yes, but we will do it when we are able to provide quality data, properly quality assured. For example, further analysis is being undertaken related to the building safety fund, the data collection on the external wall systems on high-rise residential buildings and the material that is in use on residential buildings between 11 and 18 metres. Data on these areas will be published in due course, adding to what we already publish monthly.
The Committee has acknowledged that the data published on the progress of ACM remediation is high quality, full and transparent. We look forward to being able to do the same with non-ACM remediation and waking watch relief fund data as they are available. Given that explanation, I hope the hon. Gentleman will withdraw his new clause; we intend to deliver just what he is looking for.
Mike Amesbury
I welcome the Minister’s commitment to expand the data that will be available in the public domain when it is quality assured. However, as a point of clarity: when is due course?
Mike Amesbury
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 17
Presumption of allowing urgent building safety remediation work
“(1) If a leaseholder or tenant has identified urgent building safety work needed to the property they occupy they should notify the freehold owner in writing.
(2) Should the freehold owner not reply to the written notification under subsection (1) within 90 days of receiving it there should be a presumption in favour of allowing the work to proceed.
(3) It is the freehold owner’s responsibility to ensure that all leaseholders and tenants have the correct details to provide them with a written notification as set out in subsection (1).
(4) The Secretary of State may issue guidance on the application of this section.
(5) A court considering a matter relating to this section must have regard to any guidance issued under subsection (4).” —(Daisy Cooper.)
This new clause would introduce the presumption of consent for leaseholders to carry out urgent building safety work, where absent freeholders cannot be contacted, or refuse to respond.
Brought up, and read the First time.
Daisy Cooper
I beg to move, That the clause be read a Second time.
I spoke too soon early in proceedings; I thought I had finished all my new clauses for the day, but I forget about new clause 17. This new clause would introduce the presumption of consent for leaseholders to carry out urgent building safety work where absent freeholders cannot be contacted, or refuse to respond. I have moved this new clause following the evidence from the National Housing Federation, which spoke in detail about the challenges its members had faced when dealing with absent or offshore freeholders. Kate Henderson said in evidence to this Committee:
“We can have buildings that are owned by freeholders that are shell companies, and sometimes those companies then demise the internal parts of the building to a long-term leaseholder…Our members have told us that it can be really difficult to engage with the freeholder in this sort of set-up, especially when they need to do things such as assess external wall materials or identify what needs to be remediated.”––[Official Report, Building Safety Public Bill Committee, 9 September 2021; c. 48, Q46.]
This new clause seeks to give the Government an opportunity to fix that specific problem.
There is, of course, a precedent for the concept of a presumption of consent, because the Government introduced it in their own legislation on broadband earlier in the parliamentary session. When I put that to the National Housing Federation during our evidence session, Members may recall that the NHF said there were concerns that the legislation to enable residents to get fast broadband into their homes could cause fire safety defects if the people installing the broadband inadvertently went through firebreaks. I recognise that my proposal is not without problems, but given that leaseholders have been given a presumption of consent in order to get faster broadband put into their buildings—whether or not that might cause problems with firebreaks—if those buildings face fire safety problems, one can see why a presumption of consent might be a good thing.
At an earlier point in proceedings, the Minister and I had an exchange about this new clause, and I believe he raised the question of unintended consequences from that presumption. I hope he may be willing to expand on his concerns and provide assurances that he is aware that this is a challenge for social housing providers, and that the Government will look to address it either through this new clause or in an amendment of their own.
Christopher Pincher
I am obliged again to the hon. Lady for raising this matter, which we recognise is an important one. She asked me to expand on the concerns that I raised about the applicability of the new clause, as opposed to the motivation behind it. We have three concerns, essentially, but I hope that she will be further reassured as I explain what we are doing to ensure that tenants and leaseholders are protected.
My first concern is that the new clause does not make it clear what type of work constitutes urgent building safety work, how that would be funded or the rationale regarding the introduction of a 90-day notice period. That lack of clarity presents opportunities for all sorts of legal interpretation that might see the proposal and the wording challenged in the courts.
My second concern is that tenants would have to wait at least 90 days before beginning remediation. I know that the hon. Lady will say to me that a lot of people have been waiting a lot longer than 90 days for their properties to be remediated, and I hear that concern, but I do not see how putting a 90-day window in law will help them or anybody else who might be affected by this challenge.
My third concern relates to the common parts of the building, which are not the responsibility of the leaseholders and tenants. The new clause therefore runs the risk of undermining the role of accountable persons and their building safety responsibilities over the common parts of the building, which we are mandating as part of the new building safety regime.
Those are my three concerns, but I want to offer the hon. Lady some reassurance that we consider that the Bill already delivers the policy intent of her new clause by ensuring that there is a robust definition in place that identifies the accountable persons for buildings that fall within scope. The Bill automatically places statutory obligations on those persons, making them responsible for effectively managing building safety in accordance with the new regime. That is in addition to their active repairing obligations in the lease.
If leaseholders or tenants raise a complaint about an urgent building safety works matter with an accountable person and the accountable person does not adequately address those concerns, rather than the tenants or leaseholders carrying out the work themselves, there will be mechanisms enabling them to raise their concerns directly with the Building Safety Regulator. The Building Safety Regulator will be well equipped to use their expertise and resources to assess whether urgent building safety works are required, and subsequently to take the necessary compliance and enforcement action. Because of their expertise, they will properly be able to identify what is urgent, and that will stand the test of any legal interrogation.
I hope that the hon. Lady will recognise that there are some practical challenges with the new clause, notwithstanding the intent that lies behind it. I hope that she will also see that, vested in the Bill that she has already been voting on—almost entirely favourably, I am pleased to say—is provision that gives leaseholders and tenants the sort of protections that she is looking for. I hope that she will withdraw the new clause.
Daisy Cooper
I thank the Minister for his assurances. I note that the issue was still raised by the National Housing Federation. I will go back to it to ensure that it feels comfortable that the definition of the accountable person and the mechanism that has been set up for other properties will in fact operate well enough if the freeholder is absent. I trust that the Minister will be happy to receive any representations from it if it sees any further issues. But at this point in the proceedings, I am happy to beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 20
Assessment of the impact of building safety issues on social housing sector homebuilding
“(1) Within one year of the day on which this Act is passed the Secretary of State must carry out and publish a review of the impact of building safety issues on properties provided by registered providers of social housing.
(2) The review must consider in particular—
(a) current and future housebuilding,
(b) current maintenance of homes provided by registered providers of social housing, and
(c) homelessness.
(3) The review must in particular consider the impact of building safety issues on social housing provider finances, including the amount of funding provided to registered providers of social housing to remediate buildings with combustible cladding and the advice given by his Department on building safety since 14 July 2017, on—
(a) the proportion of registered provider of social housing funds that was previously allocated to social homebuilding or the maintenance or improvement of current social housing which has instead been allocated to building safety work, and
(b) projections of future housebuilding by registered providers of social housing in comparison with Government housebuilding targets and national homelessness rates.
(4) The review must make any recommendations for Government action necessary to ensure–—
(a) homebuilding targets are reached,
(b) current housing provided by registered providers of social housing is maintained and improved, and
(c) any rise in homelessness is prevented.”—(Mike Amesbury.)
This new clause would require the Government to publish an assessment of the effect of building safety requirements on the maintenance of current homes and building of future homes by registered providers of social housing, and rates of homelessness.
Brought up, and read the First time.
Mike Amesbury
I beg to move, That the clause be read a Second time.
The new clause would ensure that the Government published an assessment of the impact of building safety costs on registered providers of social housing. The National Housing Federation last week announced that one in 10 affordable homes planned by housing associations will no longer be built, because of the costs of making buildings safe. The impact of the Government’s decision to effectively lock out social landlords from funding, because costs are less likely to fall on the shoulders of leaseholders, is clear in the report: 12,900 out of 116,777 new affordable homes will be cut from plans in order to prioritise spending on building safety. Earlier this year, the G15 group stated that their bill would be £3.6 billion by 2036. Nationally, housing associations stated last year that it would cost £10 billion to make all homes safe from fire risk over the next 10 years. The National Housing Federation also announced last week that social rent homes would be the hardest hit, because they build the majority of that tenure within their own income envelope rather than with Government grants.
I need hardly remind the Minister that the country managed to build only 6,644 homes for social rent in 2019 and 2020, but lost 24,120 from the stock, resulting in a net loss of 17,476 homes for social rent. With one in 10 households stuck on waiting lists for more than five years to get a home, we absolutely cannot afford to be losing more social homes. We must build them at scale.
I was glad to hear that the new Secretary of State appears to agree with me and so I hope that addressing this aspect of the building safety crisis can form part of the thinking in this respect. It is not just home building itself that will be impacted. The 61 housing associations surveyed by the National Housing Federation said that they would have to divert £730 million away from routine maintenance such as upgrading kitchens or bathrooms or doing other essential safety work. Half a million social homes are considered to be non-decent—as we have seen in the coverage on ITV. Shockingly, 40% of those are classed as unfit for human habitation. These homes may have mould or damp, rodent issues, or physical damage.
Ruth Cadbury
My hon. Friend is giving an excellent description of the current state of much social rent housing. That is partly because the landlords—councils and housing associations—have not had adequate funding to bring them up to scratch, and the building safety crisis in relation to social rent homes is adding to that. The Minister may want to attack the Labour Government, because that is what Conservative Governments frequently do, but does my hon. Friend agree that, while the Labour Government brought 1 million social rent homes up to standard 20 years ago, such a programme needs to happen again now and this crisis is only making that pressure worse?
Mike Amesbury
I concur with my hon. Friend. When I was a councillor in the Manchester area, I saw the results of that very standards programme. But we cannot excuse landlords; it is on their shoulders to ensure that the types of horrific cases that we have seen are sorted quickly. We cannot afford to allow money to be taken away from tackling these issues. Analysis has shown that housing associations have paid six times as much as developers to get buildings fixed. Given the huge profits that have been made in the private sector, it is a scandal that it is not doing more to pay to fix faults, many of which it created.
The first amendment that Labour tabled in the Committee centred on the impact of climate change on building safety. Building safety considerations are competing with building green houses. The Government have announced funding, but it will take much more to ensure that social homes are warm and energy efficient. With housing accounting for 14% of our emissions, we must make that a priority.
The new clause would ensure that the Government looked at the impact of this crisis on future levels of house building in the UK by social home providers, on homelessness and on the maintenance of social homes. It would require them to make recommendations for action necessary to ensure that building safety issues do not inhibit our ability to reach the house-building targets, and that current provision of housing is maintained and improved.
Christopher Pincher
I am grateful again to the hon. Gentleman for raising an important matter. I do not believe that his amendment is necessary because a great deal of the information that he seeks about registered providers’ finances, their house building and the decency of their properties is already published. For example, the global accounts published annually by the regulator of social housing contain detailed financial information about individual private registered providers of social housing that own or manage 1,000 or more homes. That includes how much they invest in new homes and in maintaining their existing properties. A summary of those providers’ financial forecasts is typically published alongside the global accounts that set out their investment and development plans for the next five years.
The most recent global accounts published earlier this year reported increased spending by private registered providers on repairs and maintenance in 2019-20. They also showed a 13% increase in investment in new housing supply compared to the previous year, driven by greater spending on delivering new social homes for rent. That speaks volumes about how private registered landlords are continuing to invest in both new and existing homes, despite challenging circumstances. The hon. Member for Weaver Vale will know—we have debated it in the Chamber and elsewhere on a number of occasions—that the new affordable homes programme is worth more than £12 billion. It is the largest cash injection into affordable housing in a 15-year cycle. Of that, £8 billion has already been allocated and has been taken up by registered providers who are determined to build the homes that we require and that the hon. Gentleman has asked for.
Mike Amesbury
Residents in my constituency and across the country would not accept that definition of affordable homes: the Government have vandalised that definition over a number of years. How many homes were built for social rent last year?
Christopher Pincher
I am obliged to the hon. Gentleman for asking that question. Since 2010, we have built nearly 150,000 homes for social rent, and 32,000 will be built in the new affordable homes cycle, market conditions permitting. That is double the number that were built under the current mechanism. We are building more social homes through the affordable homes programme. We are allowing councils to build homes, if they wish, by reducing the borrowing cap on the housing revenue account. We have created a hub in Homes England to help local authorities that do not have the wherewithal or the experience to build social homes to get that experience so that they can build those homes.
We are building affordable homes of a variety of types and tenures and we will continue to do that, market conditions permitting. We are also investing a significant amount of public funds in retrofitting properties in the social sector that absolutely need it to bring them up to the required standard. The heat and building strategy was announced just a few days ago. Before that, the social housing decarbonisation fund was making available £3.8 billion to decarbonise social properties to ensure that they are more energy efficient. The announcement that the Secretary of State for Business, Energy and Industrial Strategy made a few days ago will ensure that further hundreds of millions of pounds are made available for such things as home improvement grants. That is why we can say that we are dealing with this challenging issue and that the new clause is therefore unnecessary.
The quarterly survey produced by the regulator of social housing shows that private registered providers forecast £70.5 billion of investment in the development and acquisition of housing properties in 2021-22. That exceeds the amount in the 12-month forecast reported by the quarterly survey in the year before the pandemic.
I hope that the hon. Member for Weaver Vale will see that we are making significant investment, which will ensure that homes are brought up to a fit standard, and that the available global account data is transparent and clear. Although I am sure that we will have further debates about how much money is being allocated and where it is being spent, I hope that the hon. Gentleman will see that, in this particular instance, the new clause is unnecessary.
Mike Amesbury
I am sure we will have further discussions on Report, but I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 22
Assessment of the impact of building safety issues on shared ownership
“(1) The Secretary of State must carry out a review of how the following issues impact on leaseholders of shared ownership leases—
(a) building safety issues,
(b) the amount of funding provided to the social housing to remediate buildings with combustible cladding, and
(c) rules surrounding shared ownership schemes and subletting, and the impact of advice given by his Department on building safety given since 14 July 2017.
(2) The review shall assess whether the issues listed in subsection (1)(a) to (c) has impacted on—
(a) costs incurred by leaseholders of shared ownership leases for remediation and other building safety related costs,
(b) access to mortgage finance by leaseholders of shared ownership leases, and
(c) the mental health and wellbeing of leaseholders of shared ownership leases.
(3) The review must make a recommendation as to whether Government action is necessary to—
(a) ensure adequate transparency is readily provided for leaseholders of shared ownership leases in relation to building safety issues,
(b) ensure future confidence in shared ownership schemes, and
(c) encourage increased rates of leaseholders purchasing remaining shares of their shared ownership lease home.
(4) A report setting out the conclusions of the review as set out in subsection (1) must be laid before each House of Parliament no later than 3 months after the day on which this Act is passed.
‘shared ownership lease’ has the same meaning as in section 76(3) of the Commonhold and Leasehold Reform Act 2002.”—(Mike Amesbury.)
Brought up, and read the First time.
Mike Amesbury
I beg to move, That the clause be read a Second time.
The very notion of shared ownership implies to me—and I am sure to others in Committee—an element of joint responsibility. Yet it is abundantly clear that, when it comes to picking up the remediation costs to fix a plethora of faults throughout the landscape of shoddy development, there is nothing shared about it. I know that Ministers and departmental officials will have seen the emails, letters and case studies, many of them exposed by the media, that shine a light on the desperation of many residents in shared ownership properties. I was recently made aware of one such building in London, which was covered in flammable cladding and has wooden decking. It is under 18 metres, so leaseholders are not covered by the Bill. They are not classed as high risk. A bill for £85,000 per household from their housing association has just landed through their doors. Some residents own as little as 25% of their flat, but risk being responsible for 100% of the cost.
Ruth Cadbury
Does my hon. Friend agree—from what he was saying, I think he does—that the Government must address this iniquity in shared ownership, where shared owners own only a proportion of their flat yet are responsible for 100% of the cost? Does he also agree that for constituents such as mine, fire safety has been a crisis? They were evacuated from their homes at a week’s notice by their social rent landlord from a property built by Berkeley Group. They are homeless, and they cannot get on the housing ladder, even though the housing association has been able to repay them the market cost of the share they own. Does he agree that that is wholly iniquitous?
Mike Amesbury
I do agree with my hon. Friend. That is a horrendous case and I hope things are resolved in the not-too-distant future.
Of course, elsewhere in the country, people who own as little as 10% of their flat face astonishing costs. Again, this is despite the Government’s statement that buildings under 18 metres do not generally meet the definition of high risk. This situation requires a rethink of not only how the current crisis is impacting shared ownership leaseholders, but how our shared ownership system is set up and how risks are communicated to shared ownership leaseholders. Shared ownership should mean shared responsibility, not a grotesque responsibility put on people, often on low incomes, that will prevent their being able to join the housing market in other ways, trying to get a foothold on the property ladder, or indeed staircase, into full ownership.
This new clause would ensure that the Government look holistically at the impact of the crisis on shared ownership and their response to it. It would also ensure that the Government provide transparency on the potential building safety implications of shared ownership contracts and reinstate confidence in the shared ownership system.
Christopher Pincher
Again, I thank the hon. Gentleman for raising an important point. He is right to draw attention to the effect of building safety issues on leaseholders who purchased their home on a shared ownership basis. However, I do not think that this new clause is necessary, as the Government are already taking decisive action to support building owners to make their buildings safe without passing unavoidable costs to leaseholders of whatever type or tenure.
The Government, as the hon. Gentleman will know, are committed to providing grant funding for the cost of replacing unsafe cladding for all leaseholders in residential buildings of 18 metres and over in England. Shared ownership leaseholders can benefit from that funding on the same terms as other leaseholders. Fire risk is lower in buildings under 18 metres, and costly remediation work is usually not needed, as we have heard from the evidence provided by Dame Judith Hackitt and Sir Ken Knight, the former chief fire officer, earlier this year. Where fire risks are identified, they should always be managed, but managed proportionately.
We are looking closely at the specific issue of the 11 to 18-metre cohort to ensure that everything is being done to protect and support leaseholders, including those who purchased their home on a shared ownership basis. We will bring forward further detail on the support offer for leaseholders in those residential buildings once all the options have been fully considered; we have collected more data, as I may have said previously here and certainly mentioned in the Chamber yesterday.
I appreciate that not all building safety issues relate to unsafe cladding. However, long-standing, independent safety advice has been clear that it is unsafe cladding that poses the greatest risk to buildings because it can fuel a fire. The Government’s approach prioritises action on the risks of unsafe cladding as the costs of remediating it are high and the risks posed are also very high.
That does not mean, however, that we absolve building owners of their responsibilities to ensure that their buildings are safe—far from it. They should continue to pursue all routes to meet the costs, protecting leaseholders from costs where they can. We voted on and agreed to that following our discussion of earlier clauses. We have introduced proposals for a residential property developers tax and for a levy—also a means of ensuring that those who can and should pay do pay.
The new clause refers specifically to the rules around subletting. Let me tell the hon. Member for Weaver Vale that I will be happy to consider how we might make it easier for shared owners affected by building safety issues to sublet their homes when that would help them. That will, of course, depend partly on the acquiescence of their mortgage lender, if they have one. I will have a look at that issue for him.
The hon. Gentleman also raised the important issue of access to mortgage finance. Earlier this year—in July, I think—the Department published an expert statement saying that we do not think there is any systemic risk of fire in buildings under 18 metres, so EWS1 forms should not be required by lenders for those buildings. We have had positive feedback from a number of lenders on that.
The Government introduced a new model of shared ownership in April; it is being delivered through the 2021 to 2026 affordable homes programme that I referred to earlier. That will ensure that shared ownership is more consumer friendly, easier to access and fairer, and leads to a better experience for a future generation of shared owners. The new model of shared ownership reduces the minimum initial share required for purchase to just 10%, down from 25%, and implements a 10-year period during which the landlord will support shared owners with the costs of maintenance and repairs on new build homes. That will certainly encourage shared ownership.
In the roll-out of the new affordable homes programme, the first £8 billion of the strategic partnership funding has been successfully allocated, which suggests that our strategic partners—local authorities, but largely housing associations—see the opportunities that the new model provides and are prepared to build new shared-ownership properties at affordable prices for more people.
We believe that shared ownership will continue to play a vital role in helping more people to realise their ambition to own their own home; that is why we are investing heavily in it and reforming it. It is also why we are determined to make sure that funding is available to protect shared owners from the unaffordable costs arising from the need to replace unsafe cladding.
In light of the assurances and reassurances that I have tried to provide the hon. Gentleman, I hope that he will withdraw the motion.
Mike Amesbury
I welcome the Minister’s assurance and comments on actually doing an assessment of the subletting landscape; opportunities may exist in future. We might come back to the whole area of shared ownership, not only on Report but at other stages of the Bill. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 23
Review of use of combustible materials
“(1) The Secretary of State must conduct a review on the use of combustible materials on external walls of buildings.
(2) The review set out in subsection (1) must include an assessment on whether the ban on the use of combustible materials on the external walls of buildings should be extended in scope with regard to—
(a) the types of materials used;
(b) the height threshold of buildings included; and
(c) the type of buildings included
(3) A report setting out the conclusions of the review must be laid before each House of Parliament no later than 6 months after the day on which this Act is passed.”—(Mike Amesbury.)
Brought up, and read the First time.
Mike Amesbury
I beg to move, That the clause be read a Second time.
New clause 23 would ensure that the Government publish a review, which they have yet to do, on the use of combustible materials and whether the scope of the current ban should be extended to other materials that are not covered at present; on whether the ban should be extended to a greater number of buildings, by lowering the height; and on the types of buildings included.
Of course, the Government have already commissioned a public consultation on the use of combustible materials on external walls of buildings. It was announced in June 2018, it opened in January 2020 and it closed five months later, but the outcome and Government response have yet to be published. The Government have introduced this Bill, which centres on building safety and seeks to define high risk, before it is clear exactly what the Government will consider to be unsafe cladding.
The Government consultation centred on other aspects, and the new clause raises other aspects, but again we come back to the problem of 18 metres. The scoping document for the consultation states:
“We consider that buildings with a residential use between 11-18m may be subject to similar levels of fire risk to many of those taller than 18m.”
The document states that in the absence of “robust scientific evidence” to support that,
“the best option…is to reduce the height threshold to 11m now”.
Is that still the Government’s opinion? The consultation proposes that that should only apply to buildings going forward. Given the caution we have seen in the market in response to the changes in previous Government guidance, I understand that that could very well have further implications for existing buildings, but the alternative is to continue to allow new buildings to go up with materials that may be unsafe.
It is not acceptable that in the middle of a cladding crisis, the Government still have not published the outcome of the consultation after 18 months, when the consultation itself closed three and a half years after the Grenfell fire. It is not acceptable that, as reported earlier this year, around 70 schools and 25 hospitals and care homes have been constructed with combustible cladding since Grenfell. I urge the Minister to accept the new clause and publish such a review.
Christopher Pincher
The Committee should know that the level of risk in buildings is proportionate to their height. That has been reported to us here and in other forums, and it is well understood, so it is appropriate to focus the strict ban on high-rise buildings.
I assure the hon. Gentleman that his new clause, and the intention behind it, is being met by the Government. The Government have already amended the building regulations to ban the use of combustible materials in and on the external walls of new tall buildings in the Building (Amendment) Regulations 2018—SI No. 1230. Combustible materials are not permitted on the external walls of new buildings over 18 metres containing dwellings, or on new hospitals, residential care premises, dormitories in boarding schools and student accommodation over 18 metres in height. We have restricted the use of materials in the external walls and specified attachments of those buildings to those achieving the top two “reaction to fire” classifications.
We are already committed to reviewing the ban annually through advice from bodies such as the Building Regulations Advisory Committee, as made clear in the explanatory memorandum published alongside the amendment made to the building regulations to ban the use of combustible materials in and on the external walls of buildings.
As the hon. Gentleman has identified, a review was conducted in 2019 and the Government subsequently published in January 2020 a consultation on proposed changes to the ban. The consultation included proposals to amend the scope, using a height threshold and the buildings covered. The consultation received, I think, 850 responses. We continue to analyse those responses to ensure that we achieve the right and proper, and best, outcome. I am entirely determined to make sure that that happens as rapidly as possible, and certainly to make sure that we respond effectively to that consultation. With that assurance, I hope that the hon. Gentleman will withdraw the new clause.
Mike Amesbury
I thank the Minister for his response. In terms of publication, can he put a date on that?
Mike Amesbury
In the spirit of collaboration, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 24
Review of Government support for building safety matters
“(1) The Secretary of State must conduct a review of Government support of building safety matters, including but not limited to an assessment of the adequacy of—
(a) the measures in this Act, and
(b) the Building Safety fund and its use.
(2) A report setting out the conclusions of the review as set out in subsection (1) must be laid before each House of Parliament no later than 3 months after the day on which this Act is passed.”—(Mike Amesbury.)
Brought up, and read the First time.
Mike Amesbury
I beg to move, That the clause be read a Second time.
It is fantastic to be able to say this: this final new clause—[Hon Members: “Hear, hear!”]—gives us an opportunity to look both at the Bill’s measures and at the support available for building safety, because it relates to the adequacy of the building safety fund. I want to concentrate primarily, and fairly briefly, on the use of funding with regard to management fees, agents and product managers, and on the role of managing agents and freeholders in agreeing funding contracts.
Recent Government statistics show that 600 buildings had remediation costs of £2.5 billion. I would be grateful if the Minister could clarify whether the Government’s building safety funding covers that total cost, or are parts of it not covered? The cost per building is about £4 million. Having been contacted by leaseholders across the country, I know that the fees charged by some managing agents and project managers are taking up to 14% of the total building remediation costs, as is the case with a building in Manchester. If the remediation costs of that building reach the £4 million mark, over half a million pounds will go to managing agents and project managers.
Back in June, my hon. Friend the Member for Manchester Central (Lucy Powell), the shadow Housing Secretary, was told in response to a question that the Government were not tracking the management and administration fees that leaseholders were being charged for applications for grants from the building safety fund. Will the Minister confirm whether the Government have begun to look at the overall amount that agents are charging for applications to the building safety fund? Is the Department looking at the management and professional fees that are being charged for individual applications? With only £5.1 billion in the Government’s pot, we cannot afford for agents to charge the taxpayer and resident leaseholders more than is fair for their time and work.
Fees are even higher for the waking watch relief fund, with one agent charging over a third of the cost of installing a fire alarm. I have also recently been made aware of a case in which agents are threatening to charge leaseholders for the cost of the failed building safety application. A failed application, on top of the threat, also means that leaseholders face the cost of being issued with invoices to fix the mess in that particular building. There is clearly little impetus for professionals to adopt a true risk-based approach if fees are based on percentage rates of works required. The situation is only made worse with concerns over professional indemnity insurance, leading to risk-averse advice on remediation from fire engineer experts, as we have heard throughout this Committee.
As I have said in debates on a good few amendments up until now, a centralised and co-ordinated building assessment strategy would go a long way towards mitigating the wide range of fees levied and would help guarantee a consistent approach to managing the current pot of funds. I hereby move this last new clause.
Christopher Pincher
Although the hon. Gentleman says that this is his last new clause, sadly it is not mine, but we are nearly there. I am grateful to the Committee for its indulgence, patience and good humour throughout the several sittings in which we have enjoyed one another’s company.
I will talk about the tracking of fees in response to some of the hon. Gentleman’s questions in a moment, but I assure him that his intentions are already being met in the Bill by clause 139, which we debated last Thursday. That clause provides for a widely framed review of the effectiveness of the building regulatory regime, which includes building safety. The review will form part of the programme of reviews conducted or commissioned by the Department, which includes a review considering whether architectural practices should also be regulated.
To clarify, during the debate on clause 135 it was mentioned that clause 138 deals with the regulation of architecture firms, but I ought to confirm that the Architects Registration Board regulates only individual architects, rather than practices. I was told to tell the Committee that and so, being a good Minister, I have.
Returning to clause 139, it provides the Secretary of State with the discretion to specify wider matters for the reviewer to consider. That could include an assessment of the performance of the building safety fund—the performance of the fee mechanism and how fees are charged and paid. The tracking of performance may be another area that the review could consider.
The three-month timescale indicated in the new clause is impractical. The transition plan, which was published alongside the Building Safety Bill, indicates that the majority of the provisions will not be enacted until 12 to 18 months after the Bill achieves Royal Assent. Therefore, a review after three months—when many of the Bill’s provisions will not have even begun or, if they have, will be very nascent—would be insufficient to assess the adequacy of those provisions. I hope that the hon. Gentleman recognises that practical challenge. Furthermore, we do not think that the short period of operation for those that will be in effect gives enough time to consider their effectiveness.
It is our position that five years is a reasonable period to allow for the establishment of the BSR, after which a reviewer will be able to consider an established regulatory system. If the hon. Gentleman has specific concerns about the building safety fund, I shall be happy to hear about them. We have always had a good relationship across the Chamber. I am conscious, as I am sure he will be, that there are many mechanisms that the House of Commons may use to achieve proper scrutiny of Ministers and arm’s length Government bodies and funds for which both are accountable. I look forward to that scrutiny and having a proper, timely review process to scrutinise and assess the way in which the building safety regime, including the building safety fund, is run over the longer term. With that explanation, I respectfully ask the hon. Gentleman to withdraw his new clause.
Mike Amesbury
We all have a shared interest in ensuring that the maximum amount of funding provided by the taxpayers goes towards remediating buildings and making them safe. I will follow up on the Minister’s kind offer to look at buildings on a case-by-case basis. I have referred to one, but people have certainly expressed concerns about the management and project fees charged for other buildings. Based on that, I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
Clause 1
Overview of Act
Question proposed, That the clause stand part of the Bill.
Christopher Pincher
Only in the wonderful, marvellous, mysterious process that is House of Commons procedure could we come to clause 1 at the end of our deliberations on all the clauses. None the less, I am pleased to invite the Committee to debate it now. The Committee will no doubt be very familiar with the clauses of the Bill, but for the purposes of total completeness—we have an hour and 13 minutes left—I will inform the Committee of what the clause sets out.
Christopher Pincher
The first clause—briefly, Mrs Miller—acts as an overview of its constituent parts, which for the benefit of the Committee I may just run through again—or maybe I won’t. There are six parts and they contain provisions intended to secure the safety of people in or about buildings and to improve the standard of buildings.
Part 1 is purely an introductory overview. Part 2 establishes the Building Safety Regulator, sets out its functions in relation to buildings in England and provides key powers to enable it to undertake its functions. Part 3 amends the Building Act 1984, setting out the provisions for the new regulatory regime during the design and construction phase of the buildings in scope of the said regime. It also provides for the registration of building inspectors and building control approvers to improve competence levels through better regulation. Part 4 is concerned with buildings in scope during their occupation. It defines and places duties on the accountable person for building safety risks in their building and improves on aspects of accountability such as engagement with residents and the transparency of building safety information.
Part 5 details further provisions regarding safety and standards. For example, it provides arrangements for a new homes ombudsman scheme, requiring developers to become and remain members of it. It creates powers to make provisions about construction products. It removes the democratic filter that requires social housing residents to refer unresolved complaints to a designated person or wait eight weeks before they can access redress through the housing ombudsman. It also changes certain provisions in relation to the procedures of the Architects Registration Board. The aim is that an architect will be able to appeal against a decision taken by the ARB to remove them from the register, and I will consider whether a non-judicial appeal route should also be made available for architects to challenge such a decision.
Finally, part 6 contains general clauses about the commencement of the Bill’s provisions and covers applications to the Crown and other standard clauses. Clause 1 is uncontentious. It is an important overview intended to detail the Bill’s thematic structure, which is perhaps why it is so very dry. It may have been surmised during the passage of this Committee’s deliberations that many of the individual clauses and their amendments are rather dry. None the less, they have an important intent: to ensure that this country’s building safety is improved significantly, so that all sectors of society, be they developers, local authorities, architects and designers, building owners or residents, can have confidence in the industry that designs, builds and supports the homes in which people live. Members may have disagreed from time to time on matters in the Bill, but none of us disagrees about what we intend of it.
I am grateful to you, Mrs Miller, and the other Chairs for the occasional indulgence that you have allowed us. I am grateful to all the Clerks and the officials of the House for their support in bringing this Committee stage to a conclusion. I am grateful to my officials for all that they have done to provide us with the details and data to allow us to debate these provisions effectively. I am grateful to the Committee for the collegiate and collaborative way in which everybody has contributed to what we will report to the House. On that basis, and with an hour and eight minutes in hand, I commend clause 1 to the Committee.
Mike Amesbury
I thank you, Mrs Miller, and Mr Davies, Mr Dowd and Mr Efford for chairing proceedings professionally and impartially over the past few weeks. I thank the Clerks and all the staff on the parliamentary estate. I also thank every member of this Committee, from both sides of the House. We have had passion, consideration and great, appropriate humour from time to time. I am sure that on Report, and during the other stages of the Bill, we will collectively contribute towards making people safer in safer buildings.
The Chair
Before I put the question, I should say, because the Committee has quite a lot of new Members, that sometimes those thank yous are done as points of order right before the close. I am grateful, as I am sure others are, for those thanks—it is very kind.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Bill, as amended, to be reported.
Elections Bill (Twelfth sitting)
Tuesday 26th October 2021
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Elections Act 2022 View all Elections Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 October 2021 - (26 Oct 2021)
The Committee divided: - Ayes: 6 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Chair
Before we begin, I have a few preliminary reminders for the Committee. I remind colleagues, first, to wear masks when they are not speaking, secondly, to observe social distancing and, thirdly, to switch off electronic devices. Could they also note—this is slightly new—that Members and staff are asked by the House to take a covid lateral flow test twice a week if coming on to the parliamentary estate? That can be done either at the testing centre in the House, which is located in the Attlee Suite, or at home. These things can be booked on the intranet, as colleagues will know. Finally, Hansard would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Thank you for your attention.
We now resume line-by-line consideration of the Bill. Members wishing to press a grouped amendment to a Division should indicate that they wish to do so when speaking to it.
Clause 35
Definitions relating to electronic material and publication
Question proposed, That the clause stand part of the Bill.
The Minister for Levelling Up Communities (Kemi Badenoch)
The provisions pertain to the Government’s proposed new digital imprint regime. The new regime will require promoters, and those promoting on their behalf, behind digital campaign material targeted at the UK electorate to declare themselves, providing greater levels of transparency to online campaigning. In clause 36, “the promoter” of electronic material is defined as
“the person causing the material to be published”
and to publish means to
“make available to the public at large or any section of the public.”
The imprint rules will apply to all material in electronic forms that consist of or include speech, music, text, and moving or still images. It is important that the definition of electronic material is comprehensive to reflect the wide scope of the regime. At the same time, we must remain cognisant of the practicalities of imprint requirements for certain mediums. For that reason, telephone calls and SMS messages will not be in scope of the regime, due to the impracticalities of including an imprint in an SMS or a telephone call.
Clause 36 defines key pieces of terminology that are relevant to the digital imprints regime, specifically the political entities that will be required to adhere to the new regime and that are prominent actors in political campaigning in the UK. The definitions in the clause cross-reference other pieces of legislation to ensure that there is consistency with the terminology used throughout the Bill. Both clauses provide clarity to campaigners who will be subject to the regime and provide consistency to the enforcement authorities that will enforce the regime and wider electoral law. For these reasons, I urge that the clauses stand part of the Bill.
Cat Smith (Lancaster and Fleetwood) (Lab)
We are pleased to see provisions in the Bill on the regulation of digital content. The Electoral Commission has advocated digital imprints since 2003. While digital technology and campaigning have proceeded at quite a pace, legislation to ensure that the ways electronic communications are used are transparently portrayed to the electorate has been somewhat slow by comparison. Extending the imprint rules will help voters to make more informed choices on the arguments presented and to assess the credibility of campaign messages in a digital space in the same way as with print material. When digital material is disseminated by a political party, voters who see that material will be aware of that fact and will be able to make their assessments accordingly.
It is right that political parties, candidates and campaigners should not be able to conceal their identity online, any more than they would if they printed out a leaflet and pushed it through doors. However, I want to flag a slight loophole in the legislation, which allows reshared content to disseminate without an imprint. I would be interested in working with the Government —I extend the hand of the Opposition here—to find a way of resolving this issue.
There do need to be requirements on online content to show who has made it, who is paying for it and how it is being promoted so that voters can make informed choices. Amendments to subsequent clauses may go some way to doing that, but broadly speaking it is a great relief to see this measure before the House in the Bill. It is something that we have called for for a considerable time, and it is great to see us moving slightly further forward, although there are still some loopholes left to be closed.
Question put and agreed to.
Clause 35 accordingly ordered to stand part of the Bill.
Clause 36 ordered to stand part of the Bill.
Clause 37
Requirement to include information with electronic material
Cat Smith (Lancaster and Fleetwood) (Lab)
I beg to move amendment 87, in clause 37, page 46, leave out lines 24 to 26
This amendment removes the ability for promoters of electronic material to avoid placing an imprint on the material itself if it is not “reasonably practicable” to do so.
The Chair
With this it will be convenient to discuss amendment 88, in clause 37, page 46, line 24, leave out “not reasonably practicable” and insert “impossible”
This amendment raises the threshold needed for promoters of electronic material to avoid placing an imprint on the material itself.
Cat Smith
In its current form, without the amendments, the Bill allows promoters of electronic material to avoid placing an imprint on the material if it is not “reasonably practicable” to do so. Instead, it allows the imprint to appear
“in a location that is directly accessible from the electronic material.”
The amendment would make things clearer for voters so that material is more transparent, and allows voters to make more informed decisions.
As evidenced in Scotland’s recent parliamentary elections, the clause will in practice lead to almost all imprints appearing on a promoter’s website or home page rather than on the actual material. I do not feel that is strong enough. It cannot be classed as an imprint if the voter has to go and seek that information on the home page of a website. For most observers of the material, there will be no discernible change from the situation as we see it now—they will not be able to see a promoter’s details. It should be a requirement that imprints appear on the material itself. It would bring digital material in line with the imprints on printed material, where political parties have to include an imprint on every single piece of content.
While it is positive that Scotland’s recent parliamentary elections were the first in the UK to be conducted with a digital imprint rule in place, it was disappointing that a loophole was left in the legislation, which is now being carried forward into the Government’s Elections Bill. All political parties in Scotland took advantage of the loophole in May, placing an imprint on their home page and not necessarily on the material that was being promoted. This provision does not provide any security against sharing, downloading and re-promoting, where many voters will see material second or third hand as organic content as it spreads over social media.
Numerous stakeholders wrote to the Minister to highlight their concerns. I have certainly seen concerns expressed by the Electoral Reform Society, Fair Vote UK and Transparency International, who have highlighted to elections offices in Scotland that there is a risk that the imprint may be lost or removed, deliberately or accidentally, when the material is shared. A significant amount of sharing happens off the platform, as users download videos before resharing them on messaging apps that are often encrypted. The imprint is then, of course, disconnected from the content. This is a huge loophole; it could be the equivalent of attaching an offline political ad’s imprint using a paperclip. The first recipient would then clearly and inconspicuously remove it before showing anyone else. It is essential that the imprint be embedded so that it is always connected to the political advertisement. I urge the Government to close the loophole and make it clear that the video, image or online campaign materials must contain a clear imprint within the material, as is common practice with many political video advertisements in countries such as the United States.
These sensible and pragmatic amendments would close a loophole that we have seen in Scotland and stop the legislation being implemented for UK-wide elections with a glaring loophole in it.
Brendan O'Hara (Argyll and Bute) (SNP)
Very briefly, we will support the amendments. There is no doubt that as a Parliament and a country we are behind the curve and are playing catch-up with those who are experts in digital campaigning. What we do have in our armoury is the demand for transparency. That is all we asking for here: transparency on who is funding and who is the source of these digital political advertisements. That is essential.
We have concerns about what the Government mean by “reasonably practicable”. We need a higher threshold than that. I fear that it would be far too easy for people who are expert in such matters to get around that and to present a convincing argument to the laity on what is reasonable and practicable and what is not. The hon. Member for Lancaster and Fleetwood was right that we have an opportunity to get this right, or certainly to start to close that gap.
The Scottish Parliament elections showed that parties and campaigners largely understood the regulations and were able to comply with them. Anyone who followed those elections, particularly on Twitter, could not have failed to see every candidate changing their Twitter bio during the campaign to explain that. People understood it and people did it.
We have to be alive to the fact that there are people out there who are far more advanced in their technology and their understanding than we are. We should be closing every loophole available to them, to ensure that transparency is increased and that there is no way for them to come out. So we will support amendment 87 and 88.
Kemi Badenoch
The Government are opposed to amendments 87 and 88 because they seek to remove a much-needed element of flexibility in the digital imprint regime for campaigners. Under our proposals, an imprint must be included as part of the material being promoted. Only when it is not reasonably practicable to do so can the imprint be in an alternative location—one that must be directly accessible from the material.
We have looked at this issue closely. Clause 37 is not a loophole for campaigners to exploit, to avoid including an imprint in the material. Instead, it is a reasonable and practical provision that ensures that campaigners are able to comply with the requirement to include an imprint in digital material, regardless of the digital platform they are using. This is an essential provision that must be retained.
As Members will know from their own experience of campaigning online, there will be many instances where it is impractical to include an imprint within the material itself. For example, a text-based tweet on Twitter could constitute material that requires an imprint, but given the character limit, including an imprint would leave little room for anything else. That is why, under our provisions, where it is not reasonably practicable, a promoter could instead comply with the rules by including an imprint in a location directly accessible from the material. That could be done by including a hyperlink in the material or by placing the imprint in a user’s Twitter biography.
The Government are mindful that the digital imprint regime must strike the right balance between increasing transparency in digital campaigning and having a regime that is proportionate and enforceable. The Opposition’s amendments would undermine those efforts as they do not provide for any flexibility on the location of the imprint. That could have the unintended effect of incentivising campaigners to avoid certain digital platforms or mediums for a campaign, due to the unreasonable burden of doing so.
The hon. Member for Lancaster and Fleetwood said that there was another loophole in terms of material being republished that would not include the imprint. That is not the case. Clause 37 does cover republished material—I am not sure whether she has a different interpretation—and I will come on to republished material when we debate clause 37, when I will explain more fully how the clause does that.
Digital campaigning has become an integral part of campaigners’ efforts to communicate messages and ideas to voters. It must continue to be facilitated, while providing the electorate with increased transparency about who is promoting campaigning material online and on whose behalf. Our provisions do that. For all the reasons that I have outlined, the Government oppose the amendments
Cat Smith
I am slightly concerned that the Minister has not learned all the lessons from the Scottish parliamentary election. By moving to import what we know has not quite worked in Scotland and applying it to the whole of the United Kingdom, we are missing an opportunity to learn from other Parliaments and make better legislation in this place, so I will push the amendment to a vote.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss the following:
Clauses 38 and 39 stand part.
Government amendment 2.
Clauses 40 to 43 stand part.
Government amendments 21 and 22.
That schedule 10 be the Tenth schedule to the Bill.
Clauses 44 to 46 stand part.
Government amendment 3.
Clauses 47 and 48 stand part.
That schedule 11 be the Eleventh schedule to the Bill.
Clauses 49 and 50 stand part.
Government amendments 4 to 6.
Clauses 51 to 56 stand part.
Kemi Badenoch
I will now continue to present the Government’s proposed new digital imprint regime and the various requirements pertaining to it, which are outlined in clauses 37 to 56. I will also discuss the Government amendments to the clauses as and when relevant.
There are two types of electronic material in scope of the regime—paid-for and unpaid, or organic, material. I will define paid-for—that is, the electronic material— first. Following last year’s public consultation, we have taken on board the consultation responses and expanded our initial proposals to go even further. To that end, clause 38 requires all paid-for electronic material in scope of the regime to include an imprint at all times and regardless of who has promoted it. This aims to capture the type of digital political advertising that currently poses the greatest risk due to its impact and reach: paid-for electronic material that allows individuals to spend significant amounts of money, without identifying themselves, to publish material with the aim of influencing voters.
Two conditions must be met for electronic material to be considered paid-for material in scope of the regime. The first is that material can reasonably be regarded as intended to achieve the purpose of influencing the public or any section of the public to give support to, or withhold support from, a registered party, a candidate or future candidate, an elected office holder, the holding of a referendum in the UK or any area in the UK, or a particular outcome of such a referendum. That is much wider in scope than the print regime, and rightly so. It reflects the realities of campaigning online, where content can be present all year round and is not restricted to specific electoral periods. The provisions have therefore been deliberately designed to capture a broader range of online campaigning material that is not solely linked to seeking to promote or procure electoral success at a particular election.
The second condition for paid-for material in scope of the regime is that the promoter of the material, or the person on behalf of whom the material is published, has paid for the material to be published. Payment does not solely comprise monetary payments, and includes a person providing any other form of payment in return for the publication of the material, including benefits in kind. Broadly speaking, our proposal for paid-for material is thus intended to capture all paid-for digital political advertising.
I turn now to defining “other electronic material”—organic or unpaid material—that is also part of our regime. Applying the regime only to paid-for material would leave significant transparency gaps, given the vast amount of electronic material that is unpaid or organic, which could include posts on a social media platform. Under our regime, therefore, certain political entities will also be required to include an imprint on their other electronic material. By contrast with paid-for material, that is material for which there has been no payment for its advertising.
Our provisions outline the two conditions that a piece of electronic material must fulfil to be considered other electronic material in scope of the regime. The first condition is that, broadly speaking, the material must reasonably be regarded as material that promotes or procures electoral success at certain UK elections, or that promotes or procures the success or failure of a recall petition that wholly or mainly relates to referendums in the UK.
The second condition is that the promoter of the material, or the person on behalf of whom it is published, is one of the following political entities: a registered party, a recognised third party, a candidate or future candidate, an elected office holder, a referendum campaigner or a recall petition campaigner. I wish to emphasise that we have purposefully chosen to restrict the unpaid side of the digital imprint regime to the unpaid material of those specific political entities. That is to avoid stifling political debate and imposing on the general public a requirement to include an imprint where they are expressing their personal political opinion. Additionally, the proposal strikes the right balance between providing a high level of transparency to voters and not placing an undue burden on key political actors to include an imprint on every piece of material they promote.
As campaigners can also share negative campaigning material—for example, about other parties and candidates —material that prejudices the electoral prospects of other parties, candidates and future candidates will also require an imprint. That includes candidates or future candidates on a party list. The concept of future candidates is introduced in clause 28. Future candidates are individuals whose intention to stand as a candidate at a forthcoming election has been declared, but whose formal candidacy has not yet officially begun. That could be someone else declaring on an individual’s behalf, such as an agent or party, or an individual self-declaring as intending to run for elected office on their social media channel.
As candidates become formally recognised at an advanced stage in the electoral cycle, they are able to campaign long before they officially become a candidate. An imprints regime that includes only candidates risks creating a gap in transparency for voters, which is why we are extending the new regime to future candidates. The provisions for the unpaid material of specific entities complement those applying to anyone paying to promote electronic material, thus creating a broad regime that goes further than the print regime and reflects the reality of modern digital campaigning.
Our provisions set out what information must be included in the new digital imprints. The requirements apply to both paid-for and unpaid electronic material that falls within the scope of the regime. As hon. Members will know, having an active online presence is crucial for political parties and campaigners in order to connect with the public and get their message heard. However, voters do not always know who is promoting material online and on whose behalf. Therefore, it is important that the provisions provide certain requirements that an imprint must meet, to ensure that all imprints provide the necessary level of transparency for the public. First, an imprint must be included as part of the material. Only when it is not reasonably practicable to do so can the imprint be in a location that is directly accessible from the material—for example, a hyperlink within the material or placed in a biography—when limited to a certain number of characters, such as in a tweet.
Secondly, the imprint must also be legible or audible and retained as part of the material when republished, if not altered by the person republishing, which I hope addresses the concerns expressed by the hon. Member for Lancaster and Fleetwood. That is required to accommodate the design of various digital platforms and ensure that an imprint is accessible to voters, regardless of the platform on which the material is accessed. To ensure maximum transparency and effective enforcement, our provisions state that the imprint must contain the name and address of the promoter of the material, and the name and address of any person on behalf of whom the material is being published but who is not the promoter.
We must ensure that the digital imprints regime is capable of adapting to the fast-moving world of digital campaigning and technological advances. Therefore, the measures also provide for the information that is required to be included in the imprint to be modified, if necessary, using a regulation-making power.
The regime aims to strike the right balance between providing a greater level of transparency to voters while ensuring that the imprint requirements are proportionate and enforceable. To that end, generally the republishing or sharing of electronic material by another person will not require a new imprint, because the original imprint should be retained in the material. A new imprint may be required, however, if the material has been materially altered since it was previously published.
I wish to emphasise that we are not in any way attempting to regulate the press and other media through this regime. The regime should not act as a practical barrier to journalists by requiring them to include an imprint when they publish material of a political nature. The provisions therefore provide an exemption for material published for journalistic purposes—which is to say, electronic material the primary purpose of which is the publication of journalism—unless the material consists of an advertisement. Party political broadcasts or referendum campaign broadcasts are also exempt as both are already subject to regulation outside of the regime.
Breaching the digital imprint rules will be a criminal offence. That means that if electronic material in scope of the regime is published without an imprint or with an incorrect imprint, the promoter of the material and any person on behalf of whom the material is being published becomes liable for a criminal offence.
The Bill outlines a number of defences, which includes the defence that the contravention arose from circumstances beyond the person’s control. Furthermore, it is a defence that the person took all reasonable steps and exercised all due diligence to ensure that the contravention would not arise. It will also be a defence for anyone charged with an offence to prove that they acted in accordance with the statutory guidance, which I shall turn to in detail in a moment.
To ensure consistency with wider electoral law, we will maintain for the digital imprints regime the division of responsibilities between the police and the Electoral Commission that exists for the print regime. As a result, the clauses provide for the Electoral Commission’s investigatory powers to apply to the digital imprints regime. That will enable the commission to investigate possible digital imprint offences effectively, as it does with the print regime. The police already have the necessary investigatory powers.
We will also give the Electoral Commission the ability to impose civil sanctions in respect of certain offences and only for material related to political parties and referendums. The police will be responsible for material concerning candidates, future candidates and holders of elected office. As with the print regime, the Electoral Commission will be able to refer any criminal offences to the police, if required.
A person guilty of that offence will be liable to a potentially unlimited fine on summary conviction in England and Wales. On summary conviction in Scotland or Northern Ireland, the fine will not exceed level 5 on the standard scale and would therefore not be unlimited.
In specific circumstances outlined in schedule 10, a candidate or their election agent may be guilty of an illegal practice for breaching the requirements when promoting electronic material without an imprint. That is consistent with the existing approach for printed material. That being said, evidence from the print regime suggests that the police and Electoral Commission already enforce imprint offences proportionately and effectively and that campaigners overall demonstrate high levels of compliance with the rules. We believe the existing enforcement approach will work equally well for the digital regime.
Material in which the imprint is incorrect or missing should not be able to remain online and influence the views of voters without providing them with the required level of transparency. Therefore, it is imperative that as part of our regime infringing material can be taken down. The clauses provide for access to material that contains an incorrect imprint or no imprint at all to be disabled or to be taken down from the digital platforms hosting the material, such as social media companies.
Notices to take down—orders to take down, when issued by the courts—can be sent by electronic means, or by post, allowing platforms to address the requests quickly. To ensure that due process is followed, the notices or orders may only be issued by the Electoral Commission or the courts once they have determined that material is in breach of the rules. The take-down notice must include the grounds for serving the notice, the consequences of non-compliance and the rights of appeal. No such provisions are required for court orders. It will be a criminal offence for any person who receives a take-down notice or order, such as a digital platform, to fail to comply with the notice or order without a reasonable excuse. It is important that digital platforms are aware of the consequences if they fail to comply with a notice.
Patrick Grady (Glasgow North) (SNP)
I beg to move amendment 93, in clause 57, page 60, line 8, at end insert—
“(1A) Before making regulations under subsection (1) the Secretary of State must consult the Scottish Ministers, the Welsh Ministers and the Department for the Economy in Northern Ireland.”.
This amendment ensures that the Secretary of State must consult with the Devolved Administrations before making regulations under clause 57.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clauses 58 to 62 stand part.
Patrick Grady
This is another technical amendment based on proposals that were submitted by the Law Society of Scotland in its written evidence to the Committee, which I know that Government Members have paid deep attention to.
The clause is relatively technical, providing the Government with powers to make amendments to references to subordinate legislation—it goes right down the rabbit hole of the sweeping powers of secondary legislation that the Government are increasingly taking for themselves. Even though this is a relatively technical part of that process, it speaks to the broader principle, particularly as it includes power to amend certain legislation made by the devolved Assemblies.
As Ministers take those powers, it is not unreasonable for us to ask that they be given a duty to consult the relevant Ministers in the relevant devolved institutions, which is what the amendment seeks to do. We requested consent in a previous amendment, which was rebuffed, but surely, in the spirit of co-operation and consensus, the Minister will agree to a formal consultation process. Everybody recognises there is a certain role for statutory instruments and secondary legislation—they are used by the devolved Governments in Scotland, Wales and Northern Ireland—but we have spoken several times in the Committee of the need to enhance scrutiny procedures and to improve the ability of Members of legislatures of all kinds to interact with them.
I hope the Minister will accept the amendment, but if she rejects it, as I suspect she will, I hope she will at least give some reassurances about the ongoing commitment to non-statutory consultation with Scottish Government Ministers and reflect on what these measures mean overall for the devolution settlement. The Government increasingly, at will, just take powers through this kind of clause—powers that until recently had been a more formal part of the devolution settlement and had been subject to more formal or informal consents.
Kemi Badenoch
The clauses in part 7 make general and miscellaneous provisions. Clause 57 provides for a power to allow amendments to the Bill, or any provisions amended by the Bill in other Acts, where references to secondary legislation become out of date in future. This is a necessary power that would allow, for example, a reference to a statutory instrument that is replaced to be updated to refer instead to the new statutory instrument, to ensure the provisions of the Bill remain workable when such changes occur.
The amendment proposed by the hon. Members for Glasgow North, and for Argyll and Bute, would require the Secretary of State to consult with the devolved Administrations before making regulations under clause 57. The hon. Member for Glasgow North asked for reassurance. This Government are committed to working constructively with the devolved Administrations to ensure that elections work well in the best interests of voters. He will have heard the Secretary of State, who is also Minister for intergovernmental relations, speaking at oral questions yesterday. He works very well with his counterparts in the devolved Administrations, and we should not pretend that things are otherwise in the House of Commons. We will of course liaise with the relevant devolved Administrations over any updating needed due to changes in their secondary legislation, which I think will satisfy the hon. Gentleman’s requirements.
The amendment is overly prescriptive. Some of the updating will relate only to reserved legislation, and some might relate to the secondary legislation of only one of the devolved Administrations, yet the amendment would require a statutory consultation with all of the devolved Administrations each time the power is exercised. That would not be proportionate. I invite the hon. Members to withdraw the amendment.
Clause 58 contains standard financial provisions. It explains that Parliament will pay for any costs that a Minister of the Crown incurs as a result of this Bill, and for any increased costs incurred under existing Acts of Parliament if they arise as a result of the Bill. It also provides that where the Bill increases sums already payable out of the Consolidated Fund under existing legislation, the increases will also be paid out of that fund, and then does the same for increases of sums payable into the fund.
Clause 59 defines a small number of terms used throughout the Bill. It also ensures that where the Bill creates or amends functions of the Secretary of State by amending other electoral legislation, those functions of the Secretary of State will be exercisable concurrently with the Minister for the Cabinet Office.
Clause 60 sets out the territorial extent of the Bill, namely the jurisdictions in which each provision of the Bill forms part of the law. Clause 61 sets out, as is common, that the provisions of the Bill will be brought into force using one or more statutory instruments. Those statutory instruments may bring different parts of the Bill into force on different days. Finally, Clause 62 cites the short title of the Bill—the Elections Bill 2021. These are all technical and necessary provisions and therefore I urge the Committee to allow the clauses to stand part of the Bill.
Patrick Grady
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 ordered to stand part of the Bill.
Clauses 58 and 59 ordered to stand part of the Bill.
Clause 60
Extent
Amendment made: 7, in clause 60, page 61, line 36, leave out paragraphs (a) and (b) and insert—
“(a) the amendments made by paragraph 1(1) and (5) extend to England and Wales only;
(b) the amendments made by paragraph 1(2) to (4) and (7) to (12) extend to England and Wales and Northern Ireland only;” —(Kemi Badenoch.)
This amendment is consequential on Amendment 8.
Clause 60, as amended, ordered to stand part of the Bill.
Clauses 61 and 62 ordered to stand part of the Bill.
New Clause 1
Simple majority system to be used in elections for certain offices
‘Elections for Mayor of London
(1) The Greater London Authority Act 1999 is amended in accordance with subsections (2) to (5).
(2) In section 4 (voting at ordinary elections)—
(a) in subsection (1)(a), omit “(referred to in this Part as a mayoral vote)”;
(b) in subsection (2), omit “, unless there are three or more candidates”;
(c) omit subsection (3).
(3) In section 16 (filling a vacancy)—
(a) in subsection (3), for “a mayoral vote” substitute “one vote which may be given for a candidate to be the Mayor”;
(b) for subsection (4) substitute—
“(4) Section 4(2) (simple majority system) applies in relation to the election as it applies in relation to the election of the Mayor at an ordinary election.”
(4) In section 29 (interpretation of Part 1), omit the definition of “mayoral vote”.
(5) In Schedule 2 (voting at elections), omit Part 1.
(6) In section 165 of RPA 1983 (avoidance of election for employing corrupt agent), omit subsection (4).
Elections for elected mayors of local authorities in England
(7) The Local Government Act 2000 is amended as follows.
(8) In section 9HC (voting at elections of elected mayors)—
(a) for subsection (1) substitute—
“(1) Each person entitled to vote as an elector at an election for the return of an elected mayor is to have one vote which may be given for a candidate to be the elected mayor.”;
(b) in subsection (2), omit “, unless there are three or more candidates”;
(c) omit subsection (3).
(9) In section 9HD (entitlement to vote), in subsection (2), for “first preference vote, or more than one second preference vote,” substitute “vote”.
(10) In section 9R (interpretation of Part 1A), in subsection (1), omit the definitions of “first preference vote” and “second preference vote”.
(11) In Schedule 2 (election of elected mayor), in paragraph 1, after “authority” insert “in Wales”.
Elections for mayors of combined authority areas
(12) Schedule 5B to the Local Democracy, Economic Development and Construction Act 2009 (mayors for combined authority areas: further provision about elections) is amended as follows.
(13) In paragraph 4 (voting at elections of mayors)—
(a) for sub-paragraph (1) substitute—
“(1) Each person entitled to vote as an elector at an election for the return of a mayor is to have one vote which may be given for a candidate to be the mayor.”;
(b) in sub-paragraph (2), omit “, unless there are three or more candidates”;
(c) omit sub-paragraph (3).
(14) Omit paragraph 5.
(15) In paragraph 6 (entitlement to vote), in sub-paragraph (2), for “first preference vote, or more than one second preference vote,” substitute “vote”.
Elections for police and crime commissioners
(16) The Police Reform and Social Responsibility Act 2011 is amended as follows.
(17) In section 57 (voting at elections of police and crime commissioners)—
(a) in subsection (2), omit “, unless there are three or more candidates”;
(b) omit subsections (3) to (5).
(18) Omit Schedule 9.’ —(Kemi Badenoch.)
This new clause makes provision for the simple majority system to be used in elections for the Mayor of London, mayors of local authorities in England, mayors of combined authority areas and police and crime commissioners.
Brought up, and read the First time.
Kemi Badenoch
These amendments move elections for police and crime commissioners in England and Wales, the Mayor of London, combined authority Mayors and local authority Mayors to the simple majority voting system, more commonly known as first past the post. The new clause amends legislation that provides for the supplementary vote system to apply when there are three or more candidates in an election or by-election for each of these posts. Under the new provision, each voter has one vote and the candidate with the most votes will be elected. Amendment 59 is consequential on that provision and modifies the long title of the Bill to include provision about the use of the first-past-the-post system in elections for certain offices.
The Government’s manifesto committed to supporting the first-past-the-post system. That reflects the will of the British people in the nationwide 2011 referendum, which saw two thirds of voters in favour of retaining first past the post for parliamentary elections.
Kemi Badenoch
All I can say is that that would have been a question for my predecessor. These discussions happened before I came into post. I know that this was a Government manifesto commitment, and I see no reason why, if there is a convenient Bill to allow us to fulfil a manifesto commitment, we cannot use it as a vehicle for doing so.
The Government’s manifesto committed to supporting the first-past-the-post system, as I have said, and my right hon. Friend the Home Secretary announced in March the initial recommendations of the review of police and crime commissioners. It recommended that the Government introduce legislation to change the voting system for all combined authority Mayors, the Mayor of London and police and crime commissioners to first past the post when parliamentary time allowed. The Home Secretary’s review of police and crime commissioners also extended to Mayors who can exercise PCC powers, to metro Mayors and to the Mayor of London. Changing the voting system for local authority Mayors, too, to first past the post will ensure consistency in voting method for all directly elected Mayors in England. This undertaking aligns with our belief that the first-past-the-post system is robust and secure and provides strong local accountability.
Kemi Badenoch
I believe it was a coalition Government who introduced PCCs, not a purely Conservative Government. We have had PCCs for 10 years now and there has been plenty of time to review the system and decide whether improvements can be made. There are many things that previous Labour and Conservative Governments have done that future Governments will change, and this is one of them.
Changing the voting system will ensure consistency, and this undertaking aligns with our belief that first past the post is robust and secure and provides strong local accountability. Moving to first past the post will make it easier for the public to express a clear preference. Additionally, as a simple, well-understood and trusted system, it will reduce complexity for voters and administrators alike.
On Monday 20 September, the House approved a motion to instruct this Committee to make provision in the Bill for the use of the simple majority voting system in elections for the return of the Mayor of London; an elected Mayor of a local authority in England; a Mayor of a combined authority area; or a police and crime commissioner. The House’s approval has enabled the Government to bring forward this new clause, and I therefore commend it to the Committee.
Cat Smith
I must say that I was very surprised when we received an instruction motion. To be honest, I had not seen one before during my time in this House, and I did not realise that the Government had been so disorganised that they had forgotten to put one of their manifesto commitments in the Bill, but by all accounts, that is exactly what has happened. It is not only chaotic, but deeply disrespectful to the House.
Our colleagues who do not have the privilege and joy of serving on this Committee got to debate the Bill on Second Reading, when we had no idea that this new clause would be included. Although we are able to debate this new clause, our colleagues were not able to raise concerns about it on Second Reading. It is disrespectful to our colleagues that they have not yet had the opportunity to raise concerns about this clause, but it is also disrespectful to this Committee. When, through the usual channels, we decided which witnesses should give evidence to the Committee, we did not know that a new clause was going to be tabled that would massively shake up the way in which many elections take place in England and Wales. We were not able to get witnesses who were experts in voting systems before the Committee, so that we had the opportunity to quiz them—to ask questions and explore whether the first-past-the-post system is as desirable as the Minister seems to think. We did not have the opportunity to explore how successful, or perhaps otherwise, the supplementary vote system has been in mayoral elections in England, or in police and crime commissioner elections in England and Wales. None of that was allowed for, which is disrespectful to this House, this Committee, and our colleagues who did not have the opportunity on Second Reading to ask questions and scrutinise the Government.
Moving beyond the incredibly disrespectful way in which new clause 1 has been tabled and turning to its specifics, I ask the Minister what consultation she or her predecessor have had with Mayors about whether this was a change they were seeking. Having spoken to many elected Mayors over the past few weeks, it strikes me that they did not know that this was coming, and it has come as something of a surprise. There was no clamour for it from their offices, and they are deeply hurt that the Minister has not reached out to them to consult with them on this new clause.
Specifically looking at London—I admit that I have had to swot up a fair bit on this issue, because I am not a London MP—in 1998, in the Greater London Authority referendum, Londoners were asked whether they wanted to have a Mayor and an assembly, and it was clear that that Mayor would be elected using a supplementary vote system. Londoners agreed, by a majority of 72.01%, that this was something that they wanted. Is this Committee going to overturn a democratic referendum—the democratic will of the people, we might say; in this case, the people of London—to change the voting system?
Last time we had a debate about changing the voting system in this country, the alternative vote referendum that everyone has clearly long since forgotten about, that question was put to the people, because this is a really major change. For us to be changing the voting system used in elections in this country not by referendum, not even by putting it in the Bill and debating it on Second Reading, but by slipping it in in Committee, is absolutely shocking and appalling. It is one of the lowest points of this Bill; as I have said at earlier stages, there are plenty of other things in this Bill that I disagree with, but I am deeply offended by the way in which the Government have gone about this. It is disrespectful, and it is riding roughshod over democracy.
Specifically in the case of the London referendum, every single London borough voted to elect their Mayor using a supplementary vote system. Who is this Committee—many of us are not even London MPs—to say to those people, “You voted in that referendum for that, but we are taking it away from you”? I had a little look at the breakdowns for different boroughs, because I was surprised when I saw that every London borough had voted for it—this is a diverse city—but in the lowest supporting areas, Havering and Bromley, it was still 60% and 57% voting in favour of that system, with the highest support being in Lambeth and Haringey, which had 81% and 83% respectively.
Aaron Bell
Of course, the voters in all those boroughs were voting in favour of the principle of a Mayor and an assembly and not specifically the voting system employed. But may I put a question to the hon. Lady? At the last London Mayor election, almost 5% of voters in London saw their votes essentially not count, because of the confusion that the system engendered. That is why the Government are proposing the change.
Cat Smith
I have completely forgotten the hon. Gentleman’s first point, but on the second, there were a lot of spoilt ballots in London this time and that was because the ballot paper was designed with two columns, rather than one column, for the first time. I have to be honest: I have seen the ballot paper, which was shared on social media, and it was shocking. It should never have been allowed to go to print. [Interruption.] It is amazing that it got past any level of scrutiny. There is probably a lesson to be learned about how we legislate and how we make sure that checks and safeguards are in place to ensure that voters are not disenfranchised, because I do not think—
The Chair
Order. Hon. Members should know by now that if they want to contribute, they can intervene or speak in the main part of the debate.
Cat Smith
Thank you, Mr Pritchard.
For more than 20 years, Londoners have been using the supplementary vote system to elect their Mayor without major incident. There were some issues with spoilt ballot papers at the last election—I concede that—but I think that it was very clearly because of the design of the ballot paper, as we did not see that in previous elections. Clearly, the ballot paper needs to be better designed.
I will raise again with the Minister the point about police and crime commissioner elections, which take place in England and Wales. It was a Conservative-led Government—she wishes to push her Liberal Democrat colleagues under the bus for the coalition, which is a pattern of behaviour that we have seen a fair bit—who chose the supplementary vote system for those elections, because there was a consensus, which new clause 1 is shattering, on a supplementary vote system. It is not proportional representation. It is not a radical change to the electoral system. But it is a fairer way of voters casting their vote, and I think there was a general consensus about that, which is why we saw it introduced for regional Mayors in England and police and crime commissioner elections—many of these under a Conservative Government, of course. It is why, since the year 2000, that system has been used pretty much consistently when bringing in new elections. I have counted them up: there have been 212 elections using the supplementary vote system in England and Wales since the turn of the millennium, and I think that voters are confident in using it now.
The only election that is not first past the post in my constituency in Lancashire is the election for police and crime commissioner, which uses the supplementary vote. The feedback I always get from my constituents is about how nice it is, in their words, “to be able to vote for the person who is my favourite candidate really, but then to have my vote count in relation to the people that we know the contest is actually between.” That is because the electorate are of course an intelligent electorate. People know whether their preferred candidate is likely to be in the final run-off of two, and they vote accordingly.
Aaron Bell
I thank the shadow Minister for giving way again. I am listening to what she is saying, and she may be interested to learn—in fact, both Opposition parties may be interested to learn—that in 2011 I actually voted for the alternative vote system, which makes me rather unusual on the Conservative side. In 2011, however, the country quite firmly did not vote for AV, and did not believe in the principle that people’s second votes should essentially count the same as their first votes. That is what the supplementary vote system means. SV is, in my opinion, far worse than AV, but I, on this side of the House, respect referendum results. I think both Opposition parties should do the same thing.
Cat Smith
I agree with the hon. Gentleman: we absolutely should respect a referendum result. That is why I am surprised to see those on the Government Benches riding roughshod over the 1998 Greater London Authority referendum, in which it was very clear that the supplementary vote system for Mayor of London was what people wanted—by a huge majority. I do believe in respecting referendum results, and I respect the referendum results that he referred to. I voted against AV, so we were on different sides in that argument. I personally think that there are far better voting systems than AV, but this is not a debate about different voting systems. I think it is about riding roughshod over the democratic will of Londoners in 1998 by pushing through in Committee something that has not had the scrutiny of the full House. The way in which the Government have gone about this, whereby we have not been able to take evidence as a Committee and truly scrutinise the measure, is shocking. I know fine well that Government Members will just all vote for this anyway, but I ask them to look at their consciences on this new clause, because it is overturning the democratic will of the people of London.
The voting system has been working fine. I have to question why it is a Government priority suddenly to change it. The cynical part of me, and I am not normally a cynical person, would suggest that the Government feel that they cannot win an election under a supplementary vote system and perhaps think they have a better chance under first past the post. Perhaps it is a case of “If you can’t win the game, move the goalposts,” because it looks an awful lot like that.
Patrick Grady
I am unsure why Government Back Benchers are not rising in defence of their Minister on the implementation of this crucial manifesto promise. The Minister could not quite explain why it was not in the Bill when it was presented on Second Reading. Trying to blame a predecessor is an interesting approach, not least because the other Minister who spoke on the Bill in the House when the instruction motion was moved, the right hon. Member for Tamworth (Christopher Pincher), said that the Government “speak with one voice”, so we would expect them all to understand exactly what the lines are.
Some of the earlier clauses related to local elections that are devolved, so it is not necessarily the place of the Scottish National party to get desperately involved in this debate, or to tell Members of Parliament in England what decisions they should or should not make, but it might be useful to offer at least some reflection on the effect of the clause, not least on the devolution settlement across the United Kingdom. The Prime Minister said that he is a champion of the devolution settlement, and when he forced through the United Kingdom Internal Market Act 2020 and other aspects of Brexit legislation without the consent of the devolved legislatures much of that was on the grounds of his experience as Mayor of London, and that being Mayor of London was somehow equivalent to the entire institutional structure of the individual devolved legislatures.
What those institutions have in common is that they are elected on a proportional basis. At the moment, the Mayor of London has to win a supplementary ballot. Every Mayor has had to go into a second round to be chosen. The First Minister of Scotland, Wales or Northern Ireland, has to command a majority across the legislature. That normally adds up to something very close to a majority of the votes that were cast in the election. I think I am right in saying that almost every First Minister in Scotland, except obviously in the majority Government, has required support from another party, or at the very least abstentions, in order to get elected.
In Scotland, our local authorities for several elections have been elected by single transferable vote. The effect of that is that the voices of all voters are heard. There is a ward in my constituency of Glasgow North, Partick East/Kelvindale, which was represented by four different parties—the Scottish National party, a Labour party councillor, a Conservative councillor and a Green party councillor. That meant that voters had a very wide choice of who they wanted to speak to. The distribution of votes was reflected proportionally, and people had someone they could go to whom they could trust—but voters in England, it seems, will not.
Patrick Grady
We have only to look at the results of the elections to this place—this is perhaps not the clause specifically to debate that—to see how well the Conservatives fare. When we SNP MPs were elected in large numbers in 2015, our parliamentary group leader at the time made the point that it did not reflect the result proportionally, but perhaps we are straying slightly. I want to come back to the election of the Mayor of London, and the results of first-past-the-post elections.
Perhaps Conservative Members—I look forward to hearing from them when they rise to speak in support of the Government—are quite comfortable with the idea that Ken Livingstone was elected on the first ballot with 39% of the vote in 2000, and with 36.8% of the vote in 2004. That is the mandate for someone to be the Mayor of a major European metropolitan city, which the Prime Minister himself has claimed is a kind of equivalent to the entire Scottish Parliament and the devolved Scottish Government. That is the equivalence that he has made between his role as Mayor of London and the entire devolution settlement in Scotland. It seems that Government Members are quite content with the possibility of someone being elected to that position on about 35% of the vote.
Aaron Bell
I was about to say that I was happy to see the hon. Gentleman returned to Parliament for Glasgow North in 2017 on 37.6% of the vote.
Patrick Grady
To be fair, I have already made that point. I am very happy to submit myself to the electorate under any proportional system that the Government want to introduce. The hon. Gentleman can be sure of the SNP’s support for a Bill introducing such a system; we have said that many times in this House.
The experience of preferential voting in Scotland is that results can change, and that has not always been to the SNP’s advantage. In fact, owing to the nature of Scottish politics at the moment, there is a clear trend with transfers. Where the SNP is a voter’s first preference, they cast their vote for that party. That is the very clear trend. In fact, in the ward that I mentioned, the SNP won the vote in the recent by-election, under first past the post; we got the most votes. We had an excellent candidate in Abdul Bostani. He got the most first preferences, but because of transfers, he lost out, so that ward is now represented by two Labour councillors, one Green councillor and one SNP councillor. It was a Conservative vacancy, incidentally; I say that for anyone who has not turned up to enough of the Committee sittings. That proves my point on the issue on which the hon. Member for Newcastle-under-Lyme was trying to catch me out. It proves the value of preferential voting systems.
Ultimately, it is for England’s Members to make a determination about what electoral system is used by their local authorities, but Government Members have to think very carefully about the consequences of this.
Brendan O'Hara
Does my hon. Friend agree that any lingering doubt that any of us may have had about the Government’s motivation in introducing the Bill is done away with by the parachuting in of this new clause? It is utterly self-serving, completely politically partisan and fundamentally undemocratic. Furthermore, does he agree that we and our colleagues should get out of here as quickly as possible, because Scotland needs to escape this nonsense?
Patrick Grady
If by “here”, my hon. Friend means the Union, yes, I entirely agree; if he means this Committee Room, I am afraid I do not agree, because I know how desperate Sir Edward is to chair our final sittings next Wednesday, so it is important that the Committee takes as long as it can to consider every one of these new clauses in great detail. I therefore look forward to all the speeches from the Conservative Back-Bench members of the Committee, who will now rise in defence of this major constitutional change that the Government want to bring forward. When they do, I urge them to reflect on the growing divergence that we have spoken about. This is not a levelling up or a coming together, but a growing apart of the constituent parts of the country, which have pretty fundamentally different perspectives on how democracy is, and should be, done. Although it is not for SNP Members to tell Members from England how their local elections should be determined and run, they ought to think about the issue carefully before they cast their vote.
Kemi Badenoch
I want to respond to a few points made by Opposition Members. On engagement, the policy was announced back in March. It is just that it was not a Cabinet Office policy; it was a policy from the Home Office and the Ministry for Housing, Communities and Local Government, as it was known then. I am informed by officials that there was engagement with Mayors, but the hon. Member for Lancaster and Fleetwood may not have been aware of it.
The point about the procedure being disrespectful to the House is nonsense. The House voted for the procedure. It is also wrong to say that people have not had a chance to debate it if they are not on the Committee. I am sure that the Chair will correct me if I am wrong, but anyone not on the Committee who wants to take part in its debates can do so; they just do not have voting powers. No one not on the Committee has turned up today. That means that they did not want to debate this. If they did, they could have done so, just as we all have.
The hon. Lady made multiple references to the London mayoral and London Assembly elections. She is probably not aware that I was elected to the London Assembly in 2012, when I was a list candidate, and in 2016. She says that this is not something that people want. People repeatedly complained about how frustrating the system was. Going back to 1998, when a 2011 referendum occurred, is to ignore more recent evidence. Going back to 1998, when a 2011 referendum occurred, is to ignore more recent evidence. To say that 23 years after the 1998 referendum, which was not specifically on the voting style but really about whether or not to have a Mayor, is a very specious argument. I do not accept it at all.
I also found it mildly amusing to hear the hon. Lady say that the Committee needs experts to explain how first past the post works in relation to other voting systems. All of us here know how first past the post works, and also how the other systems work. I am not sure we can reasonably say we need so much expert advice on the way we are all elected.
Finally, the hon. Lady says that this is undemocratic, and I believe one of the SNP Members said that this was for political reasons. The fact is that in London mayoral elections, to which they are referring, no election would have had a different result, irrespective of whether it was first past the post or transferable voting. This is making things simpler and easier to understand for people who have complained.
Brendan O'Hara
To correct the record, I said that it is utterly self-serving, and completely politically partisan, and fundamentally undemocratic.
Kemi Badenoch
And I still reject the hon. Gentleman’s point. The fact is that we have a Labour Mayor at the moment; we have had more Labour Mayors than Conservative Mayors; and first past the post gives accountability and strength to the people who are elected.
Cat Smith
The Minister is absolutely correct about the London Mayors, and that first past the post would not have changed the results of any London mayoral elections. Is she aware of any mayoral posts currently held in England where the result would have been different using first past the post? Could she perhaps give an example of some of those?
Kemi Badenoch
No. I do not have a list of the mayoral elections that would be different, because the point is that we are not doing this for political reasons; we are doing it to simplify the system.
Kemi Badenoch
I will finish this point, because I know we want to finish this this afternoon. This was a manifesto commitment; people voted in the 2019 election knowing that this was in our manifesto. What would be undemocratic would be if we did not do this. That is why I urge Members to support the new clause.
Cat Smith
I will just let the Minister know the answer to my question, which is, of course, that there are some mayoral elections in England that would have been different if they had been held under first past the post. From the ones that I have seen, that would be because the Conservatives would have won under first past the post, while under the supplementary vote, they did not. I just thought I would help the Minister by pointing out that her amendment does very much help the Conservative party.
The Chair
Before I put the question, on a procedural point just for information, Members not on the Committee can attend this Bill Committee, but must sit in the Gallery. They cannot sit with Committee members, or indeed speak or vote. On delegated legislation, they can contribute from the floor, but not vote. Just to ensure that Members do not think I have come out as some sort of procedural genius like the right hon. Member for North East Somerset (Mr Rees-Mogg), that was on advice from the Clerk. It is always good to take advice. It would not be credible if it was from me, I know.
Question put and agreed to.
New clause 1 accordingly read a Second time, and added to the Bill.
New Clause 2
Citizens’ assembly on electoral systems
“(1) The Secretary of State must establish a citizens’ assembly representative of the population aged 16 and over to consider electoral systems in the United Kingdom.
(2) The Secretary of State must, for each category of election reformed by section (Simple majority system to be used in elections for certain offices), provide to the assembly a report assessing the effects of the reforms on the matters in subsection (3).
(3) The matters are—
(a) voter engagement and understanding,
(b) electoral integrity,
(c) fairness and proportionality.
(4) A report under subsection (2) must be provided to the assembly no later than three months after the first election in each category of election after this section comes into force.
(5) The assembly must—
(a) consider the reports under subsection (2),
(b) consider other evidence relating to the matters in subsection (3).
(6) The assembly may make recommendations for legislative or policy change, including for parliamentary elections.”—(Patrick Grady.)
Brought up, and read the First time.
Patrick Grady
I beg to move, That the clause be read a Second time.
The introduction of new clause 1, and indeed amendment 59, fundamentally changed the scope and nature of this Bill. We made that point at the debate on the instruction given to this Committee. It is no longer just an Elections Bill tidying up vague aspects of electoral law; it is starting to make fundamental changes to the constitution of the United Kingdom. This is an elections Bill in the wider sense, so it is right that we should consider the various new clauses that flow from that as a consequence.
New clause 2 is quite appropriately placed because, throughout this process, we have heard about the kind of piecemeal and incremental changes that have been made to electoral law and election systems. This Bill is yet another example of that, with all the different little bits and pieces that it is doing. The new clause provides a chance to step back and to look at the effects of those changes, in particular those to the electoral system that have just been agreed by the Committee, with consequences across the United Kingdom—therefore, in the context of elections to this place.
Cat Smith
I thank the hon. Gentleman for tabling the new clause and for his contribution so far. I read the new clause with interest. From the direction of his speech, I think he is arguing that a citizens assembly would be a far more consensual way of coming to a resolution on a binary choice. I wondered whether it was something that his colleagues in the Scottish Government are considering for another issue that polarises the population—rather than a referendum, perhaps a citizens assembly.
Patrick Grady
The hon. Lady was one of the few people in Committee who was paying attention to what I was saying earlier: the Scottish Government have used citizens assemblies not specifically on the matter of the constitution, but to test the views of the population and to help determine opinion and come to conclusions about policy development on both social justice and climate change.
Someone might want to argue that 2014 was polarising because it was a binary choice, yes or no, but I do not think that anyone could argue that it was anything other than a massive exercise in popular democracy. That referendum had the highest turnout until possibly the Scottish Parliament election we have just had—massive participation. That legacy continues to this day with political engagement. I encourage the hon. Lady to think about supporting my new clause.
As I said in one of the previous debates, the SNP supports the introduction of a far more proportionate system for this House. I referred to Angus Robertson, whose first contribution after the 2015 election was to recognise that the result was very disproportionate to what the result should have been. Incidentally, the 2017 result was probably more proportionate than that of 2015 in terms of how people had voted, and we would have been quite happy to have had 35 seats and been the third party in the House of Commons at that time, just as we have been happy with the results in both 2017 and 2019, which have represented overwhelming endorsements for the SNP manifesto and our commitment to allow people the right to choose Scotland’s future, but that is to stray from the point slightly.
The reality is that there is now a proliferation of electoral systems across the United Kingdom. People voting in mayoral elections and choosing police and crime commissioners are just about to experience yet another change—not to the status quo or something that existed before, because they never voted for them using FPP, but they will do so under the new clause. It is therefore appropriate to implement what is suggested in the new clause, and to take a step back in order to look at the implications of the Bill as a whole, particularly in the context of elections to this House. There is growing demand for that—it is not just an idea that we have had. There are a number of campaign groups, and a number of constituents have contacted me, my hon. Friend the Member for Argyll and Bute, and probably other members of the Committee, as well as Members across the House, to say that the time is upon us to revisit this question. A citizens assembly provides the most effective mechanism for doing that in a modern democracy. I look forward to the Minister opposing all this.
Cat Smith
I had not planned to speak, but I think this is a good new clause. I do not know what electoral systems a citizens’ assembly would decide on, but I do know that we in this House do not have a monopoly on wisdom. We are 650 Members legislating in the House of Commons, and our unelected colleagues down the corridor in the House of Lords also legislate. There is also a broader case to be made about how our democracy works, given how fragmented and disparate it is increasingly becoming. A citizens’ assembly could actually give the Government even more of what they do not know they want yet, because the public do have wisdom. Bringing together a group of citizens who are representative of the country and allowing them to explore ideas and make decisions would add value to our deliberations in this place.
I draw the Minister’s attention to a citizens’ assembly or convention currently being co-ordinated by University College London, which is looking at many of these issues. Certainly since I was elected to the House, politics has increasingly felt quite divided. Are people leavers or remainers? Do people in Scotland want to remain part of the Union or do they want an independent country? All these things are dividing our population and create a lot of tension. We see it in the language used in political dialogue—I implore colleagues to be more thoughtful and kind in the language they use, and I hold myself to that standard as well. Surely a citizens’ assembly would be a new way to look at things and an opportunity to discover that we have more in common than what perhaps divides us.
Jerome Mayhew (Broadland) (Con)
I have to say that I have become a bit of a convert to citizens’ assemblies on complex issues such as climate change. We sit in the greatest citizens’ assembly, but is there not a difference between a set of complex issues around climate change and the effect of policy responses to that, where bringing the populace on the journey is as important as the policies themselves, and something such as electoral reform, where the policies are well known and quite discrete and it is a matter for this House to decide which one is the best to apply?
Cat Smith
It will always be a matter for this House to decide. A citizens’ assembly cannot change the law; only we parliamentarians can do that. A citizens’ assembly could put interesting proposals to the House, and it might throw up proposals that it had not even crossed our minds that the public might want.
I am glad the hon. Gentleman raised the example of climate change. Lancaster City Council has pulled together a citizens’ assembly on climate change and finding ways in which we, as a city, can be greener. The assembly has come up with proposals that were not in any party’s manifesto at local elections. Those things came forward from the public, who were given that space and opportunity to speak to experts and develop their own ideas. If we take that one small example of looking at climate change in a city in north Lancashire and apply it to a UK-wide citizens’ assembly looking at electoral systems and integrity, as it says in the new clause, the opportunities are far greater. In my time in this Front Bench role, which I have held since 2016, it has struck me that there is an awful lot of talk about electoral systems and democracy in this place, but we do not hear enough from the public. A citizens’ assembly would be a fantastic way of ensuring that the decisions we make can be inspired and influenced by people in this country—our electors.
Parliament is not a citizens’ assembly. We choose to put ourselves forward for elected office. I dare say that the kind of people who put themselves forward for electoral office are not all totally like the rest of the country. Many of the people who elect us look at the job we do and question why we do it. I can say, hand on heart, that both my younger sisters have said to me, “Cat, I have no idea why you do that job.” Being a full-time elected parliamentarian is a completely different experience from being a citizen on a citizens’ assembly, and I do not think we should equate the two.
We can learn lessons from the Republic of Ireland, which uses citizens’ assemblies to debate really complex ideas. That gives me confidence that UK citizens would, like Irish citizens, be able to come to policy solutions on very complex issues, including electoral systems and democratic accountability. We have a lot to learn from them. There is absolutely no obligation on us as parliamentarians to implement the outcome of the citizens’ assembly. We can take those recommendations and do what we do with many parliamentary reports—put them on the shelf and let them get dusty—although I would like to think we would not. However, there is no harm, and only opportunities for good, to come from supporting this new clause.
Kemi Badenoch
I have listened to the arguments carefully, and I am not persuaded that there is a need for a citizens’ assembly on this issue and for a statutory requirement, so I Members to oppose the new clause.
Patrick Grady
I am encouraged by the warm words of those on the Labour Front Bench. On that basis, we will test the will of the Committee.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 11—Automatic Voter Registration—
“(1) Registration officers must take all reasonable steps to ensure that all persons eligible to register to vote in elections in the United Kingdom are so registered.
(2) The Secretary of State must by regulations require public bodies to provide information to registration officers to enable them to fulfil their duty under subsection (1).
(3) Regulations under subsection (2) must apply to the following public bodies—
(a) HM Revenue and Customs;
(b) the Department for Work and Pensions;
(c) the Driver and Vehicle Licensing Agency;
(d) the National Health Service, NHS Wales and NHS Scotland;
(e) schools and further and higher education institutions;
(f) local authorities;
(g) HM Passport Office;
(h) police forces;
(i) the TV Licensing Authority;
(j) Job Centre Plus;
(k) the Department for Levelling Up, Housing and Local Communities;
(l) the Department for Transport;
(m) the Department for Health and Social Care;
(n) the Home Office; and
(o) the Ministry of Justice.
(4) Regulations under subsection (2) may also apply to other public bodies.
(5) Registration officers must—
(a) use the information provided by the public bodies listed in regulations under subsection (3) to register otherwise unregistered persons on the appropriate electoral register or registers, or
(b) if the information provided does not contain all information necessary to register a person who may be eligible, contact that person for the purpose of obtaining the required information to establish whether they are eligible to register and, if so, register them on the appropriate electoral register or registers.
(6) If a registration officer has registered a person under subsection (5), the officer must notify that person within 30 days and give that person an opportunity to correct any incorrect information.
(7) Where a person is registered under subsection (5), that person shall be omitted from the edited register unless that person notifies the registration officer to the contrary.
(8) Nothing in this section affects entitlement to register to vote anonymously.
(9) The Secretary of State may issue guidance to registration officers on fulfilling their duties under this section.”
This new clause would require registration officers to enter eligible voters on the register, and provide for them to receive the necessary information from a number of public bodies.
New clause 13—Voter registration at universities and colleges—
“(1) The Secretary of State must by regulations require universities and colleges to provide to registration officers the information they hold that is required for the officers to register their students to vote.
(2) Universities and colleges must share with each student the information relating to the student that the university or college proposes to provide to the relevant registration officer, and must give students the opportunity to withhold consent to the provision of the information.
(3) If a student withholds consent under subsection (2), the university or college must not send their information to the registration officer.
(4) Nothing in this section affects entitlement to register to vote anonymously.
(5) The Secretary of State may issue guidance to registration officers, universities and colleges on fulfilling their functions under this section.”
This new clause would require universities and colleges to submit to registration officers the information necessary to register their students to vote.
Brendan O'Hara
For all the rancour and argument that there has been in this Committee over the last few weeks, I think we all agree that voting is a fundamental democratic right that has to be protected. As it is a fundamental democratic right, surely it is incumbent on those in power to seek to maximise participation right across our society and to encourage everyone in society to have their say and make their voice heard. It is our job in this House to ensure that the citizens we represent can exercise that democratic right.
Kemi Badenoch
New clauses 3 and 11 would impose a legal duty on public bodies, requiring them to provide information to electoral registration officers for the purposes of automatic electoral registration of identified electors. I am open to being persuaded, but the arguments need to be very good and, clearly, should not contradict the principles on which we stand for election or that can be found in previous legislation. We cannot agree to the new clauses as they contradict the principle that underpins electoral registration: that individuals are responsible for registering themselves. For those reasons, we cannot support new clauses 3 and 11.
In addition, new clause 13 broadly replicates existing legislation and is therefore unnecessary. The Higher Education and Research Act 2017 ensures that the facilitation of electoral registration is a condition of the higher education framework, so I urge Members to oppose the new clause.
Cat Smith
I rise to speak to new clauses 11 and 13, which are tabled in my name. Throughout the passage of the Bill, we have had discussions about the security of elections, and there has been much talk about whether individuals can fiddle results and how elections can be stolen. I tabled the new clauses with the hope of making our elections more secure, because we know that when the electoral register is more accurate and more complete, it is harder for malign actors to fiddle it round with just a few votes. At the moment, having 9 million voters either missing entirely or registered incorrectly is a weakness in our democratic system. It is a move to improve the security of our elections to have a more accurate electoral register.
I liked the point made by the hon. Member for Argyll and Bute: we do not register to pay tax, so why do we register to vote? I believe that it is very important to vote, and I tell anybody who will listen how important it is to take part in our elections, but I am aware that many people do not have figures like me in their lives—they are probably grateful for it. Given that we know we can have automatic voter registration and a more accurate electoral register, it strikes me as utterly bizarre that we would not want that—that we would not want a more accurate electoral register and not want to know that when we go to the country everyone who should be registered to vote can vote and hopefully does vote. I would like to see increased voter turnout, but at the moment people are falling at the first hurdle when they find that they are not on the electoral register.
New clause 13 is specifically about colleges and universities, because we know that younger voters are far less likely to be registered than older voters. There is a real gap.
Brendan O'Hara
The hon. Lady has reminded me of our very first evidence session and what she said to Richard Mawrey QC, which was that increasing turnout and participation makes fraud harder. Much of the Government’s case in this whole debate has been about stopping fraud and cheating, and in response to her question, Richard Mawrey said,
“that is absolutely right, because fraud is obviously a relatively risky occupation, and the more bogus votes you have to put in, the more difficult it is.”––[Official Report, Elections Public Bill Committee, 15 September 2021; c. 11, Q9.]
He agreed entirely with the hon. Lady that to widen participation and to increase the franchise is to diminish fraud. Does she agree that automatic voter registration would do exactly that and exactly what the Government have been calling for?
Cat Smith
I thank the hon. Member for reminding us of the evidence that we heard at the beginning of the Committee, or that at least some of us heard—those of us who were listening or who were members of the Committee at that point.
The new clauses—I agree with that tabled by the SNP, too—are all about improving the security of our elections. We did not spend so many hours of our lives debating clause 1, on voter ID, with the Government arguing consistently about the security of elections, only for them to look at these new clauses, which deal with just that, and say, “Well, not those ones.” One could say that it is starting to look a little partisan.
I implore the Minister to look carefully at the new clauses. I appreciate that she is new to the role, and I would be very willing to open a dialogue with her to find ways to get those missing millions on to the electoral roll, because I believe that cross-party consensus can be found. I do not think any member of the Committee would argue that people should be missing from the electoral roll. Our electoral roll should be accurate in reflecting where this country’s voters are and whether they are registered, giving them the opportunity to go and vote.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss new clause 8—Voting from age 16 in parliamentary elections—
“In section 1(1)(d) of the Representation of the People Act 1983 (definition of voting age for parliamentary elections), for “18” substitute “16”.”
This new clause would lower the voting age to 16 in UK parliamentary elections.
Brendan O'Hara
It gives me enormous pleasure to move new clause 4, which stands in my name and that of my hon. Friend the Member for Glasgow North. The SNP believes passionately in this and has supported lowering the voting age for all UK elections since the 1960s.
Winnie Ewing, our first Member of Parliament, spoke about the franchise for 16 and 17-year-olds in her maiden speech way back in 1967, so we come at this as early adopters of the idea. It was with enormous pride that the SNP Government introduced the franchise for 16 and 17-year-olds in the Scottish independence referendum in 2014. That gave us all an enormous sense of pride.
To give 16 and 17-year-olds the vote is to say that they have an equal say and as much of a stake in the future of the country as any other age group—[Interruption.] Sorry, was there an intervention or was that just a general murmur? That Scottish independence referendum set a precedent: it said that 16 and 17-year-olds should have a say on all constitutional issues that affect them. Subsequently, their voting record in Scottish parliamentary and local elections has proven that they are no more or less capable than any other age group in society of making an informed decision. We are absolutely delighted that the Scottish example was followed very quickly by the Welsh Senedd. Now, Welsh 16 and 17-year-olds can vote in elections for their own national Parliament.
The same young people, however, alongside their peers in England and Northern Ireland, cannot have a say on which Government is elected to this place. It is striking that the issue has become so divisive and partisan, particularly given that the last UK-wide lowering of the voting age—from 21 to 18 years old back in 1967—attracted little or no attention or controversy. It is even more remarkable not only because the UK was one of the first democracies to lower the voting age to 18, but because there is now overwhelming proof that lowering the voting age to 16 and 17 years old works. Scotland has shown that it works, so this is not a step into the darkness or a wander into the unknown, but unlike the lowering of the voting age from 21 to 18 years old, it has become hugely controversial, divisive and partisan.
Brendan O'Hara
Unfortunately, my hon. Friend is not on the side I was looking for interventions from, but I will absolutely give way.
Patrick Grady
Indeed, but we have been arguing throughout the Bill that the Government are trying to suppress democracy, and this just goes to show that they are not even willing to allow their Back Benchers to engage with such a fundamentally important proposition. Is it not even more ironic that the Conservatives in the Scottish Parliament supported votes at 16? Perhaps what that demonstrates is that the Government view the devolved Assemblies as lesser places, so they can have strange experiments and expand the franchise if they want to because they do not have the supremacy that this place enjoys.
Brendan O'Hara
I admire my hon. Friend’s powers of provocation, and still the Government Members slumber. Still nobody gets to their feet—[Interruption.] I will take that intervention. No, it was not an intervention. It was just a chuntering from a sedentary position. Perhaps the Minister could speak for them all. Can she explain to us why this is okay for Scotland and Wales? Why, when it has been so demonstrably successful in both of those devolved Administrations, are the Government so absolutely opposed to extending the franchise to 16 and 17-year-olds? The Conservative party in Scotland is okay with it. Someone will tell me if the Conservative party in Wales is not, but, as far as I am aware, it did not oppose it. Why is it okay for Scotland and Wales, and not okay for young people in England and Northern Ireland?
Cat Smith
I rise to speak to new clause 8, tabled by me and my hon. Friends. It was good timing for the SNP spokesperson to open the debate on the age of enfranchisement. The Labour party would extend the franchise to 16 and 17-year-olds. The Welsh Labour Government have done it, and we have seen it work well for a number of years in Scotland. We know that the record of voting in the Scottish parliamentary and local elections proved that 16 and 17-year-olds are more than capable of casting their votes and making informed decisions.
Since this year’s Senedd elections, Welsh 16 and 17-year-olds can now vote for their Members of the Senedd. The experience of the Scottish referendum showed that, when given a chance, 16 and 17-year-olds have a higher rate of turnout than 18 to 24-year-olds, with 75% voting, and 97% say that they would vote in future elections. Only 3% said that they did not know. That flies in the face of some of the arguments that I have occasionally heard in opposition to this idea, although we have not heard any yet today, that say that young people would not be well informed. We know from analysis of the referendum in Scotland that 16 and 17-year-old voters accessed more information from a wider variety of sources than any other age group, so, arguably, they are incredibly well informed and not necessarily biased towards one political persuasion.
A lowering of the voting age has been called for many times over the years. I have called for it many times since I was elected. It would enable young people to have their first experience of voting, often when they are still in full-time education. I know from studies that I have read over the years that if an elector votes the first time that they are eligible to vote in an election, they are far more likely to go on to develop a lifetime habit of voting and engaging in democracy. Again, it comes back to security in elections. One of the best ways we can make our elections safer and more secure is by increasing turnout. A good way of increasing turnout in the long term is to maximise the number of people whose first opportunities to vote come when they are still in full-time education, when they are still very much supported to vote.
At the moment, with the voting age for England and Northern Ireland coming in at 18—it has been 18 for UK general elections, and in Scotland and Wales as well—for many young people their first vote comes at a time of great change in their lives. They might be starting out in the world of work, might have gone off to university to study, or might have recently moved out of the family home. It is far better that we give young people an opportunity to vote and give the franchise to 16 and 17-year-olds so that we can increase the chances of an electorate that is engaged in the process and that votes. That is better for the security of elections.
Kemi Badenoch
I was amazed to hear the hon. Member for Argyll and Bute, who is clearly suffering from significant amnesia if he claims not to have heard the arguments on votes at 16. As the hon. Member for Lancaster and Fleetwood said, the subject has been debated time and again, certainly every single year since 2010. There is no need for me to rehash the arguments. I ask him to ask his parliamentary researcher to research Hansard. Given our manifesto commitment to maintain the current franchise at 18, and having been elected on that principle, the Government have no plans to lower the voting age. We will not support the new clause.
Brendan O'Hara
Yet again the Minister is outrageously dismissive. A part of her job is to answer questions in Committee. This is an important Committee. To say, “Go and ask an SNP researcher” is an absolute outrage. Minister, you have a responsibility to this House to answer direct questions and I am afraid you have been sadly lacking in doing that. We will not push the clause to a vote this afternoon, but we will test the will of the House on Report. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 5
Voting by convicted persons sentenced to terms of 12 months or less
‘In section 3(1A) (exceptions to the disenfranchisement of prisoners) of the Representation of the People Act 1983, after “Scotland” insert “or a parliamentary election”.’—(Patrick Grady.)
This new clause would allow prisoners serving a sentence of 12 months or less to vote in UK parliamentary elections.
Brought up, and read the First time.
Patrick Grady
I beg to move, That the clause be read a Second time.
As with the other new clauses we are debating in this sequence, new clause 5 is about levelling up the franchise for election to the House of Commons with that of the Scottish Parliament. The Scottish Elections (Franchise and Representation) Act 2020 is a genuinely historic piece of legislation. It introduced the widest franchise that has ever existed in these islands, possibly in western Europe. In May this year more people were eligible to vote in the Scottish Parliament elections—indeed, more people did vote—than in any other election ever held. That is even more remarkable given the context of the global pandemic and the severe restrictions on the practicalities of voting and the challenges that people faced in terms of social distancing. More people also voted for the SNP than had ever voted for the SNP before.
The 2020 Act was remarkable. It included, as we have just discussed, votes at 16, and the extension that we will come on to. It also included a small number of prisoners serving sentences of 12 months or less. The Electoral Commission reckoned from electoral returning officers’ data that about 38 eligible prisoners had registered to vote in the election. It is a small number—probably it could be larger—but it is nevertheless significant. In 2005, the European Court of Human Rights found that the blanket ban on prisoner voting in the United Kingdom meant that the country was in breach of article 3, protocol 1, of the European convention on human rights. The Scottish Government therefore see the introduction of this provision as an important step towards compliance with that judgment and respecting the fundamental rights that exist even for people who have been incarcerated.
The legal system in Scotland also now exercises a presumption against short sentences, but that approach and the right to vote if serving a sentence of 12 months or less are both rooted in the principles of inclusion and a desire for rehabilitation. There is therefore not only a human rights imperative to the new clause—to bring the United Kingdom further into line with the judgment handed down by the European Court of Human Rights—but the importance of aligning the franchise across the different legislatures of these islands. That is something that the Government ought to consider and support, although I suspect we will hear the opposite.
Kemi Badenoch
The Government believe that when citizens commit a crime that is sufficiently serious to detain them in prison, they have broken their contract with society to such an extent that they should not have the right to vote in prison. We were elected on a manifesto that makes it clear that we will maintain the ban on prisoners voting in jail. Prison means the loss of a number of rights and freedoms, not least the right to freedom of association and liberty. The Government believe that the loss of voting rights while in prison is a proportionate curtailment of such rights. As such, we cannot support the new clause.
Patrick Grady
I thank the Minister for that brief response. Nevertheless, it is important that we test the will of the Committee, because the new clause is about ensuring that the franchise is aligned and that we are compliant with the decision of the European Court of Human Rights.
Question put, That the clause be read a Second time.
Patrick Grady
I beg to move, That the clause be read a Second time.
This is the last in the sequence of new clauses that reflect the similar provisions in the Scottish Elections (Franchise and Representation) Act 2020. The new clause extends the right to vote to all those with settled status in the United Kingdom—in essence, refugees with a right to remain.
What better way is there to send a message that refugees are welcome here, people who have often fled regimes where universal suffrage and free and fair elections are unheard of? That is why people come to the United Kingdom—they are escaping persecution, because they were living under oppressive regimes. Extending the franchise to such people is an extremely important message to send, but it is also important to the decision-making process, because those voices ought to be heard. Important decisions are made affecting their wellbeing and, frankly, if people in such situations had the right to vote, the way in which they are treated—in particular by this Conservative Government—would be very different.
Most of us have constituents who are refugees or asylum seekers who have not only fled atrocious situations but find themselves living in atrocious situations when they experience the hostile environment that the Government force upon them, whether through the poor condition of their housing or being denied the human right to work. Everybody is born with an innate right to earn their own living, but that right is denied to them by the Government. That is not a right that the Scottish Government are able to extend, which is one reason why they have extended the franchise, because that is within their gift and they want to send that signal that we value the experiences, horrific though some are, and skills that refugees bring to this society and the contribution that they can make.
Brendan O'Hara
On the contribution that refugee communities can and do bring to Scottish society, will my hon. Friend join me in acknowledging and congratulating the contribution made by the Syrian community on Bute? They fled an atrocious, most awful situation in their homeland to come to Bute and are now business owners. Their children have grown, come through the school system and are now at university. These people work and contribute to Scottish society in every single respect, as every other Scot does. The difference is that they cannot vote when it comes to choosing a Government in this place.
Patrick Grady
I absolutely echo everything my hon. Friend says about the incredible contribution of Syrian refugees, particularly in his constituency but in others as well. Refugees from other parts of the world were delighted at the opportunity to take part in the Scottish Parliament elections in May and would dearly love the opportunity to make their voices heard in elections to this place, and indeed to stand as candidates. We spoke about a by-election held in a ward within my constituency boundary, Partick East/Kelvindale. Abdul Bostani, the SNP candidate who achieved a plurality of votes but was unsuccessful because of the preferential voting system, is a refugee from Afghanistan. Our proportional representation list in Glasgow was headed by Roza Salih, one of the “Glasgow Girls”, originally from Kurdistan, who has fought for the rights of refugees. What greater message of tolerance and inclusion can we send than by welcoming people in that situation right into the heart of our democratic system? Equally, what opposite message do we send when such people are excluded, denied the opportunity to vote and denied other fundamental rights that we should have as human beings—rights that cannot really be taken away from them but that are simply denied to them? The right to vote ought to be such a right.
Again, there are two principles behind the new clause. First, the right to vote—that innate right to participation and freedom of speech. In modern democracies, it is understood that the right to vote is part of that fundamental right to freedom of speech. Secondly, levelling up the franchise. I do not think the Minister properly addressed this point in her response to previous new clauses; maybe she can attempt to do so in her response to this new clause. Why are the Government content with, and why do they welcome, the diverging franchise? More people than ever before are able to vote in elections to the Scottish Parliament, and indeed to the Senedd Cymru, whereas the overall effect of the Bill, as we said right back on Second Reading, will be fewer people having the opportunity to vote, because the Government are going out of their way to make it more difficult. Why do they see that diverging franchise as a good thing or something that they do not need to take an opinion on? I look forward to the Minister explaining why the Government want to continue the hostile environment for refugees in regard to their right to vote and responding to those other points on the divergence of the franchise.
The Chair
Apart from the exception that we agreed this morning, if hon. Members want to speak, they should rise a little bit out of their chairs.
Kemi Badenoch
The right to vote in parliamentary elections and choose the next UK Government is rightly restricted to British citizens and those with the closest historical links to our country. European citizens, for example, have never been entitled to vote in parliamentary elections. This new clause would extend the parliamentary franchise to all foreign nationals resident in the UK. The Government have no plans to extend the parliamentary franchise and cannot support the new clause.
Question put, That the clause be read a Second time.
Brendan O’Hara
I beg to move, That the clause be read a Second time.
It is a pleasure to follow my hon. Friend the Member for Glasgow North, who laid out a compelling and detailed case as to why extending the voting right to foreign nationals and widening the franchise is so important. What we have seen is a widening of the franchise in Scotland at exactly the same time as this place seeks to narrow the franchise.
In February 2020, the Scottish Parliament passed legislation extending the vote beyond EU nationals and Commonwealth citizens to include foreign nationals with leave to remain and refugees, adding 55,000 people to the register altogether. That is in stark contrast to what is taking place down here at Westminster. The Scottish Parliament did so because Scotland wants to be that open, welcoming country and that place that is home to anyone who wants to call it home, and it wants to recognise the enormous contribution that EU nationals have made to our country, our society and our general wellbeing. We want to welcome those EU nationals who want to be part of Scotland and we want to give them a stake in, and a responsibility for, the future of the country. The Scottish Parliament has made the decision that anyone who is legally resident in Scotland will have a say in our future, and that is only right.
However, while the Scottish Parliament and Scotland in general seek to reassure EU nationals that they are valued and welcome and we view them as an integral part of our future, the UK Government, at best, use them as a bargaining chip and, at worst, see them as an inconvenience. They may be allowed to pick fruit, or to drive lorries in an emergency, but they most certainly will not be treated as equal or valued citizens. We have got used to having a wide, diverse and growing franchise in Scotland, because that is good for our country and for our democracy. I strongly advise the UK Government to look to Scotland for a lead and to make the status of EU nationals equal across the various Administrations of these islands, because that is ultimately the right thing to do and it is only fair that they do it.
Fleur Anderson (Putney) (Lab)
We have been talking so far about making the Bill less confusing and more streamlined to enable more people to vote—that being the aim—as well as about ensuring that voting has integrity. It will be very confusing to be on the doorstep telling people to vote, depending on whichever agreement we have at the time with different former colleagues in the EU. It would really simplify voting if the new clause were agreed or could at least be considered as the Bill goes forward. It will be very difficult for people to work out whether they possess these voting rights at the time each election happens. To ensure that more people vote and that it is as easy as possible to do so, voting should be as simple as possible, and allowing all EU nationals to vote is the simplest way.
Kemi Badenoch
Our position has always been that after our exit from the EU existing voting and candidacy rights should be maintained where possible. The new clause would extend the parliamentary franchise to EU citizens where no such rights previously existed, as I said during our debate on the previous amendments. Those who are nationals of a member state have never been able to vote in UK parliamentary elections by virtue of their EU citizenship. If an EU citizen becomes a British citizen, they will be eligible for the parliamentary franchise from that point. The right to vote in parliamentary elections and choose the next UK Government is rightly restricted to British citizens and those with the closest historical links to our country.
Brendan O'Hara
I thank the Minister for that pre-prepared paragraph. We will push this new clause to a Division.
Question put, That the clause be read a Second time.
Cat Smith
I beg to move, That the clause be read a Second time.
This new clause would increase the accessibility of postal voting. As we have seen, the Government have reduced voters’ flexibility to use postal votes through the earlier clauses of the Bill. Their changes will make the process of voting more complex and bureaucratic and, I fear, turn voters off bothering to vote at all. Ministers should be directing their energy towards changes that will make voting easier, not putting up more barriers. Since we are considering all things elections, I also wonder why on earth postal voters need to print off and submit a form via the post when it is possible to register to vote online. That an additional administrative burden could be quickly removed through online postal vote applications. The Opposition are trying to make postal voting more accessible, and that requirement is an additional administrative burden that could be removed by allowing online applications.
There is no good reason why the policy intention of this new clause should be voted down by the Government. I would be interested to know whether, if the Minister is not happy with the wording of our new clause, she would be interested in taking it away and exploring ways in which we can embrace digital technology to make our democracy more accessible. She is certainly not afraid of technology: I admire the fact that she is one of the few Ministers who is often at the Dispatch Box with an iPad, rather than a sheet of paper. Given her enthusiasm for all things digital, I wonder whether there is scope for the Government and Opposition to work together and come forward with a solution to digitalise this process, making processes quicker and more accessible for electoral administrators and delivering more of what voters now expect when engaging with any aspect of applying to do things through the state.
Finally, given that COP26 is about to start, moving to online applications would of course reduce the use of paper and would therefore be a greener policy as well.
Kemi Badenoch
Committee members may want to get out their smelling salts, because the Government agree in principle with the introduction of online absent voting applications. The Government developed the basis for a potential online absent voting application earlier this year, and further work is under way to determine whether it can be rolled out safely. The Government are committed to increasing participation in our democracy and empowering all those eligible to vote to do so in a safe, efficient and effective way.
As the hon. Lady mentioned, an important part of the legislation is to provide electors with a choice on how to cast their vote. Now more than ever, people may wish to make use of absent vote and postal vote methods, which are essential tools in supporting voters to exercise their right to vote. As she said, in a digital world, it is right that we spread the use of technology, when that can be done safely, to further increase accessibility and the efficient running of our elections.
Cat Smith
After five and a half years of campaigning for digital postal vote applications, I am very pleased with the Minister’s response. I have always thought her a reasonable woman, and I look forward to further conversations in which we can find consensus. In that spirit, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 10
Emergency appointment of proxy
“(1) The Secretary of State must make regulations enabling voters on a relevant electoral register to apply to appoint a proxy on grounds of a personal emergency.
(2) Such applications shall be granted by the relevant registration officer provided that the officer—
(a) is satisfied that the reason for the application is such that it would be unreasonable for the applicant to vote in person,
(b) has no reasonable grounds to believe that the stated basis for the application is untrue, and
(c) has received the application not later than 5 pm on the day of the poll at that election.
(3) The Secretary of State may issue guidance to registration officers on fulfilling their duties under this section.”—(Fleur Anderson.)
This new clause would allow voters to make applications for proxy votes on grounds of personal emergency up to the day of the poll.
Brought up, and read the First time.
Fleur Anderson
I beg to move, That the clause be read a Second time.
Maybe we are on a roll; this could be great. I have a confession: not a day goes by that I do not think about the next election, but I think I am in the minority. The new clause would extend the deadline for the emergency appointment of proxies to the day of the election, because a lot of people do not think about election day until the day itself. That would maintain a change that was made by the Government during the covid pandemic, when they extended the deadline for proxy voting to the day of the election. What the Government did during covid was a good thing, and we should learn from some of the changes we had to make under dreadful circumstances by incorporating those changes into our best practice for future elections. The explanatory notes state:
“This Bill makes new provision for and amends existing electoral law to ensure that UK elections remain secure, fair, modern, inclusive and transparent.”
On-the-day proxy voting would do just that.
The former Minister for the Constitution and Devolution, the hon. Member for Norwich North (Chloe Smith), wrote to the Chair of the Public Administration and Constitutional Affairs Committee, the hon. Member for Hazel Grove (Mr Wragg), back in February. She said:
“An emergency proxy vote is available in certain…circumstances (such as illness)”
close to polling day. She continued:
“The government is amending secondary legislation to further support proxy voting for people affected by coronavirus close to the polls. In particular, these changes will allow those self-isolating as a result of coronavirus exposure, testing or symptoms to apply for a proxy vote in the days leading up to polling day and until 5pm on the day itself, without having to find someone to attest their application”
or to change who is appointed as proxy if the proxy is affected by coronavirus. She went on:
“This will also be available to those who test positive for the virus, on the same basis.”
We would argue that those conditions will continue, because there are other illnesses and other reasons why people will not know that they need a proxy vote until polling day. My husband had to take an emergency flight to Sudan two days before the referendum, so I had to apply for a proxy vote so that he could vote. He would have felt very hard done by and disappointed had he been unable to vote in that referendum. If he had had to fly the night before the election, he would have needed to get the proxy vote on the day itself. Taking the ability to vote away from him and so many others who, owing to illness or other reasons, do not know that they are unable to vote until election day will reduce and suppress voting.
Cat Smith
This strikes me as a timely point in proceedings to remind the Committee that we all get ill occasionally. Indeed, a member of the Committee is not here because he has coronavirus. As it happens, Committee members can pair so that the outcome of a vote is not affected by absence, but in a general election there is no opportunity for a voter to pair with a voter for another party and to agree not to turn up at the polls because one of them has coronavirus. Perhaps the lesson from this Committee is that we are all susceptible to illnesses, and therefore this is a reasonable new clause.
Fleur Anderson
Absolutely. We just do not know what will happen on the day. We do not want people to lose out on a vote just because emergencies happen. To extend proxy voting will not cost any more. It will not undermine any of the previous clauses; it does not change the fact that voting will be secure—the same security will be there. It all stays the same, but extends it until 5 o’clock on election day, which seems a fair thing to do, and I urge everyone to support the new clause.
Kemi Badenoch
The Government cannot support the new clause as we believe that in order to maintain the integrity of the electoral process, the emergency proxy provision cannot be drawn too widely. We discussed that in passing when considering other clauses. The arguments for emergency proxies still stand. There is already provision for electors to be able to apply for an emergency proxy, as the hon. Member for Putney said, in the event of illness or recent disability or for reasons of occupation, service or employment. These are important provisions that facilitate participation in the electoral process.
In his review into electoral fraud, Lord Pickles considered emergency proxy voting and found that there was concern among electoral administrators that widening the right to an emergency proxy would increase the risk of fraud. We therefore have no plans to increase the availability of emergency proxy voting.
Question put, That the clause be read a Second time.
Fleur Anderson
I beg to move, That the clause be read a Second time.
The new clause is in a similar vein to the previous new clause. It would require officers to make provision for voter registration up to and including polling day.
Yesterday, the ultra low emission zone was extended—bear with, because this is relevant. Plans for the ULEZ started in 2014; it was announced in 2017, there were lots of consultations across London, and it was introduced in 2019. There were further consultations on extending it, as has happened. More consultations and measures were put in place. It was very controversial. Signs have been going up on our streets since May. Yet still, yesterday, it was a surprise to some people. A lot of constituents got in contact with me, saying, “What is this ULEZ? Why don’t I have a say on what’s happening?”
As we all know, we might flag something, advertise it as much as we like, but some people will be surprised to find that it is election day. They will be surprised to find out that they have to use their ID to vote. They will be surprised to find out that the deadline to get a postal vote or voter ID has passed. These changes will be a surprise to many. There are 9 million people of voting age not on the register. The moves in the Bill to increase the frequency of registering for a postal vote and to change to the voter ID system will not be known about by many people until election day.
As I have said, every single vote counts. I am sure we all agree. However, in every single pilot for this Bill, people were turned away from polling stations and then did not return because they did not know about the different provisions being made. Some elections are won or lost by a single vote, or a handful of votes.
This, therefore, is a high-risk strategy; if same-day voter registration is not allowed, the Bill will stop people from voting. It is an unproven system—there were not many pilot schemes—and at the cost of £120 million, we must get it right. We should be increasing voting, not decreasing it, and having same-day registration will increase voting. The new clause will enable everyone who wants to vote to vote. Not allowing same-day registration will prevent that.
I am sure the Minister will not accept the new clause, despite the earlier signs of change. However, I challenge her to return to amend the Bill, if this is not accepted, with the provisions that she would deem necessary to enable same-day registration, and to match the ID that would be deemed to be strong enough, safe enough and secure enough to maintain the integrity of the Bill, in the Government’s view, but also allow same-day voting.
Kemi Badenoch
We cannot agree to the new clause, as it would have a significant logistical impact on the conduct of elections. Allowing registrations on polling day itself would raise issues about how the eligibility of applicants can be verified, and uncertainties as to the register to be used for the election, undermining confidence in the process.
All applications should be subject to the same level of scrutiny and checks; if we allow applications to be made on the day, that would leave electoral registration officers having to confirm a person’s eligibility after the close of poll. As there is a legal requirement that returning officers start the count within four hours of the close of poll, that would have a significant impact on the timing of the declaration of the results for polls. The declaration would need to be delayed, pending confirmation that those voters who registered on polling day were indeed entitled to vote at the poll.
Any same-day registrations would need to be verified by EROs, which could take some days to do. That would no doubt present some issues to the longstanding tradition of counting and declaring election results as soon as possible, which has had benefits for establishing certainty and for having a Government in place as soon as possible. I therefore urge the hon. Lady to withdraw the motion.
Question put, That the clause be read a Second time.
Fleur Anderson
I beg to move, That the clause be read a Second time.
New clause 14 cuts the connection between the ability of overseas voters to vote and to donate. I have high hopes that it will be accepted. I have that hope because when debating amendment 79, which is related to new clause 14, the Minister said that she was interested in talking further about the issue. This could be the one!
Cat Smith
I wonder whether my hon. Friend would like to draw the Committee’s attention to the findings in the Russia report, which I feel have not been discussed enough in the House. I am very proud of our British democracy, and I hope that Government Members are too. The report highlights the very real risks that British politics would be left to the influence of foreign money. I hope new clause 14 will go some way to protecting the democracy we hold so highly in this country, protecting it against foreign interference.
Fleur Anderson
I thank my hon. Friend for raising the awareness of the report to the Committee and directing us toward the potential risks when it comes to overseas permitted donors. Those open the door to a lot of concern, which we have seen in the past and has been reported on in past elections.
What better way is there to have influence than with a UK residency? Someone could be living here as a student, qualify as a resident, then return to their country and many years later be able to register as an overseas voter, thus being able to bankroll and influence our parties. It is unfair and wrong that there is a loophole. People who do not live in the UK and pay tax and are not affected by the rules and decisions of elected politicians can take such a full and active role in financing our political system, giving them more of a say—because of their wealth—than many working people living here all their life, who are very affected by the decisions made.
Many feel that Tory donors, for example, already have more of a say than working people in this country, and the Bill will only continue that fear. As the shadow Minister said previously in Committee,
“My biggest concern about the overseas electors section of this Bill is the fact that it could undermine the integrity of our electoral process.”––[Official Report, Elections Public Bill Committee, 21 October 2021; c. 245.]
Let us be clear: the true motivation behind these changes to overseas voting is to create a loophole in donation law that would allow donors unlimited access to our democracy, allowing them to bankroll Tory campaigns, for example, from their offshore tax havens. If that is the case, then vote against the amendment, cut the link between overseas voters and permitted donors, and only allow overseas voters to vote. It is as simple as that. If that is not the true motivation, let us close the loophole and cut the link by voting for new clause 14.
Kemi Badenoch
As the hon. Member mentioned, we discussed this issue when considering clauses on overseas electors. I did agree with Opposition Members that we should look at ways to ensure that we do not inadvertently create new loopholes while trying to secure the voting system or inadvertently extend the franchise beyond the Bill’s intention.
Having said that, what the hon. Lady refers to as a loophole is not. It is a long-standing principle—one originally recommended by the Committee on Standards in Public Life in 1998—that permissible donors are those on the UK electoral register. If someone can vote for a party, they should be able to donate to it.
UK electoral law already sets out a stringent regime of spending and donation controls, to ensure that only those with a legitimate interest in UK election can donate or campaign. That includes British citizens who are registered as overseas electors. I have explained that I am very open to discussing what we can do to secure the system but, for the reasons I have outlined, the Government do not support the new clause. I hope the hon. Member for Putney understands that and will withdraw the new clause.
Cat Smith
I wonder whether I might trouble the Minister. Will she commit to a meeting to discuss the specific issues that the new clause raises, looking particularly at the Russia report and whether we could find cross-party agreement on ensuring that our elections and democracy are safe and secure?
Kemi Badenoch
I am very happy to have a meeting, and I think we should look at the whole section on overseas electors. I have not read the Russia report, so I am keen to get a briefing on it from the hon. Lady. I am sure that officials will also prepare a briefing so that I can fully understand. Given that, I hope the Opposition will withdraw the new clause.
Question put, That the clause be read a Second time.
Patrick Grady
I beg to move, That the clause be read a Second time.
I am not sure how Sir Edward Leigh, one of the other Chairs of the Committee, will feel about this, because I know that he was looking forward to chairing the final session next Wednesday. I will just have to keep this going until the rise of the House, and then for both sessions on Thursday, so that he has the opportunity to hear the Committee conclude its considerations. Otherwise, we will just have to get on with it as quickly as we can—I think we all need a break.
This is a relatively straightforward new clause, and I look forward to hearing the Government’s response to its principles, because it reflects the concerns that were expressed earlier when we considered part 3 and the powers of the Electoral Commission. The Government had real concerns that it was not an effective regulator—that it lacked teeth and was somehow not capable of exercising either the deterrent or the punishment when electoral offences took place. The new clause is a way of giving the commission the powers for which it asked, and to change the relatively arbitrary upper threshold of £20,000 that it can levy as a fine for certain offences to a much more proportionate response, either as a proportion of the total spend of the organisation or individual being penalised, or to a maximum of £500,000, whichever is greater.
Brendan O'Hara
Has my hon. Friend, like me, barely slept at night since hearing the tales of widespread personation, voter fraud, intimidation and postal vote harvesting—all manner of fraud, theft and deception—that came from Government Members in the first two or three days, when they used to participate in the Committee? Does he share my confidence that they will look at what is contained in the new clause and support it in order to give the Electoral Commission the full force of the law, and so that the guilty will not go unpunished, as they have insisted throughout, and a £500,000 penalty is just the thing to do it?
Patrick Grady
My hon. Friend is absolutely correct, and the point about proportionality is very important. We have heard about the rampant corruption in the UK electoral system and the complete inadequacy of the police, the Electoral Commission, local election returning officers and so on. A picture has been painted throughout the passage of the Bill. Why would the Government be content to keep the maximum level of fine at £20,000, when the Electoral Commission says it is really not adequate to provide either a deterrent or a punishment?
One example on which everyone in this room will find a point of consensus was when the Liberal Democrats were fined £20,000. [Hon. Members: “Hear, hear!”] They are not here to defend themselves—it is a wee shame. In all seriousness, the investigation that year found that 307 payments totalling £184,676 were missing from the Liberal Democrats’ spending return without a reasonable excuse. In return, they were fined £20,000, which was the maximum that the Electoral Commission could levy.
I would not suggest that is the mindset of the Liberal Democrats, but less scrupulous participants in our electoral process might think that £20,000 was a price worth paying for not reporting figures that were nearly 10 times that amount. To be clear, I am not saying that was the case with the Liberal Democrats, but perhaps other, less scrupulous participants might adopt that attitude.
We should adopt a more proportionate system by simply raising the maximum threshold. We are all familiar with the scene in “Austin Powers” where Dr Evil demands a ransom of $1 million as part of his nefarious plan to take over the Earth, and everybody laughs because it is not a huge amount of money in the modern world that he has woken up in. Similarly, a fine of £20,000 does not adjust for the rate of inflation and cost of inflation—not least the increases that we are experiencing as a result of the Tories’ disastrous Brexit policies.
A fine of £20,000 is not as high as it could be, so a maximum of £500,000 is slightly more realistic in the modern world, and then the proportionality of the 5% gives the Electoral Commission that extra flexibility and additional teeth that it might need to serve as a deterrent or to take action in the event of a breach. I have no doubt that the Minister will have lots of creative reasons for rejecting the new clause, and I look forward to hearing what they are.
Kemi Badenoch
The Government do not support the new clause for several reasons. I am aware that the Committee on Standards in Public Life recommended in its “Regulating Election Finance” report that the Electoral Commission’s fining powers should be increased to 4% of a campaign’s total spend, or £500,000—whichever is higher. The new clause closely mirrors that proposal.
The Government’s view is that the commission already has adequate powers to impose civil sanctions on political parties and non-party campaigners of up to £20,000 per offence. The new clause would increase that to £500,000 per offence. We should remember that criminal matters can be and are referred to the police, and in certain cases are taken to criminal prosecution. The courts have the power to levy unlimited fines for some offences and custodial sentences.
As set out in the Government’s response to the Committee on Standards in Public Life report, any extension of the commission’s fining powers would need to be considered carefully to assess their necessity and proportionality, because it is vital that they are an effective deterrent but do not cause a chilling effect on electoral participation and campaigning. Any direct comparisons with fines that can be issued by the Information Commissioner’s Office should note the clear difference between the two regulators and the types of entities that they regulate.
I sympathise with the example that the hon. Member for Glasgow North gave about the Liberal Democrats, but the truth is that political parties are not global corporations. There are over 350 currently registered with the Electoral Commission, many of which are predominantly made up of volunteers. As part of the further work of looking at the regulatory framework for elections beyond this Bill, the Government intend to look at all the recommendations in the report from the Committee on Standards in Public Life, alongside similar ones, including the forthcoming report on the commission from the Public Administration and Constitutional Affairs Committee. For these reasons, I urge the hon. Member to withdraw the new clause; or the Committee to oppose it.
Patrick Grady
Perhaps if the Minister had been willing to give a little ground, we would be willing to withdraw the new clause. However, we will test the will of the Committee by pressing it to a vote.
Question put, That the clause be read a Second time.
The Chair
Before we finish, I would like to thank the Clerks, who looked after us so well, the Doorkeepers, Hansard, the broadcast team, all of you for attending, and my other Chairs. I am glad that we have got through it today. I am sure that all hon. Members would like to pass on their best wishes to our right hon. Friend the Member for Elmet and Rothwell, who is unwell at the moment. Congratulations to the hon. Member for Peterborough on his recent marriage. I am going to include my own little congratulations to the hon. Member for Glasgow North, because in the 10 years that I have been on the Panel of Chairs, I have never before heard Austin Powers mentioned in debate. As a great fan of Austin Powers, I was thrilled and delighted.
Bill, as amended, to be reported.