All 6 Public Bill Committees debates in the Commons on 4th Nov 2021

Judicial Review and Courts Bill (Third sitting)

The Committee consisted of the following Members:
Chairs: † Sir Mark Hendrick, Andrew Rosindell
† Barker, Paula (Liverpool, Wavertree) (Lab)
† Cartlidge, James (Parliamentary Under-Secretary of State for Justice)
† Crawley, Angela (Lanark and Hamilton East) (SNP)
† Cunningham, Alex (Stockton North) (Lab)
† Daby, Janet (Lewisham East) (Lab)
Fletcher, Nick (Don Valley) (Con)
Hayes, Sir John (South Holland and The Deepings) (Con)
† Higginbotham, Antony (Burnley) (Con)
† Hunt, Tom (Ipswich) (Con)
† Johnson, Dr Caroline (Sleaford and North Hykeham) (Con)
† Longhi, Marco (Dudley North) (Con)
† McLaughlin, Anne (Glasgow North East) (SNP)
† Mann, Scott (Lord Commissioner of Her Majesty's Treasury)
† Marson, Julie (Hertford and Stortford) (Con)
† Moore, Damien (Southport) (Con)
† Slaughter, Andy (Hammersmith) (Lab)
† Twist, Liz (Blaydon) (Lab)
Huw Yardley, Seb Newman, Committee Clerks
† attended the Committee
Public Bill Committee
Thursday 4 November 2021
(Morning)
[Sir Mark Hendrick in the Chair]
Judicial Review and Courts Bill
11:30
None Portrait The Chair
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I have some preliminary announcements. I remind Members that they are expected to wear a face covering, except when speaking or if they are exempt. That is in line with the House of Commission’s recommendations. Please also give each other and staff space when seated and when entering and leaving the room.

I remind Members that they are asked by the House to have a covid lateral flow test twice a week if coming on to the parliamentary estate. That can be done either at the testing centre on the estate or at home.

Observing the Members present, on the Government Benches at least, only the payroll vote are wearing a mask, although a couple more are putting on masks now as a result of my recommendation. I hope that during the course of today’s proceedings, Government Members give serious consideration to wearing a mask. Obviously, I am not wearing one, because I am chairing the event, and officials either side are at a safe distance.

Hansard colleagues will be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent. Tea, coffee and other beverages, apart from water, are not allowed during sittings, so I recommend Members comply with that, otherwise they might not be called to speak.

We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or similar issues. Please note that decisions on amendments do not take place in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment takes place when we come to the clause to which the amendment relates.

The Member who has put their name to the lead amendment in the group is called first. Other Members are then free to catch my eye to speak on any or all the amendments within that group. A Member may speak more than once in a single debate. At the end of the debate on a group of amendments, I shall again call the Member who moved the lead amendment. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or to seek a decision. If any Member wishes to press any other amendment in a group to a vote, they need to let me know, please.

Clause 1

Quashing orders

Andy Slaughter Portrait Andy Slaughter (Hammersmith) (Lab)
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I beg to move amendment 12, in clause 1, page 1, line 8, leave out from “order” to the end of line 9.

This amendment removes the statutory power for courts to award prospective only quashing orders and preserves the status quo in relation to the retrospective effect of quashing orders.

None Portrait The Chair
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With this it will be convenient to discuss the following:

Amendment 35, in clause 1, page 1, leave out lines 10 and 11.

This amendment removes the ability to make a suspended or prospective-only quashing order subject to conditions.

Amendment 40, in clause 1, page 1, leave out lines 15 to 18.

See explanatory statement to Amendment 12.

Amendment 41, in clause 1, page 2, line 2, leave out “or (4)”.

See explanatory statement to Amendment 12.

Andy Slaughter Portrait Andy Slaughter
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It is a pleasure to be here under your chairmanship this morning, Sir Mark. I hope that we will have some interesting debates over the next few weeks. I also welcome the Minister to the first Bill he is to take through the House. I will also mention—[Interruption.] I was going to mention my own side, but they seem to have temporarily left the room for urgent Chamber business. I will not take that personally—not at this stage. In his absence, however, I am grateful to my hon. Friend the Member for Stockton North, who as shadow Courts Minister will lead for the Opposition on much of part 2 of the Bill. Like most Justice and Home Office Bills, this is a bit of a Christmas tree Bill—we are getting near to Christmas—so while I will lead on part 1, on coroners and employment tribunals, I am grateful for his expertise. I am also grateful to my hon. Friends the Members for Lewisham East and for Liverpool, Wavertree, who are current or former members of the Select Committee on Justice, and to my hon. Friend the Member for Blaydon, who keeps us all in order.

The Conservative members of the Committee are all here, I think, except for the right hon. Member for South Holland and The Deepings. I am wearing my intermediate glasses, which means I cannot see anything close up or far away. We did not hear a great deal from the Conservatives in the evidence sessions. Other than the right hon. Gentleman, they kept their powder fairly dry, but I will try and provoke them to more animation today.

Amendment 12 seeks to excise the most obnoxious proposal in part 1 of the Bill: prospective-only quashing orders. To give some context, the Government will present the Bill as a moderate, reasonable adjustment to the art of judicial review—no more than a rebalancing. The right hon. Member for South Holland and The Deepings gave some cover to that in his questions and comments in the evidence sessions. I do not want to put words into his mouth, but he suggested that it was a rather milk-and-water Bill and could go much further in reigning in judges to allow Parliament freer expression, if I understood him correctly. I disagree. I think that the Bill is a misreading of the purpose of judicial review and has an unhealthy focus on the constitutional periphery of its operation, rather than the practical effect it has on asserting the rights of the citizen against the state.

Antony Higginbotham Portrait Antony Higginbotham (Burnley) (Con)
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Would the hon. Member not accept, however, that in the 2019 election those of us on this side of the House stood on our manifesto that said we would look to reform judicial review? The Bill has not just been brought forward; my electorate in Burnley explicitly voted for it because they had seen the chaos in the 2017 to 2019 Parliament.

Andy Slaughter Portrait Andy Slaughter
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I always defer to the electorate of Burnley, all of whom, I am sure, had a copy of the Conservative manifesto. I will come back to the hon. Member’s question, because I first want to give some context around the recent history of how we got to this Bill.

We took evidence from a large number of very senior experts. Even the Government-invited experts, if I may call them that, did not really agree with the Government’s view either—not even Professor Ekins, who had innumerable suggestions for other interventions by the legislature to reverse individual decisions but did not suggest codification or enshrining judicial review in statute, which this Bill does not seek to do. We disagree that the Government have been restrained or that the Bill needs more heft, either around the doctrine or individual case examples. We think it already goes too far.

We will argue today in Committee that prospective-only quashing orders strip claimants of their right to remedy and make the unlawful lawful. That presumption is in favour of suspended quashing orders, prospective-only quashing orders, fettered judicial discretion, and, in effect, a judicial process with heavy-footed statutory direction. The collateral damage caused by this interfering with a well-understood process of defining the legal limits of state actors will cause unintended victims and create more uncertainty and satellite litigation.

On clause 2, we will also argue that the use of ouster in Cart/Eba cases will not only leave very vulnerable persons in danger, but will open the door to more frequent incidents of legislation ousting the jurisdiction of the High Court, using the Bill as, in the Government’s own words, a template for further ouster clauses.

I am extremely grateful for the help and suggestions on how to structure these comments—from the Clerks for the way they group and help perfect the amendments, to the House of Commons Library for its excellent briefings and the many organisations for who sent us their thoughts. They are too numerous to name them all, but I must mention those that gave evidence on Tuesday: Liberty, Justice, Public Law Project, The Law Society and Amnesty International UK—all well known in the field of administrative law and human rights. We also received briefs from environmental, educational, equality and immigration non-governmental organisations and charities.

I mention that because the thrust of many of the arguments against the Bill are that it limits the ability of civil society in all its forms and of the individual to challenge the state. That is important because the attempt to characterise judicial review as the creature of lawyers and lefties, which to this Government appear to be two sides of the same coin, could not be further from the truth.

Judicial review is simply the modern name for the centuries-old common-law supervisory jurisdiction of the superior courts to ensure that decisions of public authorities, including statutory tribunals, respect the limits on their powers that are imposed by law. The existence of the courts’ common-law jurisdiction makes it possible for a person to go to court and argue that a decision or action of the state was unlawful. The court can rule that the decision or action was unlawful if it was illegal, irrational, tainted by procedural impropriety or a disproportionate interference with a fundamental right. It is one of the most fundamental checks and balances within the UK constitution to ensure that public authorities act fairly and in accordance with the law. It also gives individuals a route to challenge officialdom where it may have overstepped its powers.

To quote the right hon. Member for Haltemprice and Howden (Mr Davis), as I may do on more than one occasion:

“Judicial review is a cornerstone of British democracy. It empowers everyday people to challenge decisions made by public bodies. Whether it be central government or local authorities, rule makers are held accountable by ordinary people. This is a small, but important, check on the balance of powers in our democracy.”

Some of the framework rules for judicial review are set out in the Senior Courts Act 1981, but it is important to appreciate that the courts’ power of judicial review is not something judges have been given by Parliament, but an inherent common-law jurisdiction dating back centuries to when the courts first began holding power to account. Therefore, much of the content of these rules are spread across these different cases.

If a court finds that the decision or action was unlawful, it will make a declaration to that effect if it is just and convenient to do so. It has the power to make three specific orders: a mandatory order, which orders the state to do something; a prohibiting order, which prohibits the state from doing something; or—relevant to these discussions—a quashing order, which rules that a thing done by the state is void and has no legal effect. On the other hand, a declaration is simply a formal statement setting out the legal state of affairs. We will see the importance of that when we talk about suspended quashing orders later on. A declaration is non-executory in the sense that it does not command anyone to do anything; it simply declares what the legal position is.

A quashing order is different as it is executory: it orders something concrete and has legal consequences. A quashing order rules that a decision was void and therefore has no effect. Rather than simply declaring, for example, that a planning decision was unlawful, a quashing order would quash that decision meaning it has no continuing effect and has never had any effect from the moment it was made.

The long-established default position in judicial review cases is that where unlawfulness has been established, for example because a public authority has acted beyond its powers, a declaration is insufficient and one of the specific orders must be given. According to Lord Bingham, speaking in a judicial capacity, under the rule of law

“the discretion of the court to do other than quash the relevant order or action where such excessive… power is shown is very narrow.”

The Bill is not the first time in recent years that a Conservative or coalition Government have sought to rein in judicial review. Between 2010 and 2015, various proposals were consulted on and legislated for. In particular, in 2013, changes to the civil procedural laws reduced time limits for bringing claims in planning and procurement cases, introduced new fees and denied some renewed hearings. The Criminal Justice and Courts Act 2015 introduced provisions on leapfrog appeals, wasted costs orders and the refusal of some remedies.

However—interestingly—the most controversial proposals on legal aid and standing originally designed to be in that Act were not pursued. It was a case of rhetoric meeting the practice of the courts and the former withering in the gaze of the latter. Perhaps that will happen again with these proceedings—in the other place if not here—because we are again in the territory of crowd-pleasing rhetoric, or Back Bencher-pleasing rhetoric, coming under scrutiny.

11:45
The 2019 Conservative party manifesto made a commitment to “update…administrative law” to find the correct balance
“between the rights of individuals…and effective government.”
I think it none-too-softly meant, “Those pesky judges are getting in the way again.” I have never knocked on a door to be met by someone concerned about judges off the leash as opposed to delays in proceedings and getting to court or a lack of access to legal help or legal aid—they come up all the time. I rather assume that the Conservative party itself was the audience for the promise in that passage.
That promise forms part of a basket of promises to restrict civil liberties, many of which have led or are leading to legislation. The Bill constitutes just one part of the Government’s broader programme of constitutional reform, which includes: an independent review of the Human Rights Act 1998, which is under way; a review of the Constitutional Reform Act 2005 promised by the previous Lord Chancellor, although I do not know whether the current one intends to take that forward; and a succession of coercive pieces of legislation such as the Elections Bill, the Police, Crime, Sentencing and Courts Bill, and the Nationality and Borders Bill, which is currently in Committee.
Each of those should be seen as parts of a whole: a concerted attempt to shut down potential routes of accountability and exert the power of the Executive over Parliament, the courts and the public. I am concerned that the Bill forms part of a broader drive to increase Executive power, limit and control oversight mechanisms and reduce the ability of individuals, the courts and Parliament to hold the Government to account.
The Government claim that the Bill will
“ensure that Judicial Review is available to protect the rights of the individuals against an overbearing state”.
Regrettably, it will have quite the opposite effect. The Bill risks significantly reducing judicial review’s impact and allowing public authorities to dodge the consequences when they act unlawfully.
Alex Cunningham Portrait Alex Cunningham (Stockton North) (Lab)
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Can my hon. Friend think of any reason why a Government or any other body should be afraid of the judicial review process if they think that they got it right in the first place?

Andy Slaughter Portrait Andy Slaughter
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I am grateful to my hon. Friend, who makes exactly the right point. He did not hear me paying tribute to him when he was temporarily detained elsewhere. I am pleased that, as an experienced shadow Minister, he is on the Committee.

People in charge of public authorities should welcome judicial review, which, like many court and tribunal processes, is a way to scrutinise and improve decision making either directly through a challenge or because they want to avoid such a challenge. In my humble way, I remember the 10 years or so when I was running a local authority, and unless other members of the Committee were also in that position—there may well have been—I have probably been subject to more judicial reviews than anyone on the Committee. I must say that while we can take a view on the merits of an individual case, the process is generally beneficial for the authority. As my hon. Friend said, what have they got to hide?

Janet Daby Portrait Janet Daby (Lewisham East) (Lab)
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Does my hon. Friend agree that judicial reviews are a part of the checks and balances on Government?

Andy Slaughter Portrait Andy Slaughter
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I absolutely agree. It is an important part of those constitutional checks and balances, and it has become more important. In a country without a written constitution, it is totally appropriate that a common-law process such as judicial review should develop as it has. I do not mean that it is excessive or that it has grown out of control; it has simply moved with the times in a way in which our senior courts in particular are able to do. As I say, the Bill is a clear attempt to reduce proper accountability for state actions.

Antony Higginbotham Portrait Antony Higginbotham
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The hon. Gentleman seems to be putting forward a narrative whereby people listening to these proceedings, who do not know what is going on, might think that judicial review is going away somehow. Actually, that is not what will happen as a result of the Bill; it seeks to continue the evolution in ensuring that judicial review is used proportionately. Will the he confirm my understanding that judicial review will still be available for people who want to challenge Government decisions? It is really important that the general public do not think that a potential remedy is disappearing.

Andy Slaughter Portrait Andy Slaughter
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The hon. Gentleman is being very sharp this morning, because he is always one point ahead of me. I am coming to exactly that in discussing how these provisions were formulated, and I accept entirely what he says. The Bill could have gone a lot further, and there were proposals to go further in the Government’s consultation, but that does not mean that there are not significant changes in the Bill. I do not agree that it simply tidies things up or that the changes are a logical progression, and I will try to persuade him of that slowly but surely.

Under the Bill, claimants and others affected by unlawful decisions made by the state could find that they win their case but get no proper remedy and see no real impact on their lives, or on the lives of anyone else who has been negatively affected. If I am right about that, it is a significant change. On the hon. Gentleman’s point, we were promised—I think in the same 2019 Conservative manifesto—overarching constitutional reviews of criminal law and democracy, but they have not materialised. It may be that wiser heads have prevailed, but it may also be that rather more quick and dirty results are being demanded.

The Government have opted instead for a series of reviews. In this discipline, the independent review of administrative law was established under Lord Faulks. It asked whether judicial review was being abused by creating needless delays and allowing political matters to be litigated through the courts. There was concern from many in the legal community that the review would lead to the courts being sidelined and the Executive being granted too much power without enough accountability. However, IRAL’s recommendations were mainly practical and incremental, and they did not contain the radical proposals that some had feared.

The panel was against codifying the grounds for judicial review. It thought that ouster clauses were appropriate only in limited circumstances, and it disapproved of prospective-only quashing orders. Perhaps for that reason, the then Lord Chancellor took the two IRAL recommendations that he liked—on suspended quashing orders and on reversing Cart—and conducted his own consultation. The consequences of that second bite, or some of them, are in the Bill, though it still has too little red meat for some people. The Bill proposes a range of further reforms that risk weakening the rule of law and narrowing access to justice for vulnerable people.

Clauses 1 and 2 seek to limit the vital check on Executive action and create a statutory presumption that remedies available in judicial review should be suspended or made prospective-only. Clause 1 gives judges the power to issue suspended and prospective-only quashing orders, the latter of which would prohibit future unlawful decisions without invalidating any prior actions based on that decision. The Bill undermines accountability and creates additional and unnecessary barriers to individuals seeking redress when they are affected by unlawful actions of public authorities.

Paula Barker Portrait Paula Barker (Liverpool, Wavertree) (Lab)
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Does my hon. Friend agree that removing retrospection could mean illegal acts are thus made legal, and that there is very little remedy for those who seek recompense?

Andy Slaughter Portrait Andy Slaughter
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My hon. Friend has put her finger on the main objection, but it is not the only objection. It will cause a great deal of confusion, and I do not think the courts will like it. They will therefore try to find ways around it, as courts tend to do in such circumstances, and there will be uncertainty over whether something was lawful, and whether it was lawful for all purposes. Again, I will come on to those issues, but this just opens cans of worms. The Government also assert that this is a simplifying and clarifying measure, but it will have exactly the opposite effect.

Marco Longhi Portrait Marco Longhi (Dudley North) (Con)
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I take issue with the hon. Member’s characterisation of how the courts may work under the new jurisdiction of the Bill, when it is enacted. He also mentioned the expert advice that we heard the other day. Jason Varuhas, professor of law at the University of Melbourne, stated:

“I think these remedies are welcome, because they provide for a greater remedial flexibility for courts—for courts to tailor remedies in their discretion, to the exigencies of the particular facts of the case. It is important to bear in mind that these remedies will be discretionary and the courts will take into account a range of relevant considerations in exercising that discretion. Courts are well versed in exercising remedial discretion—courts can be expected to respond to the justice of the particular case. What the Bill does is to give the courts more options.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 10, Q6.]

Andy Slaughter Portrait Andy Slaughter
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I am not persuaded by that. I do not want to disagree with the eminent professor, but I am tempted to say, “Two professors, three opinions”, and we had at least six professors. I thought it interesting that they did not all say what I expected them to say. There was some disagreement. The civil liberty organisations did not agree on everything—some supported the suspended order and some did not. I thought the openness of the first panel on that was quite refreshing. It is true that there are views on both sides, and that will always be true.

In the passage that the hon. Gentleman read out, I specifically disagreed with the idea that the Bill gives judges more power and discretion. In a literal sense, if we give someone a new type of order, we could say, “That has given them a wider range of options”. If we constrain how they can use those orders or we give them orders that they have not sought, however, it has exactly the opposite effect. We should be securing fair, accessible and efficient legal processes, in which the individual’s rights are protected, and which reflect this country’s international reputation for upholding and promoting the rule of law, not precluding practical access to public law remedies.

Unless the Bill is amended as we suggest, it will negatively affect the ability of ordinary people to hold the Executive to account and safeguard their own rights. That is the other side of the coin. We are, of course, interested in the respective powers and the balance between Government and the courts, but we are also very concerned—sometimes more so—about the individual citizen’s rights and their ability to get redress. Our laws and legal processes allow ordinary people to challenge Governments and public authorities when they get it wrong. They help us stand up to people in power. We all deserve effective access to justice and a fair hearing. Judicial review is a vital and necessary tool for good, effective and accountable policy making by Government and public bodies, and it is hobbled by this Bill.

Currently, if a claimant wins their case and succeeds in showing that a decision was unlawful, there will be consequences for the public authority. If the claimant was directly affected, that also means justice, in some form, for them and potentially for others affected by the decision. They benefit because when the court delivers its judgment that the decision that is being challenged was unlawful, it means that the decision was invalid and will need to be remade. The normal outcome of a successful claim that the state has acted unlawfully is that the court will confirm its conclusion by issuing an order stating that the state’s decision is quashed. That is a normal remedy for the wrong that has been done. The public authority must face the consequences of its unlawful actions, such as by retaking the decision or deciding it differently, and the claimant benefits from that happening. Sometimes they may also get some other form of remedy, as a result of the recognition that what happened should not have happened.

If the claimant was not affected by the unlawfulness themselves, others will usually have been, and they may also benefit from the judgment and the order. If the policy is found to be unlawful, anyone affected by it will benefit from that finding. The use of our judicial review powers has helped to ensure that equality and human rights law are respected, prompting positive changes in policies and practices. Many public bodies are subject to judicial review claims, and the prospect does not hinder good work, but rather helps to ensure that compliance with the law and good practice are at the forefront of decisions.

Under clause 1, the outcome could be that even when a claimant wins their case, they will not get any benefit; they will be in the same position as when they brought the case. The same will apply to anyone else who has been negatively affected—nothing will change for them.

That is because the Bill provides for—and, as we will see later, tries to create a presumption for, in certain circumstances—prospective-only or limited retrospective effect orders. Those are different kinds of quashing order, to be made after the claimant wins their case, that would insulate the Government from any consequences for past injustice before the judgment. These orders would say that although the decision was unlawful, the judicial finding has only limited retrospective effect, or none at all. The remedy would be prospective-only. This risks enormous injustice. Despite having gone to all the effort of going to court, and despite having won, the claimant would get no real redress and no proper remedy for the injustice they have suffered. It is hard to see what the point would be of bringing a case. The Government will be let off the hook for their past actions, with the judge conferring validity on something that they had already concluded was invalid.
That injustice could be further compounded by the other kind of quashing order that the Bill provides for, the effect of which is suspended. This would suspend any effect of the quashing order until a particular date, and that would expose the claimant and others to the same unlawful decision making for an ongoing period. In some cases, both types of order could be made, and a claimant who wins their case could see virtually no past or future benefit from bringing the case, and neither would anyone else. This would, in short, have a chilling effect.
The impact of these clauses could even be that human rights violations are left unchecked and carry on, while individuals are left without an effective remedy, in violation of the European convention on human rights. They could have a significant chilling effect on the entire judicial review system by deterring claimants from bringing a challenge in the first place because they do not think they are likely to benefit from one, or because they cannot show those in charge of legal aid that they will, and therefore they will not be granted legal aid. Moreover, the clauses are likely also to reduce the deterrent effect of the possibility of judicial review on those in Government, who will no longer need to be so concerned about potential challenges to their decision or worry so much about the possibility of consequences if they act unlawfully. That is deeply concerning.
Alex Cunningham Portrait Alex Cunningham
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In his evidence to the Committee, Sir Stephen Laws said:

“In my submission to the independent review of administrative law I drew attention to what I thought were the beginnings of a breakdown in trust between the political world and the judiciary, and the political salience of the issues around judicial review is evidence of that.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 14, Q8.]

Does my hon. Friend agree that it is lamentable that even those who were called by the Government to give evidence have reservations about current relationships between the courts and politicians, and how they could be worsened in future?

Andy Slaughter Portrait Andy Slaughter
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It is not unique to this Government to be found wanting or to be challenged by the courts in such a way. Other Governments have not found favour with the courts and may have resented their intervention, but on the whole those Governments have sucked it up, if I can put it that way. However, this Government seem to take the view—we have recent evidence of this—that if they do not like the way that proceedings are going or tribunals are conducted, they can simply change the rules or change the tribunal.

I agree with my hon. Friend. I do not want to be overly dramatic, but these are worrying times. The Ekins view, which I described in the evidence sessions as tit for tat—a decision is taken and if the Government do not like it, they have a ready-made power to change it—is bad enough, but tinkering with the court process is worse.

Alex Cunningham Portrait Alex Cunningham
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There was much discussion in the evidence sessions about tit for tat, or whichever expression one wishes to use, and it is lamentable. Surely the Government have always been able to address issues that have embarrassed them, and they do not have to take this broad-brush approach to negate that possibility in the future.

Andy Slaughter Portrait Andy Slaughter
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Much of the evidence suggests that the public are quite sophisticated about this. They see that all Governments make mistakes, get caught out and have to change their minds. In the end, the public make a judgment about a Government’s overall record. It is quite wrong for Governments to be, as this one is, so thin skinned that any criticism requires not just a response but, effectively, a punishment of the person or body who does the criticising.

What are the consequences of the changes that clause 1 of the Bill makes to the Senior Courts Act 1981, to provide for quashing orders either not to take effect until a specified date or to come into force without any retrospective effect? As has been said, the usual practice is that the quashing order comes into force immediately and operates as if the decision that has been ruled unlawful had always been null and void. Remedies in judicial review are discretionary and will often result in a declaration that the act was unlawful, with remedial action left to the public body. However, when a court decides to issue a quashing order, it is right that the unlawful decision should stand no longer and that those affected should have proper redress. Because a court can make this remedy after finding that a public body acted unlawfully, the quashing order renders the unlawful act null and void; the act never had any legal effect, and therefore its consequences must be unwound.

Whereas quashing orders have hitherto been made by the courts to confirm that a decision by a public body is of no legal effect, the Bill provides that the effect of such orders may be suspended until a prescribed time, potentially subject to conditions—temporarily validating a decision that has been judged unlawful. In deciding whether to suspend an order or make it prospective-only, the courts must have regard to a range of factors, including any detriment to good administration that may arise from its decision. The Bill requires a court that has decided to make a quashing order to suspend the order or to limit its retrospective effect if doing so offers

“adequate redress in relation to the relevant defect”,

unless the court

“sees good reason not to do so.”

Thus clause 1 would limit the effectiveness of quashing orders.

The quashing order is a powerful tool that ensures that unlawful Government decisions can be overturned, and that those who have suffered the consequences can obtain real redress. The courts have the power to suspend the effect of quashing orders, although the power is rarely exercised. Although the case law on this is not absolutely certain, it is reasonable to argue that courts already have this power. Suspension operates like a time lock on the unlawful action, meaning that the court can delay the effect of its ruling and give the public authority time to sort out its mistake. Limiting the retrospective effect ensures that the remedy has effect only on the date that it is made, rather than affecting things that have already been done. If the court suspends the quashing order or makes it prospective-only, things done before the suspension or things done in the past are treated as if they are valid. The current law strikes the right balance in reserving this remedy for exceptionally rare cases.

As I have said, it is important to remember that all remedies in judicial review are discretionary. In exercising their remedial discretion, the courts will consider a range of factors and will take into account the impact of quashing on certainty and the needs of good public administration. Where significant administrative disruption or chaos could result from a quashing order, the courts have the power to issue a declaration instead, and they often do. Often, the court will simply make a finding that a public body has acted unlawfully and leave it to the public body to determine what action should be taken in response to that finding.

Research by the Public Law Project shows that, in challenges to statutory instruments, a declaration rather than a quashing order is the most common remedy following a successful judicial review. That practice shows that the courts deal very well at the moment with all those circumstances, and it calls into question the need for clause 1. In any event, there are already limitations on a court’s ability to grant quashing orders. For example, section 31(2A) of the Senior Courts Act 1981 requires the High Court to refuse a remedy if it appears

“highly likely that the outcome for the applicant would not have been substantially different”

if the public authority had not acted unlawfully, unless there are

“reasons of exceptional public interest.”

Section 31(6) of the same Act also allows the Court to refuse relief on the grounds of undue delay

“if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

Claimants’ access to quashing orders is therefore already strongly regulated. However, an immediate and retrospective quashing order is an important tool for righting injustice and ensuring that the Executive acts only within its legal powers. Combined with the existing controls on quashing orders, the proposed reforms weigh the scales of justice too heavily in favour of the Executive. Prospective-only quashing orders would invalidate an unlawful act only from the point of the court order onward, leaving past conduct, including conduct complained of by the claimant, untouched.

Clause 1 goes significantly further than the recommendations made by IRAL. The IRAL panel recommended legislating for a discretion to make suspended-only quashing orders. It did not recommend legislating for prospective-only quashing orders, and it recommended against a presumption of limiting the effects of a quashing order in this way. Subsection (9) of proposed new section 29A, inserted by clause 1, creates a presumption that these weakened quashing orders “must” be made where to do so would provide “adequate redress”—absent good reasons. Such a presumption not only goes against the Government’s stated intention to provide flexibility for judges, but risks encouraging the use of these new orders in circumstances where it would be unjust and unfair to do so. As the Government acknowledge in their consultation response,

“Presumptions were not recommended by the IRAL Panel and generally met with scepticism from respondents to the consultation.”

However, it does not appear to have had any effect.

Suspended and prospective-only quashing orders undermine the rule of law, which requires that no person should be subject to unlawful action and that individuals have access to an effective judicial remedy against unlawful measures. Article 13 of the European Convention of Human Rights further protects people’s rights to an effective remedy. Although the Bill requires that the court considers whether a provision offers adequate redress before making a suspended or prospective-only quashing order, it does not preclude the possibility of an order being made without adequate redress. We are concerned about the potential for suspended or prospective-only quashing orders to impact third parties affected by an impugned human rights or equality decision and the implications for their ability to access legal aid. It is unclear whether cases likely to result in suspended or prospective-only orders would meet the test of sufficient benefit to the individual, and therefore justify a grant of legal aid.

Most concerning of all is the prospect that either or both types of orders could be mandatory for the judge, as the clause contains an apparent presumption that they will be made where there is “adequate redress”. The Bill does not specify who for, but one of our amendments deals with that. The Bill as it stands will reduce judicial discretion to give an appropriate remedy. I will say more about that later.

Clause 1 risks undermining individuals’ ability to hold the Government to account. The provision could also mean that individuals are found guilty of offences made under unlawful regulation or are unable to be compensated for the impacts of unlawful state action. The point of judicial review is to ensure good decision making by public bodies. It is concerned not with the result in itself, but that the right procedures are followed and that the body is operating within the law. Within the separation of powers that forms our political system, it is an important check by one branch on another, acting in the interests of the public. The Bill does nothing to improve the decision making of public bodies; in many ways it will have the opposite effect. Making challenges harder to bring and remedies less effective may make things easier for Government, but at a cost to the general public.

I will give two or three examples of previous cases. I remind the Committee that the Government’s own election manifesto promised to

“ensure that judicial review is available to protect the rights of the individuals against an overbearing state”

and to secure access to justice for ordinary people—laudable aims. These new remedies will not, however, uphold that promise. I will demonstrate that with a short synopsis of some case studies.

In the case of the British Medical Association, the Health Secretary issued the National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019, which tried to introduce a power to suspend or withhold payments of NHS pensions, where an employee had been charged with an offence. There was no right of appeal from that power, and the suspension did not come to an end when the employee was acquitted or where proceedings were withdrawn.

At the time of the case, that power had never been exercised. The British Medical Association brought the case as a matter of principle: that potentially innocent medical staff could be denied a pension simply for being charged with an offence that they did not commit. Finding the regulations to be unlawful, the judge granted a quashing order.

Given that the case did not relate to an actual use of the power or an individual who was a victim of the power, the judge might have regarded a suspended or prospective-only order as adequate, meaning that under the Bill, the judge would have been expected to suspend the effect of the order or make it prospective-only. However, in the time that it took the Health Secretary to consult on the draft and lay new regulations, there would have been nothing to prevent Ministers from exercising the unlawful powers, as doing so would have been valid under proposed new section 29A(3) to (5) of the 1981 Act, which makes otherwise illegal uses of power legal.

12:15
In the case of Adath Yisroel Burial Society and Ita Cymerman, the senior coroner for inner north London had a policy that deceased persons would not be prioritised for burial on religious grounds, despite some religions, such as Orthodox Judaism, requiring burial within 24 hours. Instead, all deceased were treated on a “first come, first served” basis. The first claimant was a charity representing the Orthodox Jewish community on burial rights, and the second claimant was an Orthodox Jewish woman who was 79 years old but was not at risk of dying in the immediate term. In that case, there was no claimant representing a deceased against whom the policy had actually been exercised. The judge determined that the coroner’s policy was unlawful under the Human Rights Act 1988 and the Equality Act 2010, and the policy was quashed.
The policy was not being applied directly to anyone in the case. Therefore, a court might have regarded it as adequate to require future actions and amendment by the coroner, but no immediate action in the form of an instant quashing order. That would have engaged the presumption in proposed new section 29A(9) of the 1981 Act. Had Mrs Cymerman died in the meantime, however, the policy would have been applied to her and all others in the Orthodox Jewish community under the coroner’s jurisdiction, because proposed new section 29A(3) to (5) would make the unlawful policy valid.
I mentioned the case of RF. Despite having been diagnosed with a severe mental health impairment that limited her ability to leave her home, the claimant was unable to claim the mobility component of the personal independence payment, which was vital for her independence. That was due to guidelines introduced by the Department for Work and Pensions in March 2017. The claimant’s challenge to the Social Security (Personal Independence Payment) (Amendment) Regulations 2017 was successful, and the court found that they unlawfully discriminated against people with mental health problems. The regulations were quashed. The Government’s initial assessment was that 1.6 million of the main disability benefit claims would need to be reviewed, with around 220,000 people expected to receive more money.
An important feature of the case is that the claimant’s individual circumstances had not yet been impacted on by the regulations and did not
“add anything to the issue of principle”
that the judge had to decide. That means the presumption in clause 1 would have been applied, given that a prospective or suspended quashing order would have been adequate redress for the claimant. That would have been problematic for the broader class of PIP claimants with mental health conditions, most of whom will have been unable to bring a claim. A suspended or prospective-only order will have caused systematic unfairness, even if it would have offered adequate redress for the individual in question.
In the case of Gureckis, a Home Office policy to remove EU rough sleepers was ruled unlawful by the High Court in December 2017. The policy was that rough sleeping could be considered an “abuse of rights” by European citizens, making them liable for deportation. The Court determined that rough sleeping was not an abuse of rights and that the policy discriminated against the homeless. The policy was quashed. Prior to the case, however, at least one of the claimants had already had the removal action against him withdrawn by the Home Office. The judge said the case was more generally about the legality of the policy, not the individual claimants. Given that the impact on some of the claimants was minimal, a suspended quashing order could have been made, leaving the wider pool of homeless EU citizens at risk of being issued with a removal notice in the period of time when the quashing order was suspended. They would have been liable to deportation merely for being homeless. If a prospective-only quashing order had been issued, it would not have assisted any homeless EU citizens who had already faced removal action in the past.
Also, significant concern has been expressed to me, and I am sure to other members of the Committee, from an environmental justice perspective. Although environmental judicial review is a difficult, costly and uncertain process, it remains the most important domestic legal mechanism to obtain redress for unlawful decisions by those in power. It is imperative that it works effectively for that reason alone, and also so that public trust and confidence in the system is maintained. That reforms do not undermine the ability to bring public interest environmental litigation, nor access to effective remedies where claims of illegality are made out, is very important in a democratic society.
Article 9.4 of the Aarhus convention provides that environmental JR shall
“provide adequate and effective remedies, including injunctive relief as appropriate”,
and must be
“fair, equitable, timely and not prohibitively expensive.”
The UK is already in breach of article 9.4 of the convention in relation to the costs of legal review. The Bill, as currently formulated, moves the UK further away from compliance with the convention. The Bill reduces access to justice for people and organisations with regard to effective remedies. It does not ensure effective remedies for the claimant. It ensures only
“adequate redress in relation to the relevant defect.”
That could fall short of an effective, practical outcome for the claimant. The two concepts are not obviously the same and could diverge. The very nature of suspended relief or forward-only relief conflicts with the requirements of the convention—delay is not timely, and the grant of no remedy for previously unlawful conduct is not fair or effective.
I have mentioned the briefing sent to us and the case of Preston v. Cumbria County Council. The council’s planning authority had made the decision to permit the installation of a temporary sewage outfall—very topical—and extending the period for which it would be permitted was rendered unlawful by its failure to obtain a screening opinion under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, and an appropriate assessment under the Conservation of Habitats and Species Regulations 2017 for the newly located polluting discharge. Permission was therefore quashed.
Under the proposed new scheme in the Bill, it is possible that a court would consider the balance of convenience to be with the public utility in allowing the unlawful development rather than forcing it to make disruptive and expensive alternative arrangements, which could be seen as disproportionate to the potential impact on the environment and loss of amenity to a local fishing club, which was the claimant. Applying a suspended and a prospective-only quashing order to facilitate the discharge until remedial works on the original outfall were completed, rather than alternative arrangements, would have left a period of years during which time the plant was able to discharge effluent unlawfully into a new part of the river, and in this case directly into a prime salmon fishing area.
The angling association, which has exclusive fishing rights, but of course is not the only party with an interest, may have wished to bring a claim for damages due to any impact of the discharge into the area of its fishing. It might want compensation to remediate the ecology that it depends on, or to prevent the discharge. That could be blocked or made much harder by the judge’s upholding the unlawful decision under the new quashing orders.
Alex Cunningham Portrait Alex Cunningham
- Hansard - - - Excerpts

My hon. Friend is giving a series of good examples as to why the Government’s proposals are flawed. In his evidence to the Committee on Tuesday, Dr Morgan said:

“I would take the presumption out altogether. I think what this clause is doing—certainly what it should be doing—is enlarging the power of the courts to tailor relief in a way that they see fit, and removing the obstacle that the Supreme Court laid in their path in Ahmed v. HM Treasury (No. 2). Thus, I just do not see why it is there. The Government say that it is to encourage the courts to use this remedy, but I do not see why we should try and push the courts in a particular direction.”

He went on:

“I also think, if subsection (9) is taken out, subsection (8) could be taken out as well.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 24, Q23.]

So there is clearly support for the line that my hon. Friend is taking.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I am grateful for that quote from Dr Morgan, which is far more learned and eloquent than anything I can come up with. His evidence was very measured and showed nothing other than looking at the Bill with a fresh pair of eyes. On some of the decisions he supported the Government, and in some cases he could not see any point or purpose.

There is grave concern about the impact of any changes to the law of judicial review on children and young people with special educational needs and their families. Children and young people with special educational needs often rely on legal remedies such as judicial review to ensure that they receive the special educational provision and wider support to which they are legally entitled. Judicial review is an essential remedy in cases where there is no other way that a complaint can be resolved—for example, by complaining directly to the public body concerned or the local government and social care ombudsman. Any changes to the law on judicial review should take account of the particular factors relating to children and young people with special educational needs.

I will give a few examples of situations that arise quite commonly; Members may well have been involved in some such cases. Local authorities may fail to comply with statutory timescales for issuing or amending an education, health and care plan for a child or young person, resulting in the child or young person missing special educational provision or schooling. A local authority may fail to make the provision set out in a child or young person’s EHC plan, resulting in the child or young person missing education; fail to comply with the order of the first-tier tribunal; or decide to stop providing the home-to-school transport to which a child or young person is entitled, meaning that they cannot get to their place of learning. A school governing body may refuse to admit a child or young person despite the school’s being named in the child’s EHC plan, where there has been no formal exclusion. Those are just a few examples of how judicial review can be used to ensure that children and young people receive the special educational provision and support to which they are entitled by law. It is essential that it remains a meaningful option for them and their families.

The measures, if enacted, will weaken the effectiveness of the remedies available to the courts and will deny an essential remedy to children and young people with SEND and their families. The Bill will deter people from using judicial review as a way of righting unlawful decisions by public bodies. Any change to judicial review should encourage access to justice, not limit it. It will also limit claimants’ access to legal redress for unlawful actions, which will take away any accountability of Government or agencies for unlawful action that has already taken place.

I will make some very specific comments on the first group of amendments. The lead amendment is amendment 12, which is the only one I will press to a vote. Amendments 40 and 41 are contingent on amendment 12.

Proposed new section 29A(1)(b) of the Senior Courts Act 1981 allows for quashing orders to be made including provision

“removing or limiting any retrospective effect of the quashing”—

in other words, a prospective-only remedy. For prospective-only orders, despite a state decision or action’s being found unlawful, the order quashing it would be forward-looking, leaving the individual who brought the case without proper redress for what has already happened to them and, potentially, with no change in their circumstances at all.

Proposed new subsections 29A(4) and (5) set out the implications of that change. The decision or act in question is to be treated as valid and

“unimpaired by the relevant defect”,

for all purposes, for the period of time before the prospective effect of the quashing order. As has been expounded countless times by the courts, the rule of law requires that those exercising public power should do so lawfully. However, the Government would be under absolutely no legal duty to address the injustices caused by the unlawful measure, and there would be no scrutiny as to the effectiveness of such remedies. We do not consider that to be an appropriate or principled solution.

In issuing a prospective-only quashing order, the courts would be determining that an unlawful measure should be treated as if it were lawful retrospectively, which is problematic for many reasons. First, it undermines the rule of law, which at its core dictates that all are subject to the law, that no person should be subject to unlawful action, and that individuals have access to an effective judicial remedy against unlawful measures. Prospective-only orders entail a direct rejection of those principles, allowing unlawful executive acts to stand and, therefore, preventing individuals who were previously impacted by them from challenging them. As recognised by the consultation, that could lead to severe unjust outcomes. By introducing prospective-only remedies, the Government are making another concerted effort to insulate themselves from accountability at the cost of those who have been let down by a public body and anybody who may be in the future.

Prospective-only remedies have the potential to create opportunities for injustice in individual cases, to weaken the rule of law and to introduce unnecessary layers of complexity into an already functioning system. This is another example of the Government wasting time and resources on fiddling with an area that works well, while many other areas of the justice system cry out for attention.

12:30
The imposition of a prospective-only remedy would result in halting only the future effects of an unlawful decision or secondary legislative provision, with its previous effect being treated as if it had been valid. This creates a situation in which two otherwise identical cases are treated entirely differently depending on whether they were affected before or after a court judgment. Those who were impacted by the unlawful decision before the judgment would have been just as wronged as those impacted after, but would not have recourse to any remedy. This means that an individual claimant bringing a case may help to overturn an unjust decision, but would not improve their own situation.
If we are talking about a hypothetical situation, an example would be a challenge to the eligibility for welfare benefits. A successful challenge followed by the imposition of a prospective-only remedy could see a claimant acknowledged as having been treated unfairly, but still coming out without the benefit that the court recognised they were owed.
Alternatively, to give an actual and very recent example, there was the review of the Secretary of State for Transport by a campaign group, Save Stonehenge World Heritage Site in July this year. The High Court ruled that the Transport Secretary’s decision to approve the A303 Stonehenge dual carriageway, which included a cutting and tunnel entrance to the western part of the world heritage site, was unlawful. The Transport Secretary allowed the scheme under the national planning policy statement for national networks, which was against the advice of a panel of expert planning inspectors, who had concluded that the scheme would cause significant harm to the integrity of the world heritage site.
The judge agreed that, in breach of rules in the regulation and the Planning Act 2008, the Transport Secretary had not properly assessed the risk of harm to each heritage asset. The judicial review was brought by Save Stonehenge World Heritage Site, which
“could not be more pleased”
about the quashing of the development consent order. Applying a prospective-only quashing order remedy, it would be unclear whether ultimately the building works would go forward; probably they would, but we do not know that. However, the court may be obliged to make this order if it prevented the continuation of building works, as that might provide “adequate redress” for the claimant.
Janet Daby Portrait Janet Daby
- Hansard - - - Excerpts

Does my hon. Friend agree that all sorts of consequences arise from the proposed measures? They are likely to make things much more complicated and less clear, and to provoke further litigation.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

Yes, and I am grateful for that reminder. I have a little more to say on the Stonehenge case and I will mention one other case that is familiar to Members. However, my hon. Friend makes exactly the point: there is mischief caused here. However many times the Government say, “This is designed to simplify and extend the powers,” the less credible that seems when one looks at the actual nature and type of decisions that would be affected, and at how they would be affected.

In the Stonehenge case, the likely effect of the order would be to remove the possibility for collateral claims for compensation against the Government for their unlawful decision up to the date of the prospective order. All preceding activity, including expense in performance of any contracts that the judicial review court may not be fully aware of, if at all, are reliant on the unlawful decision would be considered lawful to the date of the order, even though the full contracts could not be completed. This could cause significant loss to contractors who were not present to make representations during the hearing, as they could potentially only claim for losses thereafter.

The other case I will mention is the Unison case, which is another important real-world example. It is worth considering the impact that prospective-only remedies could have had if they had applied in that case, which concerned, as I think all Members know, fees to access employment tribunals. Having found that Parliament could never have intended a clear derogation from the right of access to justice, the Supreme Court quashed the order that required individuals to pay to use the employment tribunal.

The remedial consequence of the quashing order was that the Government were required to retrospectively refund the claimants who had been charged fees. A prospective-only remedy in this scenario would have denied the claimants this refund and therefore would have been a serious injustice to the claimants, whose fundamental right to access to justice had been found to have been violated.

Liz Twist Portrait Liz Twist (Blaydon) (Lab)
- Hansard - - - Excerpts

I refer to the evidence submitted by the Independent Provider of Special Education Advice on the impact of the changes on those with special educational needs, highlighting the importance of the ability to appeal at that level. When we look at the effects on individuals and organisations, rather than the dry words, does my hon. Friend agree that this change could have a significant impact on those people who feel that they are not getting justice and are seeking redress?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I am grateful for my hon. Friend’s intervention, and I think she is following my argument. What I am trying to do through a series of case studies—some hypothetical, some that are likely, and some that have actually happened—is look at how those cases could have been different had this piece of legislation been in effect, specifically looking at the effect on individuals. That may be hundreds or thousands of individuals, or it may be one individual, but these are often people for whom this is the only form of redress, and it is hard to see how a prospective-only remedy would provide a just outcome to an individual claimant.

Turning back to the Unison case, it arbitrarily distinguishes between people who have been impacted by the unlawful measure before and after the court judgment, undermining certainty, consistency and equal treatment under the law, which was the point of my hon. Friend the Member for Lewisham East. Individuals who have not litigated but who are impacted by an unlawful measure have just as much need of the law’s protection as those individuals who will potentially be impacted in the future. Some unfortunate people would be denied justice, with no proper remedy even when the court said they were right.

Looking at the position in other jurisdictions, it is notable that courts are usually prepared to hand down a prospective remedy only in cases of constitutional importance, or cases that would have serious economic repercussions for a large number of good-faith relationships. In practice, that happens extremely rarely, and those are very limited categories that have been carefully contained on the basis of subtle judicial reasoning and incremental developments.

The European Court of Human Rights has also held in a very clear judgment that certain remedies which have prospective-only effect cannot be regarded as effective, and therefore would be a violation of article 13 of the European convention on human rights. Judges already have discretion over what remedy to give, but this Bill will increase their focus and attention on limiting the use of full quashing orders and mandate the consideration of factors that undermine successful claimants’ legitimate interests. It will embolden defendants who are found to be on the wrong side of the law to argue that they should not suffer the full consequences of their unlawful actions. Public trust in the system will be undermined where judges are seen to validate or immunise previous unlawful conduct through prospective-only remedies. That, in turn, may disincentivise legal compliance by those in power.

The Government line is that judges are sensible and will strike the correct balance in practice, but that is cold comfort for individual claimants and is not in compliance with international law. In creating a statutory presumption and mandating consideration of these new remedies, judges are being clearly signalled to, and may well be less likely to—and, in fact, may be required not to—award effective remedies for claimants against any common-sense understanding of justice.

The result of limiting retrospective effect would be that a claimant could have the court agree that the decision made by the Government or public body was unlawful, but would not have recourse to a retrospective remedy. That would allow the Government to avoid having to compensate people who are victims of its previous unlawful behaviour. If claimants know at the outset that it is likely that they could win but nothing would happen, why bother going for judicial review at all?

The group that trades under the name Equally Ours, which briefed us, has significant concerns about the likely effect of deterring people from seeking judicial reviews if this clause is unamended. If prospective-only remedies are applied, the effect would be that unlawful decisions or actions would be treated as lawful until the quashing order came into effect. Retrospective quashing orders recognise the unlawful decision or action and provide a remedy.

Bringing a judicial review has many disadvantages to applicants, not least the cost, uncertainty and length of the process. The key motivation for many applicants—for the impact on them to be remedied—will be lost if a prospective-only order is made. With that in mind, it appears likely that the introduction of prospective-only remedies would have a chilling effect upon future potential claimants. With their use not only allowed but encouraged, that sends a strong signal to an individual who has been wronged by a public body that their actions are not worth challenging: even if they win, their situation may not improve.

Paula Barker Portrait Paula Barker
- Hansard - - - Excerpts

I would like to draw my hon. Friend’s attention to the evidence of Louise Whitfield, who stated:

“If you go down the road of these reforms and make remedies harder to get, and there is more opportunity for public bodies to put off the day of giving in—or to know that even if what they have done is found to be unlawful, they will not have to address the wrongs that people have suffered previously—that will just make it harder for individuals to use judicial review effectively. That can only be a bad thing.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 51, Q72.]

Does my hon. Friend agree that clause 1 seeks to stifle people’s access to justice?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I am grateful for that intervention, and I hope from what I have said, and from many of the interventions by hon. Friends, that it is clear that what we are most concerned about here is the impact on an individual claimant.

Bringing judicial review is not an easy thing to do; it is not a common remedy. Funding it, finding representation and getting into court are all difficult. I hope when the Minister responds—I do not have much more to say before I will allow him to—he will address some of those points, particularly in relation to what he thinks the effect of the measures in clause 1 of the Bill will be on individuals who currently have the ability to bring a successful claim.

As I said, a chilling effect seems likely. If these measures are not only allowed but encouraged, that sends a strong signal to an individual who has been wronged that the actions are not worth challenging. Even if a prospective-only quashing order is not used in a particular case, its mere availability would serve as a serious disincentive to claimants seeking to bring a judicial review if a claimant cannot be sure that they will benefit from the judicial review even if it is successful.

A further financial hurdle could be placed in front of potential claimants as legal aid would likely become even harder to obtain. Applicants for legal aid must be able to demonstrate that there would be a tangible benefit to the litigant if successful. It may become difficult to satisfy this requirement where the litigant stands a high chance of being awarded a prospective-only remedy, meaning that more prospective applicants could be denied legal aid, forcing them to abandon their claim.

With no legal aid and little prospect of benefiting even if successful, there is seemingly little incentive for someone who has been negatively affected by unlawful action to bring a case. Prospective-only remedies would therefore have a serious chilling effect on the system of judicial review, disincentivising bringing a case in such a way. Moreover, they would have a damaging effect on good governance; the threat of judicial review is a powerful tool in encouraging good decision making by public bodies.

As well as depriving proper redress for individual claimants and others who may have been wronged by unlawful decisions, prospective-only remedies also have the potential to cause more general harm. The impact of a prospective-only quashing order and the transition between a measure being valid and then quashed going forward will be difficult and unwieldy to navigate, including for public bodies.

By way of example, it is unclear whether proceedings to pay a penalty notice could be brought against an individual for breach of an unlawful byelaw if the events occurred prior to the byelaw being quashed prospectively but the charges and/or proceedings are brought afterwards. The introduction of prospective-only quashing orders removes the certainty provided by the position that a measure if found to be unlawful will then be treated as such. Laws should be able to guide conduct to enable persons to be able to act in accordance with the law. A position where a measure is both recognised as being unlawful but is also to be treated as if it were lawful is contrary to this.

As one Department said in its submissions to IRAL—from those that we have been able to see—

“the rule of law requires predictable rules around which citizens, businesses and government can plan their activities and lives”.

Prospective-only remedies weaken the rule of law because they allow the Government and public authorities to act without fear of meaningful repercussions. The Government are effectively encouraged to take risks and act unlawfully, and the only consequence is that the decision will eventually be reversed should it be successfully challenged in the future. That undermines Government accountability, and in turn undermines the quality and effectiveness of decision making.

12:45
Prospective-only orders could allow the Executive to act unchecked, safe in the knowledge that were the act to be unlawful, the implications would be limited. Ensuring Government accountability through the courts is in the interests of all. Effective and good governance must be lawful governance. Good decision making is the foundation of effective administration; and, as a significant number of the public bodies that made submissions to IRAL acknowledged, the potential of being challenged via a claim for judicial review leads to better decision making. The possibility of judicial review and its consequences motivates public bodies to maintain high standards in their administration and to ensure that it is lawful.
Ultimately, as the summary of Government submissions to IRAL states:
“Judicial Review does ensure that care is taken to ensure that decisions are robust”,
which “improves the decision”. Limiting the consequences for public bodies of making unlawful decisions will lead only to poorer decision making. Alongside the harm that prospective-only remedies stand to do to individual claimants, to the public more broadly, and to the Government and public authorities, their introduction also stands to have a deleterious effect on the courts. Although the previous Lord Chancellor, who introduced the Bill, repeatedly spoke of his duty to prevent the judiciary from being dragged into politics, prospective-only remedies stand to have the opposite effect and force courts to create new law.
There is a significant risk that the use of prospective-only rulings could unravel the carefully constructed constitutional balance between the judiciary and Parliament. Lord Nicholls pointed out in the Spectrum case:
“The essence of the principled argument against prospective overruling is that in this country prospective overruling is outside the constitutional limits of the judicial function.”
It lies outside those constitutional limits because, as Tom Hickman QC has pointed out, prospective-only remedies
“would permit courts to exercise a quasi-legislative power including to override primary legislation”.
In making a quashing order that has only prospective effect, the judge is essentially ruling that the decision had been lawful up until that point, even if it had conflicted with the will of Parliament. Hickman further states:
“This would allow Judges permanently to cancel the invalidity of unlawful decisions or instruments insofar as they pre-date the court’s ruling. Again, it is not proposed that such a power would be limited to procedural or technical defects in the impugned act: it could be used even where the decision, act or instrument is found to be contrary to the express words of a statute”,
which would, in effect, confer upon the courts
“a power to legislate to change Acts of Parliament and alter private rights”.
Taken together, the situation that arises from the introduction of prospective-only remedies is one of uncertainty and complexity in its practical application, concerning constitutional implications, the weakening of Government accountability, and great potential injustice for people wronged by the decisions of public bodies. The Law Society of England and Wales has said:
“We oppose prospective-only remedies which leave the door open for righting a future wrong but do nothing for injustices from the past. Removing or limiting the retrospective effect of an order would mean that nobody who has been a victim of an unlawful state action—not even the person who brought the challenge—would benefit from a ruling that the government had behaved unlawfully.
This would have a chilling effect on justice by deterring people from bringing legal challenges, in the knowledge that they might gain no redress, and might also mean people would be less likely to get legal aid to bring cases where a prospective-only remedy was the likely outcome.”
I believe that prospective-only remedies could have a chilling effect on potential claimants and hinder their access to justice. There certainly must be no presumption in favour of such remedies—we are coming on to that next—and collateral challenges must be expressly preserved.
The power to make prospective-only remedies should be excised from the Bill entirely. I remind the Committee that IRAL made no recommendation for their introduction. Where clause 1 introduces prospective-only remedies in judicial review, it risks undermining individuals’ ability to hold the Government to account, erasing legal rights and creating significant uncertainty in practice. It is difficult to see what there is to recommend the measure.
There will be more to say, including on clause stand part, but I make this distinction in moving amendment 12. There are issues about suspended orders. There are arguments for and against; I accept that. I do not accept that it is necessary to codify them, to put them into statute, in the way in which that is done in the Bill. But they certainly cause less mischief than prospective-only orders. Therefore, the purpose of the first group of amendments is to identify, as the main villain of the piece in clause 1, the introduction of prospective-only orders.
I hope that I have answered in that explanation some of the points that were put by Government Members at the beginning of the debate. These are serious matters to be dealt with. I do not accept that these are only minor modifications. I think they will have a transformative effect on the way in which judicial review works. There may well be pushback from judges. This may well evolve over time. But how unnecessary to do this, given the damage that it will obviously cause. With that, I will end my comments on the first group of amendments, see what other hon. Members and the Minister have to say, and reply; and then, unless the Minister intends to concede or make a reasoned offer or proposal, it is likely that we will press amendment 12 to a vote.
Marco Longhi Portrait Marco Longhi
- Hansard - - - Excerpts

It is a pleasure to be able to follow the hon. Member. Colleagues will be pleased to know that I will be trying to hold their attention for only about three or four minutes.

I am certain that the hon. Member will have regard for the assertion by the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy), that the Bill is a power grab by Government. Would he not agree that that is an odd thing to say, given that the Bill provides the courts with additional powers around remedies in a way that ensures practicality and efficiency, and enables courts to give consideration to the effect of remedies in a way that is not readily applied in the current framework? That surely serves to evidence the shadow Secretary of State’s lack of understanding of what our courts actually need and of the flexibilities built into the Bill. As the Minister said on Second Reading, far from weakening quashing orders, as the shadow Secretary of State said, these new remedies

“strengthen quashing orders and thereby strengthen judicial review.”—[Official Report, 26 October 2021; Vol. 702, c. 233.]

On prospective remedies, I would like to give two examples that show that this concept is not new but has precedence in our legal system. Judges have limited the retrospective effect of quashing orders in some instances in the past, such as in R (British Academy of Songwriters, Composers and Authors, Musicians’ Union & Ors) v. Secretary of State for Business, Innovation and Skills & Anor in 2015. Therefore, these remedies do not change the position of judges but act to encourage a wider use of the new quashing order modifications.

It is important to state that these remedial modifications are not being pursued to bypass Parliament but are in fact focused on resolving practical issues that arise during judicial review cases. The concept of prospective-only orders is not novel or unique. Under the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006, courts in the devolved Administrations have a power to make such orders where decisions are outside devolved competence. The Government wish a similar concept to be available in all cases of judicial review in England and Wales.

Anne McLaughlin Portrait Anne McLaughlin (Glasgow North East) (SNP)
- Hansard - - - Excerpts

May I point out that there is no presumption in any of the devolved legislation, and that is primarily what we are arguing about here? It is not about having the ability to do this; it is about the presumption that it has to be a default position.

Marco Longhi Portrait Marco Longhi
- Hansard - - - Excerpts

Courts will none the less still have discretion, as I understand it, so they can decide, case by case, what framework they intend to follow.

These are discretionary quashing order modifications, and courts will have regard to the constitutional separation of powers. It is not foreseen that the Government will stop having to work with Parliament to pass retrospective legislation in future.

Caroline Johnson Portrait Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
- Hansard - - - Excerpts

It is a pleasure to serve under your chairmanship, Sir Mark. I will—necessarily, since we are almost at the end of this sitting—keep my remarks extremely short.

I do not think anybody in this room would not trust our judiciary’s knowledge, its significant experience, or its wisdom to make sensible, measured judgments in each case. At present, a finding of an error of law nullifies the decision completely. I will give one example—there are many, but we are short of time—in which a suspended quashing order could have been useful. Despite what the shadow Minister says, it was applied for by the then Labour Government under Gordon Brown. That case, which has already been mentioned, is Ahmed v. HM Treasury (No. 2).

In that case, a number of individuals had their assets frozen because they were believed to be terrorists. The court decided that the decision to freeze those assets was unlawful, which left the Government in an invidious position, because they were concerned about the use of those assets for security. Indeed, over five days, Gordon Brown’s Government passed a law to retrospectively make that asset freezing lawful, before then passing more definitive legislation.

We do not want the Government to be put in that sort of position. Had the judiciary then been able to pass a suspended order, as the Bill proposes, it would have been able to say that the effect of the asset freezing was lawful for a period, allowing the Government to take appropriate national security measures. As others have said, the addition of a suspended quashing order means extra tools in the judges’ toolbox. It is an opportunity for our esteemed and extremely expert judges to make sensible decisions—the right decisions at the right time—for the cases before them.

Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

If the Minister simply wants to put more in the judges’ toolkit, and does not expect a presumption in favour—or a default position, as I said earlier—will the hon. Lady support one of the upcoming amendments to stop that presumption?

Caroline Johnson Portrait Dr Johnson
- Hansard - - - Excerpts

I am talking here of a suspended order specifically. Personally, I would trust the judges to have the discretion to look at the case in front of them, the law as it stands and the situation in which they find themselves, and make a measured judgment. Under this clause, they have the discretion to use the orders as they see fit and proper, and I have absolute trust in our judiciary to use them properly.

Ordered, That the debate be now adjourned.—(Scott Mann.)

12:58
Adjourned till this day at Two o’clock.

Subsidy Control Bill (Seventh sitting)

Thursday 4th November 2021

(2 years, 4 months ago)

Public Bill Committees
Read Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee consisted of the following Members:
Chairs: †Caroline Nokes, Mr Virendra Sharma
† Baynes, Simon (Clwyd South) (Con)
† Benton, Scott (Blackpool South) (Con)
† Blackman, Kirsty (Aberdeen North) (SNP)
† Bowie, Andrew (West Aberdeenshire and Kincardine) (Con)
† Buchan, Felicity (Kensington) (Con)
† Esterson, Bill (Sefton Central) (Lab)
† Fletcher, Colleen (Coventry North East) (Lab)
Flynn, Stephen (Aberdeen South) (SNP)
† Hollinrake, Kevin (Thirsk and Malton) (Con)
Kinnock, Stephen (Aberavon) (Lab)
† Malhotra, Seema (Feltham and Heston) (Lab/Co-op)
† Millar, Robin (Aberconwy) (Con)
† Mortimer, Jill (Hartlepool) (Con)
† Scully, Paul (Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy)
Stafford, Alexander (Rother Valley) (Con)
† Tomlinson, Michael (Lord Commissioner of Her Majesty's Treasury)
Whitley, Mick (Birkenhead) (Lab)
Kevin Maddison, Bradley Albrow, Committee Clerks
† attended the Committee
Public Bill Committee
Thursday 4 November 2021
(Morning)
[Caroline Nokes in the Chair]
Subsidy Control Bill
00:00
None Portrait The Chair
- Hansard -

Before we start, may I remind hon. Members about social distancing and mask wearing where appropriate, please? We will now continue line-by-line consideration of the Bill. The selection list for today’s sitting is available in the Committee Room and shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue.

Clause 52

Mandatory referral to CMA

Kirsty Blackman Portrait Kirsty Blackman (Aberdeen North) (SNP)
- Hansard - - - Excerpts

I beg to move amendment 28, in clause 52, page 28, line 10, at end insert—

“(c) where the granting authority for a subsidy scheme is the Government department responsible for the operation of the subsidy control regime, or

(d) where the granting authority for a subsidy is the Government department responsible for the operation of the subsidy control regime and the subsidy value is over £2 million.”

This amendment makes provision for situations for mandatory referrals in cases where the department responsible for the operation of the subsidy control regime is a granter of subsidies or subsidy schemes.

Thank you for chairing the Committee today, Chair; we very much appreciate it. I am pleased that the hon. Member for Mid Dorset and North Poole is delighted to see me here. He made very clear this morning that he was worried that the debate might be truncated without my presence. I am here to oblige by standing up and making my first speech of the day.

The amendment is about mandatory referrals to the Competition and Markets Authority. Clause 52 specifically focuses on those mandatory referrals and the criteria under which a subsidy would mandatorily be referred and therefore given an additional level of scrutiny. The mandatory referral considerations in subsection (1) of the clause say that a public authority must request a report from the CMA if it is giving a subsidy or a subsidy scheme “of particular interest” or if it is

“directed to do so by the Secretary of State”.

It goes on to say in subsection (3) that the Secretary of State may

“specify further information that must be included in a request”,

and

“make provision as to the form of a request.”

That is all well and good, but it seems to me that every single criterion for mandatory referral to the CMA relies on the decisions being made by the Secretary of State. The Secretary of State will decide what is a subsidy or subsidy scheme of particular interest and what class it falls into. That is a decision that will be made, but those details are not in the Bill.

If a subsidy is only mandatorily referred if it is of particular interest, which is defined by the Secretary of State, or if the Secretary of State chooses to refer it, there is a gap in terms of a conflict of interest, where the subsidy may be given by the Secretary of State’s Department and, given the limited criteria we have for interested parties, for example, which have not yet been expanded on—we will discuss them later on in the Bill—it would make sense for large grants made by the Secretary of State’s Department to mandatorily be referred to the CMA for a report. That would not cause a huge amount of additional work for the CMA, but it will provide an additional check and balance to the system. We do not want the Government marking their own homework on that; we would rather there was an additional level of scrutiny here.

Amendment 28 says that

“where the granting authority for a subsidy scheme is the Government department responsible for the operation of the subsidy control regime, or”—

that should be “and”, not “or”—

“where the granting authority for a subsidy is the Government department responsible for the operation of the subsidy control regime and the subsidy value is over £2 million.”

Once again, I do not feel I am being unreasonable. I am not asking for a mandatory referral every time. Sorry—I just reread the amendment, and it is right, it should be “or”. It is about a subsidy scheme that is made by the Secretary of State’s Department, so scrutinising all the subsidy schemes made by the Secretary of State’s Department, or the scrutiny of an individual subsidy where that is more than £2 million. I apologise to the Clerks for doubting them; this is how I intended the amendment to be.

This is not an unreasonable ask, but it is an extra check and balance, ensuring that the Government are appropriately scrutinised and that there is a look at all those subsidies. It is just an additional look; it will not delay the granting of the subsidy or mean that it will take longer. The subsidy will still be able to be granted fairly quickly and subsidy schemes will be able to be set up fairly quickly. However, it means that the CMA will look at those with an inherent conflict of interest because the Secretary of State’s Department is granting or setting up the subsidy scheme.

Later in the clause is a provision for the Secretary of State to make changes by regulations, but that specifically relates to the form of the request and the further information that may be included in the request. It does not relate to further criteria as to which public authorities must request a report from the CMA. If there were such a provision, I would push for the Secretary of State to make regulations and ensure that the criteria were widened. As that has not been included in the clause, I feel that I have to move the amendment.

If the Minister could give me some level of comfort, that would be very helpful. I think that that check and balance needs to be there to get rid of the inherent conflict of interest.

Seema Malhotra Portrait Seema Malhotra (Feltham and Heston) (Lab/Co-op)
- Hansard - - - Excerpts

It is a pleasure to serve under your chairship, Ms Nokes. I thank the hon. Member for Aberdeen North for her remarks. She raises a number of important and pertinent issues around scrutiny, in particular about subsidies introduced by the Secretary of State.

The clause deals with the mandatory pre-award referrals to the CMA. It outlines that:

“A public authority must request a report from the CMA…before giving a subsidy, or making a subsidy scheme, of particular interest, or…where directed to do so by the Secretary of State”.

We have highlighted our concerns about the definitions of subsidies “of particular interest”. It is a glaring gap in our debates on the detail of the legislation. We think that the definition should be included in primary legislation, and I hope the Minister has listened to our concerns. I am sure that the issue will come back at future stages and, at the very least, our expectation will be that the definition is published very soon after the Bill receives Royal Assent. Things that we could be dealing with now should not end up delaying the ability to make decisions and implement the regime.

Although we are concerned about the definition, we support the overall importance of the measures outlined in the clause and the function of mandatory referral to the CMA, in the interests of checking compliance with the principles, bringing assurance on value for money and confirming that there will be no distortion or harm to the economy.

On amendment 28, the hon. Member for Aberdeen North makes an important continuing reference to the Government marking their own homework. Although we recognise the intention and some of the arguments behind the amendment, we do not think that producing a report on a subsidy every time one is given by the Department for Business, Energy and Industrial Strategy—as a sort of blunt tool—would necessarily be the most effective use of the CMA’s time.

Rather, we have argued very strongly for all subsidies, regardless of whether they are below a particular amount or given to a certain recipient, to be posted on the database to ensure sufficient transparency. We will also seek to ensure that there are greater rights on call-in powers or that the CMA can investigate itself, if it deems that there a reason to do so. We think that any assurances, which are, in part, the intention behind the amendment, could be better delivered through the Bill in other ways. On that basis, we will abstain on amendment 28. We support clause 52 standing part of the Bill.

Paul Scully Portrait The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)
- Hansard - - - Excerpts

As always, it is a pleasure to serve under your chairmanship, Ms Nokes. Before I begin, I would like to make a general point about today’s debate and address a question raised during our discussions on Tuesday. Throughout the discussion of clauses in part 4 of the Bill, Members will hear me refer to the subsidy advice unit, which will be a new sub unit of the Competition and Markets Authority established by this Bill. Technically speaking, the provisions in part 4 confer various responsibilities on the CMA, and it is for the CMA to decide which of its responsibilities it will delegate to the SAU. The mechanics of that process will be discussed later when the Committee considers clause 67. While the decision on how to organise its work rests with the CMA, in practice it is likely that most if not all of the responsibilities under part 4 will be delegated to the SAU. Therefore, for consistency and ease, I will be referring to the SAU throughout these debates.

Clause 52 sets out that two categories of subsidy and scheme will be subject to referral to the CMA. The first is subsidies and schemes of particular interest, which we discussed in the context of clause 11 on Thursday 28 October, and the second is the subsidies and schemes that are referred by the Secretary of State under the provisions that we will shortly discuss under clause 55. Amendment 28, as we have heard, would add to that list of subsidies subject to mandatory referrals, requiring the Department responsible for the subsidy control regime to refer individual subsidies above £2 million and all subsidy schemes to the SAU. In practice, the BESI, my Department, is the Department with responsibility for subsidy control. I can reassure hon. Members that BEIS takes its subsidy control commitments very seriously. BEIS subsidies, like those of all other public authorities in the UK, will be subject to the “subsidies of particular interest” regime. There is no special treatment in this regime for my Department: indeed, BEIS can already ask advice of the CMA where necessary, using the powers in the Enterprise Act 2002.

The Bill establishes the two categories that we have talked about: subsidies and subsidy schemes of interest, which can be voluntarily referred to the SAU, and subsidies and schemes of particular interest, which must be referred to the SAU. The Government will set out in regulations definitions for both of those categories, and those regulations will be subject to the affirmative procedure, so there will be opportunity for parliamentary scrutiny of them. Those definitions will capture subsidies that are more likely to give rise to trade disputes, as well as subsidies that are more likely to distort UK competition and investment. BEIS subsidies and subsidy schemes will be subject to the same requirements and procedures as all other subsidies. I assure hon. Members that my Department really will not get any special treatment on this issue.

However, routinely requiring BEIS to be referred to the SAU when it offers subsidies and subsidy schemes would be a disproportionate approach to managing the risk of those highly distortive subsidies. It is important for the SAU to focus its attention and casework on genuinely distortive subsidies, not to focus unduly on subsidies and schemes made by BEIS in particular. The Government fully agree that subsidies and schemes of particular interest merit a proportionately higher level of scrutiny than other less distortive subsidies and subsidy schemes, but those subsidies are, in principle, better captured through a robust and well-evidenced set of thresholds and criteria. Those criteria will be set out in regulations defining the subsidies and schemes of particular interest, rather than placing a discrete requirement on a single public authority on the face of the Bill.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

Specifically regarding the process, and what might happen in terms of subsidies of interest and subsidies of particular interest, does the Minister agree that this is going to be a movable feast? The regulations will be subject to the affirmative procedure, but things may change, and therefore there will need to be a change to the interests and particular interests. I am just asking the Minister to give me comfort that if the Government agree there is a particular issue with something, and it needs to be added to the group of “interest” or of “particular interest”, it will be added.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Yes, I can give the hon. Lady that assurance. Those schemes will be set out rigidly and subject to the affirmative procedure, so we can have parliamentary scrutiny, but none the less—as she rightly says—we need to retain flexibility, which is exactly why those definitions are in regulations in the first place, rather than on the face of the Bill. Of course, we look to provide as much parliamentary scrutiny of those regulations as possible. I ask the hon. Lady to withdraw her amendment.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

I will not press this amendment to a vote at this stage, but I might bring it back at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

The clause requires that public authorities refer certain subsidies and subsidy schemes to the subsidy advice unit before they are given or made. Two types of subsidies or schemes must be referred: those defined as being of particular interest in clause 11 and those that are called in by the Secretary of State under clause 55.

11:45
Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

We support clause 52. I am not concerned about the detail of the clause, but how it will be effective as part of the regime. This comes back to why the rules around what can be referred under the definition of a subsidy of particular interest and who has what call-in powers will be a fundamental question to come back to. It would be a shame to have a good clause and not use it to best effect to support the best outcomes of the regime.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

I agree with the hon. Lady. My concern, which I mentioned briefly when talking about the amendment, is that subsection (1) is not flexible enough. It mentions particular interests and

“where directed to do so by the Secretary of State”,

but I would prefer to see an additional category that says, “other reasons”, with regulation to follow if that is what the Minister suggests. There are probably more reasons why things could be referred mandatorily to the CMA without having to go through the affirmative process of changing the particular interest subsidy section in clause 11. There could have been a little more flexibility in that clause, and it would be useful if the Minister agreed to think about that.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

I am always happy to think about flexibility.

Question put and agreed to.

Clause 52 accordingly ordered to stand part of the Bill.

Clause 53

CMA reporting period for mandatory referral

Question proposed, That the clause stand part of the Bill.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 53 sets out the timeframe within which the subsidy advice unit must publish its report on a subsidy or subsidy scheme once a mandatory referral has been made to it by a public authority. The subsidy advice unit has an initial five-day working period in which to tell the public authority whether it has provided the information required by clause 52. It then generally has 30 working days in which to publish a report on the subsidy or subsidy scheme. That is the reporting period.

There are a couple of situations where it might be extended on a case-by-case period, whether by mutual agreement with the SAU and the public authority or directed by the Secretary of State following a request made by the SAU. Extensions are intended to be used sparingly—for example, when the SAU has been asked to report on a particularly complex case.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

It is a pleasure to respond to the Minister’s comments. The clause sets out the CMA’s reporting period for mandatory referrals. It specifies that the CMA has 30 working days to issue a report, unless the reporting period is extended under subsections (4) or (6). There is also the important five-day period for the CMA to respond to a request for a referral.

Labour Members recognise the importance of a relatively quick reporting period to give public authorities the confidence they need when granting subsidies under what is designed to be a quicker and easier system. However, it should not be without safeguards and, sometimes, extra safeguards, bearing in mind that pre-notification brings checks earlier in the process. We have to continue to be very mindful of that. We want subsidies that are given for the right reasons to be granted, without an extra onerous delay from the reporting taking too long, so it is important that some targets and mandatory deadlines are in the legislation.

We are concerned about whether the CMA will have the necessary capacity to produce the initial response within five days, and then the report within the 30 working-day period. Can the Minister offer reassurances about how the Government will monitor, review and work with the CMA on whether it has the capacity? There may be a spurt of requests, particularly perhaps earlier on in the process, as public authorities are starting to feel their way through it. They may even request, for good reason, voluntary referrals. What process is he putting in place to ensure that the CMA has the necessary resource to carry out its reporting adequately and in a timely manner?

We want that reporting to be to the required standard. Corners should not be cut in order to meet a deadline. We need the work to be done effectively and with the confidence of all interested parties and the public. We would also like clarity on what exactly would constitute an exceptional circumstance to allow the Secretary of State to extend the reporting period. Will the Minister provide further clarity on what might fit that definition? Despite those concerns—there may need to be some tightening up later—the clause lays out the necessity of the measures for the effectiveness of the regime. We will therefore agree that it stand part.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

The purpose of the referral process is not for the subsidy advice unit to duplicate the public authority’s assessment of whether the subsidy complies with the subsidy control requirements. The SAU provides the evaluation of the assessment based on the information that is already provided by the public authority, so it is not duplicating work. We therefore believe that 30 working days is reasonable, given that specific role, but for exceptional or complex cases where more time may be necessary, as I said, the SAU may extend the reporting period, either through agreement with the public authority or by a request to the Secretary of State.

When that extension is agreed by mutual consent, the SAU has to publish a notice stating how much the reporting period has been extended by and why that has happened. If it cannot be agreed by mutual consent, the SAU can request that the Secretary of State directly extend the reporting period. That can be requested and, in turn, granted only in exceptional circumstances. We chose the CMA in the first place to host the SAU because of its expertise and experience in protecting competition and investment, making it a natural fit for those broad aims. We are already working closely with the CMA to plan for the delivery of the new SAU, ready for the implementation of the regime.

Question put and agreed to.

Clause 53 accordingly ordered to stand part of the Bill.

Clause 54

Cooling off period following mandatory referral

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

I beg to move amendment 3, in clause 54, page 30, line 8, leave out “on or”.

This amendment ensures that a public authority may give a subsidy after the reporting period expires, but not on the final day of that period.

The amendment consists of a very minor change that is nevertheless necessary to ensure the public functioning of the mandatory referral process. Clause 54 requires that the public authority waits for a cooling-off period to elapse following the subsidy advice unit’s report on a mandatory referral before giving a subsidy or making a subsidy scheme. That is intended to ensure that public authorities have a minimum window for considering the contents of such a report before giving the subsidy or making a scheme. Subsection (3) applies where the subsidy advice unit has not produced a report before the statutory reporting period of 30 working days. The reporting period is usually 30 working days. Here there is no need for a cooling-off period since there is no report for the public authority to consider. Instead, the public authority should be able to give the subsidy or make the scheme any time after the reporting period has expired.

As currently drafted, subsection (3) allows the public authority to make the subsidy on the last day of the SAU’s 30 working-day reporting period, before it has technically expired. That gives rise to the theoretical possibility of a public authority being able to give a subsidy or make a scheme on the last day of the reporting period, when there is still a short time left for the SAU to publish its report—that is not the intention. This amendment clarifies that the full reporting period must have expired before the public authority can give a subsidy or make a scheme without having to wait for a cooling-off period to elapse.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

We support Government amendment 3, which provides clarity as to exactly when the cooling-off period ends. I will reserve my other comments on the clause for the next stages.

Amendment 3 agreed to.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I beg to move amendment 48, in clause 54, page 30, line 10, leave out “Secretary of State” and insert “CMA”.

This amendment provides that the power to extend the cooling off period should sit with the CMA rather than the Secretary of State.

The Labour party accepts the necessity of the cooling-off period to ensure that appropriate consideration is also given to the CMA’s report. However, we do have some concerns about subsection (4) of the clause. We believe that the power to extend the cooling-off period should lie not with the Secretary of State but with the CMA. Given that the extension of the cooling-off period could have a significant effect on the granting of the subsidy and the effectiveness of its intended purpose, we should not risk it being seen as a politically charged, or political, decision. As such, we believe that it would be better for the CMA, an independent organisation whose judgment is trusted, to make that decision. Amendment 48 would make that change.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

As we have heard, clause 54 provides for a cooling-off period of five working days that have to expire before the authority can give a subsidy or make a subsidy scheme that has been subject to the mandatory referral process. The clause further provides that the Secretary of State may direct an extension to that cooling-off period if they judge that the report published by the SAU at the end of the mandatory referral process shows serious deficiencies with the public authority’s assessment against the subsidy control principles. Amendment 48 would remove that power from the Secretary of State and give the SAU the power to direct an extension to the cooling-off period. However, that would be at odds with the advisory role of the SAU, as laid out elsewhere in the Bill. We will discuss that in a more holistic way in the context of other amendments, particularly amendment 58 and new clause 3.

For now, I emphasise the Government’s view that the SAU is not a regulator or a gatekeeper, but rather acts as that impartial adviser for the most potentially harmful subsidies and schemes. Its reports are non-binding, and it will provide an important way of scrutinising the underlying assumptions in the design of subsidies and schemes, as well as identifying potential weaknesses. Granting a power to the SAU to extend the cooling-off period after it has published its report risks muddying the water between the role of adviser and enforcer.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

If there is a concern, does the Minister envisage the CMA being able to recommend extending the cooling-off period?

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Part of the CMA’s regular reporting on how the system works will look at the scheme holistically, and it may wish to look at that period as well. Ultimately, it is the Secretary of State who is responsible for the subsidy control system and its consequent effects on competition and investment across the UK. Although the SAU will be created to help facilitate the effective operation of the regime, it does not have the same overarching responsibilities as the Secretary of State, so it is right that the Government bear the responsibility for intervening in the subsidy control regime where necessary. In drawing the SAU into the space for that decision making and matters of public spending, even in a limited way, the amendment would risk the CMA’s hard-earned reputation for independence and political neutrality.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

I have spent years looking at education reports and care inspectorate reports. There are criteria for giving marks and a particular language is used—something is good, poor or dreadful. Is the Minister expecting that “serious deficiencies” will be used by the CMA in the report? Will it say, “We consider there to be serious deficiencies”, which the Secretary of State would consider to be a red flag, resulting in the potential extension of the cooling-off period? Does the Minister think the CMA will do that explicitly, or will the Secretary of State have to read between the lines and try to work out how bad things are? We do not know how the reports will be structured, so it would be helpful if the Minister could make clear whether the Secretary of State is going to understand the meaning of the reports and whether the SAU would seek an extension to the cooling-off period because it believed there were serious deficiencies.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

There is not going to be a rating, because the SAU is not a regulator or enforcer, but it is responsible for making sure that the situation is made as clear as possible so that people, not least the Secretary of State, can understand it. That is why we have left this matter to the CMA—its staff are experts and have great experience of doing exactly that.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

This has been a very helpful debate. The Minister is right: we will discuss some contextual powers in the debates on later clauses and new clause 3. Clarifying the roles, expectations and powers for the CMA, the Secretary of State and other bodies, such as devolved Administrations, is an important point to come back to, but I will not press the amendment at this stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I beg to move amendment 50, in clause 54, page 30, line 18, at end insert—

“(5A) The Secretary of State must by regulations define ‘serious deficiencies’ for the purposes of this section.”

This amendment requires the Secretary of State to define “serious deficiencies” for the purposes of directing that the cooling off period is extended.

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss amendment 51, in clause 54, page 30, line 26, after “subsection” insert “(5A),”.

This amendment is linked to Amendment 50.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

It is a pleasure to move amendment 50 and, with that, to speak to amendment 51, to which it is related.

Clause 54(4) states that the Secretary of State can extend the cooling-off period if he or she considers that the CMA’s report has identified “serious deficiencies”. The hon. Member for Aberdeen North has referred to that point. Yet again, the Bill is lacking a key detail—namely, what would constitute a serious deficiency. We have had a brief discussion on this point. Clarity is necessary for public authorities, the CMA and interested parties, in order to have confidence in the new regime and the timing of subsidies.

The amendment would require the Secretary of State to define serious deficiencies for the purposes of directing that the cooling-off period is extended. It would be helpful to the Committee if the Minister could confirm how and where we will reach a definition of serious deficiencies and when we are likely to get that definition. My comments apply to both amendments 50 and 51.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

The meaning of the term “serious deficiencies” is intended to mirror the common understanding of those words, so we do not believe the requirement to define it further is necessary. Defining it further, either in the Bill or through regulations, risks leading to a situation where the Secretary of State judges that there is a serious problem with a public authority’s assessment, but is prevented from taking action because the specific problem is not exactly set out in those regulations.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I am slightly surprised, because serious deficiencies is being used as a trigger for the Secretary of State to be able to use a power. I would be very surprised if there was a common understanding that was so common that even the members of this Committee, if they were to secretly write it down on a piece of paper and compare notes, would have exactly the same definition of serious deficiencies. I am not sure that suggesting there is a common understanding, as if that is fact, is the right way to address this particular point. We need this defined, and we need to know when and where it will be defined.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

One of the problems is that, if we define it in the way I think the hon. Lady is after, we then lose some of the flexibility. I was just about to say that the exact situation will vary on a case-by-case basis. A serious deficiency could arise, for example, if the subsidy advice unit identified that the proposed subsidy or scheme might have significant negative effects on UK competition and investment but the public authority had not considered any of the options for mitigating those effects. Another example might be if the SAU identified significant technical flaws in or omissions from the public authority’s assessments of compliance with the requirements of chapters 1 and 2 of part 2, such as the analysis of how the subsidy incentivised a change in the beneficiary’s behaviour or the impact on international trade.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

Does the Minister agree that it is likely that the SAU will have internal working definitions of what is “acceptable” or “deficient”, and that it is likely to say that to the Secretary of State in giving its recommendations and possibly asking for any extensions?

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Absolutely—that is exactly what I was going to come on to. The hon. Lady has obviously seen the next paragraph I was going to read. The Secretary of State would not be taking that view on his own. It would not be an arbitrary judgment; it would be acting on the basis of a published report by the SAU, which is obviously independent.

As the hon. Member for Feltham and Heston said on Second Reading and has reiterated this week,

“the new system will work only if it provides transparency, oversight and scrutiny”.—[Official Report, 22 September 2021; Vol. 701, c. 341.]

This amendment only serves to undermine those aims slightly—unintentionally, I am sure—by limiting the circumstances in which the Secretary of State can act to extend the cooling-off period and ensure that a public authority has more time to consider the SAU’s comments. I therefore request that she withdraw her amendment.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I thank the Minister for his comments. I will not press the amendment to a vote, but I want to repeat this point. In light of what the Minister has said, some of the examples or scenarios that he has started to outline suggest that there is more that can be done to scope out, set out some expectations or perhaps put something in guidance so that there starts to be a sense of scope around what sorts of scenarios could result in a consideration of serious deficiencies.

I say that not because I am trying to create an issue that is not there, but because where we have something in legislation that is a basis on which a power is to be exercised, it is incumbent on the Government to ensure that there is greater clarity about what the expectations might be. That might not be a complete list, defined A to H, but it may be a broad set of guidance, for use both by the subsidy advice unit in making assessments, and by the Secretary of State in making a clearer and more transparent decision that could also be open to scrutiny. I hope the Minister will confirm to the Committee that he would be prepared at least to look at some of those areas he has outlined—perhaps there will be more and we might need to come back to this in the regulations—to provide clarity on what could be quite an important use of the power. We would hate for the use of the power to be challenged on the basis of people not agreeing that something was a serious deficiency. We do not want the process to be subject to unnecessary delays that could be dealt with by planning ahead for different interpretations. There is perhaps not the common understanding that the Minister thinks of “serious deficiencies”.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 54 establishes the cooling-off period that must elapse before a public authority may give a subsidy or make a subsidy scheme that has been referred to and reported on by the subsidy advice unit, following a mandatory referral.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

We have no further comments other than the issues we have raised already. We support clause stand part.

Question put and agreed to.

Clause 54, as amended, accordingly ordered to stand part of the Bill.

Clause 55

Call-in direction

Bill Esterson Portrait Bill Esterson (Sefton Central) (Lab)
- Hansard - - - Excerpts

I beg to move amendment 52, in clause 55, page 30, line 29, after “Secretary of State” insert

“, the Scottish Ministers, the Welsh Ministers and the Department for the Economy in Northern Ireland”.

This amendment extends the call in powers under this section to the Devolved Administrations.

It is great to see you back in the Chair, Ms Nokes, bright and early this time.

The amendment addresses the call-in powers as they relate to the devolved Administrations. We think that the power to call in is a good power to have in the Bill, but it needs to be consistent and apply to the devolved Administrations, not just to the Secretary of State.

Clause 55 allows the Secretary of State to request an assessment of a subsidy or subsidy scheme if the Secretary of State believes it could be breaking regulations or having negative effects on competition and investment in the United Kingdom. As we have said a number of times, it is important that the First Ministers and the Northern Ireland Department responsible have those same powers. It makes no sense that the Secretary of State should be empowered to call in Scottish, Welsh and Northern Irish subsidies that may damage English interests, but the Scottish, Welsh and Northern Irish leaders cannot call in subsidies that may damage the interests of their own nations. That is what we heard in the evidence sessions.

I start with the evidence from Thomas Pope, deputy chief economist at the Institute for Government, who told us that subsidy control

“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.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 31, Q43.]

Simon Baynes Portrait Simon Baynes (Clwyd South) (Con)
- Hansard - - - Excerpts

Will the hon. Gentleman give way?

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

The hon. Gentleman is wearing a mask, so I will give way.

Simon Baynes Portrait Simon Baynes
- Hansard - - - Excerpts

In the previous discussions on this issue, the opinion of the Bill Committee seemed to be that these matters were the responsibilities of the Secretary of State. It therefore makes no sense to me to devolve those responsibilities to the devolved Administrations. In some of their comments, Opposition Members have fully accepted that these matters are the responsibility of the Secretary of State, because it is a reserved power.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

Just because the Government keep winning the votes, which they always will do because they have a majority in Parliament and therefore on the Committee, that is not a reason for us to not make valid arguments. This is a slightly different point on our concerns about the failure to reflect the devolution settlement in the Bill. Call-in is a slightly different aspect of the powers needed for a functioning subsidy regime, and it is right that we are raising it at this stage of the deliberations.

12:14
Robin Millar Portrait Robin Millar (Aberconwy) (Con)
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Will the hon. Gentleman give way?

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

The hon. Gentleman is wearing a mask, so I will give way.

Robin Millar Portrait Robin Millar
- Hansard - - - Excerpts

Is it not precisely the point that this does reflect the devolved agreement, because the Secretary of State has those reserved powers?

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

I think the hon. Gentleman missed the point I was making, but there we go. It is entirely appropriate, given that the regime is a four-nation regime, that the four nations have the powers of call-in to the CMA in the way that our amendment sets out.

Robin Millar Portrait Robin Millar
- Hansard - - - Excerpts

This is an important point, so I am grateful to the hon. Gentleman for giving way again so soon. There is no four nations concept within our constitution. We have one United Kingdom Government and three devolved Administrations. Four nations is something reserved for rugby matches and the vernacular—[Interruption.] Indeed, the rugby is six. It is not something within our constitution. He has referred to the four nations on several occasions, and on this occasion I feel it is important and relevant to make that point.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

I suspect that more than one party would be very interested in repeating those remarks multiple times, certainly in two of the nations of this country. They are called nations within the devolved settlement; we have a devolution settlement that has “four nations” within it. It will be interesting to see how many times the hon. Gentleman is quoted saying that.

I will quote what George Peretz told us about why it matters that there should be a call-in power for all four nations:

“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.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 44, Q63.]

I have not heard from either the hon. Member for Clwyd South or the hon. Member for Aberconwy an argument against what he told us last week.

Rachel Merelie, senior director for the Office for the Internal Market at the CMA, noted:

“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.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 69, Q98.]

I am not the only one talking about the devolved nations by any means; we have it from the CMA.

Kevin Hollinrake Portrait Kevin Hollinrake (Thirsk and Malton) (Con)
- Hansard - - - Excerpts

Will the hon. Gentleman give way?

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

The hon. Gentleman does not have a mask on, so I will not. He will be able to make a speech afterwards, as I think one of his colleagues said.

The devolved nations of the United Kingdom cannot be treated as second class when it comes to economic matters that could have potentially monumental impacts on the proper functioning of their markets. The devolved Administrations must have equitable powers with the Secretary of State to call in subsidies where they could be damaging to their own economies.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

I stand as a proud representative of the nation of Scotland to make a brief speech on amendment 52. The powers that are suggested under clause 55 are limited powers. They are not unlimited powers to call in anything on a whim of the Secretary of State or of anybody else. They can only be called in in relation to subsidies or subsidy schemes of interest, or subsidies or subsidy schemes in which the Secretary of State considers there is a failure to comply with chapters 1 and 2 of part 2, or there is a risk of negative effects on competition or investment within the United Kingdom.

The amendment proposed by the Opposition does not affect that. It would still apply only in the case that the devolved Administrations wanted to call in something that was a scheme of particular interest, or something that the Secretary of State had presumably already called in that was against chapters 1 and 2 of part 2 or where the Secretary of State agreed there were negative effects on competition or investment within the United Kingdom. Those are not, as the Government members of the Committee have suggested, unlimited powers parallel to those of the Secretary of State; they are limited powers. The only time the power would be exercisable is if the schemes were of interest—rather than of particular interest, because they are mandatorily referred—and the three devolved Administrations would be able to call those schemes in. It would be a limited power that would only apply for schemes of interest. I absolutely support the amendment—it makes sense—and we would obviously like it to go further. We have a devolution settlement and this is a proportionate amendment that makes sense in the context.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Under the powers in the Bill as drafted, when the Secretary of State decides to exercise the call-in power, that direction has to be published. In addition, the SAU has to provide annual reports on its caseload, including any subsidies and schemes that were called in by the Secretary of State. That transparency will help ensure that the powers are used appropriately and that Parliament has oversight of how and when the powers are being used. Amendment 52 would allow those referrals to the SAU under the terms of clause 55 to be made by devolved Administrations, whereas the Bill provides the power for the sole use of the Secretary of State.

In the majority of cases, the most potentially harmful subsidies will be those that meet the criteria for subsidies of particular interest, which will be set out in regulations, but it is inevitable that there will be some subsidies or schemes that fall outside those boundaries. They will still benefit from the additional scrutiny offered by the SAU.

The call-in power provides a mechanism to catch potentially highly distorted subsidies that may not be caught within the “subsidies of particular interest” definition. It will also provide a safety net where there is a risk of failure to comply with the subsidy control requirements or there is a risk of negative effects of competition and investment within the UK. This is a reserved power and as such the Secretary of State’s responsibilities and interests in making referrals are UK wide. As a member of the UK Government, they are responsible for subsidies granted in all parts of the UK being compliant with our international obligations.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

I have two questions. I would have expected that “particular interest” would cover anything that does not meet chapters 1 and 2 of part 2 anyway, so it would be nice if the Minister could clarify that point. Secondly, if any of the devolved Administrations request a meeting with the Secretary of State because they are concerned and want the Secretary of State to call something in, would the Secretary of State grant that meeting?

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

On meetings, I am not the Secretary of State, but effectively, yes—we want to engage with the devolved Administrations. We do that on a regular basis, and have done in the formulation of this Bill, as we have discussed many times, and we will continue to do so as we go through guidance and the working of the Bill.

In the event that one or more of the devolved Administrations has serious concerns about a subsidy given or a scheme made, of course they can request that the Secretary of State use that call-in power. The Secretary of State would carefully consider any request from their counterparts in the devolved Administrations, just as they would on any other policy matter. As I say, we have met the devolved Administrations a number of times since July 2020 on the formulation of this Bill. We continue to meet and engage with them regularly, and listen to their views as the Bill progresses through Parliament, and we will do so in the lead up to implementation. I request that the hon. Member for Sefton Central withdraws the amendment.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

My other question was about the definition of “particular interest”, or “interest”. Subsidies of particular interest will be mandatorily referred, as we have already agreed, but subsides that risk to fail to comply with the requirements of chapter 1 and 2 of part 2 could be referred by the Secretary of State. It would concern me if compliance was not part of schemes of particular interest, or schemes of interest. I understand that some schemes of particular interest would be defined on the basis of the sector they are in and the specific details of the subsidy, but I would expect that lack of compliance with the rules would cause a scheme to be of particular interest anyway. I hope the Minister understands what I am trying to get at here. If a subsidy does not comply with the subsidy control principles, surely it is either not a subsidy—it is not allowed—or it is a scheme of particular interest that would need to be looked at mandatorily, or perhaps optionally, by the CMA.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

I think I get the general gist of where the hon. Lady is going with that point. That is why, rather than trying to define them as not complying, we are trying to define them specifically at the outset, hence the regulations that we will be putting forward, but there is plenty of opportunity to have that discussion.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

The hon. Member for Aberdeen North correctly made the point that the amendment asks for a limited set of powers. I set that out using the evidence. We should follow the evidence of people who are experts on these subjects. We had a range of very good witnesses, who set out why there should be the sorts of powers that we are proposing. I cannot help think that there will be occasions when the Secretary of State is making awards. If he, as it says in the Bill, is making those awards, is there not a potential conflict of interest if there is not another way of providing that call-in if there is perceived damage in the other three nations? The Minister might want to respond to that point.

The amendment makes a limited request. The Minister talked about requests to the Secretary of State for a call-in, but a request is not the same as a power. Unless there is that power—potentially in the case of a conflict of interest where the Secretary of State is the awarder—there is a limit to the way the Scottish, Welsh and Northern Irish Administrations can ensure there is a fair application of the system in terms of call-ins. I would be grateful if the Minister could come back on this point about the potential conflict of interest where the Secretary of State is the awarder in relation to the use of call-in powers.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

As I say, the Secretary of State will be acting on behalf of the UK Government. Subsidy control is a reserved power, as we established in the debate for the United Kingdom Internal Market Act 2020 that we had at length at the end of last year. None the less, there is no special treatment for the Department for Business, Energy and Industrial Strategy. There was plenty of opportunity through the publication of the advice and the reason for call-ins, and any enforcement that may need to be done through the Competition Appeal Tribunal to highlight that potential. None the less I think there were enough checks within the structure to avoid that. I hope the hon. Member will withdraw the amendment.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

I do not think that we got an answer to my question. There is still the concern that if the Secretary of State says no and there are legitimate concerns in the three nations, there needs to be the additional limited opportunity of call-ins. We will push the amendment to a vote.

Question put, That the amendment be made.

Division 16

Ayes: 4


Labour: 3
Scottish National Party: 1

Noes: 8


Conservative: 8

Question proposed, That the clause stand part of the Bill.
12:29
Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 55 gives the Secretary of State the ability to direct a public authority to request a report from the subsidy advice unit on a proposed subsidy or subsidy scheme. That may be made in relation to a subsidy of interest or any other subsidy or scheme that the Secretary of State considers to be at risk of failing to comply with the subsidy control requirements or of negatively impacting competition or investment in the UK. It is not intended to be used routinely, but it is a necessary safeguard. It is there to ensure that an additional layer of scrutiny can be applied to subsidies that might risk creating market distortions but would otherwise not be subject to mandatory referral to the SAU.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

I was going to ask a question about this clause, and the Minister has managed to make me even more confused. Subsection (1) states:

“A public authority may request a report from the CMA before giving a subsidy, or making a subsidy scheme, of interest.”

It does not state that, additionally, any other subsidy may be referred to the CMA under a voluntary referral. It might elsewhere in the legislation, but it does not at this point.

My concern was that it relates only to subsidies “of interest”—subsidies of particular interest are covered by mandatory referral, and that is fine—but for subsidies that fall outside the category of interest, perhaps because interest is narrowly drawn by the regulations when interest is set, there seems to be no way for those public authorities to refer them voluntarily to the CMA, as the legislation is drafted. It would be good if they could.

Let us say that “particular interests” and “interests” are defined by the Government, that goes through the affirmative procedure, we have a discussion, and the definitions are agreed. Accidentally, however, something is left out of the category of interest—because we do not think of everything—and a local or public authority discovers the anomaly and thinks to itself, “Do you know what, I should refer this to the CMA voluntarily, because I think it probably should be included in the schemes of interest, but in the way that the legislation is written, it does not fall under that”, so it tries to make a voluntary referral. It cannot, however, because it may make a voluntary referral only in the case of something that is of interest.

There is a bit of a gap. Authorities should be able to make that voluntary referral, whether it is a scheme of interest or not. There is a concern. As to what the Minister said, absolutely, if the Secretary of State has a concern additional to the interest section, that would be fair enough and make a difference, or if the authority itself decides that it should be referred to the CMA. I do not think that that will be a huge amount of extra work. Authorities will not refer themselves to the CMA for fun; they will do so when they feel that there is a reasonable chance that what they are considering doing is contentious.

I will not vote against the clause, because voluntary referrals are a good thing, but I do not think that it goes as far as the Minister suggested it goes—unless I have missed something.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

I was not entirely clear which clause the hon. Member for Aberdeen North was speaking to. We are still on clause 55 stand part—but it was a very good speech on the next clause, so we now know what she will say.

We expressed our concerns in the debate on our amendment. I hope that the Minister will reflect on those concerns and consider whether greater strength is needed in this clause and, similarly, I suspect, in clause 56—when we get to that debate.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

It is no wonder that I was confused by what the Minister said. He was speaking to clause 55 and I was looking at clause 56. Apologies.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

We will hear the hon. Lady’s comments again.

Question put and agreed to.

Clause 55 accordingly ordered to stand part of the Bill.

Clause 56

Voluntary referral to CMA

Question proposed, That the clause stand part of the Bill.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

The clause—wait for it—allows public authorities voluntarily to refer certain subsidies or subsidy schemes to the subsidy advice unit before they are given or made. Those are known as subsidies or schemes of interest, and the criteria will be set in secondary legislation, as set out in clause 11.

To make that voluntary referral, the public authority has to provide certain information about the subsidy or the scheme that will be referred, including an assessment by the public authority of whether its proposed subsidy or scheme would meet the principles, the prohibitions and the other requirements set out in chapters 1 and 2 of part 2 of the Bill.

The Secretary of State is also given the power to make new regulations specifying the form in which that information must be provided to the SAU, as well as any additional information that must be provided beyond that which is already set out in the clause. That will enable the content and the form of the request to be adapted based on operational experience of whether the SAU is getting the information it needs to report back effectively.

Openness, transparency and a risk-based approach to scrutiny will ensure confidence in the new UK subsidy control regime. The voluntary referral process provides an additional avenue of scrutiny for public authorities seeking to grant some of the more potentially distortive subsidies and schemes. To answer the question from the hon. Member for Aberdeen North, who may want to ask it again, the process gets the balance right by ensuring a flexible system with enough information for the public authorities to get it right in the first place. A lot of that will be done through guidance, and the SAU is there to be helpful and give advice; it is not an enforcer or a regulator.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

Let me just imagine that I made an excellent speech.

The concerns that I raised a few moments ago still stand. I think there should be more flexibility in the first part so that it is made clear to public authorities that they can refer something should it not fall under the specific definition of “schemes of interest”. I would appreciate it if the Minister considered tabling an amendment to that effect. I do not feel that that would make additional work.

I genuinely feel that public authorities would use that flexibility only in circumstances where they feel that “schemes of interest” has been defined too narrowly to cover the scheme that they would like to refer to the CMA. That flexibility would not be overused; nobody would be daft enough to overuse it. There seems to be no ability for public authorities to refer anything unless it is classed as a scheme of interest or particular interest, or is something deemed by the Secretary of State to meet various criteria. I would appreciate it if the Minister looked at that.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

The clause does indeed allow public authorities to

“request a report from the CMA before giving a subsidy, or making a subsidy scheme, of interest.”

We have had some interesting and helpful discussion so far, but our main concern remains the lack of clear definitions in the legislation, particularly the definition of “interest”. Such clarity would provide some necessary assurance to public authorities, the CMA and subsidy recipients about how the regime will work in practice.

We could have pre-empted this issue and had clearer definitions to ensure that more was done upstream by public authorities, meaning fewer referrals. More referrals will create more burden on the subsidy advice unit. Referrals will be made for good reason, however, so we absolutely need the provision. It is likely that there will be greater demand for referrals in the earlier stages of the regime’s implementation, but as people become familiar with the process and judgments become clearer, and the CMA gets some case studies to use, the system will improve.

It is important that there is clarity from Government. We may come back to some of this, but the referring public authority will also need clarity on what it will and will not get back. Guidance on that would be extremely helpful to make the legislation work effectively.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

I take on board the hon. Lady’s point about guidance and ensuring that public authorities know what to provide and what to expect back. That is absolutely fair. In terms of where we go and how wide we make this, it is not our intention to replicate the needlessly complicated and slow processes under the state aid scheme; this will be focused on the most potentially distortive subsidies, to provide scrutiny where it is most needed, so it would not be proportionate to have the extra step for every subsidy regardless of size or impact.

The SAU itself will have discretion on whether to accept voluntary referrals based on the CMA’s existing and published prioritisation criteria, because we want to ensure that it can do its job effectively, but none the less offer that advice.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

The Minister is starting to go a little bit further in implying that there will be, perhaps not trade-offs, but decisions that will need to be made about whether to have the review done by the subsidy advice unit and what that might be intended for. What the clause might be intended for may not be the same as what public authorities may feel in wanting to seek a voluntary referral. Can he perhaps clarify whether, for example, undertaking a voluntary referral may be used to seek to provide reassurance so that there is less likelihood of a challenge later on? Decisions that are taken will bear some relationship to other parts of the Bill and the ability to bring challenges. What status would receiving a report back from the subsidy advice unit have? Could that be used if, for example, there was a challenge later on?

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Indeed, that is exactly the reason for the SAU not to be the regulator or the enforcer but to provide expert, independent advice. Even in the more distortive schemes, as I have always said, there is nothing stopping a public authority from giving the subsidy even if there is advice not to. However, since that advice is published, it would be available to people looking in on the matter, and in any referral to the CAT that would be taken into account. One of the reasons for putting it under the CMA is that it already has the expertise and the ability to give good advice and robust assessment and analysis.

Rightly, where the SAU itself considers appropriate, the public authority can get advice on the design of its subsidy or scheme, but the SAU will base that on its own criteria, such as the overall impact on competition, strategic significance and the available resources.

Question put and agreed to.

Clause 56 accordingly ordered to stand part of the Bill.

Clause 57

CMA reporting period for voluntary referral

Question proposed, That the clause stand part of the Bill.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 57 sets out the timeframe within which the SAU must publish its report on a subsidy or subsidy scheme. Once it has accepted a voluntary referral made by a public authority, it has an initial period of five working days to tell the public authority whether it will produce a report in response to the request. It will then generally have a reporting period of 30 working days in which to publish its report on the subsidy or subsidy scheme.

The clause also enables the Secretary of State to make regulations to amend either the period of five working days or the reporting period itself, which will allow the Government to amend those periods, should longer or shorter periods prove to be necessary based on experience of how the regime is working in practice. Any regulations would be subject to the affirmative procedure and therefore would need to be approved by Parliament in draft.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I thank the Minister for his comments on clause 57 stand part. The clause outlines the CMA’s reporting period for subsidies and schemes that are voluntarily referred to it. We have no issues with this clause, but I wanted to raise one small point in relation to subsection (6).

I would be grateful for clarity about how the Minister expects any extensions of the reporting period to be reported, because we do not just need to know that it is taking longer because there is complexity: we need to know whether it is taking longer because there is a resourcing issue, or because public authorities are not completing the paperwork correctly and there is some confusion over some information that might be provided. Understanding those reasons would inevitably be useful when seeking improvements to the system and making the process more efficient.

More efficiency also means less cost and better value for money, because it is public money that goes into the CMA and the subsidy advice unit, so we need to make sure those resources are used effectively and improve the quality of both the applications and the process. I would be grateful to understand how the Minister envisages that being done.

12:46
Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

It is in the interests of the SAU and everybody else that this system works. If the quality of evidence that public authorities are giving is causing complexities, feedback to those public authorities would be incredibly helpful in making sure the framework works, but it is also the kind of thing that would be covered in the CMA’s reporting when it says how the framework is working in itself.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

Would that be in the annual report, or in the five-year review? Five years is rather a long time.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

It would be in both. That reporting is there to say what subsidies exist and how the framework is working, but those conversations would also be happening all the time through the advice to public authorities and BEIS’s communications with the CMA on a regular basis, making sure that the framework works. As I said, it is in everybody’s interests that we get that exchange right.

Question put and agreed to.

Clause 57 accordingly ordered to stand part of the Bill.

Clause 58

Call-in direction following voluntary referral

Question proposed, That the clause stand part of the Bill.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 58 sets out what would happen if the subsidy advice unit agreed to report on a subsidy or scheme that has been voluntarily referred, and that subsidy or scheme is then called in by the Secretary of State. The clause streamlines the pre-award reporting process that would apply when the subsidy is called in following a voluntary referral, because the SAU should already have some familiarity with the subsidy or scheme that has been called in, due to its already having been voluntarily referred.

Three scenarios are dealt with within this clause. The first is where the SAU has not published its report on a subsidy or scheme that was voluntarily referred, and the statutory time limit for doing so has not yet expired. The second is where the SAU has not published its report on a subsidy or scheme that was voluntarily referred, and the statutory time limit has expired. The final scenario is where the SAU has already published its report on a subsidy, but that subsidy has not yet been given or made. This clause ensures that the processes for scrutinising subsidies and subsidy schemes by the SAU are as efficient and timely as possible.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

We agree that in such cases, the subsidy or scheme in question should be treated as if it were part of a mandatory referral to the CMA. We have no issues with this clause, and will vote for it to stand part.

Question put and agreed to.

Clause 58 accordingly ordered to stand part of the Bill.

Clause 59

CMA report following mandatory or voluntary referral

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

I beg to move amendment 53, in clause 59, page 33, line 13, leave out paragraph (a).

This amendment removes the power for the Secretary of State to amend this section by regulation.

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss amendment 54, in clause 59, page 33, line 17, leave out subsection (6).

This amendment is a consequential amendment linked to Amendment 53.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

We have concerns about the way the clause allows the Secretary of State to use regulations to affect the content and form of CMA reports. This is a question of the CMA’s independence. On the Competition and Markets Authority website, it describes itself as

“an independent non-ministerial department”.

The CMA’s work

“is overseen by a Board, and led by the Chief Executive and senior team. Decisions in…investigations are made by independent members of a CMA panel.”

In contrast, the clause would empower the Secretary of State to amend, by using regulations, the content of the CMA’s reports. It is very hard to see how this is anything other than a direct contradiction of the principle of independence, baked into the CMA’s set-up.

The timing of the change, given the shameful proceedings in the Commons Chamber yesterday, leaves the suspicion that it is, again, about removing the principle of independence from the heart of the CMA’s role. We saw this with the Prime Minister’s own adviser on ministerial standards, Sir Alex Allan, resigning because of the breach of the ministerial code, and we saw it yesterday with members of the ruling party scrapping the rules or attempting to scrap the rules on MPs’ conduct because one of their own was found guilty of what the Standards Committee described as an “egregious” breach and then wanting to scrap the role of the independent standards commissioner.

Robin Millar Portrait Robin Millar
- Hansard - - - Excerpts

Will the hon. Gentleman give way?

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

Of course, they will all want to intervene—

None Portrait The Chair
- Hansard -

Order. May I remind hon. Members to stay within the scope of the Subsidy Control Bill?

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

Thank you, Ms Nokes. On that basis, it will probably not be wise to take the interventions. I am using these things as an example of the ruling party’s attempts to remove independence. The CMA is also supposed to be independent. We have seen a desire to break the rules and then just remake the rules in the main Commons Chamber, and I fear that now we may be seeing something similar—we need to ensure that we do not see something similar—when it comes to the independence of the CMA in its role with regard to the subsidy control regime.

Without amendment, the clause will allow the Government to rewrite the contents of an independent report if there is any warning that it will say something that they do not like. That is not how independence works, and it is not good government. Our amendments would remove the power for the Secretary of State to do that. It would remove the power to edit reports published by the CMA, and it would ensure that the independence of the CMA stays as it is.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

I have just a brief question. This clause lays out things that reports following mandatory or voluntary referrals “must” include and some things that the reports “may” include. Can the Minister confirm that the reports may also include things not mentioned here and that the additional things that would be included would be at the discretion of the CMA? If it can include only the musts and the mays in the clause, it will not be able to include anything else that the CMA considers would be relevant in the report. Given that the Minister has stressed the independence and expertise of the CMA, it would be sensible to confirm that it can include matters that it feels are relevant, whether or not they are explicitly mentioned in the Bill.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

The CMA is independent and will use its expertise. I think that we have crossed wires here, because actually the clause allows the Secretary of State to talk about the content of the report but not to textually amend an independent report. That is not what we are talking about here, which is what is within scope of the report—to ensure that it can actually do it. This is to be able to give additional transparency and scrutiny in the regime itself. The clause allows him to make provision about the content and form of the report, but, as I said, not to change the text of an independent report.

Any changes to the content of the report must be made by the affirmative procedure. That is core to the subsidy control regime, because if the Government believe that the process needs to be refined, it is only right to have parliamentary scrutiny of it. By contrast, any specification as to the form of the report would be a technical regulation, for which the negative procedure is appropriate. Amendments 53 and 54 remove that possibility, except by future primary legislation.

As I say, removing the mechanism for amending or enhancing the baseline for SAU reporting that is set out in clause 59 would unnecessarily tie the hands of the SAU and future Governments seeking to improve the referral process based on the experience and expertise that is gathered over time through the functioning of the new regime. As set out in clause 67, the power to change the content of the report may be exercised only for a period of one year following the publication of SAU’s first report under clause 65.

As I have set out, however, changing the form of the report is a technical matter, so it is appropriate for the regulations to be subject to the negative procedure. I therefore request that the hon. Member for Sefton Central withdraws the amendments.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

Clause 59(4)(a) uses the phrase

“amend subsection (1), (2) or (3) to make provision about the content of the CMA’s report”.

The Minister used the terms “text” and “content” interchangeably, which highlights our concern. Using secondary legislation, the Secretary of State is able to give himself the power to amend CMA reports. That is the problem—that is what overturns the power.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

The Minister did not answer my question about additional information that the CMA may include in a report that is outwith the scope of the Bill. It does not fall under part 2; it falls under something else that the CMA thinks is relevant and should be in the report. Does the hon. Gentleman agree?

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

The Minister did not answer the hon. Lady’s question, so maybe he can do that after I finish my summing up, which will not take much longer.

We will push the amendment to a vote, because the Minister did not address our concerns about removing the independence of the CMA.

Question put, That the amendment be made.

Division 17

Ayes: 4


Labour: 3
Scottish National Party: 1

Noes: 7


Conservative: 7

Ordered, That further consideration be now adjourned.—(Michael Tomlinson.)
12:58
Adjourned till this day at Two o’clock.

Nationality and Borders Bill (Fifteenth sitting)

The Committee consisted of the following Members:
Chairs: †Sir Roger Gale, Siobhain McDonagh
† Anderson, Stuart (Wolverhampton South West) (Con)
† Baker, Duncan (North Norfolk) (Con)
† Blomfield, Paul (Sheffield Central) (Lab)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
† Coyle, Neil (Bermondsey and Old Southwark) (Lab)
† Goodwill, Mr Robert (Scarborough and Whitby) (Con)
† Gullis, Jonathan (Stoke-on-Trent North) (Con)
† Holmes, Paul (Eastleigh) (Con)
† Howell, Paul (Sedgefield) (Con)
† Lynch, Holly (Halifax) (Lab)
McLaughlin, Anne (Glasgow North East) (SNP)
† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
† Owatemi, Taiwo (Coventry North West) (Lab)
† Pursglove, Tom (Parliamentary Under-Secretary of State for the Home Department)
† Richards, Nicola (West Bromwich East) (Con)
† Whittaker, Craig (Lord Commissioner of Her Majestys Treasury)
† Wood, Mike (Dudley South) (Con)
Rob Page, Sarah Thatcher, Committee Clerks
† attended the Committee
Public Bill Committee
Thursday 4 November 2021
(Morning)
[Sir Roger Gale in the Chair]
Nationality and Borders Bill
00:00
None Portrait The Chair
- Hansard -

Good morning, ladies and gentlemen. We enter the final lap. I have the usual announcements: electronic devices off, please, and no food or drink. Mr Speaker requests that Members wear face coverings as a courtesy to others; they are for the protection of others, not for the protection of yourself. I am not a terribly good example, but I cannot breathe with a mask on. Hon. Members are also asked to take covid lateral flow tests twice a week if coming on to the estate. I do not know whether hon. Members have done that; it might be a good thing to do before we depart for a week. Finally, Hansard would appreciate speaking notes.

New Clause 6

Expedited appeals: joining of related appeals

“(1) For the purposes of this section, an ‘expedited section 82 appeal’ is an expedited appeal within the meaning of section 82A of the Nationality, Immigration and Asylum Act 2002 (expedited appeals for claims brought on or after PRN cut-off date).

(2) For the purposes of this section, a ‘related appeal’ is an appeal under any of the following—

(a) section 82(1) of the Nationality, Immigration and Asylum Act 2002 (appeals in respect of protection and human rights claims), other than one which is an expedited section 82 appeal;

(b) section 40A of the British Nationality Act 1981 (appeal against deprivation of citizenship);

(c) the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020/61) (appeal rights in respect of EU citizens’ rights immigration decisions etc);

(d) regulation 36 of the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) (appeals against EEA decisions) as it continues to have effect following its revocation.

(3) If a person brings an expedited section 82 appeal at a time when a related appeal brought by that person is pending, the related appeal is, from that time, to be continued as an appeal to the Upper Tribunal and accordingly is to be transferred to the Upper Tribunal.

(4) If an expedited section 82 appeal brought by a person is pending, any right that the person would otherwise have to bring a related appeal to the First-tier Tribunal is instead a right to bring it to the Upper Tribunal.

(5) A related appeal within subsection (3) or brought to the Upper Tribunal as mentioned in (4) is referred to in this section as an ‘expedited related appeal’.

(6) Tribunal Procedure Rules must make provision with a view to securing that the Upper Tribunal consolidates an expedited related appeal and the expedited section 82 appeal concerned or hears them together (and see section 82A(4) of the Nationality, Immigration and Asylum Act 2002).

(7) Tribunal Procedure Rules must secure that the Upper Tribunal may, if it is satisfied that it is in the interests of justice in the case of a particular expedited related appeal to do so, order that the appeal is to be continued as an appeal to the First-tier Tribunal and accordingly is to be transferred to that Tribunal.

(8) For the purposes of this section, an appeal is ‘pending’—

(a) in the case of an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (including an expedited section 82 appeal), if it is pending within the meaning of section 104 of that Act;

(b) in the case of an appeal under section 40A of the British Nationality Act 1981, during the period—

(i) beginning when it is instituted, and

(ii) ending when it is finally determined or withdrawn;

(c) in the case of an appeal under the Immigration Citizens’ Rights Appeals (EU Exit) Regulations 2020, if it is pending within the meaning of regulation 13 of those Regulations;

(d) in the case of an appeal under the regulation 36 of the Immigration (European Economic Area) Regulations 2016, if it is pending within the meaning of Part 6 of those Regulations (see regulation 35).

(9) In section 13(8) of the Tribunals, Courts and Enforcement Act 2007 (decisions excluded from right to appeal to the Court of Appeal), after paragraph (bza) (inserted by section 21) insert—

‘(bzb) any decision of the Upper Tribunal on an expedited related appeal within the meaning given by section (Expedited appeals: joining of related appeals) of the Nationality and Borders Act 2021 (expedited appeals against refusal of protection claim or human rights claim: joining of related appeals),’.”—(Tom Pursglove.)

This new clause (to be inserted after clause 21) provides that where a person brings an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 that is subject to the expedited procedure under the new section 82A of that Act, certain other appeals brought by that person are also to be subject to the expedited procedure.

Brought up, and read the First time.

Tom Pursglove Portrait The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

The new clause would be inserted after clause 21. It forms part of a package of measures that will enable the swift removal of those who have no right to be in the UK. It complements clause 21 by ensuring that individuals cannot utilise the appeals system as a tool to delay their removal from the UK.

Frequently, those facing removal or deportation from the UK utilise delay tactics, such as late claims and repeated appeals, to thwart removal action. That leads to unnecessary costs to the taxpayer and an increased burden on the court and tribunals system. Clause 21 addresses that issue by creating a new expedited appeal for late human rights or protection claims brought by recipients of a priority removal notice, as provided by clause 18. Expedited appeals will be determined quickly, and the decisions of the upper tribunal will be final. Therefore, clause 21 removes the incentive for bringing claims late and protects the appeal system from abuse.

However, there may be additional appeal rights generated by other claims that individuals may seek to exercise in parallel with an expedited appeal. Such additional appeals would usually be heard in the first tier tribunal. Consequently, an expedited appeal may conclude while an individual has an outstanding appeal in the first tier tribunal, which would prevent their removal from the UK.

New clause 6 enables other appeals in the first tier tribunal brought by a person with an expedited appeal to be heard and determined by the upper tribunal alongside the expedited appeal. That will ensure that, following the conclusion of the expedited process, final determination will have been made on the appellant’s right to remain in the UK and, where the upper tribunal decides that they have no right to remain, removal action can take place.

Stuart C McDonald Portrait Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
- Hansard - - - Excerpts

I welcome the Minister back to his place. I do not follow the logic of the new clause at all. If somebody is trying to play the system—and I do not like talking in those terms—surely all they need to do is not make a late claim in terms of the PRN notice; then, their existing appeal would proceed normally, with onward rights of appeal and so on. This proposal just does not make sense, even if we accept the Government’s logic, which I do not.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

The point is exactly as I have set out: in the immigration system, we see repeated appeals deliberately designed to frustrate the system, and the new clause is an appropriate way, with appropriate safeguards, to ensure that the tribunal process can handle those appeals appropriately. It makes sense for appeals to be considered together so that attempts to frustrate the removal process cannot happen and cases are determined as quickly as possible. As I say, there are appropriate judicial safeguards in place in the tribunal process to ensure that appeals are heard appropriately and are directed through the appropriate tribunal. I commend the new clause to the Committee.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

Briefly, there are two reasons why I do not think this new clause makes any sense at all. First, there is the point that I just alluded to. The danger is that if someone who has a PRN served on them is contemplating disclosing further information or making a claim and the deadline passes, and they are acting in the way that the Minister wants to get at here and trying to “play the system”, they will simply not make that disclosure. Their existing claims will proceed to appeal through the normal channels, to a first tier tribunal with onward appeal rights. So the proposals do not make sense, even by the Government’s own logic. Can the Minister address that?

Secondly, we object to the new clause from a point of principle. The rare occasions when I would accept that an expedited appeals process can be justified are where the justifications relate solely to manifestly unfounded or repeat claims, but that is not what this is about; this is about expediting appeals and rights to appeal, but not because of the substance of the appeal—it has absolutely nothing to do with the merits of the claim or the related appeal at all. So the proposals make no sense from the point of view of principle, as well as being rather illogical.

Bambos Charalambous Portrait Bambos Charalambous (Enfield, Southgate) (Lab)
- Hansard - - - Excerpts

Again, briefly, I agree with everything the Scottish National party spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, has just said. We do not know at what stage the other appeal will be; it may not be ready to be heard. One problem we have in this country is the delay in the appeals processes because of severe underfunding in our court and tribunal systems, so it seems that the new clause will not work.

The new clause will also cause more problems than it solves. I am not sure that there is a huge problem with multiple outstanding appeals in any event, but the new clause could actually make things worse. If the intention in the Bill is to provide fairness, the new clause will not achieve that, because speeding up an appeal could cause unfairness. So for the reasons outlined by the SNP spokesperson we will not support the new clause.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

The bottom line is that we simply disagree on this matter. Clause 21 ensures that appeals relating to late human rights or protection claims are dealt with expeditiously, with decisions by the upper tribunal being final. This provides appellants with a swift determination of their claim. It also disincentives late claims and seeks to prevent sequential or multiple appeals from being utilised as a tactic to thwart removal.

However, the Government recognise that in certain circumstances an individual may exercise other appeal rights, in parallel with their expedited appeal. This could give rise to a situation whereby a person has an appeal in a first tier tribunal and an expedited appeal in the upper tribunal. Consequently, the expedited appeal may conclude while an individual has an outstanding appeal in a first tier tribunal. If the appellant was unsuccessful in their expedited appeal, the ongoing appeal in the first tier tribunal would prevent their removal from the UK. This outcome is undesirable and undermines the Government’s intention to disincentivise late claims by ensuring that appeals relating to such claims are determined quickly and conclusively.

The new clause ensures that where a person has an expedited appeal, any related appeal will also be subject to the same expedited process. Therefore, following the conclusion of the expedited process, the appellant’s right to remain in the UK will be determined with finality and, where an individual has no right to remain in the UK, removal action can take place. That is the logical and sensible approach that we propose to take.

Question put and agreed to.

New clause 6 accordingly read a Second time, and added to the Bill.

None Portrait The Chair
- Hansard -

Let me explain the process from now on for about the next 10 minutes. We now come to a sequence of Government new clauses, all of which have been debated already with other clauses or amendments. I shall say to the Minister, “Will the Minister move formally?” The Minister, being obedient, will say, “Moved formally.” The Clerk will then read the title of the clause and I will put the questions that it be read a second time and that it be added to the Bill. I gently suggest to the Opposition that there is not much point in calling a Division on both those questions—you can, but it will take a lot longer. Let us see how we get on.

New Clause 7

Accelerated detained appeals

“(1) In this section ‘accelerated detained appeal’ means a relevant appeal (see subsection (6)) brought—

(a) by a person who—

(i) was detained under a relevant detention provision (see subsection (7)) at the time at which they were given notice of the decision which is the subject of the appeal, and

(ii) remains in detention under a relevant detention provision, and

(b) against a decision that—

(i) is of a description prescribed by regulations made by the Secretary of State, and

(ii) when made, was certified by the Secretary of State under this section.

(2) The Secretary of State may only certify a decision under this section if the Secretary of State considers that any relevant appeal brought in relation to the decision would likely be disposed of expeditiously.

(3) Tribunal Procedure Rules must secure that the following time limits apply in relation to an accelerated detained appeal—

(a) any notice of appeal must be given to the First-tier Tribunal not later than 5 working days after the date on which the appellant was given notice of the decision against which the appeal is brought;

(b) the First-tier Tribunal must make a decision on the appeal, and give notice of that decision to the parties, not later than 25 working days after the date on which the appellant gave notice of appeal to the tribunal;

(c) any application (whether to the First-tier Tribunal or the Upper Tribunal) for permission to appeal to the Upper Tribunal must be determined by the tribunal concerned not later than 20 working days after the date on which the applicant was given notice of the First-tier Tribunal’s decision.

(4) A relevant appeal ceases to be an accelerated detained appeal on the appellant being released from detention under any relevant detention provision.

(5) Tribunal Procedure Rules must secure that the First-tier Tribunal or (as the case may be) the Upper Tribunal may, if it is satisfied that it is in the interests of justice in a particular case to do so, order that a relevant appeal is to cease to be an accelerated detained appeal.

(6) For the purposes of this section, a ‘relevant appeal’ is an appeal to the First-tier Tribunal under any of the following—

(a) section 82(1) of the Nationality, Immigration and Asylum Act 2002 (appeals in respect of protection and human rights claims);

(b) section 40A of the British Nationality Act 1981 (appeal against deprivation of citizenship);

(c) the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020/61) (appeal rights in respect of EU citizens’ rights immigration decisions etc);

(d) regulation 36 of the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) (appeals against EEA decisions) as it continues to have effect following its revocation.

(7) For the purposes of this section, a ‘relevant detention provision’ is any of the following—

(a) paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);

(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);

(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal);

(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).

(8) In this section ‘working day’ means any day except—

(a) a Saturday or Sunday, Christmas Day, Good Friday or 26 to 31 December, and

(b) any day that is a bank holiday under section 1 of the Banking and Financial Dealings Act 1971 in the part of the United Kingdom where the appellant concerned is detained.

(9) Regulations under this section are subject to negative resolution procedure.”—(Tom Pursglove.)

This new clause expands the categories of immigration appeals that can be subject to the accelerated detained appeals process that was introduced by clause 24.

Brought up, and read the First and Second time.

Question put, That the clause be added to the Bill.

Division 59

Ayes: 9


Conservative: 9

Noes: 2


Labour: 1
Scottish National Party: 1

New clause 7 added to the Bill.
New Clause 8
Prisoners liable to removal from the United Kingdom
“(1) The Criminal Justice Act 2003 is amended as follows.
(2) Section 260 (early removal of prisoners liable to removal from the United Kingdom) is amended as set out in subsections (3) to (8).
(3) For subsections (1) to (2B) substitute—
‘(1) Where a fixed-term prisoner is liable to removal from the United Kingdom, the Secretary of State may remove the prisoner from prison under this section at any time after the prisoner has served the minimum pre-removal custodial period (whether or not the Board has directed the prisoner’s release under this Chapter).
(2) The minimum pre-removal custodial period is the longer of—
(a) one half of the requisite custodial period, and
(b) the requisite custodial period less one year.’
(4) In subsection (2C), for ‘Subsections (1) and (2A) do’ substitute ‘Subsection (1) does’.
(5) In subsection (4), for paragraph (b) substitute—
‘(b) so long as remaining in the United Kingdom, and in the event of a return to the United Kingdom after removal, is liable to be detained in pursuance of his sentence.’
(6) After subsection (4) insert—
‘(4A) Where a person has been removed from prison under this section, a day on which the person has not spent any part of the day in prison or otherwise detained in pursuance of their sentence is not, unless the Secretary of State otherwise directs, to be included—
(a) when determining for the purposes of any provision of this Chapter how much of their sentence they have (or would have) served, or
(b) when determining for the purposes of section 244ZC(2), 244A(2)(b) or 246A(4)(b) the date of an anniversary of a disposal of a reference of the person’s case to the Board (so that the anniversary is treated as falling x days after the actual anniversary, where x is the number of days on which the person has not spent any part of the day in prison or otherwise detained in pursuance of their sentence).
(4B) Where—
(a) before a prisoner’s removal from prison under this section their case had been referred to the Board under section 244ZB(3), 244ZC(2), 244A(2) or 246A(4), and
(b) the person is removed from the United Kingdom before the Board has disposed of the reference,
the reference lapses upon the person’s removal from the United Kingdom (and paragraph 8 of Schedule 19B applies in the event of their return).’
(7) Omit subsection (5).
(8) In subsection (6), for paragraphs (a) to (c) substitute—
‘(a) amend the fraction for the time being specified in subsection (2)(a);
(b) amend the time period for the time being specified in subsection (2)(b).’
(9) For section 261 substitute—
‘261 Removal under section 260 and subsequent return to UK: effect on sentence
Where a person—
(a) has been removed from prison under section 260 on or after the day on which section (Prisoners liable to removal from the United Kingdom) of the Nationality and Borders Act 2021 came into force,
(b) has been removed from the United Kingdom following that removal from prison, and
(c) returns to the United Kingdom,
this Chapter applies to the person with the modifications set out in Schedule 19B.’
(10) In section 263 (concurrent terms), after subsection (2), insert—
‘(2A) Where this section applies, nothing in section 260 authorises the Secretary of State to remove the offender from prison in respect of any of the terms unless and until that section authorises the Secretary of State to do so in respect of each of the others.’
(11) After Schedule 19A, insert the Schedule 19B set out in Schedule (Prisoners returning to the UK: modifications of the Criminal Justice Act 2003).”—(Tom Pursglove.)
This new clause makes changes to the regime in the Criminal Justice Act 2003 relating to the early removal of prisoners, enabling them to be removed at an earlier point in their sentence and while on recall, and providing that if they return to the UK their sentence continues where it left off. It will replace clause 44
Brought up, read the First and Second time, and added to the Bill.
New Clause 9
Removals from the UK: visa penalties for uncooperative countries
“(1) The immigration rules may make such visa penalty provision as the Secretary of State considers appropriate in relation to a specified country.
(2) A country may be specified for the purposes of this section if, in the opinion of the Secretary of State—
(a) the government of the country is not cooperating in relation to the return to the country from the United Kingdom of any of its nationals or citizens who require leave to enter or remain in the United Kingdom but do not have it, and
(b) as a result, there are nationals or citizens of the country that the Secretary of State has been unable to return to the country, whether or not others have been returned.
(3) In forming an opinion as to whether a country is cooperating in relation to returns, the Secretary of State must take the following into account—
(a) any arrangements (whether formal or informal) entered into by the government of the country with the United Kingdom government or the Secretary of State with a view to facilitating returns;
(b) the extent to which the government of the country is—
(i) taking the steps that are in practice necessary or expedient in relation to facilitating returns, and
(ii) doing so promptly;
(c) such other matters as the Secretary of State considers appropriate.
(4) In determining whether to specify a country for the purposes of this section, the Secretary of State must take the following into account—
(a) the length of time for which the government of the country has not been cooperating in relation to returns;
(b) the extent of the lack of cooperation;
(c) the reasons for the lack of cooperation;
(d) such other matters as the Secretary of State considers appropriate.
(5) ‘Visa penalty provision’ is provision that does one or more of the following in relation to applications for entry clearance made by persons as nationals or citizens of a specified country—
(a) requires that entry clearance must not be granted pursuant to such an application before the end of a specified period;
(b) suspends the power to grant entry clearance pursuant to such an application;
(c) requires such an application to be treated as invalid for the purposes of the immigration rules;
(d) requires the applicant to pay £190 in connection with the making of such an application, in addition to any fee or other amount payable pursuant to any other enactment.
(6) The Secretary of State may by regulations substitute a different amount for the amount for the time being specified in subsection (5)(d).
(7) Before making visa penalty provision in relation to a specified country, the Secretary of State must give the government of that country reasonable notice of the proposal to do so.
(8) The immigration rules must secure that visa penalty provision does not apply in relation to an application made before the day on which the provision comes into force.
(9) Visa penalty provision may—
(a) make different provision for different purposes;
(b) provide for exceptions or exemptions, whether by conferring a discretion or otherwise;
(c) include incidental, supplementary, transitional, transitory or saving provision.
(10) Regulations under subsection (6)—
(a) are subject to affirmative resolution procedure if they increase the amount for the time being specified in subsection (5)(d);
(b) are subject to negative resolution procedure if they decrease that amount.
(11) Sums received by virtue of subsection (5)(d) must be paid into the Consolidated Fund.
(12) In this section—
‘cooperating in relation to returns’ means cooperating as mentioned in subsection (2)(a);
‘country’ includes any territory outside the United Kingdom;
‘entry clearance’ has the same meaning as in the Immigration Act 1971 (see section 33(1) of that Act);
‘facilitating returns’ means facilitating the return of nationals or citizens to a country as mentioned in subsection (2)(a);
‘immigration rules’ means rules under section 3(2) of the Immigration Act 1971;
‘specified’ means specified in the immigration rules.”—(Tom Pursglove.)
This new clause enables immigration rules to make provision penalising applicants for entry clearance from countries that are not cooperating with the United Kingdom in relation to the return of their nationals who require leave to enter or remain here but do not have it.
Brought up, and read the First and Second Time.
Question put, That the clause be added to the Bill.

Division 60

Ayes: 10


Conservative: 10

Noes: 2


Labour: 1
Scottish National Party: 1

New clause 9 added to the Bill.
New Clause 10
Visa penalties: review and revocation
“(1) This section applies where any visa penalty provision is in force in relation to a specified country.
(2) The Secretary of State must, before the end of each relevant period—
(a) review the extent to which the country’s cooperation in relation to returns has improved, and
(b) in light of that review, determine whether it is appropriate to amend the visa penalty provision.
(3) If at any time the Secretary of State is no longer of the opinion mentioned in section (Removals from the UK: visa penalties for uncooperative countries)(2), the Secretary of State must as soon as practicable revoke the visa penalty provision.
(4) Each of the following is a relevant period—
(a) the period of 2 months beginning with the day on which the visa penalty provision came into force;
(b) each subsequent period of 2 months.
(5) In this section—
(a) ‘specified country’ and ‘visa penalty provision’ have the same meanings as in section (Removals from the UK: visa penalties for uncooperative countries);
(b) ‘cooperation in relation to returns’ means cooperation as mentioned in subsection (2)(a) of that section.”—(Tom Pursglove.)
This new clause provides for the review of the effectiveness of visa penalty provision made in relation to an uncooperative country under NC9. It also requires the revocation of visa penalty provision if the Secretary of State concludes that the country concerned has demonstrated sufficient cooperation with the UK Government.
Brought up, read the First and Second time, and added to the Bill.
New Clause 11
Special Immigration Appeals Commission
“(1) The Special Immigration Appeals Commission Act 1997 is amended in accordance with subsections (2) to (4).
(2) After section 2E insert—
‘2F Jurisdiction: review of certain immigration decisions
(1) Subsection (2) applies in relation to any decision of the Secretary of State which—
(a) relates to a person’s entitlement to enter, reside in or remain in the United Kingdom, or to a person’s removal from the United Kingdom,
(b) is not subject—
(i) to a right of appeal, or
(ii) to a right under a provision other than subsection (2) to apply to the Special Immigration Appeals Commission for the decision to be set aside, and
(c) is certified by the Secretary of State acting in person as a decision that was made wholly or partly in reliance on information which, in the opinion of the Secretary of State, should not be made public—
(i) in the interests of national security,
(ii) in the interests of the relationship between the United Kingdom and another country, or
(iii) otherwise in the public interest.
(2) The person to whom the decision relates may apply to the Special Immigration Appeals Commission to set aside the decision.
(3) In determining whether the decision should be set aside, the Commission must apply the principles which would be applied in judicial review proceedings.
(4) If the Commission decides that the decision should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings.’
(3) In section 6A (procedure in relation to jurisdiction under sections 2C to 2E)—
(a) in the heading, for ‘2E’ substitute ‘2F’,
(b) in subsection (1), for ‘or 2E’ substitute ‘, 2E or 2F’,
(c) in subsection (2)(a), for ‘or 2E’ substitute ‘, 2E or 2F’, and
(d) in subsection (2)(b), for ‘or (as the case may be) 2E(2)’ substitute ‘, 2E(2) or (as the case may be) 2F (2)’.
(4) In section 7 (appeals from the Commission), in subsection (1A), for ‘or 2E’ substitute ‘, 2E or 2F’.
(5) If subsection (4) comes into force before the day on which paragraph 26(5) of Schedule 9 to the Immigration Act 2014 comes into force, until that day subsection (4) has effect as if, in section 7(1A), for ‘or 2D’ it substituted ‘, 2D or 2F’.
(6) In section 115(8) of the Equality Act 2010 (immigration cases), for ‘section 2D and 2E’ substitute ‘section 2D, 2E or 2F’.”—(Tom Pursglove.)
This new clause enables the Special Immigration Appeals Commission to consider applications to set aside immigration decisions where the Secretary of State certifies that information relating to the decision should not be made public on national security and other grounds.
Brought up, read the First and Second time, and added to the Bill.
New Clause 12
Counter-terrorism questioning of detained entrants away from place of arrival
“(1) Schedule 7 to the Terrorism Act 2000 (port and border controls) is amended as follows.
(2) In paragraph 1(2) (definitions), in the definition of ‘ship’, after ‘hovercraft’ insert ‘and any floating vessel or structure’.
(3) In paragraph 2 (power to question person about involvement in terrorism in port or border area or on ship or aircraft), after sub-paragraph (3) insert—
‘(3A) This paragraph also applies to a person if—
(a) the person is—
(i) being detained under a provision of the Immigration Acts, or
(ii) in custody having been arrested under paragraph 17(1) of Schedule 2 to the Immigration Act 1971,
(b) the period of 5 days beginning with the day after the day on which the person was apprehended has not yet expired, and
(c) the examining officer believes that—
(i) the person arrived in the United Kingdom by sea from a place outside the United Kingdom, and
(ii) the person was apprehended within 24 hours of the person’s arrival on land.
(3B) For the purposes of sub-paragraph (3A)(b) and (c), a person is “apprehended”—
(a) in a case within sub-paragraph (3A)(a)(i) where the person is arrested (and not released) before being detained as mentioned in that provision, when the person is arrested;
(b) in any other case within sub-paragraph (3A)(a)(i), when the person is first detained as mentioned in that provision;
(c) in a case within sub-paragraph (3A)(a)(ii), when the person is arrested as mentioned in that provision.’”—(Tom Pursglove.)
This new clause (to be inserted after clause 61) enables the power in paragraph 2 of Schedule 7 to the Terrorism Act 2000 (questioning about involvement in terrorism) to be exercised in respect of a person who has arrived in the UK by sea within the past five days and is in immigration detention. It also amends the definition of “ship” in that Schedule.
Brought up, read the First and Second time, and added to the Bill.
New Clause 19
Notice of decision to deprive a person of citizenship
“(1) In this section, ‘the 1981 Act’ means the British Nationality Act 1981.
(2) In section 40 of the 1981 Act (deprivation of citizenship), after subsection (5) (which requires notice to be given to a person to be deprived of citizenship) insert—
‘(5A) Subsection (5) does not apply if it appears to the Secretary of State that—
(a) the Secretary of State does not have the information needed to be able to give notice under that subsection,
(b) it would for any other reason not be reasonably practicable to give notice under that subsection, or
(c) notice under that subsection should not be given—
(i) in the interests of national security,
(ii) in the interests of the relationship between the United Kingdom and another country, or
(iii) otherwise in the public interest.
(5B) In subsection (5A), references to giving notice under subsection (5) are to giving that notice in accordance with such regulations under section 41(1)(e) as for the time being apply.’
(3) In section 40A of the 1981 Act (appeals against deprivation of citizenship), for subsection (1) substitute—
‘(1) A person—
(a) who is given notice under section 40(5) of a decision to make an order in respect of the person under section 40, or
(b) in respect of whom an order under section 40 is made without the person having been given notice under section 40(5) of the decision to make the order,
may appeal against the decision to the First-tier Tribunal.’
(4) In the British Nationality (General) Regulations 2003 (S.I. 2003/548), in regulation 10 (notice of proposed deprivation of citizenship), omit paragraph (4).
(5) A failure to comply with the duty under section 40(5) of the 1981 Act in respect of a pre-commencement deprivation order does not affect, and is to be treated as never having affected, the validity of the order.
(6) In subsection (5), ‘pre-commencement deprivation order’ means an order made or purportedly made under section 40 of the 1981 Act before the coming into force of subsections (2) to (4) (whether before or after the coming into force of subsection (5)).
(7) A person may appeal against an order to which subsection (5) applies as if notice of the decision to make the order had been given to the person under section 40(5) of the 1981 Act on the day on which the order was made or purportedly made.”—(Tom Pursglove.)
This new clause (to be inserted after clause 8) provides for the disapplication of the requirement to give notice of a decision to deprive a person of citizenship in certain circumstances, and for any failure to give the required notice not to affect the validity of pre-commencement deprivations of citizenship.
Brought up, read the First and Second time, and added to the Bill.
New Clause 20
Working in United Kingdom waters: arrival and entry
“(1) After section 11 of the Immigration Act 1971 (construction of references to entry etc) insert—
‘11A Working in United Kingdom waters
(1) An “offshore worker” is a person who arrives in United Kingdom waters—
(a) for the purpose of undertaking work in those waters, and
(b) without first entering the United Kingdom (see, in particular, section 11(1)).
But see subsection (6).
(2) An offshore worker arrives in the United Kingdom for the purposes of this Act when they arrive in United Kingdom waters as mentioned in subsection (1)(a).
(3) An offshore worker enters the United Kingdom for the purposes of this Act when they commence working in United Kingdom waters.
(4) Any reference in, or in a provision made under, the Immigration Acts to a person arriving in or entering the United Kingdom, however expressed, is to be read as including a reference to an offshore worker arriving in or entering the United Kingdom as provided for in subsection (2) or (3).
(5) References in this section to work, or to a person working, are to be read in accordance with section 24B(10).
(6) A person is not an offshore worker if they arrive in United Kingdom waters while working as a member of the crew of a ship that is—
(a) exercising the right of innocent passage through the territorial sea or the right of transit passage through straits used for international navigation, or
(b) passing through United Kingdom waters from non-UK waters to a place in the United Kingdom or vice versa.
(7) For the purposes of any provision of, or made under, the Immigration Acts, a person working in United Kingdom waters who, in connection with that work, temporarily enters non-UK waters is not to be treated by virtue of doing so as leaving, or being outside, the United Kingdom.
(8) In this section—
“non-UK waters” means the sea beyond the seaward limits of the territorial sea;
“right of innocent passage”, “right of transit passage” and “straits used for international navigation” are to be read in accordance with the United Nations Convention on the Law of the Sea 1982 (Cmnd 8941) and any modifications of that Convention agreed after the passing of the Nationality and Borders Act 2021 that have entered into force in relation to the United Kingdom;
“the territorial sea” means the territorial sea adjacent to the United Kingdom;
“United Kingdom waters” means the sea and other waters within the seaward limits of the territorial sea.
11B Offshore workers: requirements to notify arrival and entry dates etc
(1) The Secretary of State may by regulations make provision for and in connection with requiring—
(a) an offshore worker, or
(b) if an offshore worker has one, their sponsor;
to give notice to the Secretary of State or an immigration officer of the dates on which the offshore worker arrives in, enters and leaves the United Kingdom.
(2) The regulations may make provision for the failure of an offshore worker to comply with a requirement imposed under the regulations to be a ground for—
(a) the cancellation or variation of their leave to enter or remain in the United Kingdom;
(b) refusing them leave to enter or remain in the United Kingdom.
(3) The failure of an offshore worker’s sponsor to comply with a requirement imposed under the regulations may be taken into account by the Secretary of State when operating immigration skills arrangements made with the sponsor.
(4) Regulations under this section—
(a) are to be made by statutory instrument;
(b) may make different provision for different cases;
(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision.
(5) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(6) For the purposes of this section—
(a) “offshore worker” and “United Kingdom waters” have the same meaning as in section 11A;
(b) a person is an offshore worker’s “sponsor” if they have made immigration skills arrangements with the Secretary of State in relation to the offshore worker;
(c) “immigration skills arrangements” has the meaning given by section 70A(2) of the Immigration Act 2014.’
(2) Schedule (Working in United Kingdom waters: consequential and related amendments) makes consequential and related amendments.”—(Tom Pursglove.)
This new clause ensures that a person who would require leave to enter the United Kingdom also requires leave to enter the internal waters or territorial sea of the United Kingdom where their purpose in doing so is to work.
Brought up, read the First and Second time, and added to the Bill.
New Clause 21
Electronic travel authorisations
“(1) The Immigration Act 1971 is amended in accordance with subsections (2) to (4).
(2) After Part 1 insert—
‘Part 1A
Electronic travel authorisations
11C Electronic travel authorisations
(1) In this Act, “an ETA” means an authorisation in electronic form to travel to the United Kingdom.
(2) Immigration rules may require an individual of a description specified in the rules not to travel to the United Kingdom from any place (including a place in the common travel area), whether with a view to entering the United Kingdom or to passing through it without entering, unless the individual has an ETA that is valid for the individual’s journey to the United Kingdom.
(3) The rules may not impose this requirement on an individual if—
(a) the individual is a British citizen, or
(b) the individual would, on arrival in the United Kingdom, be entitled to enter without leave.
(4) In relation to an individual travelling to the United Kingdom on a local journey from a place in the common travel area, subsection (3)(b) applies only if the individual would also be entitled to enter without leave if the journey were instead from a place outside the common travel area.
(5) The rules may impose the requirement mentioned in subsection (2) on an individual who—
(a) travels to the United Kingdom on a local journey from a place in any of the Islands, and
(b) has leave to enter or remain in that island,
only if it appears to the Secretary of State necessary to do so by reason of differences between the immigration laws of the United Kingdom and that island.
(6) The rules must—
(a) provide for the form or manner in which an application for an ETA may be made, granted or refused;
(b) specify the conditions (if any) which must be met before an application for an ETA may be granted;
(c) specify the grounds on which an application for an ETA must or may be refused;
(d) specify the criteria to be applied in determining—
(i) the period for which an ETA is valid;
(ii) the number of journeys to the United Kingdom during that period for which it is valid (which may be unlimited);
(e) require an ETA to include provision setting out the matters mentioned in paragraph (d)(i) and (ii);
(f) provide for the form or manner in which an ETA may be varied or cancelled;
(g) specify the grounds on which an ETA must or may be varied or cancelled.
(7) The rules may also—
(a) provide for exceptions to the requirement described in subsection (2), and
(b) make other provision relating to ETAs.
(8) Rules made by virtue of this section may make different provision for different cases or descriptions of case.
11D Electronic travel authorisations and the Islands
(1) The Secretary of State may by regulations make provision about the effects in the United Kingdom of the grant or refusal under the law of any of the Islands of an authorisation in electronic form to travel to that island.
(2) Regulations under subsection (1) may in particular make provision about—
(a) the recognition in the United Kingdom of an authorisation granted as mentioned in subsection (1);
(b) the conditions or limitations that are to apply in the United Kingdom to such an authorisation;
(c) the effects in the United Kingdom of such an authorisation being varied or cancelled under the law of any of the Islands;
(d) the circumstances in which the Secretary of State or an immigration officer may vary or cancel such an authorisation (so far as it applies in the United Kingdom).
(3) The Secretary of State may, where requested to do so by any of the Islands, carry out functions on behalf of that island in relation to the granting of authorisations in electronic form to travel to that island.
(4) Regulations under subsection (1)—
(a) may make provision modifying the effect of any provision of, or made under, this Act or any other enactment (whenever passed or made);
(b) may make different provision for different purposes;
(c) may make transitional, transitory or saving provision;
(d) may make incidental, supplementary or consequential provision.
(5) Regulations under subsection (1) are to be made by statutory instrument.
(6) A statutory instrument containing regulations under subsection (1) is subject to annulment in pursuance of a resolution of either House of Parliament.’
(3) In section 24A (deception), in subsection (1)(a)—
(a) after ‘obtain’ insert ‘— (i)’;
(b) after ‘Kingdom’ insert ‘, or
(ii) an ETA’.
(4) In section 33 (interpretation), in subsection (1), at the appropriate place insert—
‘“an ETA” has the meaning given by section 11C;’.
(5) In section 82 of the Immigration and Asylum Act 1999 (interpretation of Part 5, which relates to immigration advisers and immigration service providers), in subsection (1), in the definition of ‘relevant matters’, after paragraph (a) insert—
‘(aa) an application for an ETA (within the meaning of section 11C of the Immigration Act 1971 (electronic travel authorisations));’.
(6) In section 126 of the Nationality, Immigration and Asylum Act 2002 (compulsory provision of physical data), in subsection (2), before paragraph (a) insert—
‘(za) an ETA (within the meaning of section 11C of the Immigration Act 1971 (electronic travel authorisations)),’.”—(Tom Pursglove.)
This new clause relates to electronic travel authorisations (ETAs). New section 11C of the Immigration Act 1971 provides for immigration rules to require a person not to travel to the United Kingdom without an ETA. New section 11D relates to the Channel Islands and the Isle of Man.
Brought up, read the First and Second time, and added to the Bill.
New Clause 22
Liability of carriers
“(1) Section 40 of the Immigration and Asylum Act 1999 (liability of carriers in respect of passengers) is amended in accordance with subsections (2) to (8).
(2) For subsection (1) substitute—
‘(1) The Secretary of State may charge the owner of a ship or aircraft the sum of £2,000 where—
(a) an individual who would not, on arrival in the United Kingdom, be entitled to enter without leave arrives by travelling on the ship or aircraft, and
(b) at least one of the Cases set out in subsections (1A) to (1C) applies.
(1A) Case 1 is where, on being required to do so by an immigration officer, the individual fails to produce an immigration document which is valid and which satisfactorily establishes the individual’s identity and the individual’s nationality or citizenship.
(1B) Case 2 is where—
(a) the individual requires an entry clearance,
(b) an entry clearance in electronic form of the required kind has not been granted, and
(c) if required to do so by an immigration officer, the individual fails to produce an entry clearance in documentary form of the required kind.
(1C) Case 3 is where—
(a) the individual was required not to travel to the United Kingdom unless the individual had an authorisation in electronic form (“an ETA”) under immigration rules made by virtue of section 11C of the Immigration Act 1971 that was valid for the individual’s journey to the United Kingdom, and
(b) the individual did not have such an ETA.’
(3) Omit subsection (2).
(4) In subsection (4), for the words from ‘No charge’ to ‘documents’ substitute ‘No charge shall be payable on the basis that Case 1 applies in respect of any individual if the owner provides evidence that the individual produced an immigration document of the kind mentioned in subsection (1A)’.
(5) After subsection (4) insert—
‘(4A) No charge shall be payable on the basis that Case 2 applies in respect of any individual if the owner provides evidence that—
(a) the individual produced an entry clearance in documentary form of the required kind to the owner or an employee or agent of the owner when embarking on the ship or aircraft for the voyage or flight to the United Kingdom,
(b) the owner or an employee or agent of the owner reasonably believed, on the basis of information provided by the Secretary of State in respect of the individual, that the individual did not require an entry clearance of the kind in question,
(c) the owner or an employee or agent of the owner reasonably believed, on the basis of information provided by the Secretary of State, that an entry clearance in electronic form of the required kind had been granted, or
(d) the owner or an employee or agent of the owner was unable to establish whether an entry clearance in electronic form of the required kind had been granted in respect of the individual and had a reasonable excuse for being unable to do so.
(4B) No charge shall be payable on the basis that Case 3 applies in respect of any individual if the owner provides evidence that the owner or an employee or agent of the owner—
(a) reasonably believed, on the basis of information provided by the Secretary of State in respect of the individual, that the individual was not required to have an ETA that was valid for the individual’s journey to the United Kingdom,
(b) reasonably believed, on the basis of information provided by the Secretary of State, that the individual had such an ETA, or
(c) was unable to establish whether the individual had such an ETA and had a reasonable excuse for being unable to do so.’
(6) In subsection (5), for ‘subsection (4)’ substitute ‘subsection (4) or (4A)(a)’.
(7) In subsection (6), for ‘a visa’, in the first two places it occurs, substitute ‘an entry clearance’.
(8) In subsection (10), for ‘subsection (2)’ substitute ‘subsection (1)’.
(9) In consequence of the amendments made by this section—
(a) for the heading of section 40 of the Immigration and Asylum Act 1999 substitute ‘Charge in respect of individual without proper documents or authorisation’;
(b) for the italic heading before section 40 of that Act substitute ‘Individuals without proper documents or authorisation’.”—(Tom Pursglove.)
This new clause relates to the liability of carriers. It modifies when the owner of a ship or aircraft is liable to pay a charge where an individual without leave to enter arrives in the United Kingdom on the ship or aircraft without proper documents or authorisation.
Brought up, read the First and Second time, and added to the Bill.
New Clause 28
Removals: notice requirements
“(1) Section 10 of the Immigration and Asylum Act 1999 (removal of persons unlawfully in the United Kingdom) is amended as set out in subsections (2) to (6).
(2) In subsection (1)—
(a) for ‘may be removed’ substitute ‘is liable to removal’;
(b) omit ‘under the authority of the Secretary of State or an immigration officer’.
(3) For subsection (2) substitute—
‘(2) Where a person (“P”) is liable to removal, or has been removed, from the United Kingdom under this section, a member of P’s family who meets the following three conditions is also liable to removal from the United Kingdom, provided that the Secretary of State or an immigration officer has given the family member written notice of the fact that they are liable to removal.’
(4) After subsection (6) insert—
‘(6A) A person who is liable to removal from the United Kingdom under this section may be removed only under the authority of the Secretary of State or an immigration officer and in accordance with sections 10A to 10E.’
(5) In subsection (7), for ‘subsection (1) or (2)’ substitute ‘this section’.
(6) In subsection (10)—
(a) in paragraph (a), for ‘subsection (2)’ substitute ‘this section’;
(b) in paragraph (b), at the end insert ‘or sections 10A to 10E’.
(7) After that section insert—
‘10A Removal: general notice requirements
(1) This section applies to a person who is liable to removal under section 10; but see sections 10C to 10E for the circumstances in which such a person may be removed otherwise than in accordance with this section.
(2) The person may be removed if—
(a) the Secretary of State or an immigration officer has given the person—
(i) a notice of intention to remove (see subsection (3)), and
(ii) a notice of departure details (see subsection (4)), and
(b) any notice period has expired.
(3) A notice of intention to remove is a written notice which—
(a) states that the person is to be removed,
(b) sets out the notice period, (see subsection (7)), and
(c) states the destination to which the person is to be removed.
(4) A notice of departure details under this section is a written notice which—
(a) states the date on which the person is to be removed,
(b) states the destination to which the person is to be removed and any stops that are expected to be made on the way to that destination, and
(c) if subsection (6) applies, sets out the notice period (see subsection (7)).
(5) The notice of intention to remove and the notice of departure details may be combined.
(6) This subsection applies if the notice of departure details states, under subsection (4)(b)—
(a) a destination which is different to the destination stated under subsection (3)(c) in the notice of intention to remove, or
(b) any stops that were not stated in the notice of intention to remove, other than a stop in—
(i) the United Kingdom, or
(ii) a country that is for the time being specified in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004.
(7) The notice period must be no shorter than the period of five working days beginning with the day after the day on which the person is given the notice.
(8) At any time before the person is removed, the Secretary of State or an immigration officer may replace a notice of departure details under this section.
(9) This section is subject to section 10B (failed removals).
(10) In this section “working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom where the person is when they are given the notice.
10B Failed removals
(1) This section applies where as a result of matters reasonably beyond the control of the Secretary of State, such as—
(a) adverse weather conditions,
(b) technical faults or other issues causing delays to transport, or
(c) disruption by the person to be removed or others,
a person is not removed from the United Kingdom on the date stated in a notice of departure details under section 10A (“the original notice”).
(2) The person may be removed from the United Kingdom if—
(a) the Secretary of State or an immigration officer has given the person a notice of departure details (see subsection (3)), and
(b) they are removed before the end of the period of 21 days beginning with the date stated in the original notice.
(3) A notice of departure details under this section is a written notice which—
(a) states the date on which the person is to be removed, and
(b) states the destination to which the person is to be removed and any stops that are expected to be made on the way to that destination.
(4) But this section does not apply if the notice under subsection (3) states, under subsection (3)(b)—
(a) a destination which is different to the destination stated in the original notice, or
(b) any stops that were not stated in the original notice, other than a stop in—
(i) the United Kingdom, or
(ii) a country that is for the time being specified in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004.
(5) At any time before the person is removed, the Secretary of State or an immigration officer may replace a notice of departure details under this section.
10C Removal: notice requirements in port cases
(1) This section applies to a person who is liable to removal under section 10 if the person was refused leave to enter upon their arrival in the United Kingdom.
(2) The person may be removed if—
(a) the Secretary of State or an immigration officer has given the person a notice of departure details under this section which—
(i) states the date on which the person is to be removed, and
(ii) states the destination to which the person is to be removed and any stops that are expected to be made on the way to that destination, and
(b) the date stated under paragraph (a)(i) is a date before the end of the period of seven days beginning with the day after the day on which the person was refused leave to enter.
(3) At any time before the person is removed, the Secretary of State or an immigration officer may replace a notice of departure details under this section.
10D Removal: PRN recipients
(1) This section applies to a person who is liable to removal under section 10 and is a PRN recipient.
(2) If the person does not make a protection claim or a human rights claim before the PRN cut-off date, the person may be removed from the United Kingdom if—
(a) the Secretary of State or an immigration officer has given the person a notice of departure details (see subsection (4)), and
(b) they are removed before the end of the period of 21 days beginning with the day after the PRN cut-off date.
(3) If the PRN recipient makes a protection claim or a human rights claim, the person may be removed from the United Kingdom if—
(a) the Secretary of State or an immigration officer has given the person a notice of departure details (see subsection (4)),
(b) their appeal rights are exhausted, and
(c) they are removed before the end of the period of 21 days beginning with the day after the date on which their appeal rights are exhausted;
and for the purposes of this subsection, whether a PRN recipient’s appeal rights are exhausted is to be determined in accordance with section 19(2) of the Nationality and Borders Act 2021 (and see, in particular, section 82A of the Nationality, Immigration and Asylum Act 2002).
(4) A notice of departure details under this section is a written notice which—
(a) states the date on which the person is to be removed,
(b) states the destination to which the person is to be removed and any stops that are expected to be made on the way to that destination.
(5) But this section does not apply unless the priority removal notice stated—
(a) a destination to which the person is to be removed which is the same as the destination stated in the notice of departure details under subsection (4)(b), and
(b) stops, other than stops falling within subsection (6), that are expected to be made on the way to that destination which are the same as those stated in the notice of departure details under subsection (4)(b).
(6) A stop falls within this subsection if is a stop in—
(a) the United Kingdom, or
(b) a country that is for the time being specified in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004.
(7) At any time before the person is removed, the Secretary of State or an immigration officer may replace a notice of departure details under this section.
(8) For the purposes of this section and section 10E—
“priority removal notice”, “PRN recipient” and “PRN cut-off date” have the same meaning as in section 18 of the Nationality and Borders Act 2021;
“protection claim” and “human rights claim” have the same meaning as in Part 5 of the Nationality, Immigration and Asylum Act 2002.
10E Removal: judicial review
(1) This section applies to a person (whether or not they are a PRN recipient) who is liable to removal under section 10 where—
(a) the person has made an application for judicial review or (in Scotland) an application to the supervisory jurisdiction of the Court of Session, relating to their removal, and
(b) a court or tribunal has made a decision the effect of which is that the person may be removed from the United Kingdom.
(2) The person may be removed from the United Kingdom if—
(a) the Secretary of State or an immigration officer has given the person a notice of departure details (see subsection (3)), and
(b) they are removed before the end of the period of 21 days beginning with the day after the day on which the court or tribunal made the decision mentioned in subsection (1)(b).
(3) A notice of departure details under this section is a written notice which—
(a) states the date on which the person is to be removed,
(b) states the destination to which the person is to be removed and any stops that are expected to be made on the way to that destination.
(4) But this section does not apply unless the person has received a priority removal notice or a notice of intention to remove under section 10A(3) which stated—
(a) a destination to which the person is to be removed which is the same as the destination stated in the notice of departure details under subsection (3)(b), and
(b) stops, other than stops falling within subsection (5), that are expected to be made on the way to that destination which are the same as those stated in the notice of departure details under subsection (3)(b).
(5) A stop falls within this subsection if is a stop in—
(a) the United Kingdom, or
(b) a country that is for the time being specified in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004.
(6) At any time before the person is removed, the Secretary of State or an immigration officer may replace a notice of departure details under this section.’
(8) In Schedule 10 to the Immigration Act 2016 (immigration bail), in paragraph 3(4) (bail not to be granted to person subject to removal directions without consent of Secretary of State), in paragraph (b) for ‘14’ substitute ‘21’.”—(Tom Pursglove.)
This new clause sets out the requirements for notice to be given to people who are liable to removal from the United Kingdom.
Brought up, read the First and Second time, and added to the Bill.
New Clause 29
Interpretation of Part etc
“(1) In this Part, ‘age-disputed person’ means a person—
(a) who requires leave to enter or remain in the United Kingdom (whether or not such leave has been given), and
(b) in relation to whom—
(i) a local authority,
(ii) a public authority specified in regulations under section (Persons subject to immigration control: referral or assessment by local authority etc)(1)(b), or
(iii) the Secretary of State,
has insufficient evidence to be sure of their age.
(2) In this Part—
s‘decision-maker’ means a person who conducts an age assessment under section (Persons subject to immigration control: referral or assessment by local authority etc) or (Persons subject to immigration control: assessment for immigration purposes);
‘designated person’ means an official of the Secretary of State who is designated by the Secretary of State to conduct age assessments under section (Persons subject to immigration control: referral or assessment by local authority etc) or (Persons subject to immigration control: assessment for immigration purposes);
‘immigration functions’ means functions exercisable by virtue of the Immigration Acts;
‘immigration officer’ means a person appointed by the Secretary of State as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971;
‘local authority’—
(a) in relation to England and Wales, means a local authority within the meaning of the Children Act 1989 (see section 105(1) of that Act),
(b) in relation to Scotland, means a council constituted under section 2 of the Local Government etc (Scotland) Act 1994, and
(c) in relation to Northern Ireland, means a Health and Social Care trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I. 1));
‘public authority’ means a public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal;
‘specified scientific method’ means a method used for assessing a person’s age which is specified in regulations under section (Use of scientific methods in age assessments)(1).
(3) In this Part, ‘relevant children’s legislation’ means—
(a) in relation to a local authority in England, any provision of or made under Part 3, 4 or 5 of the Children Act 1989 (support for children and families; care and supervision; protection of children);
(b) in relation to a local authority in Wales, Scotland or Northern Ireland, any statutory provision (including a provision passed or made after the coming into force of this Part) that confers a corresponding function on such an authority.
(4) In subsection (3)—
‘corresponding function’ means a function that corresponds to a function conferred on a local authority in England by or under Part 3, 4 or 5 of the Children Act 1989;
‘statutory provision’ means a provision made by or under—
(a) an Act,
(b) an Act of the Scottish Parliament,
(c) an Act or Measure of Senedd Cymru, or
(d) Northern Ireland legislation.
(5) In section 94 of the Immigration and Asylum Act 1999 (support for asylum-seekers: interpretation), for subsection (7) substitute—
‘(7) For further provision as to the conduct of age assessments, which applies for the purposes of this Part, see Part 3A of the Nationality and Borders Act 2021.’”—(Tom Pursglove.)
This new clause, together with amendments NC30 to NC37, will form a new Part (to be inserted between Parts 3 and 4) on age assessments. This clause defines various terms used in the new Part, in particular the term “age-disputed person”, which governs the persons to whom the provisions on age assessments will apply.
Brought up, and read the First and Second time.
Question put, That the clause be added to the Bill.

Division 61

Ayes: 10


Conservative: 10

Noes: 6


Labour: 5
Scottish National Party: 1

New clause 29 added to the Bill.
New Clause 30
Persons subject to immigration control: referral or assessment by local authority etc
“(1) The following authorities may refer an age-disputed person to a designated person for an age assessment under this section—
(a) a local authority;
(b) a public authority specified in regulations made by the Secretary of State.
(2) Subsections (3) and (4) apply where—
(a) a local authority needs to know the age of an age-disputed person for the purposes of deciding whether or how to exercise any of its functions under relevant children’s legislation in relation to the person, or
(b) the Secretary of State notifies a local authority in writing that the Secretary of State doubts that an age-disputed person in relation to whom the local authority has exercised or may exercise functions under relevant children’s legislation is the age that they claim (or are claimed) to be.
(3) The local authority must—
(a) refer the age-disputed person to a designated person for an age assessment under this section,
(b) conduct an age assessment on the age-disputed person itself and inform the Secretary of State in writing of the result of its assessment, or
(c) inform the Secretary of State in writing that it is satisfied that the person is the age they claim (or are claimed) to be, without the need for an age assessment.
(4) Where a local authority—
(a) conducts an age assessment itself, or
(b) informs the Secretary of State that it is satisfied that an age-disputed person is the age they claim (or are claimed) to be,
it must, on request from the Secretary of State, provide the Secretary of State with such evidence as the Secretary of State reasonably requires for the Secretary of State to consider the local authority’s decision under subsection (3)(b) or (c).
(5) Where a local authority refers an age-disputed person to a designated person for an age assessment under subsection (1) or (3)(a), the local authority must provide any assistance that the designated person reasonably requires from the authority for the purposes of conducting that assessment.
(6) The standard of proof for an age assessment under this section is the balance of probabilities.
(7) An age assessment of an age-disputed person conducted by a designated person following a referral from a local authority under subsection (1) or (3)(a) is binding—
(a) on the Secretary of State and immigration officers when exercising immigration functions, and
(b) on a local authority that—
(i) has exercised or may exercise functions under relevant children’s legislation in relation to the age-disputed person, and
(ii) is aware of the age assessment conducted by the designated person.
But this is subject to section (Appeals relating to age assessments)(5) (decision of Tribunal to be binding on Secretary of State and local authorities) and section (New information following age assessment or appeal) (new information following age assessment or appeal).
(8) Regulations under subsection (1)(b) are subject to negative resolution procedure.”—(Tom Pursglove.)
This new clause will allow the National Age Assessment Board (whose officials will be “designated persons”) to conduct age assessments on age-disputed persons following referral from a local authority or other public authority, and makes provision as to when local authorities are under a duty to refer such persons to the NAAB or conduct their own assessment.
Brought up, and read the First and Second time.
Question put, That the clause be added to the Bill.

Division 62

Ayes: 10


Conservative: 10

Noes: 6


Labour: 5
Scottish National Party: 1

New clause 30 added to the Bill.
New Clause 31
Persons subject to immigration control: assessment for immigration purposes
“(1) A designated person may conduct an age assessment on an age-disputed person for the purposes of deciding whether or how the Secretary of State or an immigration officer should exercise any immigration functions in relation to the person.
(2) An assessment under subsection (1) may be conducted—
(a) in a case where subsections (3) and (4) of section (Persons subject to immigration control: referral or assessment by local authority etc) do not apply, or
(b) in a case where those subsections do apply—
(i) at any time before a local authority has referred the age-disputed person to a designated person under section (Persons subject to immigration control: referral or assessment by local authority etc) (3)(a) or has informed the Secretary of State as mentioned in subsection (3)(b) or (c) of that section, or
(ii) if the Secretary of State has reason to doubt a local authority’s decision under subsection (3)(b) or (c) of that section.
(3) An age assessment under this section is binding on the Secretary of State and immigration officers when exercising immigration functions.
But this is subject to section (Appeals relating to age assessments)(5) (decision of Tribunal to be binding on Secretary of State and local authorities) and section (New information following age assessment or appeal) (new information following age assessment or appeal).
(4) The standard of proof for an age assessment under this section is the balance of probabilities.”—(Tom Pursglove.)
This new clause will allow the National Age Assessment Board (whose officials will be “designated persons”) to conduct age assessments on age-disputed persons for immigration purposes, either where no referral has been made or where it disagrees with the local authority’s assessment.
Brought up, and read the First and Second time.
Question put, That the clause be added to the Bill.

Division 63

Ayes: 10


Conservative: 10

Noes: 6


Labour: 5
Scottish National Party: 1

New clause 31 added to the Bill.
New Clause 32
Use of scientific methods in age assessments
“(1) The Secretary of State may make regulations specifying scientific methods that may be used for the purposes of age assessments under section (Persons subject to immigration control: referral or assessment by local authority etc) or (Persons subject to immigration control: assessment for immigration purposes).
(2) The types of scientific method that may be specified include methods involving—
(a) examining or measuring parts of a person’s body, including by the use of imaging technology;
(b) the analysis of saliva, cell or other samples taken from a person (including the analysis of DNA in the samples).
(3) A method may not be specified in regulations under subsection (1) unless the Secretary of State determines, after having sought scientific advice, that the method is appropriate for assessing a person’s age.
(4) A specified scientific method may be used for the purposes of an age assessment under section (Persons subject to immigration control: referral or assessment by local authority etc) or (Persons subject to immigration control: assessment for immigration purposes) only if the appropriate consent is given.
(5) The appropriate consent is—
(a) where the age-disputed person has the capacity to consent to the use of the scientific method in question, their consent;
(b) where the age-disputed person does not have the capacity to consent to the use of the scientific method in question, the consent of—
(i) the person’s parent or guardian, or
(ii) another person, of a description specified in regulations made by the Secretary of State, who is able to give consent on behalf of the age-disputed person.
(6) Subsection (7) applies where—
(a) the age-disputed person or, in a case where the age-disputed person lacks capacity, a person mentioned in subsection (5)(b), decides not to consent to the use of a specified scientific method, and
(b) there are no reasonable grounds for that decision.
(7) In deciding whether to believe any statement made by or on behalf of the age-disputed person that is relevant to the assessment of their age, the decision-maker must take into account, as damaging the age-disputed person’s credibility (or the credibility of a person who has made a statement on their behalf), the decision not to consent to the use of the specified scientific method.
(8) Regulations under this section are subject to affirmative resolution procedure.
(9) This section does not prevent the use of a scientific method that is not a specified scientific method for the purposes of an age assessment under section (Persons subject to immigration control: referral or assessment by local authority etc) or (Persons subject to immigration control: assessment for immigration purposes) if the decision-maker considers it appropriate to do so and, where necessary, the appropriate consent is given.”—(Tom Pursglove.)
This new clause provides for use of scientific methods in age assessments. If a person refuses to consent to a method specified in regulations, this may damage their credibility. Before a method can be specified, it must be considered appropriate, on the basis of scientific advice. Other (non-specified) scientific methods may be used in appropriate circumstances, but failure to consent to those would not affect credibility.
Brought up, and read the First and Second time.
Question put, That the clause be added to the Bill.

Division 64

Ayes: 10


Conservative: 10

Noes: 6


Labour: 5
Scottish National Party: 1

New clause 32 added to the Bill.
New Clause 33
Regulations about age assessments
“(1) The Secretary of State may make regulations about age assessments under section (Persons subject to immigration control: referral or assessment by local authority etc) or (Persons subject to immigration control: assessment for immigration purposes), which may in particular include provision about—
(a) the processes to be followed, including—
(i) the information and evidence that must be considered and the weight to be given to it,
(ii) the circumstances in which an abbreviated age assessment may be appropriate,
(iii) protections or safeguarding measures for the age-disputed person, and
(iv) where consent is required for the use of a specified scientific method, the processes for assessing a person’s capacity to consent, for seeking consent and for recording the decision on consent;
(b) the qualifications or experience necessary for a person to conduct an age assessment;
(c) where an age assessment includes use of specified scientific methods—
(i) the qualifications or experience necessary for a person to conduct tests in accordance with those methods, and
(ii) the settings in which such tests must be carried out;
(d) the content and distribution of reports on age assessments;
(e) the communication of decisions to the age-disputed person and any other person affected by the decision, and notification of appeal rights (see section (Appeals relating to age assessments)); and
(f) the consequences of a lack of co-operation with the assessment by the age-disputed person, which may include damage to the person’s credibility.
(2) The regulations may also include provision about—
(a) referrals under section (Persons subject to immigration control: referral or assessment by local authority etc)(1) or (3)(a), including the process for making such a referral and about the withdrawal of a referral;
(b) how and when a local authority must inform the Secretary of State as mentioned in section (Persons subject to immigration control: referral or assessment by local authority etc)(3)(b) and (c);
(c) evidence that the Secretary of State may require as mentioned in section (Persons subject to immigration control: referral or assessment by local authority etc)(4).
(3) Regulations under this section are subject to affirmative resolution procedure.”—(Tom Pursglove.)
This new clause enables the Secretary of State to make regulations about how age assessments under amendments NC30 and NC31 must be conducted. Once such regulations have been made, all such assessments must be conducted in accordance with them.
Brought up, and read the First and Second time.
Question put, That the clause be added to the Bill.

Division 65

Ayes: 10


Conservative: 10

Noes: 6


Labour: 5
Scottish National Party: 1

New clause 33 added to the Bill.
New Clause 34
Appeals relating to age assessments
“(1) This section applies if—
(a) an age assessment is conducted on an age-disputed person (“P”) under section (Persons subject to immigration control: referral or assessment by local authority etc) or (Persons subject to immigration control: assessment for immigration purposes), and
(b) the decision-maker decides that P is an age other than the age that P claims (or is claimed) to be.
(2) P may appeal to the First-tier Tribunal against the decision-maker’s decision.
(3) On the appeal, the Tribunal must—
(a) determine P’s age on the balance of probabilities, and
(b) assign a date of birth to P.
(4) In making the determination, the Tribunal may consider any matter which it thinks relevant, including—
(a) any matter of which the decision-maker was unaware, and
(b) any matter arising after the date of the decision appealed against.
(5) A determination on an appeal under subsection (2) is binding—
(a) on the Secretary of State and immigration officers when exercising immigration functions in relation to P, and
(b) on a local authority that has exercised or may exercise functions under relevant children’s legislation in relation to P.
(6) This section is subject to—
(a) section (Appeals relating to age assessments: supplementary) (appeals relating to age assessments: supplementary), and
(b) section (New information following age assessment or appeal) (new information following age assessment or appeal).”—(Tom Pursglove.)
This new clause provides a right of appeal to the First-tier Tribunal against an age assessment conducted by the NAAB or a local authority.
Brought up, read the First and Second time, and added to the Bill.
New Clause 35
Appeals relating to age assessments: supplementary
“(1) This section applies to an appeal under section (Appeals relating to age assessments)(2).
(2) The appeal must be brought from within the United Kingdom.
(3) If the person who brings the appeal leaves the United Kingdom before the appeal is finally determined, the appeal is to be treated as abandoned.
(4) The person who brings the appeal may make an application to the First-tier Tribunal for an order that, until the appeal is finally determined, withdrawn or abandoned, the local authority must exercise its functions under relevant children’s legislation in relation to the person on the basis that they are the age that they claim (or are claimed) to be.
(5) Subsection (6) applies if it is alleged—
(a) that a document relied on by a party to an appeal is a forgery, and
(b) that disclosure to that party of a matter relating to the detection of the forgery would be contrary to the public interest.
(6) The First-tier Tribunal—
(a) must investigate the allegation in private, and
(b) may proceed in private so far as necessary to prevent disclosure of the matter referred to in subsection (5)(b).
(7) Subsection (8) applies in relation to—
(a) proceedings on an appeal, and
(b) proceedings in the Upper Tribunal arising out of proceedings within paragraph (a).
(8) Practice directions under section 23 of the Tribunals, Courts and Enforcement Act 2007 may require the First-tier Tribunal or the Upper Tribunal to treat a specified decision of the First-tier Tribunal or the Upper Tribunal as authoritative in respect of a particular matter.
(9) For the purposes of this Part an appeal is not finally determined if—
(a) an application for permission to appeal under section 11, 13 or 14B of the Tribunals, Courts and Enforcement Act 2007 could be made (ignoring any possibility of an application out of time) or is awaiting determination,
(b) an application for permission to appeal to the Supreme Court from—
(i) the Court of Appeal in England and Wales,
(ii) the Court of Session, or
(iii) the Court of Appeal in Northern Ireland,
could be made (ignoring any possibility of an application out of time) or is awaiting determination,
(c) permission to appeal of the kind mentioned in paragraph (a) or (b) has been granted and the appeal is awaiting determination, or
(d) an appeal has been remitted under section 12 or 14 of the Tribunals, Courts and Enforcement Act 2007, or by the Supreme Court, and is awaiting determination.” —(Tom Pursglove.)
This new clause makes procedural provision about appeals against age assessments, including providing a power for the First-tier Tribunal to grant interim relief.
Brought up, read the First and Second time, and added to the Bill.
New Clause 36
New information following age assessment or appeal
“(1) This section applies where—
(a) an age assessment has been conducted on an age-disputed person (“P”) under section (Persons subject to immigration control: referral or assessment by local authority etc) or (Persons subject to immigration control: assessment for immigration purposes),
(b) an appeal under section (Appeals relating to age assessments)(2) could no longer be brought (ignoring any possibility of an appeal out of time) or has been finally determined, and
(c) the decision-maker becomes aware of new information relating to P’s age.
(2) In this section, the age assessment referred to in subsection (1)(a) is referred to as the “first age assessment”.
(3) In a case where the first age assessment was conducted by a designated person, they must—
(a) decide whether the new information is significant new evidence, and
(b) if they decide that it is, conduct a further age assessment on P.
(4) In a case where the first age assessment was conducted by a local authority, it must—
(a) decide whether the new information is significant new evidence or refer the new information to a designated person for a decision on that matter, and
(b) if it is decided that the new information is significant new evidence—
(i) conduct a further age assessment on P, or
(ii) refer P to a designated person for a further age assessment.
(5) For the purposes of subsections (3) and (4), new information is “significant new evidence” if there is a realistic prospect that, if a further age assessment were to be conducted on P, taking into account the new information, P’s age would be assessed as different from the age determined in the first age assessment or in the appeal proceedings.
(6) A further age assessment conducted by a designated person under subsection (3) or (4)(b)(ii) is to be treated—
(a) in a case where the first age assessment was conducted under section (Persons subject to immigration control: referral or assessment by local authority etc), as an age assessment conducted by the designated person following a referral under subsection (3)(a) of that section;
(b) in a case where the first age assessment was conducted under section (Persons subject to immigration control: assessment for immigration purposes), as an age assessment conducted under that section.
(7) A further age assessment conducted by a local authority under subsection (4)(b)(i) is to be treated as an age assessment conducted by a local authority under section (Persons subject to immigration control: referral or assessment by local authority etc)(3)(b).
(8) A person conducting a further age assessment under this section does not need to revisit matters that were considered in the first age assessment if they do not think it is necessary to do so.”—(Tom Pursglove.)
This new clause makes provision about the situation where new information comes to light after an age assessment or an appeal, allowing the decision-maker to conduct a further assessment (which would be subject to further appeal) if the information appears compelling.
Brought up, read the First and Second time, and added to the Bill.
New Clause 37
Legal aid for appeals
“(1) Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (civil legal services) is amended as follows.
(2) In Part 1 (services) after paragraph 31A insert—
‘Appeals relating to age assessments under the Nationality and Borders Act 2021
31B (1) Civil legal services provided in relation to—
(a) an appeal under section (Appeals relating to age assessments)(2) of the Nationality and Borders Act 2021 (appeals relating to age assessments),
(b) an application for an order under section (Appeals relating to age assessments: supplementary)(4) of that Act (order for support to be provided pending final determination of appeal), and
(c) an appeal to the Upper Tribunal, Court of Appeal or Supreme Court relating to an appeal within paragraph (a) or an application within paragraph (b).
Exclusions
(2) Sub-paragraph (1) is subject to the exclusions in Part 2 and 3 of this Schedule.’
(3) In Part 3 (advocacy: exclusions and exceptions), in paragraph 13 (advocacy in proceedings in the First-tier Tribunal), after ‘31A,’ insert ‘31B,’.”—(Tom Pursglove.)
This new clause will enable a person appealing against a decision on an age assessment to get legal aid for their appeal.
Brought up, read the First and Second time, and added to the Bill.
New Clause 1
Afghan Citizens Resettlement Scheme
“(1) The Secretary of State must make regulations setting out the terms of a resettlement scheme for Afghan citizens known as the Afghan Citizens Resettlement Scheme (‘ACRS’).
(2) The ACRS will not place any limit on the number of Afghan citizens who may be resettled in the first year of operation of the ACRS.
(3) Regulations under this section must be made and the ACRS must come into force within 30 days from the date of Royal Assent to this Act.”—(Bambos Charalambous.)
This new clause will place the Afghan Citizens Resettlement Scheme on a statutory footing and lift the 5,000 limit on the scheme.
Brought up, and read the First time.
Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

New clause 1 would lift the Afghan citizens resettlement scheme’s limit of 5,000 people per year. The Labour party wants to see the removal of the 5,000 person limit and the opening of safe routes for refugees fleeing the Taliban. In the summer, the humanitarian crisis in Afghanistan captured the world’s attention, as images of thousands of Afghans, desperate but also determined to escape the Taliban’s grip on the country, dominated the media. As the UK has been one of the countries most directly involved in Afghanistan for the last two decades, the British public’s reaction to the refugees’ plight was one of compassion and benevolence. Hundreds offered hospitality, and many more donated support to arriving newcomers.

The Government reacted instantly to the public’s demand for welcome and refuge by announcing the Afghan citizens resettlement scheme, offering refuge in the UK to 5,000 Afghans, up to a total of 20,000 in the long term. The Prime Minister also promised to house a town’s worth of refugees, while the Home Secretary rushed to Heathrow airport—along with news camera crews—to receive some of those airlifted out of Kabul, as the Government launched Operation Warm Welcome.

The Government believe that Britain’s bespoke scheme for Afghan refugees is one of the most generous in the country’s history, and the Home Secretary has argued that it is not possible to take in any more refugees. In truth, the Government’s response to the Afghan catastrophe is hardly generous. The idea of a fixed quota for refugees in such emergencies is meaningless. The figure of 5,000 meets the Government’s political needs rather than the needs of those on the ground in Afghanistan. I note that in the new plan for immigration, the Government seem very happy to welcome up to 5 million Hongkongers via the British national overseas scheme, which I will address later.

Although we welcome the commitment to provide 5,000 places to Afghan refugees through the Afghan citizens resettlement scheme, the scheme appears to be a carbon copy of the Syrian vulnerable persons resettlement scheme. The difference is that while the Syrian scheme placed people who were already in refugee camps in Turkey and Jordan—a position of relative safety that made it easier to process and admit them—in this case, many have fled Afghanistan to neighbouring countries in fear for their lives, or are in hiding in Afghanistan, where they live in fear.

Just yesterday, a constituent of mine, whose sister had run a school teaching girls and had campaigned for free elections and women’s rights in Afghanistan, told me that her sister’s friend had been found and murdered, and that her sister was in hiding with her husband, petrified about what could happen to her. Despite being told by the Foreign Office to go to Kabul airport, some Chevening scholars and people who had helped the British military were prevented from getting on any flights out of the country. The problem is that some of those people who are trapped in Afghanistan are at high risk and may not survive until the end of the year, let alone the four years the scheme is meant to run. The scheme is not even open yet; two months down the line from the fiasco of the chaotic withdrawal from Afghanistan, we are no closer to finding out any details of the scheme.

From what I understand, the Government control who does and does not have access to the scheme, so they will choose who makes it on to the scheme. They also control the numbers, but an arbitrary annual cap of 5,000 people is meaningless and could cost lives if stuck to rigidly. In the Government’s response to the new plan for immigration consultation, the section entitled, “Protecting those fleeing persecution, oppression, and tyranny”, states:

“The Government will pilot an Emergency Resettlement Mechanism, starting in the autumn, to enable refugees in urgent need to be resettled more quickly so that life-saving protection is provided in weeks rather than months. Beyond this, the Government will provide more flexibility to help people in truly exceptional and compelling circumstances by using the Home Secretary’s discretion to provide rapid assistance.”

The Government have failed to live up to those words because life-saving protection was not provided in weeks, but months, and there is no sign of rapid assistance.

If the arbitrary annual limit of 5,000 people is reached, Afghans who helped the UK military and who have been able to escape Afghanistan could arrive seeking protection in the UK only to be treated like criminals for how they have arrived. It is worth noting that the Government’s advice to Afghans was to leave Afghanistan when they ran out of time for flights to the UK in August. Under the Bill, they would be penalised if they came to the UK via irregular routes. That would plainly be wrong and inhumane, and the Government could avoid that by having no cap on the resettlement scheme.

There used to be a time when the Government used the phrase “whatever it takes” about other crises. It would certainly be apt to apply it here. Clearly, it does not apply in the case of Afghans who have clear links to the UK but who are trapped and in fear of their lives, because the Government have been clueless about getting them out. I urge the Minister to agree to the new clause and lift the arbitrary 5,000 person cap on the number of Afghan refugees we can help this year—they have already been badly let down by the Government—because doing so will save lives.
Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I thank the hon. Members for Enfield, Southgate and for Halifax for tabling new clause 1 and providing the Committee with this opportunity to consider placing the Afghan citizens resettlement scheme on a statutory footing and lifting the 5,000 person limit for the first year.

The UK has a proud history of supporting those in need of protection, and I understand the concerns that Members of the House have about the plight of people from Afghanistan. During Operation Pitting, the Government and military worked around the clock to airlift about 15,000 people out of Afghanistan—the biggest airlift from a single country for a generation. The Government have relocated thousands of people who loyally served our military in Afghanistan, and we continue to help more.

In addition, the Afghan citizens resettlement scheme is one of the most ambitious resettlement schemes in our country’s history. It will give up to 20,000 people at risk a new life in the UK. Our current schemes are non-legislative, operating outside the immigration rules and on a discretionary basis. Operating in this way has seen us resettle over 25,000 vulnerable people since 2015. Placing the Afghan citizens resettlement scheme on a statutory footing would make it less flexible and less able to respond to changing circumstances internationally.

A huge programme of work, called Operation Warm Welcome, is under way across the whole of Government to ensure that Afghans evacuated to the UK receive the vital support they need. This work, overseen by the Minister for Afghan Resettlement, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), spans different Government Departments, charities, non-governmental organisations, local authorities and communities. The aim is to ensure that Afghans can be properly supported as they rebuild their lives in the UK, while also ensuring that local services are not put under undue strain. The support being provided is similar to that of the vulnerable persons resettlement scheme in response to the conflict in Syria, to ensure that people get the vital healthcare, education, support into employment and accommodation they need to fully integrate into society.

There are many who need our protection, and the UK plays a leading role as one of the world’s largest refugee resettlement states. However, regrettably the UK is not able to provide protection to everyone, and it is essential that any decisions regarding the number of people we resettle take into consideration our capacity to support people to rebuild their lives in the UK. We are clear that the number of people we can resettle depends on a variety of factors, including local authorities’ capacity.

Paul Blomfield Portrait Paul Blomfield (Sheffield Central) (Lab)
- Hansard - - - Excerpts

I just want to pick up on the Minister’ point, which he has made time and again, about the UK leading on resettlement. Does he accept the figures that show that since the start of 2020, the UK has resettled 1,991 refugees, according to the United Nations High Commissioner for Refugees? That is less than France, less than half the number for Germany, and about a quarter of the number for Sweden. In what way is that a leading role?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I think it is fair to say that this country historically has had a leading role in resettling refugees, and the hon. Gentleman will recognise that we have debated this many times during the course of this Committee’s proceedings, and I have referred to the figure of 25,000 people on several occasions. I am confident that that proud tradition will continue. I am not privy to the figures that he has just cited, but I make the point that we have also been in a pandemic, which clearly has had knock-on effects across life and society in our country and in the international environment.

Jonathan Gullis Portrait Jonathan Gullis (Stoke-on-Trent North) (Con)
- Hansard - - - Excerpts

It sounded as though the hon. Member for Sheffield Central was asking for unfettered, uncontrolled, open-border access to this country. We have already had 20,000 illegal economic migrants crossing the English channel. I was down in Dover yesterday with Baroness Hoey, the former Labour Member of Parliament, and saw with utter shock the situation regarding the illegal attempts at crossing. Does the Minister agree that the hon. Gentleman’s words show that the Labour party is out of touch with what people want?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I am grateful to my hon. Friend for that intervention, and no doubt we will have a conversation about his visit to Dover.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

As I mentioned in my speech, the Government chose who came into the UK through the voluntary resettlement scheme and they will do so under this scheme as well. Remarks about giving unfettered or unlimited access to everyone are therefore ludicrous, because the Government will be in control of who can enter the UK from Afghanistan through this scheme. To make such aspersions is clearly wrong and misleading.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

The shadow Minister interrupted me while I was responding to the point made by my hon. Friend the Member for Stoke-on-Trent North, and, of course, I was happy to take his intervention. The scheme we intend to bring forward is structured and it should not be seen in isolation in relation to Afghanistan. It is important to consider it in the context of the Afghan relocations and assistance policy, which has been invaluable and plays an important role in our efforts to provide sanctuary to those fleeing Afghanistan. That is very important to consider.

To continue with my point about the participation of civil society in community sponsorship, we have been working around the clock to stand up support with local authorities and to secure accommodation for the scheme. There is a huge effort under way to get families who have already been evacuated to the UK into permanent homes so that they can resettle and rebuild their lives. Clearly, we do not want families to remain in bridging accommodation for long periods, so it is sensible to have a limit on the number of places we offer on the scheme.

The new clause seeks to bring the Afghan citizens resettlement scheme into force within 30 days from the date of Royal Assent. We are working at pace to open the scheme, and the new clause would likely result in significant delays in resettling individuals under the scheme.

During the passage of the Bill, we have had many debates relating to Afghanistan. I said previously that I would ensure that the Minister for Afghan Resettlement was made aware of the Committee’s comments, and I will endeavour to do that again. It is important that all views are heard as we work at pace to shape this scheme and to make sure that we get it right, so that we are able to provide sanctuary to those to whom Members across the Committee and across the House want to provide it.

Previous schemes have not been delivered through legislation. I would argue that it is best to be responsive and flexible, and that not putting the scheme on a statutory basis has that effect. The shadow Minister used the word “rigid”. I would argue that not going down the statutory route ensures we can be flexible as to the evolving situation, and provide proper care and support to people who come here.

We want coming to the UK to be a positive and life-changing experience, and we want to provide sanctuary and care for those individuals. I am confident that that is precisely what we will do in delivering this scheme and that our country will be able to be incredibly proud of it. We owe it to those individuals to provide them with sanctuary, and that is precisely what we will do. With that, I ask the hon. Members to withdraw the new clause.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I am not convinced by the Minister’s arguments, which clearly amount to a new cap on immigration. I will repeat the number for the benefit of the hon. Member for Stoke-on-Trent North: there are 5 million people potentially eligible to come to the country via the British national overseas visa scheme; we are just asking that more than 5,000 people are able to come from Afghanistan. If that limit is rigidly applied, people’s lives could be in danger.

Question put, That the clause be read a Second time.

Division 66

Ayes: 6


Labour: 5
Scottish National Party: 1

Noes: 10


Conservative: 10

New Clause 2
Dispersal policy and asylum accommodation arrangements
“(1) The Secretary of State must make regulations—
(a) ensuring that the proportion of supported asylum seekers accommodated in each government region will reflect each region’s share of the United Kingdom population; and
(b) requiring each Local Authority to accommodate a share of supported asylum seekers, with the share of supported asylum seekers to be agreed between the local authorities in each government region.
(2) To the extent that the implementation of these regulations results in additional expenditure by a local authority in the United Kingdom, the local authority may apply to the Secretary of State for funding to meet that expenditure.”—(Bambos Charalambous.)
This new clause will make the dispersal and asylum accommodation scheme mandatory for all local authorities and require all local authorities to make a contribution towards supporting asylum seekers and require the Government to fully fund any additional expenditure.
Brought up, and read the First time.
Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

The Opposition urge the Government to adopt a mandatory dispersal and asylum accommodation scheme that will require all local authorities to contribute towards supporting asylum seekers and the Government to fully fund any additional expenditure for those authorities. Having listened to the hon. Member for Stoke-on-Trent North speak about his local authority taking its fair share of asylum seekers in dispersal asylum accommodation, I can honestly say that, on this and this alone, I agree with him, and I know he will have no difficulty in supporting our new clause.

Local authorities currently volunteer to participate in dispersal arrangements. The Home Secretary has reserve powers to ensure that local authorities co-operate in the provision of accommodation for asylum seekers through sections 100 and 101 of the Immigration and Asylum Act 1999. The current dispersal system is unfair and inefficient, with the majority of asylum seekers housed in disadvantaged local authority areas while dozens of councils support none. This has led to some councils that have been incredibly generous and kind in taking asylum seekers, such as that in the great city of Stoke-on-Trent, feeling undermined by councils that have not and threatening to leave the Government’s voluntary scheme.

In the Committee’s evidence session on 21 September, I asked the leaders of Kent County Council and Westminster City Council, Councillor Gough and Councillor Robathan, whether they thought that all councils should have to take their fair share of asylum seekers. Both agreed that they should as they spoke about the pressures on services for their local councils. In August, the Local Government Chronicle ran a story about council leaders demanding a fairer distribution of refugees, in which Coventry City Council leader George Duggins said:

“All local authorities need to take their fair share of the dispersal programme—no opting out, no excuses”.

It also included Walsall Council leader Mike Bird saying that the dispersal of asylum seekers was

“an issue for the whole of the country, not just the urban areas”,

and Stoke-on-Trent City Council leader Abi Brown, whom I am sure the hon. Member for Stoke-on-Trent North will be familiar with, saying that it was “really sad” that many councils had still not pledged to take any Afghan refugees, adding:

“How do we counter this if there isn’t some national scheme?”

Jonathan Gullis Portrait Jonathan Gullis
- Hansard - - - Excerpts

The hon. Gentleman rightly quotes the leader of Stoke-on-Trent City Council. My hon. Friends the Members for Stoke-on-Trent South (Jack Brereton) and for Stoke-on-Trent Central (Jo Gideon) and I agree that other parts of our United Kingdom should step up to the plate and do much more. I reiterate and put on the record that I support Stoke-on-Trent City Council, which is currently looking to withdraw from the voluntary dispersal scheme because it is unhappy with how it works at present. Therefore, while I have a lot of empathy with what the hon. Gentleman’s new clause seeks to do, I will—reluctantly, in some ways—not vote for it. However, I would absolutely like to work with the hon. Gentleman and Opposition and Government Members to make sure that the scheme becomes much fairer and works for other parts of our United Kingdom.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I look forward to having that conversation with the hon. Gentleman after the debate, because we need a fairer system; too much of the burden is clearly being put on some local authorities and not enough on others.

Local authorities are vital partners in providing suitable accommodation and support for people seeking asylum. The system works best when central Government, the devolved Governments and local government work together, alongside the voluntary sector and community groups. This requires local authorities to be fully on board with plans to accommodate people in their area. However, figures have shown that more than half of those seeking asylum or who have been brought to Britain for resettlement are accommodated by just 6% of local councils, all of which represent areas with below average household incomes.

12:15
The new clause would ensure that local authorities across the country are treated fairly and given the resources that they need to support asylum seekers. That will fit well with the Government’s levelling-up agenda, and will be an opportunity to rebalance the asylum system and ensure that all local authorities take their fair share, not just those that sign up to the voluntary scheme. If the Government do not support the new clause, perhaps the Minister can advise what their plans are for providing dispersal and asylum accommodation, when many councils are rushing for the exit as they feel that they have done their bit.
Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I have said a lot about asylum accommodation in previous years and months. I agree that there are huge problems with the asylum accommodation system, such as over-concentration, too often poor-quality accommodation, a lack of funding for the local authorities that actually step up to the plate and volunteer to undertake the task, and a lack of control and power for those local authorities. Too often they play second fiddle to the companies and organisations contracted to the Government.

I support broadening dispersal, but I am not on board at this stage with mandating it. Repeatedly, local authorities, whether in the west midlands, Glasgow or elsewhere, and other organisations such as the Home Affairs Committee, on which I sit—we have had a couple of reports on this issue—have listed all the things that the Home Office could engage with and undertake to improve the system. I know from speaking to authorities that if the Home Office did those things and increased the powers and financing of local authorities, more would come on board. If the Home Office did that, I do not think that mandation would be required.

If the Home Office fixes its end of the bargain and local authorities are still not getting on board, at that stage I would have no choice but to support mandation, but I do not think that we are at that stage yet. I, too, will quote Abi Brown, who was very measured in her comments when local authorities from the west midlands were writing to the Home Office. She said:

“This is about trying to open up a discussion about how the asylum dispersal system works. So far it’s been very frustrating trying to get the Home Office to engage with us on this issue. We want them to talk to us about how the system can be improved, and we’ve made a number of suggestions in the letter.”

She went on to say:

“This isn’t about party politics, it’s about parity.”

I absolutely agree with that. There is a growing consensus that the Home Office has to up its game on how the dispersal system works. That is what we have to look at, rather than mandating local authorities.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I agree with some of the intention behind new clause 2. It is right that all parts of the UK make a reasonable contribution to ensuring that adequate accommodation is available for asylum seekers who would otherwise be destitute, but it is important to recognise that not every area of the UK has appropriate services or affordable accommodation to appropriately support them. Additionally, some local authorities have very few asylum seekers accommodated by the Home Office in their areas but support large numbers of other migrants. For example, the Home Office does not accommodate many adult asylum seekers and their children in Kent or Croydon, but both local authorities support large numbers of unaccompanied asylum-seeking children.

It is also important to note that not all asylum seekers are accommodated by the Home Office. The proportion varies over time, but historically around 50% find accommodation with friends or family. That group often live in areas where there are few supported asylum seekers, but they still require access to the same health and education services. It is not therefore sensible to have a rigid set of rules that require destitute asylum seekers to be accommodated in areas in direct proportion to the population of those places. The other factors that I have described must be taken into consideration.

Since the introduction of part 6 of the Immigration and Asylum Act 1999, successive Governments have employed a policy of seeking the agreement of local authorities prior to placing asylum seekers within an area. However, the legislation does not provide local authorities with a veto on the placement of asylum seekers in their areas. If a local authority objects to proposals by our providers to use accommodation not previously used to house asylum seekers, the Home Office can consider and adjudicate on the matter.

A lot of work has none the less been done on increasing local authority participation in asylum dispersal since 2015. Prior to 2015, there were around only 100 local authorities participating. There are now around 140. We have established the local government chief executive group to bring together senior representatives from local authorities, with the aim of expanding the dispersal system and improving the process for the people who use it. We are planning a wider review of the dispersal process and will be consulting local authorities and others.

The local government chief executive group is working collaboratively to evidence any additional costs to local authorities by the dispersal proposal and to identify the appropriate funding mechanism. In light of what I have said, I hope that the hon. Member for Enfield, Southgate will withdraw the motion.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I am sorry, but I suggest that we vote on the new clause.

Question put, That the clause be read a Second time.

Division 67

Ayes: 5


Labour: 5

Noes: 10


Conservative: 10

New Clause 3
Acquisition of British citizenship by birth or adoption: comprehensive sickness insurance
“(1) The British Nationality Act 1981 is amended as follows.
(2) After subsection 1(3A) insert—
‘(3B)(a) A person born in the United Kingdom after commencement who is not a British citizen is entitled, on application, to register as a British citizen if the person’s father or mother would have been settled in the United Kingdom at the time of the person’s birth, if Assumption A had applied.
(b) Assumption A is that, in assessing whether the person’s father or mother met a requirement to have held comprehensive sickness insurance, this is to be regarded as having been satisfied whenever they—
(i) had access to the NHS in practice; or
(ii) held a comprehensive sickness insurance policy.
(c) Registration under this subsection shall be free of charge.’
(3) After section 50A insert—
50B Exceptions
Notwithstanding any provision of section 50A, for the purposes of an application for naturalisation or registration made under this Act, a person—
(a) is not to be treated as having been in the United Kingdom in breach of the immigration laws during a period of time that has been counted as part of a continuous qualifying period in a grant of leave to that person under Appendix EU of the Immigration Rules, and
(b) is not to be treated as not being of good character on account of a failure to hold comprehensive sickness insurance during some period of residence in the UK.’
(4) The European Union (Withdrawal Agreement) Act 2020 is amended as follows.
(5) After section 15, insert—
15A Comprehensive sickness insurance
(1) For the purposes of any decision taken by a public authority under this Part after commencement of this section, a person is to be treated as having met a requirement to have held comprehensive sickness insurance, whenever they—
(a) had access to the NHS in practice; or
(b) held a comprehensive sickness insurance policy.
(2) This section shall in particular apply to any decisions taken under residence scheme immigration rules.’”—(Bambos Charalambous.)
This new clause rectifies an anomaly requiring a person seeking to acquire permanent residence documents, naturalisation or citizenship to have had comprehensive sickness insurance prior to applying for citizenship when EEA and Swiss citizens did not need comprehensive sickness insurance because they had free access to the NHS.
Brought up, and read the First time.
Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

We believe that new clause 3 is necessary because of an issue relating to comprehensive sickness insurance, which has been affecting EU citizens and babies born in the UK to EU parents. The issue is preventing naturalisation or automatic access to the right to be registered as British born. We believe that that is unfair and incorrect. Historically, access to the NHS for European economic area and Swiss citizens was free at the point of use, on the same terms as residents who are British citizens, without the need for any further insurance.

The Immigration (European Economic Area) Regulations 2016 included a requirement for comprehensive sickness insurance, but this requirement was not routinely communicated to EEA and Swiss citizens, and was only required at the point of applying to the Home Office. This has led to a situation where individuals have been refused permanent residence documents, naturalisation applications and citizenship at birth, and have lost family reunion rights under the separation agreements following a discretionary grant of naturalisation. Not only was the requirement for comprehensive sickness insurance not made clear prior to applying to the Home Office, but CSI might not have been relevant to EEA or Swiss citizens, such as during periods of study or self-sufficiency.

I will set the issue in a wider context. The UK has set up the EU settlement scheme, which allows EU citizens to acquire settled status, but many want to become British. They want the right to vote and the security of the nationality of their adopted home, the United Kingdom. However, the requirement to have an obscure health insurance policy is putting applications at risk of refusal and is discouraging many from applying. The British Nationality Act 1981 requires applicants to have not been in breach of immigration laws for any period relied on in the application. While a lot of EU citizens need only to have been living in the UK, students and those who are self-sufficient must also be in possession of comprehensive sickness insurance. However, the possession of CSI has never been a requirement for EU citizens to live in the UK or use the NHS, so most people do not and never have had it.

More concerning is the fact that the Home Office never communicated clearly to EU students and self-sufficient people that they would need to have CSI to become British. The Home Office, which is in charge of decisions relating to applications for citizenship, has maintained the policy despite questions from various organisations, including the3million. In May 2020, updated guidance to caseworkers confirmed the policy, changing the application process to ask for CSI and directing caseworkers to check for it. The guidance introduced a vague power of discretion, but no details were provided as to how that discretion should be applied.

In the Opposition’s view, it is clearly unfair that this anomaly relating to CSI has led to historical and ongoing injustices. It is not fair that what appears to be an additional random requirement for one group of citizens—not communicated prior to application—has, in effect, defined people’s ability to naturalise or claim citizenship.

We therefore believe that the new clause is needed to make the law fair. The historical requirement demanding that individuals hold CSI should also be satisfied by them having had free access to the NHS at the point of use without further insurance. The addition of historical access to the NHS as a satisfying condition would be much fairer. I will give some examples to further illustrate the need for this.

Roberto is Portuguese and arrived in the UK in 2006. He did an undergraduate degree in the UK, where he met his wife. During their university years, they studied full time and did not have CSI as they were never made aware of that requirement for full-time EU students in the UK. They had a son in the UK in 2011 and applied for his British passport, believing that he would automatically be born British.

However, when Roberto and his wife contacted the Home Office for information about the passport application, they were told that as they had not had CSI in the five years preceding the birth, he was not considered to be British. This new clause would address this problem, as the parents’ CSI requirement would have been met by their having had access to the NHS. Consequently, the fact that the child should have been born British can now be addressed by registering for British citizenship at no charge.

I would like the Committee to consider another example illustrating the need for this new clause. Lara is a Brazilian-Italian citizen who has been living in the UK since 2014. Between 2014 and 2017, Lara was in work, but she started a full-time degree at the University of Cambridge in September 2017. In July 2019, Lara was granted settled status under the EU settlement scheme and was looking forward to applying for naturalisation as a British citizen in 2020 after holding settled status for a year. Lara has since started working again, and has been made aware that she should have held CSI while she was at university—a requirement she was never made aware of by either her university or her GP.

If Lara applies for naturalisation, she may fail the lawful residence requirements due to the absence of CSI and may have her application refused. Since late 2020, caseworkers have had the discretion to grant citizenship when there are compelling grounds, although those are not clearly defined in any Home Office guidance. Therefore, like many other EU citizens, Lara is afraid of taking the risk of paying the £1,330 naturalisation fee and not obtaining a positive outcome.

Our new clause would mean that the period of residence that led to the grant of settled status would be considered to be lawful residence, and that the good character requirement could not be failed for a lack of CSI. That would give EU citizens like Lara the confidence to apply for naturalisation, knowing that they would meet all the criteria.

It is important to note that if Lara applies for citizenship and is granted it through caseworker discretion, the CSI issue is likely to still affect her in the future. If she then wished to be joined by a family member in the UK, the complex appendix EU immigration rules, which define the EU settlement scheme, mean that she would fall outside the definition of “qualifying British citizen” due to her historical lack of CSI, and therefore lose the scheme’s right to family reunion. If Lara does not become a British citizen, she would have that right through having settled status.

The new clause would mean that for future decisions taken under the immigration rules, the CSI requirement would be met by access to the NHS, meaning that EU citizens like Lara would not unexpectedly lose the rights they had before naturalising. We believe that this new clause is needed to address this unfair anomaly around CSI.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I thank the hon. Members for tabling the new clause, which relates to the requirement, in certain circumstances, for EEA nationals to have had comprehensive sickness insurance to have been residing lawfully in the UK. Regulations set out the requirements that EEA nationals needed to follow if they wished to reside here lawfully on the basis of free movement. In the case of students or the self-sufficient, but not those who were working here, the possession of CSI has always been a requirement.

12:31
The first part of the new clause would create an entitlement for a child to register as a British citizen if their parent would have been settled but for the fact that they did not have CSI. It also suggests that such an application should be free of charge. The position of children born in the UK when their parents were not settled is not unique to EEA nationals. There will be families who were not settled in the UK at the time of their child’s birth for a variety of reasons, and it would not be right to single out the children of non-settled EEA nationals without CSI for a specific and free route.
There are already routes for children who do not become British automatically. For example, parents who did not qualify for permanent residence could still apply for settled status under the EU settlement scheme, and they did not need CSI to do so. Once they were settled in the UK, they could apply to register their child who was born in the UK before 1 July 2021 as a British citizen.
We have some sympathy for EEA nationals who claim they did not realise that they needed to have CSI to live lawfully in the UK, which is why we introduced guidance for naturalisation caseworkers to explain that discretion can be exercised over the lawful residence requirements if a person did not meet an additional or implicit condition of stay—as opposed to an explicit condition such as illegal entry or overstaying—under EEA free movement regulations. I am not aware of any application for British citizenship being declined purely because of the CSI requirement under EEA free movement regulations.
Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

It is useful that guidance exists, but does the Minister appreciate that if somebody is considering spending more than £1,000 to make an application and there is no clarity—nothing stronger—they almost certainly will not take the risk? Is it not possible to put something firmer into the guidance for caseworkers to say that, in the overwhelming majority of cases, the lack of CSI should be ignored?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

The hon. Gentleman will appreciate that this matter falls within the portfolio of the Minister for Future Borders and Immigration, so if the hon. Gentleman does not mind, I shall take away that suggestion and ask the Minister to consider it. If the hon. Gentleman wants to follow up in writing with the Minister, I am sure my hon. Friend would consider that and come back to him. I will certainly make sure that he is aware of the suggestion the hon. Gentleman raises.

The new clause would amend the naturalisation requirements for EEA nationals who did not have CSI and so had not been in the UK lawfully before they acquired settled status. We cannot accept that, as all applicants are required to meet the same requirements for naturalisation in terms of lawful residence and it would not be right to treat certain nationalities differently.

The third part of the new clause would amend the European Union (Withdrawal Agreement) Act 2020 such that a person is treated as having had CSI if they had access to the NHS in practice or held a CSI policy. However, there is no mention of CSI in the rest of that Act, nor is there any mention of CSI in residence scheme immigration rules. The EU settlement scheme does not test for CSI and there is no need to have held it in the past, or to hold it now, in order for EEA nationals to obtain settled or pre-settled status. As such, that part of the new clause would have no practical effect. I therefore ask the hon. Members to withdraw their new clause.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I will press the new clause to a Division.

Question put, That the clause be read a Second time.

Division 68

Ayes: 6


Labour: 5
Scottish National Party: 1

Noes: 10


Conservative: 10

New Clause 4
Minimum Income Requirement: Family members of British citizens with a connection to British Indian Ocean Territory
“(1) This section applies where—
(a) the Secretary of State makes a decision under Appendix FM of the UK’s Immigration Rules on whether to grant entry clearance, leave to remain or indefinite leave to remain on the basis of family reunion to a person; and
(b) the sponsor of the person is a British citizen who was born on, or descended from a person born on, British Indian Ocean Territory.
(2) In a decision to which this section applies, the Secretary of State shall not require the person to meet—
(a) a minimum income requirement; or
(b) an English language requirement.”—(Stuart C. McDonald.)
This new clause would prevent the Government from imposing a minimum income requirement or an English language requirement when deciding whether to grant entry clearance, leave to remain or indefinite leave to remain to family members of British citizens with a connection to the British Indian Ocean Territory.
Brought up, and read the First time.
Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss new clause 15—Acquisition by registration: Descendants of those born on British Indian Ocean Territory—

“(1) The British Nationality Act 1981 is amended as follows.

(2) After section 17H (as inserted by section 7), insert—

‘17I Acquisition by registration: Descendants of those born on British Indian Ocean Territory

(1) A person is entitled to be registered as a British Overseas Territories citizen on an application made under this section if they are a direct descendant of a person (“P”) who was a citizen of the United Kingdom and Colonies by virtue of P’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date.

(2) A person who is being registered as a British Overseas Territories citizen under this section is also entitled to be registered as a British citizen.

(3) No charge or fee shall be imposed for registration under this section.’”

This new clause would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British Overseas Territories citizen. They may also register as a British citizen at the same time. Both applications would be free of charge.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I thank the Chagossians who spoke to the shadow Minister and myself, and Fragomen solicitors for facilitating that discussion and drafting the new clauses. As Members, and particularly Conservative Members, will know, the hon. Member for Crawley (Henry Smith), in whose constituency we find the UK’s largest Chagossian diaspora, has championed Chagossians for many years. On Second Reading I asked the Government to consider introducing a clause to rectify some of the injustices that Chagossians have faced for more than half a century. I understand that they will bring in an amendment on Report to do that, but today we seek to probe their initial thinking.

We could speak all day about how outrageously the Chagossians were treated by the UK and the US. They were removed from their islands simply to make way for an airbase, dumped in Mauritius and elsewhere and basically forgotten about. There are myriad injustices that are still to be put right. The new clauses do not fix everything, but they would fix significant injustices in relation to nationality—exactly what part 1 of this Bill was supposed to do—and family. Some Chagossians would benefit from provisions in part 1 of this Bill, which is welcome, but the Bill needs to go much further if they are to have access to the citizenship that is rightly theirs and that has been denied them only by the outrageous events of the late 1960s and the early 1970s.

As we touched on during debates on part 1, citizenship by descent in British and British overseas territories’ nationality law usually stretches to only one generation. If someone moves abroad, the children they have there will be British by descent, but if those children remain abroad and later have kids they would not be able to pass on that British citizenship. That reflects the idea that the family have made a voluntary decision to loosen their links to the UK and to build a new life elsewhere. Therefore, citizenship of the country where they now live is probably more appropriate.

Exceptions are made—for example, if the only reason the person was abroad was Crown service or if the parent who could not pass on citizenship has actually lived in the UK for three years previously or goes on to do so. All of that illustrates the point that reflecting the idea of a voluntary link to the UK justifies continued transmission of UK citizenship.

None of that can apply to the Chagossians; the situation there is obviously manifestly different. The only reason why Chagossians cannot pass on their British overseas territory citizenship is that they were forcibly removed from their islands. Nobody chose to make a new life in Mauritius or anywhere else—far from it. Nobody can say that they have voluntarily chosen to take on a new identity elsewhere. Any undermining or breaking of the link was completely forced on them in quite the most outrageous circumstances; that in itself should be enough to justify new clause 15.

The knock-on effect is that when the law was changed in 2002, while some Chagossians became British citizens as well as British overseas territory citizens, others missed out. They are now in the horrible situation where some have the right to rekindle their British identity and return here, but others do not. If I was a Chagossian whose parent was born just before being forcibly removed from the islands, and was therefore BOTC by birth, I am likely to be in a far better position than, for example, my cousin whose parents were born just days after being forced from the islands, and therefore cannot transmit their BOTC or British citizenship. When introducing the Bill, the Home Secretary said that it would mean children unfairly denied British overseas territory citizenship will finally be able to acquire citizenship, as well as British citizenship. What happened to the Chagossians, and what they still face today, is an absolute scandal. The least that we can do is ensure that all of them can access the nationality that the UK and US action deprived them of.

New clause 4 would fix another unfairness. I absolutely detest the restrictive rules that the Home Office has put in place on family visas, which say that someone must be earning certain sums of money before they can bring their non-national spouse or children here. Putting that to one side for the moment, even accepting the Government’s own logic, these provisions should not apply to the spouses and family members of Chagossians. Essentially, the Government logic is that if people choose to build a family life elsewhere and then come back to the UK, they should have certain financial means to support themselves and knowledge of the UK. However, again, Chagossians did not choose to make their family life outside British overseas territories—that was forced on them. It would now be totally unfair to restrict the right to come to the UK by imposing those rules on the families as if this was a choice they made.

It was a step in the right direction to provide British citizenship to some in 2002, but it is cruel to deny effective access to these routes by denying family members the right to come here. It is particularly cruel, given that the reason many will not be able to meet the financial threshold is the horrendous way they have been treated for decades and the extraordinary deprivation they have had to endure. I hope the Home Office will look to fix two of the many injustices that have been visited on the Chagossians.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I will speak to new clause 15, which is grouped with new clause 4. I fully endorse what the spokesperson for the SNP said.

New clause 15 seeks to rectify a long-standing issue in British nationality law that affects a relatively small number of people—the Chagossian people, descendants of the Chagos islanders, who were forcibly removed from the British Indian Ocean Territory in the 1960s. Between 1968 and 1974, the UK forcibly removed thousands of Chagossians from their homelands on the Chagos islands. The removal was done to make way for a US military base on Diego Garcia. The Chagossians were a settled population on the islands. Their origins trace back to 1793. They were removed and deported to Mauritius and the Seychelles, more than 1,600 km away from the Chagos islands, and have faced extreme poverty and discrimination in those places.

Because of the removal, many descendants of the Chagos islanders, despite being the grandchildren of people who were British subjects in the British Indian Ocean Territory, have been denied rights to British citizenship. The British Overseas Territories Act 2002 granted British citizenship to resettled Chagossians born between 1969 and 1982—the children of those born on the British Indian Ocean Territory. However, many Chagossians have still been denied citizenship, including second-generation Chagossians born outside those dates.

The grandchildren of those born on the British Indian Ocean Territory, third-generation Chagossians, do not have rights to British citizenship, as citizenship has not automatically passed to them, even if in some cases they migrated to the UK with their British parents at a very young age. That group therefore often become an undocumented presence in the UK once they reach the age of 18, and are denied access to jobs, housing and healthcare, despite having lived in the UK since a very young age.

The Chagossian community is divided between Mauritius, the Seychelles and the UK. Broken and divided families are therefore a direct consequence of this injustice in British nationality law. For 60 years, the Chagossian people have faced dispersal, poverty and separation. That has severely limited their life chances and damaged the health and wellbeing of generations of people.

The Bill in its current state does not cover the British citizenship and immigration issues that the Chagossian community faces. That is why the Opposition are introducing this new clause and why we wish to raise the issue today. It is worth exploring this unfairness in more detail, and the reasons why legislation has failed to rectify it to date.

Under British nationality law, citizenship is normally passed only to one generation born abroad. However, the situation of the Chagossians is fundamentally different from that of other inhabited British overseas territories, and applying that restriction to the Chagossians is unacceptable. As we know, their parents and grandparents were forcibly removed from their homeland and deported to Mauritius and the Seychelles. Since then, the Chagossian people have been born outside the Chagos archipelago and receive citizenship from Mauritius or the Seychelles, with no recognition of their long-standing ties to British nationality.

It is not possible for the descendants of the Chagos islanders to be born on the islands of the British Indian Ocean Territory due to the Order in Council since 2004, which bans any Chagossian from living on their native land. That is deeply unfair. They have not severed links with their British citizenship voluntarily; they have been excluded by the UK Government. At this point I would like to share the personal experiences of those affected by that injustice. Like many in Committee, I have been contacted by members of the community, and I pay tribute to their campaigning efforts in incredibly distressing and difficult circumstances, including groups such as Chagossian Voices. Pascal Francois is one of those affected. He resides in Mauritius and is Chagossian. He says:

“For years we have suffered from the separation of our families, through no fault of our own. We are as British as you and the next person. We wish to be known as British, we belong to the UK & her territories. The Chagossian people in exile no longer want to live in the shadows of others. We want to belong and be British by descent.”

The battle for Chagossians’ rights has been raging for decades, and this group of people have been badly let down by the UK. Most Chagossian families, already financially impacted by their enforced exile, are paying—and have paid for many years—huge and increasing visa, immigration and citizenship fees, health surcharges and legal expenses for spouses and children with pending or rejected applications. This process has significantly damaged their health, wellbeing and livelihoods. It has caused immense stress. There is understandable frustration at the lack of support from the Home Office.

12:45
Many face the threat of deportation, including young people who have lived in the UK for most of their lives and whose parents are British citizens. Ordinarily, they would have British citizen rights, but because of their exile they have been denied their rights. This injustice in British nationality law has lasted for more than half a century. We believe it requires special attention and cross-party support.
New clause 15 aims to highlight this injustice. It would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British overseas territories citizen. In turn, they may also register as a British citizen. Both applications would be free of charge.
Despite our deep concerns about other measures in the Bill, it provides an opportunity for the UK to end this injustice for the descendants of the Chagos islanders and rectify a long-standing anomaly in British nationality law. I hope this opportunity is taken.
Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I appreciate the positive intent behind new clause 4, which seeks to create a means whereby, in the future, British citizens who were born on, or descended from a person born on, the British Indian Ocean Territory will be able to bring their foreign national spouse or partner to the UK, without their being subject to the current financial and English language requirements for family migration.

I remind hon. Members that the minimum income requirement is based on in-depth analysis and advice from the independent Migration Advisory Committee. The purpose of the requirement, implemented in July 2012 along with other reforms of the family immigration rules, is to ensure family migrants are supported at a reasonable level so they do not become a burden on the taxpayer and can participate sufficiently in everyday life to facilitate their integration into British society. Family life must not be established here at the taxpayer’s expense and family migrants must be able to integrate if they are to play a full part in British life.

The minimum income requirement was set following advice from the independent Migration Advisory Committee, at £18,600 for sponsoring a partner, rising to £22,400 for also sponsoring a non-qualifying child and an additional £2,400 for each further such child. There is no flexibility in the level of the minimum income requirement, which must be met in all cases subject to the requirement; it is right and fair it should be consistently applied in all cases. Expecting family migrants and their sponsors to be financially independent is reasonable, both to them and the taxpayer.

In February 2017, the Supreme Court upheld the lawfulness of the minimum income requirement under the family immigration rules. The Court found the minimum income requirement is not a breach of the right to respect for a private and family life under article 8 of the European convention on human rights and is not discriminatory. The Supreme Court endorsed our approach in setting an income requirement for family migration that prevents burdens on the taxpayer and ensures migrant families can integrate into our communities. The Supreme Court agreed that it strikes a fair balance between the interests of those wishing to sponsor a partner to settle in the UK and of the community in general.

Being able to speak English is also fundamental to successful integration into British society.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I would just gently say that the response is slightly tone deaf. First, the Migration Advisory Committee has asked the Government to revisit the financial thresholds the Minister mentions. Secondly, we are talking about Chagossians who were forcibly removed from their islands. Consistency is fine, but these are truly exceptional circumstances. Surely most taxpayers would perfectly understand that different rules have to apply in these outrageous circumstances.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

In fairness, the hon. Gentleman has intervened early in my remarks on the new clauses. Let me continue, but I hear the point he raises, and I of course take it on board, in the way I take all comments from hon. Members on the Committee on board.

We expect those coming to the UK on a family visa with only basic English to become more fluent over time, as a means of encouraging better integration into our society, to make it easier for families to access vital public services and to enable parents to support their children’s education.

New clause 4 would undermine the sound basis on which family migration to this country has been placed in recent years. It would circumvent the need for family migration to be on a basis whereby families are financially independent and able to contribute to the UK. It would also remove the English language requirement, which is fundamental to a migrant’s successful integration into British society. There is no justifiable reason to give preferential treatment to family members based solely on their sponsor’s nationality. Without a clear justification for doing so, that would also likely constitute unlawful discrimination.

The immigration rules on family migration, which new clause 4 would undermine, are designed to prevent burdens on the taxpayer, promote integration and tackle abuse, and thereby ensure that family migration to the UK is on a properly sustainable basis that is fair to migrants and the wider community. The rules are helping to ensure public confidence in the immigration system and, well intended as the new clause may be, it has the potential to reverse that.

In the same way, the introduction of a dual family migration system as required by the new clause would not be seen in a uniformly positive way by British citizens and persons settled here. It would lead to an undesirable two-tier system of family migration in which a group of family members whose sponsor is a British citizen with a connection to the British Indian Ocean Territory would be given preferential treatment over other sponsors. Furthermore, the Government have the power under the Immigration Act 1971 to set out the requirements for entry into and stay in the UK in immigration rules, which are laid before Parliament. The rules allow flexibility to amend policy as appropriate, and the Government continue to review them regularly to ensure that they are fair and effective. Work is ongoing on simplification of the rules following the Law Commission’s recommendations. The new clause would have the effect of undermining that process and prescribing the rules in primary legislation for one particular cohort.

I turn to new clause 15. We are already making changes through the Bill to address historic unfairness so that all those born on the British Indian Ocean Territory and their children are either automatically British citizens or have the right to acquire British nationality. The new clause, tabled by the hon. Members for Enfield, Southgate and for Halifax, seeks to go much further and would address what is seen as the consequences of historic unfairness. Although I am sympathetic with the aim, I am concerned that that is not the correct approach. The new clause would offer British citizenship in perpetuity to those born outside the UK and overseas territories regardless of their connection to the UK as long as they are descendants of someone born on the islands making up the British Indian Ocean Territory.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I am not entirely surprised that the Minister’s first point is about the lack of any limit. Would the new clause be more amenable to him if there was a limit on the degree of relationship there had to be with a Chagossian?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

If the hon. Gentleman lets me conclude my remarks, I hope that that will give him a little comfort on that point. The approach proposed by the new clause cannot be right and would undermine the long-standing principle of British nationality law that nationality or entitlements to nationality are not passed on to the second and subsequent generations born and settled outside the UK and territories.

I recognise, however, that the Chagossians present a unique case. My hon. Friend the Member for Crawley, who has long campaigned on behalf of the Chagossian communities both in his constituency and throughout the UK as vice chair of the Chagos islands (British Indian Ocean Territory) all-party parliamentary group, has indicated his intention to table an amendment on this issue on Report. I would like to reflect further on the complex issues faced by Chagossian communities in the UK and those in Mauritius and the Seychelles that have been raised by hon. Members on both sides of the Committee—I am mindful of the cross-party view—before making any significant changes to nationality law.

Hon. Members from different parties have expressed views, and I have taken on board the points raised. I say to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that there is a willingness to look closely at the Chagossian issue. With that, I hope that hon. Members will be willing not to move their new clauses.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

As the Minister said, we will consider what has been said before we revisit this issue on Report. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 5

Former British-Hong Kong service personnel: right of abode

‘(1) The Immigration Act 1971 is amended as follows.

(2) At the end of section 2(1) insert—

“(c) that person is a former member of the Hong Kong Military Service Corps or the Hong Kong Royal Naval service, or

(d) that person is the spouse or dependent of a former member of the Hong Kong Military Service Corps or the Hong Kong Royal Naval service.’—(Stuart C. McDonald.)

This new clause would mean that all former British-Hong Kong service personnel, plus their spouses and dependents, would have right of abode in the UK.

Brought up, and read the First time.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I beg to move, that the clause be read a Second time.

The new clause is on a cause championed by the hon. Member for Romford (Andrew Rosindell) for many years: the 300 or so Hong Kong servicemen who seek UK citizenship in recognition of their service in the UK-Hong Kong Army before the handover of Hong Kong to China in 1997. With family included, we are talking of about 1,000 people.

Hongkongers served in our armed forces from 1857 right up to 1997 through world wars and numerous other conflicts. Hong Kong servicemen are recognised by the Ministry of Defence as veterans. In the early 1990s, the British nationality selection scheme allowed certain British nationals—rather than citizens—who were permanent residents of Hong Kong with a right of abode and who met a number of other eligibility criteria to apply for full UK citizenship. Of 654 British-Hong Kong servicemen who applied, only 159 were granted citizenship. Until now, the Home Office has resisted the campaign, but surely recent developments mean that it is now irresistible and that the Home Office must think again.

The Home Office previously refused to budge on the grounds that veterans are deemed to have Chinese citizenship and that some were locally recruited staff, who could not have reasonably expected the right to British citizenship. However, those recent developments, which we understand and know only too well, have seen the Home Office introduce the really welcome scheme for British nationals overseas. It could have refused to establish any BNO scheme for precisely the same reason they have refused the campaign of the hon. Member for Romford. However, it rightly put those arguments aside. It should also put them aside in relation to these veterans, 97 of whom qualify for the BNO scheme. Let us build on that excellent work through a new clause such as this, which would ensure that all British-Hong Kong service personnel, plus their spouses and dependents, would have the right of abode in the UK. In the circumstances, surely it is the right thing to do.

None Portrait The Chair
- Hansard -

Before we adjourn the Committee, may I thank hon. Members for the courtesy with which they have conducted proceedings? These are contentious issues, and the Committee’s conduct has been commendable. I am grateful. I also offer my thanks on the Committee’s behalf to the staff and Officers of the House.

Ordered, That the debate be now adjourned.—(Craig Whittaker.)

12:56
Adjourned till this day at Two o’clock.

Subsidy Control Bill (Eighth sitting)

Thursday 4th November 2021

(2 years, 4 months ago)

Public Bill Committees
Read Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee consisted of the following Members:
Chairs: Caroline Nokes, † Mr Virendra Sharma
† Baynes, Simon (Clwyd South) (Con)
† Benton, Scott (Blackpool South) (Con)
† Blackman, Kirsty (Aberdeen North) (SNP)
Bowie, Andrew (West Aberdeenshire and Kincardine) (Con)
† Buchan, Felicity (Kensington) (Con)
† Esterson, Bill (Sefton Central) (Lab)
† Fletcher, Colleen (Coventry North East) (Lab)
Flynn, Stephen (Aberdeen South) (SNP)
† Hollinrake, Kevin (Thirsk and Malton) (Con)
Kinnock, Stephen (Aberavon) (Lab)
† Malhotra, Seema (Feltham and Heston) (Lab/Co-op)
† Millar, Robin (Aberconwy) (Con)
† Mortimer, Jill (Hartlepool) (Con)
† Scully, Paul (Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy)
Stafford, Alexander (Rother Valley) (Con)
† Tomlinson, Michael (Lord Commissioner of Her Majesty's Treasury)
Whitley, Mick (Birkenhead) (Lab)
Kevin Maddison, Bradley Albrow, Committee Clerks
† attended the Committee
Public Bill Committee
Thursday 4 November 2021
(Afternoon)
[Mr Virendra Sharma in the Chair]
Subsidy Control Bill
14:00
None Portrait The Chair
- Hansard -

Before we start the meeting, may I make a humble request? Everybody is advised to wear masks.

Clause 59

CMA report following mandatory or voluntary referral

Question proposed, That the clause stand part of the Bill.

Paul Scully Portrait The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)
- Hansard - - - Excerpts

As always, Mr Sharma, it is a pleasure to serve under your chairmanship. Clause 59 specifies the contents of the report that must be produced by the subsidy advice unit on subsidies or schemes that are referred by public authorities or the Secretary of State. The SAU’s report must contain an evaluation of the public authority’s assessment of whether the subsidy or scheme complies with the subsidy control principles, prohibitions and other requirements. This will provide an additional layer of independent and impartial scrutiny of the most potentially harmful subsidies and schemes, shining a light on the public authority’s underlying assumptions and justifications for giving a subsidy or making a scheme.

The hon. Member for Aberdeen North asked what would be in these reports, and whether the Competition and Markets Authority or the subsidy advice unit itself could add extra things. As long as those things are relevant, clearly, the subsidy advice unit can add more information. What it cannot do is directly comment on the legitimacy of a subsidy, because it is not an enforcement body: it is an advice unit, so there is a distinction there.

Question put and agreed to.

Clause 59 accordingly ordered to stand part of the Bill.

Clause 60

Post-award referrals

None Portrait The Chair
- Hansard -

We come now to amendment 55 to clause 60. Happy Diwali to Seema Malhotra and every other Member.

Seema Malhotra Portrait Seema Malhotra (Feltham and Heston) (Lab/Co-op)
- Hansard - - - Excerpts

I beg to move amendment 55, in clause 60, page 33, line 20, after “Secretary of State” insert

“, the Scottish Ministers, the Welsh Ministers and the Department for the Economy in Northern Ireland”.

This amendment extends the post-award referral powers under this section to the Devolved Administrations.

It is a pleasure to serve under your chairship, Mr Sharma. You beat me to it: I wish you, and all who might be celebrating, a happy Diwali and Bandi Chhor Divas today. It is a very auspicious day, and it is a pleasure to be debating the Bill on such an auspicious day.

Clause 60 gives the Secretary of State the power to refer subsidies or schemes to the CMA after they have been awarded. Although Labour supports the general principle of post-award referrals, there are key problems that we wish to raise about this clause, not least the asymmetry of powers between the Secretary of State and the devolved Administrations, as well as some other key details. Amendment 55 has been tabled because, in our view, the Bill fails to provide the devolved Administrations with the proportionate and fair symmetry of powers that they should have, given that the Bill will operate across the UK.

Kevin Hollinrake Portrait Kevin Hollinrake (Thirsk and Malton) (Con)
- Hansard - - - Excerpts

Is that not the point, though? The hon. Lady said “across the UK”; this is a UK-wide scheme, so we have to have somebody in overall charge of the scheme, which is why we cannot have symmetry of powers for all the devolved regions. The Secretary of State is Secretary of State for the entire United Kingdom, so does it not have to be the case that he holds some powers that the devolved Administrations do not?

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I thank the hon. Member for his contribution. He will see from the contributions of Opposition Members that we are not saying that exactly the same powers should be given in all circumstances to the devolved Administrations, but that there are areas in which arguments for the devolved Administrations having similar powers make sense within the context of how the regime may operate. With a view to how issues could be raised and dealt with, there may be very good reason for doing that. We propose this not for political purposes but because we seek a regime that will work effectively and with some symmetry of powers relating to the opportunity, where it would be helpful, to challenge subsidies. I will lay out a couple of reasons why.

The clause gives the Secretary of State the power to make post-award referrals to the CMA but does not extend this power to the devolved Administrations. The specific purpose of the amendment is to extend the post-award referral powers in the clause to the devolved Administrations. As it stands, the Secretary of State can refer to the CMA subsidies granted in Scotland, Wales and Northern Ireland that may be perceived to damage the interests of enterprises in England. However, the devolved Administrations cannot bring forward an argument. They may in time have good reason to refer subsidies—English or others—to the CMA that they may perceive damage interests within the devolved Administration areas.

Kirsty Blackman Portrait Kirsty Blackman (Aberdeen North) (SNP)
- Hansard - - - Excerpts

I do not intent to speak to the amendment, but I want the Opposition spokesperson to know that she has my full backing for it.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I thank the hon. Member for her contribution in response to the challenge to us from the Government side, which I do not think is at all fair, because we have not at any point argued against this being a reserved power or the overall structure of the Bill. We have genuinely sought to amend the Bill to make sure that there is a fair and sustainable settlement that commands the confidence of all our nations.

Powers on subsidies and the regime overall should reside in Westminster, and we understand that it is crucial that subsidies under the regime do not distort the UK’s internal market—we would raise little concern on that, and we think it is vital that that is the case—but as such, devolved Administrations, such as the Scottish Parliament or Welsh Senedd, should have the opportunity to receive the CMA’s advice on subsidies that they consider could damage their national interest. It is not only Labour that thinks that. During the evidence session on 26 October, George Peretz QC, a barrister specialising in state aid, said:

“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.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 44, Q63.]

Could the Minister share his reflections on those comments? Perhaps he will offer a robust argument for not allowing the devolved Administrations to make post-award referrals, because we fail to see a valid argument for that exclusion. Instead, it feels more like a lack of a fair distribution of powers, and something we should consider as the Bill makes progress. We therefore propose the amendment.

We hope that the Committee sees its importance in ensuring that Scotland, Wales and Northern Ireland feel that they have a fair role in the subsidy regime. I will await the Minister’s remarks before deciding what we shall do on this amendment.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

The amendment would extend the Secretary of State’s post-award referral power, set out in the clause, to the devolved Administrations. The debate is similar to one we had earlier. The Government intend to use the power in exceptional circumstances and it will be fully transparent, as a direction will be published in an appropriate place, which is usually gov.uk.

It is worth my being absolutely clear that the power simply allows for additional scrutiny and transparency of the public authority’s assessment that took place before it gave the subsidy or made the scheme in question. The measure does not make the subsidy unlawful after the fact, nor does it block the public authority from giving more subsidies under the scheme in question. I reassure the hon. Member for Feltham and Heston that any use of the post-award referral power will be transparent. When the Secretary of State exercises the power, the direction must also be published in an appropriate manner. That will make it clear that the power is being used appropriately and only in those exceptional circumstances.

Turning to the amendment, I believe that the call-in power should remain a matter for the Secretary of State only. Subsidy control is a reserved policy area, as we have heard. As I said when speaking to amendment 52 to clause 55, the Secretary of State’s responsibilities for subsidy control are UK-wide and, as in all matters, he will act in the interests of the whole of the UK. That includes responsibility for overseeing the system as a whole and ensuring that subsidies granted across the UK are compliant with our international obligations.

In the event that one or more of the devolved Administrations had serious concerns about a subsidy given or a scheme made, they would of course be able to request that the Secretary of State use the call-in power, as I said earlier. The Secretary of State would carefully consider any request from his counterparts in the devolved Administrations on that, as in any other policy matter. I stress again, as I said on the formulation of the Bill and as we will on the guidance for and the running of the regime, we will continue to engage as closely as we can with all our colleagues in Scotland, Wales and Northern Ireland.

I believe, therefore, that it is neither appropriate nor necessary for the devolved Administrations to have the same ability to trigger a post-award referral. For the reasons that I have provided, I request that the hon. Lady withdraws the amendment.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I thank the Minister for his remarks. I fail to see an explanation. I understand the restatement of his position, but I feel that the argument was missing. This area is important to the effectiveness of the regime as a whole and over time, so I will press the amendment to a vote.

Question put, That the amendment be made.

Division 18

Ayes: 4


Labour: 3
Scottish National Party: 1

Noes: 8


Conservative: 8

14:14
Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I beg to move amendment 56, in clause 60, page 33, line 27, at end insert—

“(c) that there is a risk of negative effects on competition or investment between the United Kingdom and a territory or country outside the United Kingdom.”

This amendment provides that a post-award referral can be made where the Secretary of State considers that a subsidy or scheme risks competition or investment between the UK and a third country.

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss amendment 57, in clause 60, page 34, line 1, leave out paragraphs (a) and (b) and insert—

“the day on which the subsidy is given or the scheme is made.”

This amendment would provide the Secretary of State with 20 working days beginning on which a subsidy is given or a scheme is made.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

It is my pleasure to move amendment 56 and to speak to amendment 57. We would like to address some further important gaps that we think exist in clause 60. First, as the clause stands, the Secretary of State cannot make a post-award referral on the basis that a subsidy may distort competition between the UK and a third country. In an article on 5 July entitled “UK Subsidy Control Bill—a brief summary”, George Peretz QC said that

“oddly, the Secretary of State does not appear to have that power if the possible subsidy only affects foreign countries, though such subsidies could well cause difficulty at international level.”

Labour is therefore proposing amendment 56, which would allow the Secretary of State to make post-award referrals on the basis that a subsidy or scheme is distorting international competition. We hope the Committee can understand why this is an important amendment. If the Government choose not to support it, will the Minister outline what the reason is and why the Government do not feel the need to refer subsidies that distort international competition to the CMA?

Secondly, we are proposing amendment 57, which would change the Secretary of State’s time to refer a subsidy or scheme to the CMA from 20 days after it is published on the database to 20 days after it is granted. The amendment is not intended to be used as a tool for reducing the time for post-award referrals; rather, it is intended to ensure that the Secretary of State can refer to the CMA grants that public authorities have incorrectly not categorised as a subsidy and that have therefore not been posted on the database. We hope the Minister recognises that, as the Bill currently stands, there is a loophole whereby subsidies incorrectly not identified can escape scrutiny and transparency. Amendment 57 is an attempt to close the loophole, and I therefore hope that the Government will work with us and support it.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

Thank you for chairing this afternoon’s meeting, Mr Sharma. I have a brief comment about the omission of the power set out in amendment 56. I would appreciate it if the Minister could let us know what assessment he has made of its compatibility with the trade and co-operation agreement and the World Trade Organisation rules if the Bill does not contain the power that the Opposition are suggesting should be put in via amendment 56.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 60, as we have heard, provides a power for the Secretary of State to direct a public authority to refer a subsidy or scheme to the subsidy advice unit after it has been given or made. The power can be used where the Secretary of State judges that there is risk of failure to comply with the subsidy control requirements, or of negatively impacting on competition and investment within the UK. The purpose of the power is to ensure that there is an opportunity for the subsidy advice unit to provide independent scrutiny and evaluation of the public authority’s assessment of compliance with the subsidy control requirements in circumstances where the subsidy or scheme was not subject to mandatory referral before the subsidy was given or the scheme was made. That independent analysis will increase transparency and provide useful information to the Secretary of State and any potential interested parties, if they are considering a judicial review challenge to the subsidy or scheme. In circumstances whereby the subsidy is given in multiple instalments or further subsidies will be given under the scheme, it may also give the public authority advice that allows it to make adjustments for future instalments or subsidies.

Amendment 56 would add a further scenario that would permit the Secretary of State to direct a referral where they were concerned about a subsidy or scheme’s potential impact on competition and investment between the United Kingdom and other territories. Clause 60(2)(b) explicitly underlines that a referral may be made where

“there is a risk of negative effects on competition or investment within the United Kingdom.”

That is important, because it reflects the domestic character of the new subsidy control regime and emphasises our commitment to protecting our vibrant free market economy.

However, as we have heard, the subsidy control regime is also concerned with impacts on international trade and investment and, in order to comply with our international obligations, this is enshrined in the subsidy control principles. In particular, principle G requires that the benefits of a subsidy or scheme outweigh the negative effects, including those on international trade and investment.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

The Minister is attempting to explain why the Government have explicitly included one of the principles, but not the other principle. It seems to me, if one principle is included, they all need to be included, or none of them. Giving extra importance to one principle suggests that the other principles are less important, and therefore amendment 56 makes a huge amount of sense to me.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

I will come back to that in a second, but let me finish talking about principle G. If the Secretary of State has concerns that a subsidy does not comply with principle G, or any other subsidy control requirement that is connected to international trade or our international obligations, then they may already direct a referral under subsection 2(a) of this clause, meaning that this amendment is redundant.

I also want to point out that the Bill deliberately refers to “trade or investment” between the UK and other territories, rather than “competition or investment”. The Secretary of State does not have any role in managing the balance of competition between nations. That is enshrined in those obligations.

Amendment 57 concerns the time limits for the referral power in clause 60. The Bill limits this power to within 20 working days from either the day in which the subsidy or scheme is entered onto the transparency database, or, where a subsidy or scheme is exempted from that requirement, 20 working days from the date the subsidy is given or made. These timeframes mean there is a significant window during which a post-award referral may be made. Most subsidies and schemes must be entered on to the database within six months of being given or made, while for tax measures, as we have discussed, the period is within a year.

Amendment 57 removes the ability to issue a post-award referral following entry on the transparency database, and would only allow a referral within 20 days of the subsidy being awarded or made. There is no loophole, as was suggested, but 20 days after the upload of the database is the end of the time period when the referral needs to be made. It does not start with the date of the upload on the database.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

On the point the Minister made in relation to “competition or investment” and the disparity between that and “trade or investment”, if the Opposition amendment referred to “trade or investment”, would it be acceptable to the Minister?

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Again, the principles are enshrined, and it is the principle that complies with those international treaty obligations.

Going back to the timeframes, amendment 57 would have the effect of curtailing the power and reducing the opportunity to provide transparency on the most concerning subsidies. That would mean, in some circumstances, the deadline could have expired before the Secretary of State or any interested party had any news of the subsidy at all. The additional scrutiny and transparency offered by this measure will undoubtably be lost in some cases which may have benefited from the use of this power, and risks undermining confidence in the system as a whole. I therefore request that the hon. Member withdraw amendment 56.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I thank the Minister and the hon. Member for Aberdeen North for their comments.

The Minister referred to principle G in schedule 1, which I was going to refer to in my final comments. As the hon. Member for Aberdeen North highlighted, there seems to be an asymmetry between G (a) and (b) and what is reflected in clause 60(2). I take the point that using the word “trade” better reflects the wording in principle G, but the asymmetry issue remains. It might end up causing confusion because, on one hand, there is what is implied under principle G (a) and (b), but on the other clause 60(2)(b) says

“there is a risk of negative effects on competition or investment within the United Kingdom.”

It seems almost to imply that this power covers G (a) but not G (b), and I would hate for there to be confusion about this that was not intended.

I will not push the amendment to a Division, but I would be grateful if, perhaps in writing, the Minister could clarify this, and provide a more detailed note about how and where those powers may apply to risks of negative effects on international trade or investment. It is important that there is integrity in the Bill. If we have misunderstood something, that is absolutely fine, but if there is a gap or an area that could perhaps lead to confusion about what is and is not subject to a legal challenge, it would be helpful to resolve that earlier rather than later.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

I think that it is a misunderstanding, but I am happy to write to clarify that.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 60 provides a power for the Secretary of State to direct a public authority to refer a subsidy or scheme to the subsidy advice unit after it has already been given or made.

Question put and agreed to.

Clause 60 accordingly ordered to stand part of the Bill.

Clause 61

CMA reporting period for post-award referrals

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I beg to move amendment 58, in clause 61, page 34, line 23, after “section 60” insert

“, or makes a decision to investigate under section [Post-award investigations],”.

This amendment is a consequential amendment linked to NC3.

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss new clause 3—Post-award investigations

“(1) The CMA may decide to conduct an investigation in relation to a subsidy that has been given or a subsidy scheme that has been made.

(2) A decision under subsection (1) may be made in relation to any subsidy or subsidy scheme in respect of which the CMA considers—

(a) that there has or may have been a failure to comply with the requirements of Chapters 1 and 2 of Part 2, or

(b) that there has or may have been a failure to comply with the transparency obligations set out in Chapter 3 of the Part 2.

(3) Where the CMA makes a decision to investigate under subsection (1), it must direct the public authority to provide it with—

(a) any assessment carried out by the public authority as to whether the financial assistance fell within the meaning of “subsidy” or “subsidy scheme” for the purposes of this Act, and the reasons for that conclusion;

(b) any assessment carried out by the public authority as to whether the financial assistance if assessed to constitute a subsidy or subsidy scheme would comply with the requirements of Chapter 1 and 2 of Part 2 and the reasons for that conclusion;

(c) any evidence relevant to those assessments;

(d) in a case where such assessments were not provided, the reasons for the assessments not being provided;

(e) any information that the public authority failed to enter in the subsidy database in accordance with Chapter 3 of Part 2; and

(f) such other information as is specified in regulations under section 60(8)(a).

(4) Where the CMA decides to conduct an investigation under subsection (1), the direction given under subsection (3) must be made before the end of 20 working days beginning with the day on which the subsidy is given or the scheme is made.

(5) The CMA must send a copy of the direction given under subsection (3) to the public authority and the Secretary of State.

(6) The public authority must provide to the CMA the information required under subsection (3) before the end of the information period as defined in section 60(7).”

This new clause provides the CMA with the power to conduct a post-award investigation where the public authority has or may have failed to comply with its requirements.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

It is pleasure to move amendment 58 and to speak to new clause 3. I am grateful for the opportunity to do so, because we think that this is quite an important area in which to seek some wider changes to improve the Bill.

In relation to post-award referrals, new clause 3 says that the CMA must publish a report on the subsidy or scheme within 30 working days. That reporting period may be extended by agreement between the CMA and the public authority, or the CMA may in certain circumstances request an extension from the Secretary of State. The Secretary of State may also make regulations that amend the length of the reporting period.

We support clause 61 overall and will vote for it to stand part. However, new clause 3 would extend the CMA’s powers with regard to post-award referrals. This is an issue that George Peretz outlined in his evidence to us. New clause 3 would allow the CMA to conduct post-award investigations into subsidies or schemes on its own initiative. The aim of the new clause is to ensure that, as mentioned in our previous discussion, subsidies that are, perhaps incorrectly, not categorised as subsidies and that therefore avoid scrutiny and transparency are able to be scrutinised should they come to light. George Peretz told us:

“There is an issue about the position of subsidies that are not recognised by the granting authority as subsidies.”

He added that

“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.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 42, Q61.]

Will the Minister enlighten the Committee as to his reflections on that? It is a genuine area of concern for someone who is a distinguished lawyer in the field. Does the Minister recognise that the Bill therefore appears to contain loopholes with regard to subsidies that may deliberately not be defined as such, and are therefore not formally recognised as such?

14:29
We have taken the comments raised in evidence quite seriously. We believe that the Bill contains this loophole and we want it closed. We want to ensure that all subsidies are subject to transparency and scrutiny and that, if they are not entered into the subsidy database but there is good reason to question or challenge whether they are indeed a subsidy and should be considered subject to the subsidy control regime, there is some mechanism to allow that to happen.
The CMA is an independent, well-regarded institution. It can and should be trusted to undertake the necessary investigations into certain subsidies, while not wasting time and where there is good reason—there could be some discussion about the criteria that may be helpful in determining that. As such, we believe that new clause 3, which gives the CMA the power to undertake investigations on its own initiative, is an appropriate response to the loophole. Amendment 58 is consequential on new clause 3. I would be grateful for the Minister’s comments.
Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 61 sets out the process for the subsidy advice unit’s report following a post-award referral by the Secretary of State under clause 60. Amendment 58 provides for a new clause to be inserted after clause 61, seeking to establish a power for the subsidy advice unit to initiate a post-award referral of its own accord. The amendment inserts a reference to the new clause proposed by the hon. Member for Feltham and Heston.

I will start by setting out the policy rationale behind the specific role for the new subsidy advice unit set out in the Bill. The Government believe that subsidy control is far more than a box-ticking exercise. It is essential to protect UK competition and investment and to ensure that we are compliant with our international commitments. However, some commentators, and perhaps some hon. Members, seem to believe that the highest form—the gold standard—of subsidy control is the EU state aid regime. I entirely reject that view. Public authorities controlled by all parties have faced delays, unnecessary bureaucracy, and disproportionate prohibitions.

The Bill will establish a strong subsidy control regime that safeguards our vibrant free market economy. It also makes the most of the opportunities of exiting the EU by avoiding the complex and stifling rules and regulation that are a hallmark of EU state aid.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

In relation to the debates on Second Reading and others that we have had in good faith in relation to the Bill, it is important not to draw on arguments that are not relevant or pertinent to the clear point being made. There may well be public authorities that, for all intents and purposes, are granting subsidies—spending public money—without categorising them as subsidies. In doing so, they avoid being held publicly accountable and being challenged and scrutinised in relation to the subsidy control principles. If that is the case, what happens, and who can act if a challenge should be brought?

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

I was just about to turn to enforcement. The role of the subsidy advice unit is one of the most important pillars of our new approach. It strikes the right balance, as part of an enabling regime that is none the less robust in its protection of competition and investment.

The unit will enhance the scrutiny and transparency of the subsidies that are most likely to lead to distortive or harmful effects. In doing so, it will provide reassurance to public authorities giving subsidies that they have appropriately considered the subsidy control requirements. I welcome that—it speaks exactly to the hon. Lady’s point.

The subsidy advice unit is not a regulator. It does not have investigatory or enforcement powers. The mechanism for enforcement of the new domestic subsidy control regime set out in the Bill is the process of a judicial review challenge in the Competition Appeal Tribunal.

I start from the position that most if not all public authorities take their statutory obligations very seriously, as they do their obligations to spend taxpayers’ money effectively, and to balance the positive effects of their interventions against the costs to UK competition and investment. Of course, there is a need for safeguards and enforcement mechanisms and, as hon. Members have emphasised, for transparency and opportunities for public scrutiny, but a statutory obligation is none the less a powerful tool.

Under the UK constitution, the normal way to challenge the actions of a public authority in respect of their statutory obligations is through judicial review in UK courts and tribunals. We have taken that path in the Bill, broadly replicating the judicial review process in part 5 of the Bill, so that cases can be brought to the Competition Appeal Tribunal, with some adjustments and additions to account for the specificities of giving subsidies. Most notably, that means that we have provided for a recovery mechanism.

New clause 3 would give an investigatory role to the subsidy advice unit that is at odds with the specific and limited role set out in the Bill. We want an agile and responsive regime that firmly places decision making and responsibility with the public authorities. That allows space for innovation and creative solutions to local policy problems, while protecting competition and investment through a measured risk-based approach to enforcement.

The hon. Member for Feltham and Heston may or may not agree with that vision, but we do not believe that the new clause represents a viable or credible alternative. It does not establish how the SAU may come by information directly that may lead it to launch an investigation. It does not establish any incentive for a public authority to comply with any such investigation, nor any consequences for failing to do so. It does not provide the means for the SAU to compel a public authority to co-operate with any such investigation, nor does it suggest in what way the SAU should analyse the information it gathers through its investigation. It does not offer any meaningful improvement to the Bill.

The hon. Lady asked what would happen with a subsidy of particular interest that has not been sent to the CMA. It is then a prohibited subsidy. That is covered in the Bill. The appropriate avenue is through the Competition Appeal Tribunal, if it has caused harm.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

There is a lot to work through and to disentangle about what exactly would happen. The first question that would need to be asked in such a situation is, “Is this a subsidy?” Which body does the Minister consider is the right body to confirm whether it is a subsidy within the definitions and the regime in the Bill? Is it the Competition Appeal Tribunal? Or would it be, in normal circumstances, the CMA? It would be helpful to know.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

It is the public authority. That is the whole point of the permissive approach in the Bill. The guidance that will be published and the principles that are set out in the Bill, alongside the ability to refer to the subsidy advice unit, will give the public authority the knowledge it needs.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I understand that point—it is a fundamental part of how the regime will operate. In a circumstance where, either deliberately or mistakenly, a public authority does not categorise its subsidy as a subsidy and it is not entered on the database, and therefore it is not subject to the same opportunity for scrutiny and challenge, but it is then identified and raised through some other means, one of the first questions will be whether or not it is a subsidy. I do not think that in that circumstance we can go back to the public authority and have it mark its own homework, so would the institution responding to the challenge answer whether it is a subsidy, or would it be the Competition Appeal Tribunal, or would it be the CMA?

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

It would be the Competition Appeal Tribunal, because the enforcement is done through judicial review.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

I thank the Minister for that. That is helpful for us to take away and reflect on within the context of the flow of functions in the Bill, and I think we will come back to it. He talked about some questions that our new clause might give rise to. If the Government change their mind, and consider that there might be a gap and a different way of addressing it, we would of course be very happy to make some suggestions in addition to new clause 3. Somehow this needs to be more clearly defined within the context of the whole regime. It is important for transparency, value for money and to ensure that where public authorities may, deliberately or otherwise, seek to avoid the scrutiny of the regime, it is easier to bring that back in, and for there to be transparency. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 61 sets out the timeframe within which the subsidy advice unit must publish its post-award report on a subsidy or subsidy scheme once it has been referred to by the Secretary of State.

Seema Malhotra Portrait Seema Malhotra
- Hansard - - - Excerpts

We will support clause stand part.

Question put and agreed to.

Clause 61 accordingly ordered to stand part of the Bill.

Clause 62

CMA report following post-award referral

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

I beg to move amendment 4, in clause 62, page 35, line 40, leave out paragraph (b).

This amendment modifies the content of the CMA’s post-award report to ensure consistency with the content of the pre-award report required under clause 59.

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss Government amendment 5.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Amendment 4 is a minor change to clause 62(4), which sets out the requirements for the SAU’s report following post-award referral. The amendment ensures clarity and consistency between the reports produced by the subsidy advice unit for both pre-award and post-award referrals. The effect of the amendment is to remove provision for the subsidy advice unit to offer optional advice on changes required to mitigate the distortive effects of a subsidy or scheme as part of its report following the post-award referral of a subsidy or scheme. On reflection, and having worked closely with SAU colleagues on the design of their functions, the Government decided that a separate provision was unnecessary for both pre-award and post-award reports.

Clause 62(4)(a) already provides for the SAU to offer optional advice on how a subsidy or scheme might be modified to better comply with the subsidy control requirements under chapters 1 and 2 of part 2 of the Bill. The subsidy control requirements include the obligation to ensure that subsidies are consistent with the principles, including principle F, which provides that subsidies should minimise

“any negative effects on competition or investment within the United Kingdom.”

Subsection (4)(a) therefore already enables the subsidy advice unit to advise on how any adverse impact on competition and investment could be mitigated to ensure consistency with the subsidy control principle. Subsection (4)(b) is therefore unnecessary. The amendment removes the redundant paragraph for the clarity and consistency that I talked about, with the pre-award referral reports detailed under clause 59, where there is no separate provision of that kind.

14:39
Amendment 5 would remove nuclear energy subsidies and subsidy schemes from the list of subsidies that are exempt from the referral provisions in chapter 1 of part 4. It would, in essence, carve nuclear energy subsidies back into the referral regime. The Bill carves nuclear energy subsidies out of the referral provisions. The list of exempt areas in clause 64 includes matters such as subsidies under the minimal amounts of financial assistance threshold and subsidies for national or global economic emergencies, or else subsidies to which specific international obligations apply. There is a clear rationale that these subsidies are either of generally low risk, in urgent need of being granted or subject to bespoke arrangements established elsewhere in the Bill because of our international obligations. These rationales do not apply to nuclear energy subsidies.
The Government are clear that nuclear energy subsidies and subsidy schemes should be subject to the terms of the subsidy control regime. This includes referral to the subsidy advice unit in cases where the subsidy or scheme in question is of interest or particular interest.
Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

I am baffled by this Government amendment. It seems to be directly opposite to what the Opposition moved. The Opposition were concerned that one of the principles was mentioned in the post-award referrals clause, but the others were not. With amendment 5, the Minister concedes that one of the principles should not be mentioned and is therefore asking for it to be taken out of clause 62 but not of the post-award referrals clause. To clause 60, he argued, I think, that it was okay to include one of the principles, but not the others. I am confused about why he made one argument at one point in the debate but is now arguing the opposite—for the removal of one of those principles.

Bill Esterson Portrait Bill Esterson (Sefton Central) (Lab)
- Hansard - - - Excerpts

It is good to see you back in the Chair, Mr Sharma. The hon. Member for Aberdeen North makes a good point, which we reiterate, about amendment 5, which we will come to because of its relation to our amendments to clause 64.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

On the point made by the hon. Member for Aberdeen North, in the previous sitting we talked about UK competition and investment. It simply emphasises the point about UK competition and investment. It does not have any significant effect, because it is already captured in the guiding principles. We want to make sure that there is absolute clarity for businesses and public authorities with clause 62.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

So the principle has been removed from clause 62 but is being kept under clause 60? Is that correct? There is no Government amendment to remove that provision from clause 60, but the Government felt it was so important that they need to remove it from clause 62, even though it is literally the same—whether it is post-award referrals or CMA reports following a post-award referral. I am just baffled by the inconsistency, to be honest.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

There is no Government amendment to clause 60.

Amendment 4 agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 62 specifies the content of the subsidy advice unit’s report on a subsidy or scheme that is referred by the Secretary of State after being given or made. The subsidy advice unit must evaluate any assessment that the public authority has provided as to whether the subsidy or scheme would comply with the subsidy control principles, prohibitions and other requirements. If an assessment was not provided, that fact must be recorded in the report, along with any reasons provided by the public authority as to why an assessment was not provided. If the subsidy or scheme is ongoing, the subsidy advice unit may also provide advice about how the subsidy or scheme might be modified with a view to ensuring compliance with the principles, prohibitions and other requirements. Finally, the Secretary of State may make further provision by regulation as to the content and form of the post-award referral report.

Question put and agreed to.

Clause 62, as amended, accordingly ordered to stand part of the Bill.

Clause 63

Referrals in relation to subsidy schemes

Question proposed, That the clause stand part of the Bill.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 63 excludes individual subsidies granted through the mechanism of a subsidy scheme from being capable of referral to the subsidy advice unit under part 4. That aligns with the approach taken throughout the Bill. Public authorities may create subsidy schemes providing for the giving of individual subsidies. It is the scheme itself that must be assessed for its compliance with the subsidy control requirements, rather than the individual subsidies granted within the scheme. It is likewise the scheme that falls to be challenged in the CAT for failure to comply with the subsidy control requirements. Ultimately, it is not necessary to refer subsidies given under a scheme because they can be given only within the set parameters of that scheme, and the scheme itself is capable of being referred to the subsidy advice unit.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

I say to the hon. Member who spoke from a sedentary position that it was not very good. As we have said throughout the—

Michael Tomlinson Portrait Michael Tomlinson
- Hansard - - - Excerpts

For Mid Dorset and North Poole.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

I think he is trying to intervene. I would not take an intervention from him anyway, because he does not wear a mask.

I rise to reiterate our concern about the lack of transparency throughout the Bill and how subsidies cannot be called in when they are under schemes. That is a continuous thread. The real concern is that potential abuses can be missed as a result of that approach. The clause exempts subsidies under schemes from a review, from post-award referrals and from voluntary referrals. We agree that schemes provide a quicker and easier route to provide subsidies, but that should not mean that subsidies awarded under those schemes should escape due scrutiny. If there is not a problem with a subsidy, there is nothing to be concerned about, but if there is a problem with a subsidy awarded under a scheme, there needs to be a mechanism, and I hope the Minister will explain what that mechanism will be, because I do not think we have heard during our deliberations about the scrutiny of potential problems with subsidies awarded under schemes.

There is the potential for a back door of free, unscrutinised public cash being opened up. We have seen problems throughout the pandemic where scrutiny was removed. I will not go over them in too much detail. We have heard about them already, such as the Health Secretary’s pub landlord, advisers to the Board of Trade, and the problems of Randox and the now former right hon. Member for North Shropshire (Mr Paterson)—I understand, hot off the press, that he has resigned. Some £3.5 billion-worth of covid-19 contracts were awarded to firms with links to the Conservative party, according to Government procurement data. That is an example of why we need adequate scrutiny.

None Portrait The Chair
- Hansard -

Order. That is not within scope.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

It is an example of why scrutiny is required in this legislation.

None Portrait The Chair
- Hansard -

I am advised that that is not in the scope of this stand part debate.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

There is a monumental lack of scrutiny in the clause that should not be allowed to continue, so we will oppose it.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

I have a few questions. Are there any circumstances in which a subsidy given under a subsidy scheme could be considered of interest or of particular interest where the scheme itself is not considered of interest or particular interest? If that is the case, is it possible to ensure that a subsidy scheme in which any of the potential subsidies are considered as possibly of interest or particular interest is subject to the mandatory or voluntary referral, rather than the subsidies given under those schemes not being subject to any referral, despite the fact that some of them might tick the boxes and some will not? Does the Minister see what I mean?

I understand that the question is complicated but, specifically, I am concerned about the lack of ability to refer individual subsidies. Only subsidy schemes may be referred to the mandatory or voluntary referral process; the subsidies made under those schemes may not be referred. However, if we had a scheme that seems to tick all the normal boxes to make it acceptable as a subsidy scheme—it is given under clause 10 and all makes sense—but one of the subsidies given under that scheme is something that is of interest or particular interest, will the Minister confirm that that scheme will therefore be subject to mandatory referral, even if only one of the subsidies given under the scheme is of interest or particular interest?

Even from reading clause 10, I am not sure quite how tight “subsidy scheme” is drawn. Subsidy schemes—given the schemes we have seen in relation to covid, for example—can be incredibly wide and apply to a significant number of industries, whereas the Secretary of State might have made it clear that any subsidies given under agriculture, for example, are considered as particular interest. A scheme could apply to everything in a certain area—widely drawn—but might not be challengeable in its own right.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

If a scheme can contain a subsidy of interest or particular interest, that scheme becomes a scheme of interest or particular interest, depending on the circumstances. That is therefore very much the case.

In answer to some of the points made by the hon. Member for Sefton Central on hiding subsidies and distorted payments, we have the basic level of how to treat public money—the statutory obligations on those public authorities that we discussed earlier—but the schemes themselves do not provide a back door for potentially multiple subsidies; public authorities have to consider the principles of the scheme, in the same way as they would for individual subsidies. They must not make a scheme if they judge that any subsidy within that scheme conflicts with any of the principles.

The decision to make the scheme has exactly the same risk-based scrutiny of the potential challenges as the decision to award a subsidy—especially those schemes of particular interest, which are called in by the Secretary of State and must be referred to the subsidy advice unit.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

I want to tease out some information from the Minister. He used the phrase “risk-based scrutiny”, but I get no sense of what, if there is abuse of a scheme, the mechanism is to ensure that the subsidies within the schemes are not applied in a distorted way or in a way that misuses public money. That is the bit that I do not get.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

The scheme itself will be challengeable.

Question put, That the clause stand part of the Bill.

Division 19

Ayes: 8


Conservative: 8

Noes: 3


Labour: 3

Clause 63 ordered to stand part of the Bill.
Clause 64
Other exemptions
None Portrait The Chair
- Hansard -

I call Seema Malhotra to move amendment 59

None Portrait The Chair
- Hansard -

Apologies. I call Bill Esterson.

15:00
Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

I beg to move amendment 59, in clause 64, page 36, line 11, leave out paragraphs (a) and (b).

This amendment removes the exemptions in relation to the CMA’s referrals and functions, for streamlined subsidy schemes and minimal financial assistance.

We are all having fun changing our minds this afternoon—well, maybe the Government are not changing theirs too much. We have tabled amendments 59 and 60, and the combined effect of those amendments would be to remove

“the exemptions in relation to the CMA’s referrals and functions, for streamlined subsidy schemes and minimal financial assistance.”

We understand that it may well be appropriate to exempt certain subsidies from review. During a natural disaster or a national or global economic emergency, it makes sense that subsidies designed to alleviate those emergencies should be exempt from the regulations. The same goes for a national security emergency; matters related to Bank of England monetary policy; legacy and withdrawal agreement subsidies; tax measures; special public economic interest assistance; and large cross- border or international co-operation projects. However, Government amendment 5 acknowledges that it would not be appropriate for subsidies in relation to nuclear energy to be exempt from due scrutiny, so this is about being consistent. That goes to the point that the hon. Member for Aberdeen North has made a number of times today alone, about whether subsidies awarded in unexceptional circumstances—namely, streamlined subsidy schemes and minimal financial assistance—should be free from appropriate transparency and scrutiny. We are being consistent by continuing that point.

During the debate on clause 63 stand part, I did not get an answer to my question about why the Minister believes that those subsidy schemes should be exempt from regulations. I go back to what Professor Rickard told us in Committee:

“The benefits of transparency, and more of it, outweigh the costs…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.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 19, Q22.]

The Minister—and, from memory, the Secretary of State on Second Reading—talked about this domestic subsidy scheme being an opportunity to demonstrate a new way of operating a state aid regime, having left the EU system behind us. Indeed, some of the questions that hon. Members asked during the evidence session were of a similar nature: they were about what we could learn and what we could do in order to have the best possible system and lead the world. That is what the spirit of this amendment is about: improving transparency to deliver the best quality of regime possible. As Thomas Pope said when summed up his evidence:

“My view is that there is a benefit to more transparency.”[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 20, Q24.]

We have made the point multiple times about the importance of transparency in public expenditure and what a good thing it is, because without it, there is a danger of public finances being spent recklessly without consideration of value for money. Our amendments would ensure that when a subsidy is awarded in unexceptional circumstances, there is adequate transparency. Again, I have to ask the Minister why he is so resistant to increased transparency in this part of the Bill.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

I want to raise specific concerns about the first part of this amendment—I am not concerned about the amendment, but I have concerns relating to the first part of it, which is about taking out paragraph (a). Paragraph (a) relates to streamlined subsidy schemes, which were discussed in clause 10. In clause 10, the streamlined subsidy schemes are allowed to be made only by a Minister of the Crown, rather than by anybody else. I understand the Minister’s desire for an ability to make streamlined subsidy schemes—that makes sense. Unfortunately, the amendments that were tabled to widen that out to allow the devolved Administrations to make streamlined subsidy schemes were not accepted.

The exemption of streamlined subsidy schemes from the whole of chapter 1 of part 4 bothers me. If the whole point of the streamlined subsidy schemes is in order for things to happen quickly, I understand that the Minister would not want the mandatory or voluntary referral process to apply in respect of them. However, I do not understand how he can justify the post-award referrals not taking place specifically for streamlined subsidy schemes. It is completely reasonable that, should a streamlined subsidy scheme be about a subject of interest or particular interest, a post-award referral should take place.

I understand completely that the subsidy scheme needs to go before Parliament in order to become a streamlined subsidy scheme, but Parliament is not always right. Sometimes Parliament is wrong, and sometimes it bears scrutiny from experts such as the CMA, which should have the ability to look at this as a post-award thing. I would probably not have gone quite as far as the Labour Front Bench, although I will support this amendment, but I have particular concerns about the lack of post-award scrutiny for streamlined subsidy schemes. If we have a parliamentary process, we are not getting the benefit of the CMA’s advice or its consideration.

It is the case that mistakes were made during the course of covid. Things were done too quickly, and errors were made as a result. An after-the-fact examination to find out what went wrong and whether it is possible to do better next time would be helpful, particularly around streamlined subsidy schemes. Once again, that is not about trying to remove the speed of the process—I understand why the Minister wants that speed—but about a post-award or post-subsidy scheme set-up check to ensure that things are going the way the Government intend them to go.

Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 64 provides for a limited number of exemptions from some or all of the provisions on the referral of subsidies and schemes to the SAU. The objective of subsections 1 and 2 is to list the types to which it is inappropriate for the SAU referral provisions to apply.

In some cases, the substantive subsidy control requirements do not apply, so it is not possible to evaluate a public authority’s compliance with those requirements. In other cases, the subsidy needs to be given so quickly, as we have heard, that it would not be appropriate to add an additional process that could delay the subsidy.

In the case of streamlined subsidy schemes, the subsidy or scheme will already be subject to additional scrutiny and transparency through other means. They will be developed by the Government through engagement with experts and other public authorities and, once made, they will be laid before Parliament. I take the point of view of the hon. Member for Aberdeen North, but it is the development beforehand that will provide the scrutiny, input and engagement that will then come to this place.

Amendment 59 would bring streamlined subsidy schemes and minimal financial assistance subsidies into the scope of part 4, chapter 1, and therefore make them subject to referrals to the CMA. Of course, the CMA’s role in this regime is to help public authorities to make assessments against the subsidy control requirements, so that subsidies do not unduly distort competition. It is not necessary for streamlined subsidy schemes or minimal financial assistance subsidies to be referred to the CMA, because these types of subsidy are those that are less likely to distort competition in the first place.

We as a Government intend to use streamlined subsidy schemes for low-risk and non-contentious subsidies, to ease the administrative burden for other public authorities of giving subsidies within those terms. The streamlined schemes are available for public authorities to use, if they choose to, when granting commonly used subsidies. As such, streamlined routes will be carefully designed to minimise distortive effects on competition. Streamlined subsidy schemes will be developed and publicised as part of the subsidy control regime. As I have already said, we will continue to engage with experts, public authorities and subsidy recipients as we prepare for implementation, and that engagement will cover streamlined subsidy schemes. If necessary, the Government will also be able to obtain advice from the experts in the subsidy advice unit in developing the schemes under existing powers. Once made, they will be laid before Parliament, so that Members will be able to examine the schemes for themselves. Finally, I should emphasise that the schemes are still subject to the subsidy control requirements. In the very unlikely event that there are grounds to think that they may not comply with the subsidy control principles, they can be challenged in the Competition Appeal Tribunal.

The subsidy control requirements do not apply to the exemption for minimal financial assistance, simply because small subsidies are not generally capable of causing serious distortions of competition. We have previously heard from the Opposition that MFA exemptions should not exist at all, but that position is fundamentally at odds with the Government’s intention that the new subsidy control regime should enable public authorities to award subsidies more quickly and easily in order to meet local needs and drive economic growth. Although the subsidy control requirements are not burdensome, they would still constitute an unnecessary barrier to giving small, less distortive subsidies, and I would draw the attention of the hon. Member for Sefton Central to the consultation, in which 92% of respondents agreed with the Government’s proposal that subsidies below the threshold of £325,000 special drawing rights, which approximates to £336,000, should be exempted from the subsidy control requirements. We have therefore proposed a threshold of £315,000 in the Bill, to account for exchange rate fluctuations.

I have already made the case for exempting minimal financial assistance from the subsidy control requirements. As I have said, the role of the subsidy advice unit is to advise public authorities in assessing subsidies against the subsidy control requirements. When those requirements do not apply, as in this case, it is illogical for there to be a possibility of referrals to the subsidy advice unit. As such, I believe it is unnecessary for streamlined subsidy schemes and minimal financial assistance to be subject to the referral provisions in part 4 of the Bill. For that reason, I urge the hon. Member for Sefton Central to withdraw the amendment.

Kirsty Blackman Portrait Kirsty Blackman
- Hansard - - - Excerpts

I have a quick question for the Minister, which he does not have to answer now. I would appreciate it if he could consider when a streamlined subsidy scheme is being published and set before Parliament. He has made it clear that a number of people will be consulted and that it will be drawn up in parallel with thinking from experts and potential recipients of the subsidy scheme. That is fine, but when we are assessing those streamlined subsidy schemes, it would be helpful for Parliament to have that information, and particularly to have a view from the SAU, or from the CMA more generally, about the streamlined subsidy scheme. Even if the SAU just says, “We think this looks good,” that is at least more information for Parliament. It would give me more comfort to know that the scheme fulfils the principles, or at least that the SAU thinks the scheme fulfils the principles as they are laid out. Therefore, it would be much more reasonable for clause 64(1)(a) to be included if we were given that level of comfort.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

Again, we just are not getting from the Minister certainty about the creation of the regime, and this is a common problem all the way through. We are waiting and it is uncertain exactly how this will operate, which makes it very difficult for us to judge whether what we will end up with will provide a degree of scrutiny and transparency in the use of public funds. That applies both to streamlined subsidy schemes and to minimal financial assistance. Although I think the Minister is right about the broad point that smaller payments are unlikely to have the potential to distort in economic terms, they can still be misused. As part of the regime, we are still missing an adequate way to scrutinise, and the hon. Member for Aberdeen North gave some good pointers on how that might be addressed. For those reasons, we will push the amendment to a vote.

Question put, That the amendment be made.

Division 20

Ayes: 4


Labour: 3
Scottish National Party: 1

Noes: 8


Conservative: 8

Amendment made: 5, in clause 64, page 36, line 22, leave out paragraph (k).—(Paul Scully.)
This amendment omits the exemption for subsidies, or subsidy schemes, relating to nuclear energy from the referral requirements of Chapter 1 of Part 4.
Question proposed, That the clause, as amended, stand part of the Bill.
Paul Scully Portrait Paul Scully
- Hansard - - - Excerpts

Clause 64 provides for a limited number of exemptions from some or all of the provisions on the referral of subsidies and schemes to the subsidy advice unit. Subsections (1) and (2) exempt from the provisions of chapter 1 of part 4 various subsidies or schemes where either the subsidy control principles, prohibitions and conditions do not apply or it would otherwise be inappropriate for the provisions on referrals to apply. Subsection (3) confers a reserve power on the Secretary of State to exempt subsidies or schemes from the mandatory referral requirements where there are urgent and certain exceptional circumstances that mean that it is in the public interest that the scheme or subsidy can be given without the delay that would result from a referral. The power does not exempt the subsidy or scheme from the subsidy control requirements under part 2 of the Bill. It will still be necessary for the public authority to comply with the duty to apply the principles and other requirements.

Bill Esterson Portrait Bill Esterson
- Hansard - - - Excerpts

We have debated the amendment and the need for the change to this clause. We have tested the will of the Committee already and will not oppose clause stand part.

Question put and agreed to.

Clause 64, as amended, accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Michael Tomlinson.)

15:18
Adjourned till Tuesday 16 November at twenty-five minutes past Nine o’clock.
Written evidence reported to the House
SCB04 The Centre for Public Data

Judicial Review and Courts Bill (Fourth sitting)

The Committee consisted of the following Members:
Chairs: † Sir Mark Hendrick, Andrew Rosindell
Barker, Paula (Liverpool, Wavertree) (Lab)
† Cartlidge, James (Parliamentary Under-Secretary of State for Justice)
† Crawley, Angela (Lanark and Hamilton East) (SNP)
† Cunningham, Alex (Stockton North) (Lab)
† Daby, Janet (Lewisham East) (Lab)
Fletcher, Nick (Don Valley) (Con)
† Hayes, Sir John (South Holland and The Deepings) (Con)
† Higginbotham, Antony (Burnley) (Con)
† Hunt, Tom (Ipswich) (Con)
Johnson, Dr Caroline (Sleaford and North Hykeham) (Con)
† Longhi, Marco (Dudley North) (Con)
† McLaughlin, Anne (Glasgow North East) (SNP)
† Mann, Scott (Lord Commissioner of Her Majesty's Treasury)
† Marson, Julie (Hertford and Stortford) (Con)
† Moore, Damien (Southport) (Con)
† Slaughter, Andy (Hammersmith) (Lab)
† Twist, Liz (Blaydon) (Lab)
Huw Yardley, Seb Newman, Committee Clerks
† attended the Committee
Public Bill Committee
Thursday 4 November 2021
(Afternoon)
[Sir Mark Hendrick in the Chair]
Judicial Review and Courts Bill
Clause 1
Quashing orders
Amendment proposed (this day): 12, in clause 1, page 1, line 8, leave out from “order” to the end of line 9. —(Andy Slaughter.)
This amendment removes the statutory power for courts to award prospective only quashing orders and preserves the status quo in relation to the retrospective effect of quashing orders.
14:00
Question again proposed, That the amendment be made.
None Portrait The Chair
- Hansard -

I remind the Committee that with this we are discussing the following:

Amendment 35, in clause 1, page 1, leave out lines 10 and 11.

This amendment removes the ability to make a suspended or prospective-only quashing order subject to conditions.

Amendment 40, in clause 1, page 1, leave out lines 15 to 18.

See explanatory statement to Amendment 12.

Amendment 41, in clause 1, page 2, line 2, leave out “or (4)”.

See explanatory statement to Amendment 12.

James Cartlidge Portrait The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
- Hansard - - - Excerpts

It is a pleasure to serve under your chairmanship again today, Sir Mark. I welcome all members of the Committee. I hope we can look forward to an interesting and robust debate on this important Bill.

I welcome the Labour spokesman, the hon. Member for Hammersmith, to his position. He is returning after six years, I think, to a similar post. While he obviously looked in significant detail at the Bill, he almost strayed into political caricature, suggesting somehow that we, as a party, thought all lawyers were lefties—I think that is the phrase that was used. That is quite interesting, not least if one thinks of the Secretary of State, for example, who is a lawyer by background, but not, I think, a leftie. The hon. Member for Stone (Sir William Cash) is a solicitor and is certainly not a leftie, and neither was the late, great Baroness Thatcher, who was a barrister by training and one of the greatest Prime Ministers in our history—a victor in the cold war, no less.

My hon. Friends the Members for Sleaford and North Hykeham and for Dudley North were not as chronologically comprehensive in their contributions as the Labour spokesman, but they made some extremely important points. Both of them stressed the point about trusting the judiciary. We certainly do not see lawyers as lefties, nor are we engaged in any kind of conspiracy or attempt to somehow engineer a confrontation with the judiciary. On the contrary, the whole basis and premise of the Bill is to trust in the ability of judges to use their discretion to reach judgments that reflect the most appropriate remedy, given all the factors in a specific case at hand. That is the underlying principle.

The amendments in this group relate to the measures on so-called prospective-only quashing orders—those being quashing orders with limited or no retrospective effect—and the ability of the courts to apply conditions when using either a prospective-only or suspended quashing order. Amendment 12 attempts to remove entirely the ability of the court to permanently limit or remove their retrospective effect. The belief behind the amendment seems to be that limiting the retrospective effect of a quashing order will always unfairly affect the claimant—the person who has brought the judicial review. We wholly reject that argument and take the contrary view.

I believe there is significant benefit in providing powers to limit or remove the retrospective effect of quashing orders, obviously in specific cases. Normally, when a decision is quashed, the effect of that quashing is retrospective, in that it deprives the decision of ever having had legal effect. As such, regulations and decisions are deemed never to have been made, and therefore a person undertaking what they thought was a lawful act on the basis of those regulations or decisions may in fact have been relying on something that had no legal effect whatsoever. That is particularly problematic for certain regulations that many people rely on every day in good faith.

The hon. Member for Hammersmith said that the sort of cases where there would be wide-ranging side effects from a quashing order, particularly of an economic or social kind, would be rare. They are certainly not huge in number. The Public Law Project—an organisation that we all recognise has significant expertise in this matter—did a study in 2015, which found that, of a sample of 502 judicial reviews, 18% related to procedure and policy and 8% to wider public interest. These judicial review cases that have much wider impact are not insignificant in number, but there is a much more important point to be made. Even if the number is small, the number of persons affected is likely to be many thousands. That is why it is so significant.

I raise again the real case study that I brought up on Second Reading. I will keep coming back to it because, while there are many other examples one could use, it neatly summarises where one would use one, if not both, of the remedies we are introducing, and do so not to undermine the rights of the claimant or the victory in court that they obtained—far from it—but to avoid detriment in the real world to our constituents.

I gave the example on Second Reading of general licences for the control of wild birds and the chaos that was caused when those licences were revoked, leaving farmers unsure whether actions they had taken in the past on the basis of those licences would suddenly land them in trouble. I remind the Committee that it was Natural England that immediately decided to revoke the licences, through fear of a judicial review. The case did not go through; it was the fear of one that meant Natural England was given advice that it should withdraw the licences.

As a rural MP, I received the correspondence at the time, so I know that that caused great concern, frustration and, as I quoted the National Farmers Union saying on Second Reading, anger among farmers and others. It is all about this point of good faith.

John Hayes Portrait Sir John Hayes (South Holland and The Deepings) (Con)
- Hansard - - - Excerpts

The Minister is right, and of course the fact of the matter is that judicial review is available to responsible and sensible people who are pursuing a grievance, but it is also available to vexatious and irresponsible people who are pursuing an argument that has been settled elsewhere, but that they seek to perpetuate through the process of law. That is why it needs to be redirected to its proper purpose in the way the Minister is outlining.

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

I am grateful to my right hon. Friend, who has considerable expertise in these matters and speaks on them very well. By the way, I am not suggesting that the Natural England case—it did not go to court, but there was a threatened judicial review from an organisation called Wild Justice, which I think Chris Packham is associated with—was vexatious. I make no comment on that. The point is that it would have achieved its aim, which was to have those particular licences declared unlawful, so the claimant would have been successful.

As I said at the time, had the remedies in the Bill been available, the legal advice could have assumed that at least one, or both, would have been used. If the prospective remedy, which we are debating in respect of these amendments, had been used, it would have made the many thousands of farmers, gamekeepers and others who were using those licences for shotguns far more certain that there would not be some kind of action, which from their point of view would be essentially retrospective, regarding the way they had used those licences that could undermine their rights, even though at the time—this is always the key thing about retrospectivity—they would have been using them both in the belief that they were lawful and in good faith. That is why this point is so important.

Anne McLaughlin Portrait Anne McLaughlin (Glasgow North East) (SNP)
- Hansard - - - Excerpts

The Minister is talking about giving judges the right to use suspended or prospective-only quashing orders, but that is not what the Bill is about. The Bill is about the presumption that they will use those orders unless they can demonstrate good reason not to. Why not do what he is saying this means, and what other people seem to think this means, and just allow judges to use these orders?

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

We will debate the presumption in more detail, because there are a number of amendments to it in the later groups. With the greatest respect for the hon. Lady, I would simply say that that is an erroneous interpretation of the presumption. First, the Bill does bring in those new remedies, irrespective of the presumption, but the presumption is there. It does not force the judge to use them; yes, it highlights the fact that they are there and that we would expect them to be used were it appropriate, but what it ensures is that, whether they are used or not, the reasons and the thinking are written down. In a nutshell, this is about encouraging and expediting the accumulation of jurisprudence, which is incredibly important in a common-law system.

I understand the concern that such orders should not be used to prevent claimants from getting just outcomes. That very point was made on Second Reading by the Chair of the Justice Committee. However, I submit that the clause as drafted already protects against that. The list of factors for the court to consider in using the new remedies, which is set out in subsection (8), includes at paragraph (c) a requirement for the court to have regard to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”.

In other words, it must consider the interests of the person or persons who has brought the judicial review.

In addition, the presumption at subsection (9) requires the court to use the new modifications for quashing orders only where it would offer “adequate redress”. Furthermore, subsection (2) allows the court to impose conditions on any remedy it gives, which is another way that the court can tailor any remedy to ensure it properly serves the interests of justice.

I therefore submit that the ability to limit or remove retrospective effect does have a clear purpose and that there are already sufficient safeguards in the provisions before the Committee to ensure the interests of the claimant are fairly balanced against the interests of good administration. The clause gives the courts the necessary flexibility to tailor its remedies appropriately.

Amendment 35 seeks to remove the subsection that states:

“Provision included in a quashing order under subsection (1) may be made subject to conditions”.

However, the whole point is that the ability to set conditions is very important, so that the court can strike the right balance in how it gives a remedy. For example, to avoid detriment to a claimant or those in the same situation, the court might specify that the defendant cannot take any new action to enforce the impugned decision, but is nevertheless afforded time to amend or correct it by virtue of a suspended quashing order. Removing the court’s ability to set such conditions would not be in the interests of justice or flexibility.

The final two amendments in the group, amendments 40 and 41, were originally connected to amendment 39, which the hon. Member for Hammersmith has withdrawn, and now relate to amendment 12. They are consequential amendments that remove elements of the clause that seek to provide further clarity in respect of the ability to limit or remove the retrospective effect of quashing orders. I agree with the hon. Gentleman that if we were to accept amendment 12, those amendments would logically follow. However, for the reasons I have explained, we do not accept the rationale of amendment 12 and, as such, we also oppose amendments 40 and 41. I urge him to withdraw his amendment.

Andy Slaughter Portrait Andy Slaughter (Hammersmith) (Lab)
- Hansard - - - Excerpts

Welcome back to the afternoon sitting, Sir Mark. I can reply fairly briefly to this short debate.

The hon. Member for Dudley North said that a power grab by the Government was not what was happening in this Bill. However, whatever language is used, the Bill does alter the balance of power. In that sense, it is a movement of power from the courts to the legislature, for reasons I will explain more under the next group of amendments. He said that it adds powers to the judge’s armoury. Technically that may be true, but if the net effect in reality is to create uncertainty and fewer protections for claimants, that is not a welcome development.

Marco Longhi Portrait Marco Longhi (Dudley North) (Con)
- Hansard - - - Excerpts

The hon. Member referred earlier to his leftie lawyers. In describing them in such a way, he is implying that he does not have confidence in these people doing the right thing. What we are doing is giving them the ability to use their discretion.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I think it is actually the senior judiciary, and I would never ascribe any political motivation to them whatsoever. I take the point that the Deputy Prime Minister may well not be a leftie lawyer, but it is the Prime Minister, I think, who coined the phrase rather than me. I do not know who he had in mind exactly; I hope not the former Prime Minister, Lady Thatcher, but there it is. People move around the political spectrum all the time these days.

The main issue I take from what the hon. Member for Dudley North said is that there remains an element of discretion. Up to a point, Lord Copper, is the answer to that. Why have a presumption at all? We are coming on to that debate, so perhaps we went off at a slight tangent a few moments ago, but it is a relevant point to make. If Government Members wish to emphasise the discretion that is available to judges, why are they supporting a clause that inserts conditions?

14:15
I did not say very much about amendment 35, but I think the point effectively makes itself: why do we need conditions? Under the presumption, it would say, “The court must exercise the powers, unless it sees good reason not to do so.” Yes, there is an element of discretion left, but it is severely curtailed—that is the point. If the Government are praying in aid the argument, “We don’t wish to interfere with judicial discretion,” why have a presumption at all, and why then subject it to conditions in this way? It all seems to add baggage and to complicate things, and it potentially creates, as I say, a degree of uncertainty.
The hon. Member for Sleaford and North Hykeham, who is not in her place, spoke about suspended quashing orders. I have indicated that we have a slightly more nuanced approach to those; we can see pluses and minuses. However, I will not respond on them, because the appropriate point to talk a little about them will be in the clause stand part debate. If we are going to oppose the clause in its entirety, we will oppose suspended quashing orders, so I will make the case when we get to that debate, albeit not at any great length. In amendment 12, we want to point out the greater mischief in prospective-only orders. I do not particularly disagree with what she said, but I think that there are arguments to be put against as well as for suspended quashing orders.
The Minister was taken off track by an intervention, but he mentioned that the presumption does not exist in a vacuum, but has qualifying conditions, discretions and so on. I will just put a question to him, which he can perhaps answer in the course of the next debate: why put the presumption in at all, because it is, as it is phrased at the moment, a heavy direction? It does not prevent the use of discretion, but it heavily constrains it and moves it to one side.
I think that I made all the points that I needed to make in my earlier remarks and we will come back to some of these matters when we consider the next two sets of amendments. As far as amendment 12 and this group of amendments are concerned, I am not satisfied with the Minister’s reply, so we will press amendment 12 to the vote and seek to remove prospective-only quashing orders from the Bill.
Question put, That the amendment be made.

Division 1

Ayes: 6


Labour: 4
Scottish National Party: 2

Noes: 8


Conservative: 8

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I beg to move amendment 13, in clause 1, page 1, line 9, at end insert—

“(1A) Provision under subsection (1) may only be made if the court considers that it is in the interest of justice to do so.”

This amendment would limit the remedies in subsection (1) to where the court considers it is in the interests of justice.

None Portrait The Chair
- Hansard -

With this it will be convenient to consider the following:

Amendment 14, in clause 1, page 1, line 9, at end insert—

“(1A) Provision under subsection (1) may only be made in exceptional circumstances.”

This amendment would limit the use of the remedies in subsection (1) to exceptional circumstances.

Amendment 19, in clause 1, page 2, line 12, leave out “must” and insert “may”.

This amendment would make clear that the factors which the court considers are a matter for its judgment.

Amendment 32, in clause 1, page 2, line 13, at end insert—

“(aa) any detriment to the environment that would result from exercising or failing to exercise the power;

(ab) whether exercising or failing to exercise the power would constitute an effective remedy for the claimant;”

This amendment would require the court to have regard to any detriment to the environment that would result from the use of any suspended or prospective-only quashing order.

Amendment 36, in clause 1, page 2, leave out lines 14 and 15.

This amendment removes one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. The removal of this factor is intended to rebalance the factors to be given consideration so as not to disadvantage the claimant unfairly.

Amendment 33, in clause 1, page 2, leave out lines 14 to 22.

This amendment would reduce the requirement to consider non-legal factors in assessing the legality of decisions made.

Amendment 37, in clause 1, page 2, line 17, at end insert “including, but not limited to, the interests and expectations of a claimant in receiving a timely remedy”.

This amendment would make an addition to one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. This amendment would make it clear that the provision of a timely remedy to the claimant is a factor to be given consideration.

Amendment 38, in clause 1, page 2, line 19, at end insert “which are to be identified by the defendant”.

This amendment would require the defendant to identify what the interests and expectations of persons who have relied on the impugned act are and to explain these to the court.

Amendment 20, in clause 1, page 2, line 21, leave out “or proposed to be taken”.

This amendment would remove the requirement to take account of actions which the public body proposes or intends to take but has not yet taken.

Amendment 21, in clause 1, page 2, line 23, at end insert—

“(8A) In deciding whether there is a detriment to good administration under subsection (8)(b), a court must have regard to the principle that good administration is administration which is lawful.”

This amendment would clarify that the principle of good administration includes the need for administration to be lawful.

Amendment 23, in clause 1, page 2, leave out lines 24 to 32 and insert—

“(9) Provision may only be made under subsection (1) if and to the extent that the court considers that an order making such provision would, as a matter of substance, offer an effective remedy to the Claimant and any other person materially affected by the impugned act in relation to the relevant defect.”

The amendment would remove the presumption and insert a precondition of the court’s exercise of the new remedial powers that they would offer an effective remedy to the claimant and any other person material affected by the impugned act.

Amendment 24, in clause 1, page 2, leave out lines 24 to 32 and insert—

“(9) If—

(a) the court is to make a quashing order, and

(b) it appears to the court that an order including provision under subsection (1) would, as a matter of substance, offer an effective remedy to the Claimant and any other person materially affected by the impugned act in relation to the relevant defect, the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so.”

This amendment would require an effective remedy to the claimant and any other person materially affected by the impugned act.

Amendment 22, in clause 1, page 2, leave out lines 24 to 32.

This amendment would remove the presumption in favour of using the new remedial powers in clause 1 and protect the discretion of the court.

Amendment 34, in clause 1, page 2, line 27, leave out “adequate redress” and insert “effective remedy to the claimant”.

This amendment would specify that the remedy should be for the claimant.

Amendment 27, in clause 1, page 2, line 29, leave out from “court” to end of line 30 and insert “may exercise the powers in that subsection accordingly”.

This amendment would remove the requirement for a court to issue a suspended or prospective quashing order when the provisions of section 1(9)(b) apply.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

The amendments in this group are principally in my name, although amendment 27 has been tabled by the SNP. They lead on quite conveniently from the short debate we have just had. It is a large group and I intend to speak to all the amendments, although for most of them I can be fairly brief. The common theme is that they propose ways of mitigating the introduction of prospective-only quashing orders, and in some cases suspended quashing orders, which, as I think we have made clear, we do not believe should be in the Bill at all. If they are to be in the Bill, we want to ensure that they are appropriately caveated and mitigated.

However, the crucial amendment here is amendment 22, which would remove the presumption from the Bill. Various Members have commented already on the presumption, which is perhaps the most controversial provision in part 1. I look forward to hearing the Minister justify it, particularly as the comments from the Government side so far have emphasised the retention of discretion. Sir Mark, we will seek a vote on amendment 22 if the Government persist in their support for the presumption.

By way of background—I will be a lot shorter than I was with the first group, because I have already laid out our concerns about clause 1—the rule of law requires compliance with the law, which means that everyone in the state, including public authorities, must act in accordance with the law. Judicial review, as we discussed this morning, is a fundamental way that these rule of law principles are vindicated. If the state does not comply with the law, an individual can bring a case to court in order to force the state to comply with the law.

The current law on remedies in judicial review also vindicates these principles. The default approach is that if the state does something unlawful, that decision will be quashed and have no legal effect. People generally do not bring cases to court for declarations; they bring cases to court to right a wrong, for a tangible result, and to actually achieve something. If I am injured in a car crash, I bring a case so that the court can rule that I am not at fault and so that the judge will award me damages.

As ever, there is nuance, and it is possible that there would be some instances where it would be appropriate for an unlawful action to retain its validity in some way. That was the outcome in the Gallagher case, where the Supreme Court held that ruling a statutory instrument void would introduce a discrepancy in the statutory scheme. This is very much the exception, but it is a course of action open to a judge in making a decision on the remedy to be awarded in judicial review.

However, proposed new section 29A(9) of Senior Courts Act 1981, as set out in clause 1, flips that principle on its head. The new default position will be that where a court issues a quashing order, it must suspend it, or limit any retrospective effect, unless there is a good reason not to. This undermines the rule of law, because judicial decisions are not effective or are less effective.

Consider a hypothetical case where a homelessness charity challenges a decision on the availability of social security benefits. The default remedy will be prospective- only, meaning that those who have missed out on their benefits in the past due to an unlawful action will not be entitled to back pay of those benefits. The remedy will help people in the future, but will do nothing to help those who have already suffered. What is the point in going to court in such a case, when the remedy granted will be of zero help to the applicant?

Proposed new section 29A(9) and (10) contains a presumption in favour of the use of suspended quashing orders and prospective-only quashing orders, which will favour the assurances of the Executive over other important considerations, particularly the impact on claimants and third parties of suspending a quashing order or making it prospective-only. Proposed subsection (9) sets up a presumption in favour of suspended quashing orders or prospective-only remedies. It says, in effect, that if the court considers that if such an order would offer “adequate redress”, it has to make one unless there is a good reason not to. It is a convoluted provision that introduces several steps and several terms that will lead to increased arguments and submissions at the remedy stage of litigation, increasing the costs and length of that litigation to the detriment of parties and the courts. It is also unclear how the subsection accords with the list of factors that courts are directed to consider in proposed subsection (8).

The Lord Chancellor has argued that while we quite rightly have judicial checks on the Executive, they have to be applied

“in a constructive and sensible way which allows the Government to deliver the projects that it’s tasked and mandated by Parliament to do”

and ensures that

“taxpayers’ money is not being squandered because projects are being harpooned.”

That argument is self-contradictory, because it states two quite different things—first, that there ought to be judicial checks on Government, and secondly, that the Government must be allowed to do things they have been mandated by Parliament to do. The whole point of judicial review is to prevent the state from acting unlawfully. The Lord Chancellor’s argument seems to be that even if the state is acting unlawfully, it ought to be allowed to continue to act unlawfully. A presumption in favour of suspending a quashing order is precisely that—permission for the state to continue to act unlawfully. In most cases, the “constructive and sensible” thing to do with an unlawful Government decision is to rule that it has no effect.

Professor Tom Hickman has called proposed new section 29A(9) “muddled” and suggested that it would be best to omit it altogether. Jonathan Morgan, who we heard from earlier this week, welcomed clause 1 generally but also argued that the proposed subsection is wrong. Liberty has said that it is

“entirely opposed to any presumption in favour of suspending a quashing order”.

The Public Law Project’s conclusion is that clause 1

“should be amended to remove the presumption and make clear that remedies should only be restricted in this way in exceptional circumstances.”

Creating a further barrier to getting an effective remedy is wrong in principle. There are already substantial hurdles to citizens bringing a successful judicial review: they have to show standing, get past the preliminary hearing, have the money to pay large legal fees, bring the case very promptly, and then show that a public authority has acted unlawfully. After all that, it is unfair to place another hurdle in their way. Proposed subsection (9) means that even after all those hurdles have been cleared and the court has ruled that the public authority is in the wrong, the presumption is that the effect of the quashing order will be limited. It undermines the principle of legality if the default is that an unlawful action is still valid and that a quashing order ought normally to be suspended or have only prospective effect. The presumption in the subsection ought to be reversed so that it is in favour of quashing orders taking effect immediately.

In its report, the independent review of administrative law did recommend legislating for suspended quashing orders, but it did not presume that such a remedy would be mandatory. The panel suggested that the courts are best placed to develop remedies that work in practice, and that rather than giving judges increased flexibility, imposing this presumption would limit their ability to provide redress to claimants.

Instead of preserving judicial discretion over whether to suspend a quashing order or remove or limit its retrospective effect, proposed new subsection 29A(9) and (10) in clause 1 introduces a statutory presumption in favour of doing so if it would “offer adequate redress”. We are strongly opposed to the statutory presumption. It is a long-established and fundamental principle in judicial review that remedies are discretionary. As no two judicial reviews are the same, it is necessary to ensure that there is a fair outcome that fits the circumstances of the case at hand. The Government’s response to their consultation on their judicial review proposals showed that the overwhelming majority of responses that they received were clearly against the introduction of statutory presumption and in favour of preserving judicial discretion. We are concerned that the Government have chosen to disregard the expertise and opinions of their stakeholders and to push forward with a statutory presumption that has little or no support, particularly as there is no evidence to suggest that without the presumption, the courts would not use the additional remedial tools at their disposal where appropriate.

14:30
John Hayes Portrait Sir John Hayes
- Hansard - - - Excerpts

I have no desire to prolong the hon. Gentleman’s oration, but he says that the statutory presumption has little or no support. The witnesses that we heard from when we first met as a Committee said the exact opposite, however. They said that the reform was necessary because of the change that has occurred to judicial review over time. As I said earlier, this Bill is an attempt to affirm the sovereignty of judicial review by reaffirming its proper purpose. Does the hon. Gentleman discount the views of those expert witnesses when he says that almost no one supports it?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I take the right hon. Gentleman’s point very seriously. We touched on that point this morning, although I know he was not in Committee. I gave a little thumbnail of some of the witnesses and indicated that their views were—as one might expect from senior academics and practitioners—free from bias and prejudice, and what they said was quite interesting and variegated.

If the right hon. Gentleman were talking about suspended quashing orders, I would have some sympathy with him, because I think the balance was probably in favour of those, with some reservations. Even on prospective-only orders, there was a degree of support, and that may be what he is referring to. I thought that there was very limited support for the statutory presumption, however. Some people think it is okay and some wish to go further than what is in the Bill, but I would say that the balance of opinion, in the responses to the previous consultation—let us remember that in addition to IRAL, the Government have had their own consultation—and in the written evidence submitted to the Bill Committee, has been overwhelmingly against the presumption, for some of the reasons that I am giving.

We do not believe that a statutory presumption is in keeping with the Government’s own stated commitment to pursuing incremental change. It is not yet clear in what cases a suspended or prospective-only quashing order would be appropriate, and there remains some apprehension about the possible consequences of those orders. They should, therefore, be used with caution. A statutory presumption could force the court into using these provisions in circumstances in which they would not be appropriate.

Any legislation will lead to debates in court as to the meaning of terms, but it is not justifiable unnecessarily to introduce new processes and concepts for the courts to grapple with. The Government state that proposed new section 29A(9) of the Senior Courts Act 1981 can

“direct and guide the court’s reasoning to certain outcomes in certain circumstances”,

notably, whether remedies under new section 29A(1) can provide adequate redress. However, the courts already seek to craft the most appropriate remedy for the circumstances that are before them. A court will issue a prospective or suspended order if it is the most appropriate remedy. There is no need for a convoluted legislative provision telling the courts to do so.

The presumption also conflicts with the Government’s stated aim of increasing remedial discretion, as it requires particular remedies to be used in certain circumstances. We oppose prospective-only orders for the reasons set out in the earlier debate, but if they are to be used, it should be at the court’s discretion. Suspended orders should also be used only in exceptional circumstances, as determined by the court.

It would greatly undermine the protective constitutional role of judicial review and risk incoherence if proposed new section 29A(9) constrained the courts to issue a suspended order or a prospective-only order when a straightforward quashing order would be more suited to the circumstances of the case. I therefore submit that proposed new section 29A(9) can be removed. In applying the presumption, proposed new section 29A(10) requires the court to

“take into account, in particular”

anything under proposed new section 29A(8)(e). This directs the court to give special consideration to anything that the public body with responsibility for the impugned act, which may or may not be the defendant, has done or says it will do. However, there are difficulties with making a prospective-only quashing order on the basis of statements made, or even undertakings given by the defendant.

First, only the claimant would be able to enforce, if at all, the undertaking or statement, even though others will also be impacted by the defendant’s non-compliance. Further, claimants may not have the funds, ability or resources to bring the case back to court. Secondly, the recourse would only be against the defendant public body, not against other public bodies who have said they would act. Thirdly, in rejecting the introduction of a conditional quashing order, the Government recognised the practical difficulties with deciding whether a condition has been complied with—the same concerns apply equally to court orders made on the basis of public body assurances, including the potential for further protracted and costly litigation.

The courts do already take into account steps that the Executive or Parliament are intending to take or have taken, as well as now being required to by proposed new section 29A(8)(e), and generally accept that the defendant will comply with the court’s ruling on lawfulness. However, it should be for the courts to determine in the circumstances of the case what weight should be given to public body assurances, to ensure that the most appropriate remedy is made, considering the difficulties with relying on assurances. The courts should not be required to preference these assurances at the expense of other considerations, in particular the impact on the claimant and other third parties.

Suspended and prospective quashing orders both have a significant impact on the ability of individuals who have been subject to state wrongdoing to receive a full and timely remedy. Furthermore, they allow, to varying degrees, an act that has been found to be unlawful to remain valid and untouched. The courts must remain alert to the potential impact of these provisions in particular cases, and a statutory presumption would hinder their ability to do so. At a minimum, we believe this presumption must be removed.

Clause 1 stands to weaken the effectiveness of remedies available to the courts. The Government claim that they are giving extra tools to judges—as we heard earlier—but by imposing a presumption in favour of their use, they are in fact restraining the freedom of the courts to rule as they see fit. That is the key point that the Minister needs to answer. This presumption restricts the remedial discretion of the courts and should be removed.

As a less preferable alternative to removing the presumption altogether, our amendment 23 seeks to remove the presumption in proposed new section 29A(9) and insert a precondition of the court’s exercise of the new remedial powers, that they would offer an effective remedy to the claimant and any other person materially affected by the impugned act.

Amendment 24—less preferable than both 22 and 23 —leaves the presumption and would require an effective remedy to the claimant and any other person materially affected by the impugned act. The Committee cannot say that we are not trying, at least, to meet the Government halfway on this matter. I have set out a smorgasbord of alternatives, from which the Government can select what they wish.

The phrase “adequate redress” in proposed new section 29A(9)(b) should be amended to “effective remedy” to increase certainty, and it should be made clear that the redress or remedy must be adequate both for the claimant and for any other person affected by the impugned act. The proposed new section 29A(10) should also be removed in its entirety.

With amendments 13 and 14, the power to suspend quashing orders and prospective-only quashing orders would be limited to exceptional circumstances where it is in the interests of justice through an amendment to proposed new section 29A(1). I do not think I need go into any detail on those amendments; they speak for themselves. Again, they are not ideal, but it would be good if in the Bill it was indicated that where these—in our view—undesirable remedies are to be available, that they should be limited to where there are acceptable circumstances or it is in the interests of justice.

Amendment 20 seeks to address the issues caused in proposed new section 29A(8)(e), which states that the court must consider

“any action taken or proposed to be taken, or undertaking given, by a person with responsibility in connection with the impugned act”.

I am particularly concerned with the requirement on the courts to consider any action proposed to be taken. This provides little or no legal basis to require the public body to act, especially if only said during submissions and not reflected in the court’s judgment. The reality of public body decision making, Executive action and the legislative timetable is that priorities and policy positions change, and resources and time may have to be diverted. In the meantime, the judicial review claimant and all others adversely impacted by the measure must wait—potentially continuing to be detrimentally impacted—with limited, if any, legal recourse against the defendant or other relevant public body. There is too much uncertainty in the actions a public body proposes to take to form a legal basis for suspending a quashing order or making it prospective-only. Any intentions indicated to the court could change in the light of subsequent developments, leaving those affected potentially without any recourse. The words

"or proposed to be taken”

should be removed from proposed new section 29A(8)(e) so that it refers only to undertakings.

Amendment 36 provides clarity that the principle of good administration includes the need for administration to be lawful. This requires clarification. There are five main reasons why greater recourse to these weakened remedies, and especially any presumption in their favour, should be resisted. I will conclude my comments when I have gone through those five reasons.

First, these remedies place victims of unlawful actions in an unfair position; remedies which are prospective-only may leave individuals without redress at all. Secondly, they insulate Government from scrutiny and make it more difficult for decision makers to be held to account. Prospective-only remedies would be particularly likely to have a chilling effect on individual claimants bringing judicial review claims. Why, as we have already said, would someone spend money, time and effort to challenge an unlawful decision made against them if that decision cannot be rectified in their specific case? The proposed changes risk creating a situation where unlawful actions go unopposed and individuals’ ability to defend their rights against an overbearing state is undermined.

Thirdly, the remedies make it more—rather than less—likely that judges will be forced to enter the political realm. The effect of a suspended or prospective-only quashing order may be to grant legal validity to an action that, on its face, contravenes an Act of Parliament. It creates a judicial fix for an unlawful Government act, when such an action would ordinarily be the exclusive domain of Parliament. Further, when deciding whether to issue a weakened remedy, judges must consider the likely future actions of public bodies, something that judges have previously described as a job they are ill-equipped to undertake. That would be an especially regrettable and ironic consequence when the Government’s avowed aim is to prevent judges stepping into the political realm.

Fourthly, and as senior judges have acknowledged, one of the benefits of the current system of quashing orders is its simplicity. While being presented as a measure that promotes certainty, the new remedies in fact generate significant uncertainty about how they will operate and are likely to result in expensive post-judgment satellite litigation. That uncertainty, together with an increase in costs, will create yet another practical barrier to individual claimants bringing judicial review claims in the first place. Fifthly, proposed new section 29A(5) undermines a person’s right to bring a collateral challenge following an illegal public act. That is a point we will deal with more fully when we come to the third group of amendments.

14:45
I have dealt with, if only briefly, the amendments in this group, and if I have omitted one or more, I think I have still created the import to explain why, if prospective-only and suspended orders are to form part of the Bill, there must be substantial amendment to the later subsections of clause 1 to ensure that the bias or requirement—hon. Members can put it as they wish—to use these, in our view, unnecessary measures is mitigated or if possible removed altogether. I have put it in the alternative. I have given a range of possible ways of reducing the harm that is done by the creation of prospective-only orders.
What we wish, which we believe is the overwhelming opinion of both academics and practitioners, is to dispense with this presumption altogether as it affects prospective-only orders, because we believe they are inherently wrong, but also as it affects suspended orders, because it is simply unnecessary. It effectively infantilises the senior judiciary of this country to say that they need this sort of heavy steer from Parliament, particularly in this area. I made a few comments this morning on how the doctrine of judicial review grew up as a creature of common law. It seems particularly insulting and inappropriate to be loading the judiciary with the thoughts of Parliament in the way that this presumption and the conditions attached to it would do.
Those are my comments on this group of amendments. When we get to the appropriate moment, depending on what the Minister has to say, we intend to press amendment 22.
Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

Suspended quashing orders and prospective-only remedies will not apply in Scottish courts, but because they can and will affect UK-wide laws, the people of Scotland, who remain subject to UK-wide laws until they are independent—I have just disenfranchised myself from everybody on this side, apart from my hon. Friend the Member for Lanark and Hamilton East—are also impacted.

Our primary objection is that there is a statutory presumption written into the provisions. In other words, the default position for judges is expected to be that quashing orders are suspended and prospective-only. Government and Opposition Members, both today and in previous debates, have suggested that the presumption does not curtail a judge’s discretion to use the full suite of available remedies. They are wrong—[Interruption.]

None Portrait The Chair
- Hansard -

Order. Can I ask those who are playing with electronic devices to turn the sound down or off? Sorry, Anne—go on.

Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

Thank you, Sir Mark.

On the power to issue a suspended quashing order with the option of prospective-only effect, the Bill says:

“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so.”

Our amendment 27 seeks to remove the word “must” and replace it with “may”. Given that Government Members are claiming that that is what they really mean, they ought not to have any problem supporting the amendment.

The word “must” clearly directs a judge’s reasoning and interferes with judicial independence and discretion, and the Government claim they do not want to do that. It is not just members of this Committee who have said so. The Secretary of State for Justice, the Lord Chancellor himself, said on Second Reading that the Bill

“gives judges greater flexibility in judicial review”.—[Official Report, 26 October 2021; Vol. 702, c. 195.]

As the Public Law Project pointed out, however, the inclusion of the statutory presumption contradicts that stated aim by tying the hands of judges so that they are required to use the new remedies in certain circumstances. If the powers are to be created, they ought to be the exception and not the norm, as the report of the independent review of administrative law suggests and as a number of Government Back Benchers, including the hon. Member for Bromley and Chislehurst (Sir Robert Neill) and the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright) also suggested.

The PLP helpfully goes on to say why a statutory presumption is harmful, which is that it sets modified quashing orders as the starting point in all cases, which the judge then deviates from only if the court sees a good reason to do so. Even those who support that statutory presumption can list only a small number of cases in which such remedies might be appropriate. From what hon. Members have said this morning, however, they do not support the statutory presumption aspect, so they will have no difficulty in supporting amendment 27.

I do not know whether this is the appropriate time to say so, Sir Mark, but as the hon. Member for Hammersmith is pressing amendment 22 to a vote, I will be happy to withdraw my amendment and to support his instead.

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

It is a pleasure to follow the hon. Lady. I would not characterise the comments of my hon. Friends about judicial discretion as implying that they would therefore willingly see the presumption removed. I will not quite call it cheeky, but that is certainly a presumption of its own about our position on the matter and not entirely correct, as I hope we will discover should the amendment be pushed to a vote—it sounds as if it will be.

In her intervention on the speech by my hon. Friend the Member for Dudley North, and in her speech now, the hon. Member for Glasgow North East, although she clearly has a strong view on presumption, did not deny the point, which is significant in terms of the previous group of amendments, that under the Scotland Act 1998 the Scottish Government—and, under other legislation, the other devolved Administrations too—have a power to make prospective-only orders. That is important. I am not suggesting that the power is used frequently, but it exists, although admittedly without the presumption.

Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

But the Minister’s last point was that it is without presumption, and only in certain circumstances. As I understand it, in certain circumstances in England and Wales those orders can be used anyway. Basically, we are trying to turn things on their head so that judges are told, “This is what you will do, unless you can convince us otherwise.” That is not comparable with the Scottish system at all.

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

I entirely accept that the hon. Lady disagrees on the point of presumption, which I will come to in a moment, but in terms of the first group of amendments, which were primarily about the important changes to quashing orders—that is, the prospective-only remedy—all of this underlines the fact that, as my hon. Friend the Member for Dudley North said, these things far from unprecedented in our constitution.

Before I turn to the specific amendments, one of the most interesting points made by the hon. Member for Hammersmith—which he made early on—was that people who bring a judicial review do not do so because they want a declaration; they want a quashing order. They want, as it were, the full bifta, rather than a relatively toothless outcome. On that point, an extremely important case to draw on is Hurley and Moore v. the Secretary of State for Business, Energy and Industrial Strategy. That was an important decision regarding university tuition fees. Lord Justice Elias, one of the key judges, basically made a declaration against a quashing order—I quote the reasons why—saying that it

“would cause administrative chaos, and would inevitably have significant economic implications, if the regulations were now to be quashed.”

In my view therefore—this is important—the very presence of the new remedies, which as Conservative colleagues have said give more flexibility, makes it more likely and, dare I say, easier for a judge to issue a quashing order, rather than being restrained to the extent that the judge would otherwise simply issue a declaration. That is from the perspective of the best interests and the desire of the claimant to get their pound of flesh—their remedy—and to see their justice served. It is important to remember that point.

I turn now to the many amendments in the group. They deal primarily with the presumption, which the hon. Member for Glasgow North East was just talking about, in proposed new section 29A(9) of the Senior Courts Act 1981, and the factors that the courts must consider when deciding whether to use the new modifications—the quashing orders—at subsection (8).

There are two general points to stress. First, the Government’s intention in including both the presumption and the list of factors that the courts must consider is to assist in developing the jurisprudence around the new remedies. As the courts begin to consider cases where such remedies might be used, they will build up a body of case law about when the presumption is or is not rebutted and when the relevant factors apply. That will increase legal certainty, which is to everybody’s benefit. Secondly, I remind the Committee that we consulted both on the presumption and on which factors might be relevant in applying the new remedies. We reflected on the responses to that consultation. Respondents’ suggestions were helpful, particularly in allowing us to come up with the list of factors at subsection (8).

I turn now to amendments 22 and 27, tabled respectively by the hon. Members for Hammersmith and for Glasgow North East, which seek to remove the presumption at subsection (9). The amendments are based on a flawed assumption that the presumption is somehow intended to force the courts into using the new remedies where they are not appropriate. That is not the case. The Bill encourages the courts to use the remedies only where appropriate. It will be entirely up to judges to decide whether they offer adequate redress. If judges consider that they do not or that there is some other good reason not to use them, the court can rebut the presumption.

Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

While the subsection says that

“the court must exercise the powers”

and amendment 27 asks for it to say that the court “may” exercise them, the Minister’s interpretation is that courts may exercise them. Does he understand why we want to amend the subsection? What he describes is what we are trying to amend it to.

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

That is a fair point. The words “must” and “may” often have significant meaning in Bills. The Bill’s wording does not seek to force a court’s hand but provides a clear message that Parliament expects to see the new powers used where appropriate. With respect, I think that clarity comes with the Bill’s wording.

However, the presumption also plays another important role in ensuring that the principles and practice around the new remedies are developed quickly. Jurisprudence can be a slow-moving beast, and the presumption will expedite the process and bring greater legal certainty. While removing the presumption from the Bill would not necessarily prevent the new modifications to quashing orders from operating effectively, we continue to believe that there is merit in providing this indication to the courts that they should properly consider the use of the new remedial options available to them, and to develop the case law as to their usage more quickly.

I turn now to amendments 24 and 34, the central purpose of which is to change the wording of the test that the court must apply when considering the presumption. The hon. Member for Hammersmith proposes “effective remedy” as an alternative to “adequate redress”, which he argues would be a more stringent test. I fear that we are getting pretty close to what we call semantic arguments. The Government’s intention is that the remedies are used only in circumstances where it is appropriate. We are not seeking to deny or restrict justice to claimants. I am not, therefore, persuaded that his wording would result in a higher test or make any material difference to the clause.

Amendment 24 also seeks to ensure that, in considering the “effective remedy”, the court considers the interests of not just the claimant but other affected persons. The way in which our “adequate redress” test is framed in no way prevents the court from considering the impact on persons other than the claimant. Indeed, when it is considered in conjunction with paragraph (c) of the list of factors at subsection (8), I contend that that is already captured by the clause.

Turning to amendment 23, which would remove the presumption contained at subsection (9) and replace it with a precondition—I think we are moving into smorgasbord territory—I submit that that would constitute a significantly more restrictive approach, which would limit the court’s flexibility to adapt the remedies to the situation before it. The amendment is redundant since the current presumption and list of factors provide an appropriate guide to the use of the new remedies. I do not see how it would make the situation clearer than the current drafting.

Let me turn now to a series of amendments that relate specifically to the list of factors at subsection (8), which is crucial to the operation of the new remedies. Amendments 13 and 21 seem to suggest that we need to tell the courts that the remedies that they use in judicial review cases should be used in the interest of justice and add a vague direction that

“good administration is administration which is lawful.”

The problem here, which confuses me, is that the implication of what the hon. Member for Hammersmith is suggesting appears to be that the courts would not otherwise act in the interests of justice or consider that lawful administration is a good thing. I do not think he necessarily trusts the courts to understand those rather fundamental concepts.

I argue that these amendments would add nothing of value to the Bill, as judges will retain the ability to use remedies in a way that they feel offers adequate redress for the claim brought. Our new remedies do not seek to change that. We are also struggling to find a clear justification for why a theoretical inquiry into the relationship between “goodness” and “lawfulness” needs to be made. Those concepts are very open to interpretation, and the amendment gives no indication as to their meaning in this context, while, in contrast, the current drafting makes the meaning clear and focused on practical issues.

15:00
Amendment 20 proposes to remove the requirement in subsection (8)(e) of proposed new section 29A of the Senior Courts Act 1981 for courts to take account of actions that the public body proposes or intends to take. At present, subsection (8)(e) of proposed new section 29A provides that the courts must have regard to certain factors in deciding whether to exercise their powers under proposed new subsection (1). The rationale for those factors is rooted in flexibility and recognising that a more responsive remedy leads to better administration.
Leaving open the ability for courts to have regard not only to actions taken and undertakings that have already been given, but to actions that are proposed to be taken, is a key element of the additional adaptability around remedies that we are addressing in the Bill. That includes giving the defendant the opportunity to rectify any unlawfulness, or to review a decision and assess the best way forward in light of the court’s judgment.
An undertaking by a defendant to commit such action should be an important factor for the court to consider. Removing the ability for courts to be forward-looking would undermine the rationale of this section, which aims to correct administrative defects in a sensible and practical manner, and would deprive the courts of a consideration they need to bring about a significant practical benefit.
Amendment 32 aims to add a specific condition for the courts to consider any environmental impact of a judgment when using the new remedies, as well as specifying that the court must consider whether exercising or failing to exercise the power would constitute an effective remedy for the claimant. There is nothing in the current drafting of the Bill that would stop the court from considering environmental impacts if such issues were raised in the case. Subsection 8(f) of proposed new section 29A of the 1981 Act states that a court can consider
“any other matter that appears to the court to be relevant.”
Furthermore, delving into the specifics of certain subject areas such as environmental impacts, which in many cases will not be raised by the parties or be relevant to the claim, is an odd approach. It would require the court to make assessments of policies that it is not expert in; it would not be best placed to determine what environmental impacts might be relevant. Where the parties raise such issues, proposed new subsection 8(f) allows the court to consider them.
In a similar vein, respondents to our consultation warned of the risks of using economic impacts as a factor, as that would risk drawing judges into a specific policy space. I would argue that this is also the case for environmental matters. It is therefore more appropriate to retain the approach in the current clause: that of a non-exhaustive list.
Amendment 36 seeks to remove the words
“any detriment to good administration that would result from exercising or failing to exercise the power”—
that is, the power contained within clause 1—from the non-exhaustive list of factors in proposed new subsection (8). The premise would appear to be that the inclusion of this factor in the current drafting might disadvantage claimants. I completely disagree that this factor creates an imbalance against the needs of the claimant. The very next factor on the list, proposed new subsection 8(c), requires the court to consider
“the interests or expectations of persons who would benefit from the quashing of the impugned act”.
We know there are clear examples of where quashing orders could cause chaotic outcomes that our proposals would resolve. I mentioned one case earlier, which I am going to come back to because it is so easy to understand why it embodies the potential use of these remedies: the decision of Natural England to revoke general licences that enabled farmers, landowners, and gamekeepers to shoot pest birds. The decision to remove those licences created immediate widespread chaos for licence holders who were left without the necessary legal certainty as to how to protect their livestock. This uncertainty continued for a period of seven weeks until Natural England was able to issue new licences.
However, had the remedies included in clause 1 been available at the time, Natural England might have been more willing to contest the judicial review in the knowledge that even if the existing licensing scheme were found by the court to be unlawful, the court had the ability to protect past reliance on old licences—acting prospectively —and suspend the effect of any revocation using the suspended remedy, thus allowing the status quo to remain in place until such a point as new licences could be issued. That remedial flexibility could have allowed Natural England to consider the concerns raised in the new licensing arrangements, while providing the court with the ability to protect those who relied on general licences, ensuring that they could still operate lawfully, and thereby provide some consistency for farmers. The case provides a tangible example of how that additional remedial flexibility could have a real economic impact.
To quote the National Farmers Union,
“People have been left without a legal means to control problem birds. Their inability to protect livestock, crops, wildlife and livelihoods in ways which the law has until now allowed has left them concerned and angry.”
That embodies the whole premise of these new remedies. Far from in some way being seen as part of a conspiracy, almost, to undermine someone bringing a judicial review, the new remedies are wholly to the contrary. They are there to avoid side effects that are detrimental to our constituents, while ensuring that the person or body bringing the judicial review has their successful outcome, admittedly deferred or prospectively changed temporarily. That is absolutely clear from the Bill’s drafting. We have to ask ourselves: could such an outcome be seen as anything other than good, given what we were trying to avoid in 2019? How would it be detrimental to good public administration?
Amendment 37 suggests that we should explicitly require that a claimant should receive a timely remedy. I should make clear that the provisions in this Bill that allow for quashing orders to be suspended are not seeking to delay justice, and we would not expect the courts to use them in such a way. Our intention is only to provide the courts with the power to suspend a quashing order where it is appropriate to allow decisions to be re-made or for alternative arrangements or preparations to be put in place to prevent a legal lacuna. If the court feels this would delay an outcome for a claimant, it can use its ability to add conditions to its order to strike an appropriate balance. That is why the list of conditions is so important.
In some cases, timeliness may actually work against the claimant. I referred earlier to the case of Hurley and Moore, in which the court declined to give a quashing order despite a finding of unlawfulness in the Government’s decision. It chose this option because a quashing order, immediate and retrospective, would have caused administrative chaos. A suspended order presents a solution: the Government could have time to put in place arrangements to deal with the outcome of the case, and the claimant would be given a far more equitable remedy, despite it not being as timely as an immediate order. If timeliness is relevant to the case, the court can and should consider it. But we should be careful about directing the court’s adjudication on a matter that can very easily cut both ways.
Amendment 38 puts a requirement on the defendant to outline what the interests are of those who may have relied on an impugned act and detail those to the court. I feel it would be unnecessary and inappropriate to articulate this as a requirement on the face of the Bill. It will be for the defendant to successfully make arguments to the court about the appropriate remedy, and it is for the defendant to freely choose the arguments they want to put. A requirement for litigants to argue certain points is unusual, and I do not think we would wish to depart from the normal course of court proceedings.
Amendments 33 and 19 propose to
“reduce the requirement to consider non-legal factors in assessing the legality of decisions made.”
That would not be the effect. The list of factors is not about assessing legality, but assessing what the appropriate remedy would be. Amendment 19 seeks to amend the weight given to those factors. The Government consider it appropriate to provide the court with a non-exhaustive list of factors to consider when deciding whether to suspend, limit or remove the retrospective effect of a quashing order. I would also like to make clear that we consulted on the sorts of factors that should be included in the list and received some very useful contributions that we reflected in developing these provisions.
As courts navigate application of these new remedies, this list of factors will ensure that a consistent approach is taken across the board. We reject the contention that this presumption is an attempt to fetter the courts’ discretion. In fact, subsection 8(f) of proposed new section 29A explicitly makes provision that the court can consider any other factors it deems relevant. These are common-sense, well-established principles that allow ample room for judicial consideration. In this instance, substituting the word “must” with “may” invites the risk of inconsistencies in granting such remedies, which would undermine legal certainty. The list of factors will mitigate the risk of conflicting decisions from the courts, and consistent application of the new remedies will help citizens to know what to expect and how their case may be considered. I see no reason to remove, limit or alter the list.
Amendment 14 seeks to limit the use of the new remedies to exceptional circumstances—an amendment which would create more uncertainty, rather than providing clarity, and would reduce the flexibility we are seeking to provide to the court. First, what is considered an exceptional circumstance in the context of remedies? What test would we expect the courts to apply? I do not see why we would want to limit the discretion of the court in this way and perhaps prevent these remedies from being used where they would provide a better, more practical outcome in what may be described as a mundane—rather than exceptional—case.
As an example, the court has previously used declarations in a way akin to a prospective quashing order. This point was raised by my hon. Friend the Member for Dudley North, in his excellent speech earlier. In R (on the application of British Academy of Songwriters, Composers and Authors and others) v. Secretary of State for Business, Innovation and Skills, the court declined to give a quashing order and instead made clear that its declaration was for the future. The case concerned a regulation governing the private copying exemption in copyright law. Why would this need to be an exceptional circumstance for the court to give what was a sensible and proportionate remedy?
The purpose of these measures is to allow the courts to ameliorate any negative effects of immediate and retrospective quashing, which is why I keep going back to the licensing point. This could be where claimants or third parties had relied on decisions in good faith and would suffer injustice by having their legitimate expectations denied or by becoming open to civil claims. While many of these circumstances may not be usual, providing a statutory limitation on these remedies feels both unnecessary and arbitrary and might produce unintended consequences. Even if those cases were rare, it is likely that they would involve large numbers of affected persons.
In conclusion, the Government believe that the list of factors in subsection (8) and the presumption in subsection (9) add real value to this clause. They guide the courts on the factors to which they must have regard when applying the new remedies in clause 1, and they assist in developing the relevant jurisprudence around the remedies to increase legal certainty for all. This is not about adversely affecting claimants or restricting their access to justice; it is about giving the courts the tools they need to do their jobs effectively.
In debates in the other place, two former Supreme Court judges, Lord Hope and Lord Brown, have talked about the bluntness of the current remedial options available to the court in certain circumstances, particularly with a straightforward quashing order. We are tackling that issue in this Bill, and it is right that we do so. For those reasons, I respectfully suggest that the hon. Member for Hammersmith withdraws his amendments.
Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I am grateful to the hon. Member for Glasgow North East for her comments, and for withdrawing her amendment, which was essentially the same—or would achieve the same effect—as our amendment 22. We will, therefore, push that to a vote in due course.

As far as the Minister’s comments are concerned, I mentioned the administrative chaos point already; I will return to that briefly on clause stand part because, as I think some of his comments conceded, there are ways around this at the moment. My view is that if the courts can find a route to resolve difficulties, they should be left to do that themselves, and there is no need for us to interfere, but that is specifically around suspended orders—I will come back to that.

The Minister calls it semantics or language; well, I agree with him, but I just think our language is better. By that, I mean it is more precise and more familiar: concepts such as “exceptional circumstances”, “the interest of justice” or “effective remedy” more correctly sum up what we are intending to do here, and will be more familiar to the court in applying its jurisdiction. That is also why we wanted to say that good administration must be lawful.

The central point, which the Minister just has not persuaded me on—that is why I will persist with amendment 22—is, “Why is the presumption in there?” I am not at all persuaded by the non-exhaustive list of matters to which the court must have regard in subsection (8) either. They are not well drawn. Whatever the Minister says, he cannot get away from the fact that the presumption is a heavy-handed way to give a steer to the judiciary about how to operate, and it does not actually need to be there at all. He and the Government should trust the judiciary on the presumptions that it wishes to put forward.

There is a simple disagreement here, as sadly must happen sometimes between Government and Opposition. We cannot see any reason or logical argument in favour of the presumption, so we will exercise our right to press amendment 22 to a Division, although I beg to ask leave to withdraw amendment 13.

Amendment, by leave, withdrawn.

15:14
Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I beg to move amendment 16, in clause 1, page 1, line 13, after “subsection (2)” insert “and to subsection (5A)”

See explanatory statement to Amendment 15.

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss the following:

Amendment 17, in clause 1, page 1, line 16, after “subsection (2)” insert “and to subsection (5A)”

See explanatory statement to Amendment 15.

Amendment 18, in clause 1, page 2, line 1, at beginning insert “Subject to subsection (5A),”

See explanatory statement to Amendment 15.

Amendment 15, in clause 1, page 2, line 4, at end insert—

“(5A) Where the impugned act consists in the making or laying of delegated legislation (the impugned legislation), subsection (4) does not prevent any person charged with an offence under or by virtue of any provision of the impugned legislation raising the validity of the impugned legislation as a defence in criminal proceedings.

(5B) Subsection (4) does not prevent a court or tribunal awarding damages, restitution or other compensation for loss caused to the claimant by the impugned act before the date on which the quashing takes effect.”

This amendment would protect collateral challenges by ensuring that if a prospective only or suspended quashing order is made, the illegality of the delegated legislation can be relied on.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

This third and final group of amendments deals with one specific point that causes us concern, but it is a matter on which I can be relatively brief. I give notice that, subject to what the Minister has to say, we will seek a vote on amendment 15, which is the substantive amendment.

Proposed new section 29A(5) provides that

“Where…an impugned act is upheld”—

either until the quashing takes effect in respect of a suspended quashing order, or retrospectively in respect of an prospective-only quashing order—

“it is to be treated for all purposes as if its validity and force were, and always had been unimpaired by the relevant defect.”

We have significant concerns about the impact of that provision on collateral challenge, which this group of amendments would address.

Ordinarily, where a court has found a measure unlawful, even if it has not been quashed, it is possible to rely on that finding of unlawfulness in other proceedings—that is called “collateral challenge”. A person who has had to pay a tax under unlawful regulations, for example, would normally be able to bring a claim against HMRC to be refunded the money. However, new section 29A(5) requires an unlawful measure to be treated as lawful. That would preclude relying on the unlawfulness of a measure in other proceedings. That raises the possibility of people being charged with a criminal offence under unlawfully made delegated legislation, for example, but not being able to raise as a defence the fact that the legislation was subsequently found to be unlawful. As IRAL recognised, that position would leave the law in a “radically defective state”. A further subsection should be included to protect collateral challenge and third- party rights and defences where a remedy under new section 29A(1) is ordered.

New section 29A(5) states:

“Where...an impugned act is upheld by virtue of subsection (3) or (4), it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

Imagine if one of the statutory instruments issued by the Health Secretary during the coronavirus crisis, which created imprisonable criminal offences, were declared illegal by a court. If a court granted one of the new remedies, this subsection would make it as though that imprisonment were always legal. A person could therefore not argue as a defence in the magistrates or Crown court that the statutory instrument was invalid, because this subsection requires a judge to pretend that it was valid.

As IRAL noted in paragraph 3.66 of its report:

“We readily acknowledge that the law would be in a radically defective state if such collateral challenges to the validity of administrative action were impossible.”

We agree and believe that collateral challenges should be expressly preserved in the Bill.

Alex Cunningham Portrait Alex Cunningham (Stockton North) (Lab)
- Hansard - - - Excerpts

Successive Tory-Lib Dem coalition and Tory Governments have made much of wanting to do away with red tape and simplify the law, but we have seen quite the opposite in practice. Does my hon. Friend agree that the legislation is yet another example of that? The sentences that he has just voiced are perhaps the best illustration of it. There will be all sorts of consequences to these particular measures. They are actually making things more complicated, less clear, and will provoke further litigation in time.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

My hon. Friend makes a very good point, and makes it better than I did. When one starts down this tinkering route—as the Government have in the Bill—and starts trying to nudge judges one way, putting in lists of qualifications and conditions with matters that have to be taken into account, altering the time period over which orders will take place, there are bound to be consequences. We have already said that there is likely to be uncertainty and satellite litigation, but genuine harm could also be caused in this way. I agree, as well, about red tape. It is all very well to try to cut through in that way—and it sounds very good when Ministers say it at the Dispatch Box—but unfortunately it leads to tragedies such as Grenfell Tower. Without the protection given by legislation and regulation on issues such as health and safety, the public are put at risk.

Even where a case has been brought and a decision has been found unlawful, the Bill stands to threaten the ability of people to bring collateral challenges. Proposed new section 29A(5) states that when a prospective-only or suspended quashing order has been made, the unlawful act is

“to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect”,

either retrospectively or until the quashing comes into effect. That situation, in which the court pretends that an unlawful decision was valid for a period of time, would appear to inhibit the ability of the person to rely on its unlawfulness in other proceedings. In other words, a person could be arrested under a regulation ruled unlawful by a court, but they would not be able to use that in their defence. The IRAL report quotes Professor David Feldman, whom we heard from, on the “intuitive revulsion” felt against that state of affairs, and concludes:

“We readily acknowledge that the law would be in a radically defective state if such collateral challenges to the validity of administrative action were impossible.”

Clause 1 fails to protect the ability of individuals to rely on the finding of unlawfulness of a measure in other contexts—for example, as a defence to criminal proceedings. A further subsection should be included to protect collateral challenge and third-party rights and defences where a remedy under proposed new section 29A(1) is ordered. The possibility of collateral challenges should be expressly protected by proposed new section 29A(5A), which is what amendment 15 seeks to do by ensuring that if a prospective-only or suspended quashing order is made, the illegality of the delegated legislation can be relied on.

That is really the only point I need to make on this group of amendments; of course, the other amendments are consequential on amendment 15. I hope that the Minister has taken the point. I ask him, in responding, to say first whether he supports amendment 15; if he cannot, as I say, we will press it to a vote. Would he then accept that this is an issue that needs to be dealt with? It clearly is. It may be unintended, but it is nevertheless a consequence of what the Government have set out to achieve in clause 1. Before the Bill comes back, it really needs to be dealt with.

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

The amendment aims to ensure that illegality of decisions can be relied upon when using the new remedies. I am also responding to amendments 16, 17 and 18, as they are dependent on the adding of proposed new section 29A(5A) and would require courts to consider proposed new section 29A(5A) when considering the effect on validity.

This new addition seeks to address concerns regarding claimants relying on the illegality of rulings as a defence in criminal proceedings or prejudicing their access to compensation. I would argue that we have already factored in such considerations and given the court ability to make special provision in such a case.

I draw the Committee’s attention to clause 1(1), in which proposed new section 29A(8) lists a number of factors that the court should have regard to when considering the use of our new measures. These importantly cover the interests or expectations of persons who would benefit from the quashing. One would presume that the ability to raise a defence would be one such benefit. Fundamentally, proposed new section 29A(8)(f) states,

“any other matter that appears to the court to be relevant”,

ensuring that such factors can be covered in any eventuality

I would argue that the factors listed, or any that the court feels adequate, would be used in good faith to ensure that the rule of law is upheld. Having considered those factors, the court can use its powers by virtue of subsection (2) to add any conditions to its order, for instance that the defendant does not take any further action to enforce the unlawful decision, such as bringing forward criminal proceedings. With the powers in the Bill the court can make clear, to its satisfaction, the precise effects of the order that it makes. That ensures that there is greater flexibility for the courts to arrive at a positive outcome for all those affected.

The list of factors and the ability to add conditions already allow what the hon. Member for Hammersmith is suggesting. Therefore, the amendment would make no useful change to the Bill. I urge him to withdraw it.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

The Minister has made my point for me in drawing attention to proposed new section 29A(8) in clause 1, which does not deal with this point other than under the non-exhaustive provision—

“any other matter that appears to the court to be relevant.”

It is too serious and too specific to be left to be casually dealt with in that way. Therefore, I wish to press amendment 15 to a vote.

I would ask the Minister to go back and look at this provision, and whether we need further, specific qualification of the kind that I have outlined that could be introduced at a later stage of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

15:30
Amendment proposed: 15, in clause 1, page 2, line 4, at end insert—
“(5A) Where the impugned act consists in the making or laying of delegated legislation (the impugned legislation), subsection (4) does not prevent any person charged with an offence under or by virtue of any provision of the impugned legislation raising the validity of the impugned legislation as a defence in criminal proceedings.
(5B) Subsection (4) does not prevent a court or tribunal awarding damages, restitution or other compensation for loss caused to the claimant by the impugned act before the date on which the quashing takes effect.”—(Andy Slaughter.)
This amendment would protect collateral challenges by ensuring that if a prospective only or suspended quashing order is made, the illegality of the delegated legislation can be relied on.
Question put, That the amendment be made.

Division 2

Ayes: 6


Labour: 4
Scottish National Party: 2

Noes: 8


Conservative: 8

Amendment proposed: 22, in clause 1, page 2, leave out lines 24 to 32.—(Andy Slaughter.)
This amendment would remove the presumption in favour of using the new remedial powers in clause 1 and protect the discretion of the court.
Question put, That the amendment be made.

Division 3

Ayes: 6


Labour: 4
Scottish National Party: 2

Noes: 8


Conservative: 8

Question proposed, That the clause stand part of the Bill.
Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

We have had a good debate on the clause and I do not want to try the Committee’s patience by making a long speech. However, I would like to speak about suspended quashing orders, which we have danced around but not really touched on. I will explain why it is more appropriate to do so in this clause stand part debate. While I do not want to give away the denouement of my remarks too soon, our view is that although there are elements on both sides in relation to suspended quashing orders, we do not think, on balance, and certainly given our hostilities to the rest of clause 1, that there was enough in that to preserve clause 1. It is therefore our intention to vote against clause stand part. It depends on what the Minister has to say.

Proposed new section 29A(1)(a) of the Senior Courts Act 1981 allows for the use of suspended quashing orders, which would delay the imposition of a quashing order until a specified date. Up until the date was reached, the unlawful decision or policy would be treated as if it were valid. In the case of suspended orders, the public body would effectively be permitted to continue taking the same approach, despite that approach having been found to be unlawful, until a certain future point in time.

Fundamental to the principle of justice is that if an action of a public body is found to be unlawful, the victim can expect that unlawfulness to be rectified in a timely manner. As it is currently drafted, the clause fails to do that and dilutes the effectiveness of judicial review as a necessary means of holding public bodies accountable for their actions and as a means of offering fair redress to victims. Through the use of suspended quashing orders, judges will be capable of allowing the unlawful conduct that led to the legal case in the first place to remain in effect.

There are some exceptional cases where it may make sense to suspend the effect of a quashing order, when neither immediate quashing nor a declaration of unlawful action seems appropriate. For example, earlier the Minister mentioned the case of Hurley and Moore, where the court found the Secretary of State to have breached his public sector equality duties in making regulations that allowed tuition fees of up to £9,000 without properly assessing the policy’s potential discriminatory impact, but declined to quash the regulations due to the expected logistical difficulties. Instead, the court just issued a declaration.

The report of IRAL, which as we know was established to feed in to the Bill, says of that case:

“As a remedy, a suspended quashing order would have had more teeth. Such an order would have indicated that the Regulations would be quashed within a couple of months of the Court’s judgment unless the Secretary of State in the meantime properly performed his ‘public sector equality duties’ and considered in the light of that exercise whether the Regulations needed to be revised. Such a remedy would have ensured that the Secretary of State was not left free to disregard his statutory duties in regard to the Regulations.”

That may be a legitimate use of this power, but there are concerns that the possibility of making such an order was ruled out by the UK Supreme Court in Ahmed (No. 2), which was also mentioned earlier today. In that case, the court readily concluded that it has the discretion to suspend the effect of an order that it makes. The difficulty was that the court had already made a concrete decision, which held that the provisions were void, and did not want to undermine that decision.

The making of these orders remains at the courts’ discretion, although they have usually declined to do so, on the basis that doing so will often conflict with the fundamental principles of administrative law. It is recognised that there is debate on this point, so clarifying that suspended quashing orders are available is not an illegitimate aim.

Professor Jeff King agrees with the default approach that substantial orders for relief are much better than a declaration only, but he recognises that in exceptional cases it might be justifiable to depart from that presumption. That is why the pragmatic approach of the courts, occasionally issuing declarations in lieu of quashing orders with attendant justification, is defensible in principle as well as evident in practice. This is intuitively correct; if something is unlawful, it ought to be invalid. However, there may be some unusual cases in which a court may feel that a quashing order ought not to be made. The court has the discretion to do that.

For example, if a quashing order would cause what I think the Minister called administrative chaos in a range of public actions, or indeed with many individuals, the court may instead simply make a declaration. Alternatively, it may make a quashing order but suspend its operation, allowing the public authority some time to fix the legal problem itself. That means that the order is made, but there is a delay before it comes into effect. For example—I think we have used this example before—if a quashing order means that the rules on entitlement to social security benefit would be void, the court may suspend the quashing order to allow the Government time to make new rules that do not break the law.

Quashing orders give teeth to the court’s power to vindicate the rights of citizens. The ability to suspend a quashing order is helpful, as it makes a more nuanced remedy available. This avoids a binary choice between simply refusing a remedy and opposing a remedy, which causes administrative problems. Any uncertainties can be clarified by future decisions and not via primary legislation.

We have said already, and I will not go back over old ground, that in any event we are against any presumption in favour of a suspended quashing order. Proposed new section 29A(9) says that if it appears to the court that a suspended quashing order was a matter of substance, offering adequate redress in relation to the relevant case, then it must make one. Again, as has been said before, that was not recommended by IRAL. Imposing a presumption is not handing the judge additional tools, despite what Government Members say; it has the potential to hinder them from making use of the rest of their toolkit, even when it may be more appropriate to do so.

The imposition of the list of factors to which the court must have regard in proposed new section 29A(8) likewise serves to hinder flexibility and discretion still further. It should be noted, that while IRAL did not suggest a presumption, a list of factors also goes against the panel’s report, which said that

“it would be left up to the courts to develop principles to guide them in determining in what circumstances a suspended quashing order would be awarded”.

While undermining the “flexibility” that the Ministry of Justice has held up as a justification for this measure, suspended quashing orders also have the potential to introduce greater complexity and uncertainty into the currently simple system of quashing orders, and they are likely to give rise to satellite litigation. If the Government are determined to legislate to clarify that courts may suspend the effects of a quashing order, there must not be any presumption in favour of their use.

It is useful to illustrate examples of injustices that might not have been addressed if this clause were in place. In 2015, new Government guidance said that non-religious beliefs could be excluded from religious education curriculums in secondary schools. Three humanist families successfully challenged the guidance, in a groundbreaking judgment that established that non-religious beliefs such as humanism should be treated with equal respect in the curriculum. Had these reforms been in place then, it could have meant that the curriculum would not have had to change for the pupils affected, and justice would not have been served.

To give one other example, in the case of Save Our Surgery Ltd, the claimant was a group dedicated to preventing the closure of a clinic in Leeds that provided surgery to children with serious cardiac problems. The court held that the NHS committee’s decision to authorise the closure was unlawful due to procedural unfairness and omissions of key considerations in the consultation leading to the closure. The decision to close the clinic was quashed and paediatric heart surgeries resumed at the Leeds clinic in early 2013, shortly after the quashing order was granted. In the span of just 12 days in which the clinic was shut for surgeries due to the closure, it was reported by the BBC that 10 seriously ill children were forced to be transferred to other hospitals as far away as Newcastle and Birmingham, causing considerable difficulty to children and parents.

A suspended order could have been granted in this case for two reasons. First, at the time, the Health Secretary was already conducting a full merits test review into the faulty consultation process, which was considering the issues afresh and was set to make new recommendations regarding clinic closures. Given that that second review might still have recommended the closure of the clinic, a suspended order might have been thought appropriate at the time of the report. Secondly, the claimant was neither the actual Leeds clinic, nor a child denied surgery there, so a suspended order might have been adequate redress for the claimant. If a suspended order had been granted, the clinic closure would have been far longer than 12 days, putting more families through those difficulties.

In his speech on Second Reading, the Minister stated that the Bill supports

“very important principle of judicial review”,

namely

“better public administration of the law in the best interests of our constituents.”—[Official Report, 26 October 2021; Vol. 702, c. 233.]

Judicial review is indeed extremely important in upholding high standards of public administration. It is an excellent incentive for public bodies to make decisions lawfully. As the Government submission to IRAL acknowledges, judicial review ensures that

“care is taken to ensure that decisions are robust”,

which “improves the decision”. If claimants are discouraged from bringing legitimate cases, there is a risk that standards of decision making may be lowered as a consequence of these changes.

When deciding whether to issue a weakened remedy or to grant an ordinary quashing order, judges would have to consider the likely future actions of a public body and would have to speculate on what administrative consequences the order would have. It is difficult to see how those judicial assessments are within the judicial expertise and experience. Indeed, some judges have previously described these assessments as a job they are ill-equipped to undertake. That would be especially regrettable and ironic, given the Government’s aim with this Bill.

Despite the Government’s reference to political cases, these remedies will harm the role of individual judges in judicial review, which is to uphold the will of Parliament, ensuring that the public bodies and Government Ministers exercise their powers within the four walls of the empowering statute. If the court issues a prospective-only quashing order, it is effectively saying, “Even though the public authority acted outside the powers granted it, we must pretend that its past action was lawful and we are only going to do something about it going forward.” The power to issue quashing orders that have only prospective effect, or that have limited retrospective effect, is a power that goes well beyond what IRAL recommended. The Government have yet meaningfully to justify with evidence why that additional and more radical proposal was needed.

15:45
Although even a suspended quashing order will at some future stage apply to past conduct that was unlawful, a prospective-only order will enable a court to declare that unlawful past conduct could not be quashed and remedied. An individual claimant who has suffered harm will have no remedy on the facts of their case. The Government’s frequent assertion that there is an increase in litigation that crosses over into political terrain has not been evidenced. There are relatively few judicial reviews brought every year. Around 1,000 claims are granted permission. In fact, the number of judicial reviews is declining in the Government’s own statistics. There are a handful of cases that the Government refer to as having transgressed boundaries between law and politics. There is no logical connection between mitigating the impact of those cases and the measures in the Bill.
In its review, IRAL found no evidence of judges stepping into the political realm, asserting that
“the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”
Prospective-only remedies would have a chilling effect on claimants bringing judicial review claims. The huge cost of judicial review and the lack of availability of legal aid already act as a barrier for many, discouraging them from bringing claims. Individuals who have suffered as a result of unlawful Government decision making will be further discouraged from seeking justice if they know that even if they win their claim an effective remedy may be denied them if a judge must make a presumption in favour of using prospective-only quashing orders.
All of that is concerning for a number of reasons. The arbitrariness and clear prospect of injustice in individual cases undermines the rule of law. What is more, the policy appears to breach article 6.1 of the European convention on human rights, the right to a fair trial, which requires an effective judicial remedy. The most obvious effect will be the denial of redress to those who were adversely affected by the impugned act prior to its being found to be unlawful. Perversely, among those unable to benefit from the use of a prospective-only quashing order would be the claimant in the successful judicial review. That would invert the principle underpinning our justice system that someone who has been harmed as a result of an unlawful action by a public body should be able to secure a remedy through the courts.
To demonstrate the issue by way of example, if a person who has been deemed ineligible for a welfare benefit successfully challenges the eligibility criteria but a prospective-only order is applied, the person will not receive back payments. That is possibly the clearest and most obviously unjust case that we can cite. It is likely that the successful claimant would have made a new application and be waiting for another decision to be made, during which time they will receive no benefit entitlement or a lower rate. Furthermore, they would not receive back payments for the benefit to which they would otherwise have been entitled, resulting in only a partial remedy. Such a scenario would see a claimant denied the full remedy to which they ought to be entitled. In the context of human rights cases, it is far from clear that prospective-only remedies would withstand a challenge before the European Court of Human Rights for failure to provide an effective remedy.
I have tried to be fair in my summation, particularly in relation to suspended quashing orders. I have put the arguments on both sides. I take the point on certainty, and that in some cases they may be a better option than a declaration. However, the majority of the clause, as I have just indicated, is obnoxious. Prospective-only orders, presumptions, and the clutter, if I can put it that way, of matters to be taken into account and conditions to be applied in that way really leave very little to be supported here. The courts are well used to modifying and tapering their jurisdiction, and that can apply to suspended quashing orders. We have heard that there are ways around it through applying a suspended order, and where administrative chaos may be caused, applying a declaration only.
I cannot in all honesty support the clause just on the basis of the arguable case for suspended quashing orders. Therefore, subject to what the Minister has to say, we will not be supporting clause 1 and will vote against it at the end of this stand part debate.
Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

As I said earlier, suspended quashing orders and prospective-only remedies do not apply in Scottish courts, and will not apply, but because these are UK-wide laws to which the people of Scotland are subject, they will be affected. Because Scottish courts can hear cases of UK-wide law, there will inevitably be an increase in the number choosing to be heard in the Scottish courts. After all, if someone knows that they are more likely to get some remedy for winning their case, why would they not choose the court system offering that? I am always happy to showcase all things Scottish, including our legal system, but who will pay for the increased capacity that the courts in Scotland will need if our system is to be clogged up with UK-wide hearings?

I have already explained why we are concerned about statutory presumption, and the hon. Member for Hammersmith has been very clear, so I will not take up time repeating him or myself. I do not imagine that any Bill Committee has a massive audience at home listening to us—although the hon. Member seemed to think differently earlier—but I think this is something that we should be encouraging people to tune into. After all, it is their lives we are talking about. While I do not think we can rival “Loose Women”, I do know that a number of people will be watching, and I think it is always worth explaining, in language that is as accessible as we can make it, what is going on.

So what do suspended quashing orders mean and why are we so opposed to them? On Second Reading, others and I raised the landmark judicial review that took place in 2017, which I think is worth talking about again. The Supreme Court found that Parliament could never have intended to limit people’s right to access justice by charging them fees to use the employment tribunal. It found in favour of the claimants and the quashing order had immediate effect. That meant that the fees were immediately abolished and the Government were required retrospectively to refund anyone who had paid in the past—and quite right. People had been charged up to £1,200 to access this form of justice. The Supreme Court ruled that they should not have been and they were rightly refunded.

However, if clause 1 had been in place, those extortionate fees could have stayed in place until a date determined by the court, so that everyone who required to ask for an employment tribunal between the date of the ruling and the date decided by the court—say, six months hence—would have to pay those unlawful fees of up to £1,200. The Government would then be given the time to rectify the unlawful policy, although this legislation allows the deadline to be varied if they do not rectify it on time; however, the rectification is the interesting bit.

What that means is that the Government would in effect be able to change the law so that the thing that had just been judged to be unlawful—in this case by the Supreme Court—was suddenly lawful. How can that possibly be? The effect in that case is that everyone who had paid the unlawful fee would be out of pocket, never to be refunded. Everyone who then paid in the intervening six months, or however long the Government were given to make the changes, would also be out pocket, never to be refunded. The Government would then change the law so that everyone in future is required to pay those fees of up to £1,200 or miss out on their access to justice, which is most likely the outcome for many people. We are talking about people losing their jobs, possibly wrongly, and being unlawfully dismissed, losing their entire income, and losing their right to access benefits—people who are sacked do not get support for the long term, because it is deemed to be their own fault.

Angela Crawley Portrait Angela Crawley (Lanark and Hamilton East) (SNP)
- Hansard - - - Excerpts

My hon. Friend is making a compelling case. Thus far throughout our proceedings, on Tuesday and today, we have heard much discussion about “three bites of the cherry” and the notion that people are enjoying some advantageous aspect of the process. What we have not heard about is real cases where individuals have had the right to take cases to this stage and have them challenged, and where the Government have been held to account for their policy. The case that my hon. Friend has raised is a prime example, so does she agree taking away this mechanism will only further inhibit those who need that protection from the Government’s policies?

Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

Yes, and that is what we are talking about—ordinary people who ordinarily do not have the access to justice that people with perhaps a little more money do. The tribunal system, which we will come on to later, is primarily about more vulnerable people, I would say. We have been talking about the people who had the landmark ruling, whom it affected. Even if they had managed finally to access benefits after losing their job unfairly and waiting to access justice, we all know that benefits are not enough to live on. They do not even cover things like the mortgage. Being wrongfully dismissed has a massive impact on someone’s life. Thank goodness for the Supreme Court judgment and thank goodness it happened in 2017 and not 2022, because if it happened in 2022, it would not make a blind bit of difference to anyone’s life, regardless of the outcome. Despite the effort and cost of going to court, a victim is left without an effective remedy, and the Government or public body, although acting unlawfully, faces no real consequences. We must not underestimate the chilling effect that this will have. For that daytime TV audience not used to legalese, what that means is that it will put people off attempting to access justice in the first place, because who would put themselves through all this for no tangible outcome?

The clause creates a perfect storm, with claimants having no incentive to challenge the Government or other public bodies, while said public bodies and Government proceed safe in the knowledge that they can do what they like. It is the risk of being held to account, the potential for challenge, that drives good decision and policy making. That point was made by a number of Opposition colleagues, at least, earlier today.

The measure also undermines judicial discretion. I know that we have already argued about this today, but it is imposing a statutory presumption in favour of suspended quashing orders. The Minister, in trying to reassure us that the statutory presumption does not mean, “This is what judges must do,” while ruling out removing the provision that says, “This is what judges must do,” did nothing to reassure us.

As Liberty points out in its evidence, IRAL considered prospective-only remedies and chose not to recommend them. It also chose not to recommend a statutory presumption for suspended quashing orders. What was the point of the independent review if the Government were simply going to ignore its conclusions? Therefore, we will vote against clause 1 standing part of the Bill.

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

It is an interesting thought that the way we are going to measure the success of our debates is whether we can compete with “Loose Women” on the viewing figures front. I think that that is highly unlikely, no matter how wonderful our language and discourse, but if there is someone who has watched all the way through—good luck to them—I think that it would be hard for them to refute the idea that we have had a pretty thorough debate on the key issues of clause 1, which is very important.

I will answer one point from the hon. Member for Glasgow North East, and this is really where the disagreement, to which the hon. Member for Hammersmith was referring, exists about the extent to which we put our faith in judicial discretion. Yes, there is the point about the presumption, but as I said, that is about jurisprudence, from our point of view. To go back to what the hon. Member for Glasgow North East said about, I think, the case to do with tribunal fees, she was arguing in effect, “They would not have been refunded if these remedies had existed, because they would have applied prospectively,” but that would be only if the judge chose to use that remedy. That point is absolutely fundamental. There would be absolutely no requirement for them to do so.

Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

The Minister keeps saying that, and I keep saying this, so I will just keep saying it. The legislation says that judges must—they must—use those orders unless they can demonstrate otherwise. Why not just say that they “may” do this, and give them the opportunity to do it? Otherwise, they will have to dig deep and find lots of reasons that are acceptable to the Government for not using it.

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

I did address that point in some detail in my speech on the last batch of amendments but one, but I will repeat the point. We want there to be certainty that judges should be considering these remedies, but that does not mean they have to use them. Rather, they should state the reasons, whether they do or do not, so that we build up that log of jurisprudence, which, as I said, is very important in a common-law system.

There has been an in-depth debate on this clause, so I do not intend to go much further. I just want to make one more important point. As far as Government Members are concerned, these measures strengthen quashing orders by giving judges more flexibility and more tools in the judicial toolbox, and thereby strengthen judicial review. On the question of whether they should be used, of course that is a discretionary matter.

Perhaps the issue is this: we see the glass as half full. We do not feel that the new measures would be used detrimentally for our constituents. On the contrary, we think that they would be used in ways that support better public administration while still protecting the right of the claimant to obtain their justice, but ensuring that quashing orders do not have detrimental side effects when used. That is why I say that we are not forcing the judges’ hands.

16:00
Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

Will the Minister give way?

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

For one last wafer-thin intervention.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I have been very restrained with the Minister. He puts his case in a moderate and reasonable way: he believes that the clause will improve not just the armoury of the courts, but their performance. Why does he think that, in bringing judicial review claims, almost every claimant, organisation and practitioner does not think that, but thinks it will hamper them? Would it not be quite perverse if they were saying that without actually believing it from their own experience?

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

I am grateful to the hon. Gentleman. He obviously was not listening to the same experts as I was on Tuesday, when we heard some strong support for the remedies. There is recognition from the experts that the remedies give more flexibility. I have explained the sorts of circumstances in which they may be used, but if they are not appropriate, they will not be used. However, we would at least understand the reasoning. I do not want to put the horse before the Cart, which we are about to come to. [Laughter.] It is a very important matter on which I am sure colleagues want to speak.

Question put, That the clause stand part of the Bill.

Division 4

Ayes: 8


Conservative: 8

Noes: 5


Labour: 3
Scottish National Party: 2

Clause 1 ordered to stand part of the Bill.
Clause 2
Exclusion of review of Upper Tribunal’s permission-to-appeal decisions
Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I beg to move amendment 43, in clause 2, page 3, line 19, at end insert—

“(1A) Notwithstanding subsection (1), subsections (2) and (3) shall not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—

(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;

(b) that party was not of full age or capacity;

(c) the appeal before the First-tier Tribunal was not an in-country appeal;

(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;

(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or

(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”

This amendment is contingent on the interpretative provisions in Amendment 44. This amendment would provide a further list of exceptions to the ousting of the High Court’s jurisdiction that is proposed by Clause 2.

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss the following:

Amendment 42, in clause 2, page 3, leave out lines 34 to 37 and insert—

“(c) that decision or the decision against which the Upper Tribunal has refused permission (or leave) to appeal is vitiated by any—

(i) bad faith, or

(ii) fundamental breach of the principles of natural justice.”

This amendment would expand the current exception in Clause 2 to ensure it applies to any bad faith or fundamental breach of natural justice.

Amendment 44, in clause 2, page 4, line 8, at end insert—

“‘accelerated procedure’ means any procedure for which procedure rules permit or require that less time is provided than is the case for another party before the tribunal bringing an appeal under the same statutory right of appeal; and includes an accelerated detained appeal under section 106A(1) of the Nationality, Immigration and Asylum Act 2002;

an appeal is ‘not an in-country appeal’ if the appellant is only permitted to bring or continue the appeal from outside the United Kingdom;

a party is ‘not of full age or capacity’ if that party is—

(a) a child, or

(b) requires the assistance of a third party to understand the procedure or decision of, or issues before, the First-tier Tribunal and communicate effectively with that tribunal (whether or not that assistance is provided save to the extent to which the person requires an interpreter and one is provided)

an appeal is ‘not within legal scope’ if representation before the First-tier Tribunal does not fall within civil legal services under section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

‘interpreter’ means a person whose sole function in proceedings before the tribunal is to translate between the English language and another language spoken by the appellant;

‘legally represented’ means having legal services as defined by section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which services must be provided by a person who is not prohibited from providing them by any statute, court order or decision of any relevant professional standards body;

‘relevant professional standards body’ means a designated professional body as defined by section 86 of the Immigration and Asylum Act 1999 or such other body in England and Wales as may be designated by the Lord Chancellor, in Scotland as may be designated by the Scottish Ministers or in Northern Ireland as may be designated by the Department of Justice in Northern Ireland;

‘an international agreement’ includes the 1951 UN Convention relating to the Status of Refugees.”

This amendment is contingent on Amendment 43. This amendment would provide interpretative provisions for Amendment 43.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

We are making splendid progress. I will again disappoint those who like cliff-hangers by saying right at the beginning what our attitude is towards clause 2. We find it concerning, both of itself and on its own merits. We believe that reversing decisions in Cart, and subjecting Cart judicial reviews to ouster, is wrong on its own merits. We also think, as the Government have perhaps unwisely said, that the clause may serve as a template for further or wider use of the ouster, possibly including in more controversial areas further on. We have an issue of practicality and an issue of principle, and are therefore very likely to vote against the clause.

This short group of amendments is an attempt to improve, ameliorate and mitigate clause 2. Frankly, we found it very difficult. There is very little to recommend in clause 2, unlike in clause 1, where we at least sought to find some imaginative ways of improving it. It is difficult; nevertheless, I will in a little while speak specifically to the amendments that we have tabled. However, I will start as I did with clause 1 by setting the background so that it is clear where we are coming from on the amendments and on the clause as a whole.

An ouster clause is a clause in legislation that seeks to oust the jurisdiction of the courts. The desired effect is that the subject matter of the ouster clause cannot be challenged in the courts. If given effect by the court, this would mean that the decision or action of an official in relation to that subject matter is final and cannot be challenged legally.

Rule of law objections to ouster clauses have often been made in Parliament. For example, in relation to the Justice and Security (Northern Ireland) Act 2007, the Constitution Committee of the House of Lords objected to an ouster clause, stating that

“the Rule of Law is diminished if an aggrieved citizen is barred from challenging an allegedly unlawful decision taken by a public authority.”

It is reasonable to say that ouster clauses are at odds with the rule of law. The orthodox view is therefore that courts will give effect to them only if the statutory language introducing them is absolutely clear. The courts have said:

“It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.”

In reality, courts are adept at reading even very clear words which purport to establish an ouster clause as not actually having the effect of creating an ouster clause.

The Tribunals, Courts and Enforcement Act 2007 contained an ouster clause relating to decisions of the upper tribunal. The upper tribunal deals with appeals from the administrative appeals chamber, the immigration and asylum chamber, the lands chamber and the tax and chancery chamber. In the case of Cart, the Court of Appeal stated that

“the supervisory jurisdiction of the High Court, well known to Parliament as one of the great historic artefacts of the common law, runs to statutory tribunals both in their old and in their new incarnation unless ousted by the plainest possible statutory language.”

There is no such language in the 2007 Act. The Supreme Court confirmed this approach. This has led to what are known as Cart judicial reviews, whereby a decision of the upper tribunal can be judicially reviewed.

There has been an on-going debate about how effective Cart judicial reviews are in catching errors of law made by the upper tribunal. The Independent Review of Administrative Law panel found that there were errors of law in only 0.22% of cases. The Public Law Project has questioned the empirical evidence for that and suggested that Cart judicial reviews are much more effective, with an actual figure between 2.3% and 9.2%. It is difficult to know what the true figure is, but it is conceded that the 0.22% figure is a significant underestimate. I will say more about this later. However, I felt that that there was a degree of consensus around some of the evidence we heard on Tuesday that the figure was certainly about 3%, and possibly around 5%. I will come on to what I think the significance of figures of that kind may be.

Tom Hunt Portrait Tom Hunt (Ipswich) (Con)
- Hansard - - - Excerpts

Whether it is 0.2%, 3% or 5%, we are still talking about a figure at least 10 times lower than the average success for other types of judicial review, which is 40% or 50%. Surely that is a significant point to consider?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I thank the hon. Gentleman for his point. We did hear a number of different figures. I am now stretching my memory to recall exactly who said what. Was it Professor Feldman who said 30% to 50%, and Dr Morgan who posited 5%? I cannot quite remember. However, yes, there are different success rates for different types of judicial review. The point is that, even if the figure is small, Cart judicial reviews are important—I will come on to that more fully. However, if it is 5%, that is not a negligible figure. One in 20 is still a lot of cases. I am going to give some case examples to show the type of case that we are dealing with here. Perhaps the hon. Gentleman will be persuaded that there are sufficient by way of number and variety or that the compelling facts of the cases are such that he would want to retain Cart reviews. We will see.

The Government said they would introduce legislation to reverse the law on Cart judicial reviews. They said that they would seek to widen ouster clauses to other areas, although accepting that they would be rare. They also said they would legislate for modifying quashing orders so that they could be suspended or have limited effect. The proposals announced by the Government appear to be more radical than those envisaged by the independent panel—I think that is true.

The Lord Chancellor recently suggested that there may be more reforms to come on judicial review. His view was that judicial review meant that public money was being squandered, as courts are overturning Government decisions. However, as the commentator Joshua Rozenberg recently put it, commenting on a decision of the Transport Secretary on the Stonehenge case, which I have already referred to today, if the Transport Secretary

“had got it right the first time, taxpayers’ money would not have been squandered.”

Rather than a Minister complaining about a court rectifying unlawful decisions, it would be better to make lawful decisions in the first place.

The clause would take away proper, full judicial oversight in a specific area of public decision making, leaving vulnerable individuals affected by decisions more at risk of injustice. It does so in a way that the Government explicitly state is a test run for other ouster clauses—trying to get rid of judicial oversight in other policy areas. We have been left with a Bill that is bad for claimants bringing cases, disincentivises others who have been wronged bringing their own, fetters discretion while dragging courts into matters of policy, and jettisons a vital safeguard for very little gain. There is nothing in this part of the Bill to help improve the quality of decision making. It simply risks making it worse. The judicial review aspects make up only a small amount of the Bill, but there is very little that we think can be salvaged.

Clause 2 introduces the ouster in respect of decisions of the upper tribunal. That means that some decisions will now be final and cannot be appealed to another court, because the clause would abolish the Cart judicial review. The upper tribunal deals with a host of appeals from various tribunals. The context is the importance of scrutiny and accountability mechanisms to hold public authorities to account.

Cart judicial review is used in cases where no other right to appeal exists. This type of judicial review is a crucial safeguard against errors in the tribunal system in decisions of significant importance for the people concerned, which often involve the most fundamental rights.

Antony Higginbotham Portrait Antony Higginbotham (Burnley) (Con)
- Hansard - - - Excerpts

The hon. Member is making some interesting points about why we need to keep the system as it is, which allows for three bites of the cherry. Will he set out whether he thinks that process should extend to lots of other areas, and has he considered how much that would cost and how much judicial time would be taken up?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I am not sure I have bought into that. I know it has become a mantra in the Bill, but I am not sure I have bought into the cherry analogy. I would rather say it is horses for courses.

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

Back to the Cart. [Laughter.]

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

Bolting the stable door—whatever. If the hon. Member for Burnley gives me a few more moments, he will see that my argument is that the way the Supreme Court has configured this is sensible, because it works. There is a problem with Cart and Cart cases. Far from being otiose or an extravagance, the ability to review these cases is very necessary.

Antony Higginbotham Portrait Antony Higginbotham
- Hansard - - - Excerpts

I do not think anyone is saying that it does not work. What we are saying is that it is a different process, and we are talking about whether it is efficient and fair for this one cohort of cases to be treated in a very different way. It is not about whether it works or does not work; it is about whether it is the right process and whether we should operate on a consistent basis.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I have said, and I am coming back to the issue, that it is right and just to maintain Cart judicial reviews, but I will come on to the issue of cost shortly and whether that is appropriate. I hope that will answer the hon. Gentleman’s question.

16:00
Alex Cunningham Portrait Alex Cunningham
- Hansard - - - Excerpts

I am glad my hon. Friend is going to get on to costs. In the evidence session earlier this week, the Minister spoke about having the privilege of attending the Lord Chancellor’s swearing in. He said:

“One of the things he swears is that he will ensure that resources are provided to the judiciary. This is not just about public money per se; it is about time”.––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 30, Q32.]

Should cash get in the way of justice, as it is here?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

Everything has a cost—it is a question of whether it is a reasonable cost. Unfortunately, we have seen the justice system of this country and every aspect of the budget of the Ministry of Justice cut more than any other Department in the last few years. Even the much heralded uplifts over the next few years will take us not much further than restoring half of the money that has been cut. I think it sits rather ill in the Government’s mouth to start talking about money, having done so much damage.

There is not an infinite amount of money, although the Government seem to discover various money trees around the place, and it is a legitimate factor to consider. What I am going on to look at is whether, in the case of Cart, the cost is a justifiable cost, either because of the remedy it provides or per se.

As I have said, Cart judicial reviews are used in cases where no other right to appeal exists. This type of judicial review is a crucial safeguard against errors in the tribunal system in decisions of significant importance for the people concerned, which often involve the most fundamental rights. It is usually used in asylum and human rights cases, in which the stakes are extremely high. In many cases, these are life-or-death decisions. It is unacceptable to insulate such decisions from judicial scrutiny.

In most cases, it is true that these are asylum and human rights cases, but not all of them are. One of our witnesses—Dr Morgan, perhaps—mentioned that Cart itself was not an asylum and immigration case. It would be wrong to categorise Cart judicial reviews as being for asylum and human rights cases. There are others as well.

Clause 2 would severely restrict Cart judicial review. The Government have not made the case for removing this vital safeguard against serious errors in the tribunal system in cases of the utmost importance. With this clause, the Bill would set a precedent for removing certain cases or areas from the scope of judicial review.

The desire to get rid of judicial oversight in any area should be of the utmost concern to those who care about the rule of law and the separation of powers. There is simply no evidence that judicial review is currently so prejudicial to good administration that it needs to be significantly restricted, and there was no conclusion to that effect in the Government-sponsored independent review. That is wholly unsurprising. That Governments find judicial review at times to be inconvenient is no justification for attempting to avoid judicial scrutiny, in this or other areas. It is particularly concerning in this specific instance.

The Bill will largely extinguish the power of the High Court to oversee decisions of the upper tribunal relating to permission to appeal first-tier tribunal decisions. This will affect all four chambers of the upper tribunal, and individuals will no longer be able to apply to the High Court. The removal of this safeguard is likely to impact some of the most vulnerable people in the system, taking away their protection from errors made by public authorities. These include refusals of asylum and, where human rights are engaged, decisions to deport someone, including where that person may have lived in this country for much, most or even all of their life.

It is important to understand that removing the normal supervision of the High Court in this area is particularly problematic given the existing constraints in the asylum and immigration system for the tribunal, and in the context of the Nationality and Borders Bill, which threatens to exacerbate those constraints. The danger is that those passing through this system will be at heightened risk of failing to receive a fair and full hearing of any appeal whatsoever. If so, the administrative decision to refuse asylum to, or deport, a person will go without any effective or independent oversight. That will be exponentially harmful, because it will tend to insulate the original administrative decision making from the degree of scrutiny that is necessary to have any prospect of improving and maintaining its quality.

The purpose of judicial review is to ensure that public bodies make lawful decisions. The provisions in this Bill would do nothing to improve that, such as by ensuring access to high-quality legal representation from an early stage in proceedings, or by improving guidance. Instead of reducing need, the Bill simply removes access to Cart judicial review, which allows individuals to challenge decisions to refuse them a right of appeal where those decisions are made unlawfully. Doing so narrows access to justice and means that people who are subject to unlawful decisions have less opportunity for redress. Cart judicial review is a vital remedy of last resort for people subject to unlawful decision making, and should be defended.

Turning to the statistics and costings, unlike prospective-only remedies or a presumption in favour of suspended quashing orders, it is right to say that reversing Cart was a recommendation of the independent review of administrative law. The counter-argument in favour of clause 2 is primarily said to be the cost of Cart cases and the use of valuable judicial resources. The costs of Cart JRs are described as a “disproportionate and unjustified burden” on the system. The Bill’s impact assessment estimates that between 173 and 180 High Court and upper tribunal sitting days will be freed up each year through clause 2, representing savings of between £364,000 and £402,000 a year. That figure is not high—it is less than some Members can pick up in their alternative jobs over a period of a few years—especially when considering the important role of Cart JRs in preventing serious injustice and ensuring that key decisions of the upper tribunal are not insulated from challenge.

A High Court judge can consider at least five applications for Cart judicial review in a single sitting day, an assumption that may be overstating the time taken to consider a single case. That figure of £364,000 to £402,000 is also inflated, because it considers the costs of the upper tribunal rehearing the case. That will occur because an unlawful upper tribunal permission decision has been identified by the High Court, so including those costs in the impact assessment is to include savings that result from allowing unlawful decisions to stand. That position cannot be acceptable.

Further, the average number of hours per Cart judicial review in the High Court that the impact assessment provides is 1.3 hours—again, that means up to five Cart JRs per day, which could easily be overestimating the time it takes a High Court judge to consider a single Cart judicial review case. That is especially true because there is a specific streamlined procedure for Cart JRs, which includes that if permission for the Cart JR is granted, unless a substantive hearing on that judicial review is requested, the court will automatically quash the upper tribunal’s refusal of permission. Moreover, that figure is inflated because it includes the cost of the upper tribunal rehearing the appeal in a successful case. That would constitute a cost saving resulting from allowing unlawful decisions to stand: those costs would only be saved because the upper tribunal’s unlawful refusal of permission to appeal was immunised from challenge.

There is already a high threshold for the use of Cart judicial reviews. In order for permission to be granted, the case must be shown to be arguable with a reasonable prospect of success. Lawyers must also show that there is an important point of principle under consideration, or another compelling reason for the appeal to be heard. Applications for Cart judicial review of a decision must be submitted within 16 days of the initial decision having been sent, instead of the usual three months available in other types of judicial review. Unlike other judicial reviews, there is no right to an oral hearing: Cart judicial reviews are dealt with by paper application only, thus requiring minimal judicial resources.

As we have already touched on, IRAL’s recommendation to reverse Cart judicial review was based on the 0.22% figure, but I think it is now generally accepted that that figure was seriously flawed. The criticism of that figure attracted the support of the Office for Statistics Regulation, and the Government have now accepted it: their own analysis suggests that at least 3.4% of cases are successful, a figure 15 times higher than IRAL originally estimated. However, that figure is also not universally accepted, with the Public Law Project estimating that success rates for Cart JR are considerably higher. I know that there are a number of figures flying around, but I think quite a persuasive case was made for the figure of around 5%. I think the variation stems from IRAL’s misunderstanding of how to calculate success in Cart JRs, as well as procedural complexities that mean that they are rarely accurately reported.

Further, the Government’s definition of success does not reflect the purpose of Cart JRs and is unduly narrow. The analysis in the consultation response and impact assessment adopts an unduly narrow definition of success, which artificially deflates the success rate and artificially increases the projected cost savings. The Government define success as not only success in a judicial review, but also a finding in favour of the claimant at a subsequent substantive appeal in the upper tribunal. That is because the Ministry of Justice assumes that a Cart JR is successful if not only the upper tribunal’s refusal of permission to appeal is overturned, but permission to appeal is granted and the appeal against the first-tier tribunal’s decision is allowed.

That excludes all the cases in which Cart judicial review played a vital role in correcting an error of law in the upper tribunal’s refusal of permission to appeal, but the subsequent appeal was dismissed. That is not the normal approach to defining success in judicial review. It ignores the benefit that flows from a case that meets the Cart criteria being heard in the upper tribunal, allowing that more senior tribunal to consider important points of principle or practice and opening up the possibility of appeal to the Court of Appeal, thus preventing the upper tribunal from being insulated from the general courts system.

A Cart judicial review should be regarded as successful if it results in the refusal of permission to appeal being overturned. If we adopt that definition, the success rate is more like 5.5% or 6%, which is some 25 times higher than the IRAL panel thought and means that more than one in 20 cases are successful. That might be regarded as a reasonable and appropriate success rate for challenges to decisions by a senior tribunal, but that view is surely fortified by the nature of the issues at stake.

In any full assessment of the proportionate use of judicial resource, account needs to be taken of the weight of the interests. In the administrative appeals chamber, many appeals concern access to benefits that are designed to prevent destitution and homelessness, or to meet the additional living costs of disabled people. In the immigration and asylum chamber, almost all cases involve asylum and human rights appeals. The potential injustices at stake concern the most fundamental rights and may literally be a matter of life and death. The cases that succeed in a Cart judicial review will also, by definition, involve important points of law or practice, which would otherwise not be considered, or compelling reasons such as the complete breakdown of fair procedure.

Cart JRs have several purposes, including the identification of errors of law in upper tribunal permission decisions where important issues of principle or practice are raised. That will be achieved if the upper tribunal’s refusal of permission to appeal is quashed. The impact assessment states that of a total of 92 cases, out of 1,249 applications, 48 were remitted to the upper tribunal for permission to appeal decisions. That is in the context of immigration Cart JRs for 2018-19, minus cases pending an appeal decision in the upper tribunal. Therefore, based on those figures and a more accurate definition of success, which still does not account for settlement, the success rate is 7.37%—more than double the 3.4% that the Government now rely on, and more than 30 times the original figure cited by IRAL. In addition, there is required to be an arguable case that has a reasonable prospect of success.

In short, the streamlined procedure for Cart judicial reviews, together with the high test for permission in Cart cases, provides a proportionate means of achieving the aim, which the Government commend, of ensuring some overall judicial supervision of the decisions of the upper tribunal in order to guard against the risk that errors of law of real significance slip through the system. An entirely appropriate and proportionate amount of judicial resource is used in identifying and correcting errors of law that would have potentially catastrophic consequences for the individuals concerned.

As I have said, it is not just the number of cases but their nature that is concerning. Many relate to immigration and asylum. Many of the remainder concern access to benefits for the disabled and others facing destitution. The result of these appeals may decide whether someone has the means to live and to be housed, or whether they may be deported, separated from their family and face potential mistreatment, and the Government are not unaware of that.

16:30
The Bill’s impact assessment states that the majority of Cart cases relate to immigration and asylum, and therefore
“those who lose out are more likely to have particular protected characteristics, for example in respect of race and/or religion or belief.”
That is seen as acceptable, as it will
“will reduce the number of High Court Judge and Upper Tribunal Judge sitting days required, so saving judicial time and allowing Judges to focus on other matters.”
I just do not follow the logic of that. How, on the one hand, can they can say that, effectively, this will prejudice groups with protected characteristics and affect people in extremis, but, on the other, go on in the next, non-sequitur, paragraph and say, “Nevertheless, we believe…”. Given the amount of money involved, which is not a huge amount of money, and given the success rate, I think that that is a rather glib response from the Government in that document.
In its response to the Government consultation, the Immigration Law Practitioners Association provided an illustration of what the Government intend to jettison to free up time for “other matters”. It listed 57 case studies of successful Cart JRs omitted from IRAL’s report, including that of a Ugandan lesbian whose initial appeal had been sabotaged by a false letter to the court from a homophobic acquaintance, and a victim of trafficking who had originally been deemed to have voluntarily come to work despite having been trafficked into the country as a child. The cases, ILPA wrote, demonstrate how removing Cart would have
“extremely serious consequences for the people affected”.
It went on to say:
“These are all cases where a person’s fundamental rights were engaged, many of them asylum claims, and where the Upper Tribunal made the wrong decision in refusing to grant permission to appeal. These examples demonstrate a significant risk if changes are made to Cart JRs which mean that challenges to unlawful decisions are not permitted to proceed beyond Upper Tribunal stage.”
The experience of the Joint Council for the Welfare of Immigrants shows that
“the availability of Judicial Review in and of itself helps to ensure effective decision making. Knowing that decisions are subject to independent judicial scrutiny is integral to ensuring good quality decision-making.”
Anyone allowing any actor free rein to exercise a power without the possibility of scrutiny is alien to the democratic principles under which we are governed. More important than the precise success rates of Cart JRs are the nature of those successful cases. As mentioned above, cases in which a wrongful decision by the upper tribunal is overturned by way of Cart JRs are ones with grave consequences.
Alex Cunningham Portrait Alex Cunningham
- Hansard - - - Excerpts

As we are looking at this whole issue of scrutiny, which is so important, I cannot quite understand why the Government or anybody else would not want greater scrutiny of what they do on a day-to-day basis. Does my hon. Friend understand my feelings on that?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I do understand, and I think that quite a lot of our witnesses understood that as well and could balance the relatively small numbers and the particular provision for Cart, which the Supreme Court upheld, against the very serious nature of these cases. I will go on to outline some cases. I will not do all 57, but I will give a handful of cases that will perhaps indicate the variety and the seriousness of the cases that we are dealing with here. It is very easy to deal with the law in the abstract, but we need to look at the type of individual who is affected and at the profound effect that it has on their life.

In addition to the equality implications, the fact that Cart JRs primarily relate to immigration and asylum decisions means that the human rights consequences may be particularly severe, impacting the right to life and the absolute right to freedom from torture, inhuman and degrading treatment, which are protected by articles 2 and 3 of the European convention on human rights, as well as the right against return to persecution, which is protected by the refugee convention. An unchallenged, erroneous tribunal decision could also lead to long-term family separation, engaging article 8 of the ECHR, on the right to respect for a private and family life. Cart JRs prevent serious injustices. The Government recognised in the consultation that the removal of Cart JRs “may cause some injustice”. Almost all the cases in the immigration and asylum chamber of the first-tier tribunal relate to asylum and human rights appeals, which engage the most fundamental rights, including, in some cases, the difference between life and death.

I mentioned the 57 cases that were cited by ILPA, and there were also 10 cases identified by IRAL. Each involved a person’s fundamental rights and the upper tribunal incorrectly applying the law. Those examples included: parents’ applications for their child to be reunited with them; a child’s application to remain in the UK to receive life-saving treatment; the asylum claim of a victim of human trafficking and female genital mutilation; and many other deportation and asylum decisions where, if deported, the individuals faced persecution, their lives were at risk and/or they would be separated from their families. So let me briefly go through a handful of the cases that were cited.

In one case, the right to a Cart appeal saved a humanist asylum seeker who would have been wrongfully deported to Egypt to face state-sponsored persecution and vigilante violence. He relied on Cart to demonstrate that the tribunal judge erred in his case. It is also worth noting that the Home Office conceded his claim before it went to a full hearing at the Court of Appeal, which meant that his case will not show up on official statistics regarding Cart. Then we have the case of Nadeem, a young Afghan man who came to the UK as an unaccompanied minor and was in the care of social services. He was tortured by the Taliban as a child. His case was dismissed because, even though it was accepted that he was at risk in his home area, no medical evidence had been obtained to show that he was traumatised as a result of that torture. The trauma he had experienced and its impact on him made it unreasonable for him to relocate to Kabul. His brother, who had come here in the same circumstances, had that medical report, and his appeal was allowed. The day after Nadeem’s appeal decision was sent out, the country guidance showing that it was possible to safely relocate to Kabul was ruled unlawful by the Court of Appeal. Nadeem was urgently referred to the Joint Council for the Welfare of Immigrants, which used Cart JR to enable him to bring his appeal. This appeal was subsequently allowed on the basis that the original decision was irrational. He was then recognised as a refugee and is starting to build his life in the UK with his brother, safe from the Taliban.

Then we have the case of Tania, who was a child victim of trafficking. Her asylum appeal was dismissed by the first-tier tribunal, which found that she was not trafficked and would not be at risk on return. She was 15 years old when she was transported to the United Kingdom to work with the family in question. Permission to appeal to the upper tribunal was sought, because, as a question of law, she could not “voluntarily” undertake such work as a minor. As a victim of trafficking, and given her profile, the objective evidence demonstrated that she would be at risk of persecution on return. Permission to appeal was refused by both the first-tier tribunal and the upper tribunal, but a Cart JR of this decision was successful, with the judge finding that the tribunals had failed to address the fact that Tania was a child victim of trafficking in their reasoning. The decision of the upper tribunal to refuse permission to appeal was quashed and permission to appeal to the upper tribunal was granted. Tania was subsequently recognised as a refugee and is no longer at risk of trafficking and forced labour, thanks to the successful intervention by way of Cart JR.

John Hayes Portrait Sir John Hayes
- Hansard - - - Excerpts

The hon. Gentleman must know that only about 3% of these kinds of judicial review succeed, and that the huge number of them, 750 or so a year, are taking up enormous amounts of time. It would be good to have a debate in the House, perhaps even urgently, on the backlog of court cases, as then we can hear him say that he supports our attempt to clear that backlog. Why not have a debate about it on Monday? We can talk about why the Bill is so helpful in dealing with that problem.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I am going to disappoint the right hon. Gentleman by not taking responsibility for this Government’s court backlog, which is continuing, in the Crown court at least, to grow and to which we have precious little solution at the moment. Nor am I going to put the burden of that on to this type of case. The reason why I am going through a few of these case summaries is to show, on their facts, that these are compelling cases.

The right hon. Gentleman could possibly have said 0.22%, which was the figure that the Government sought to rely on. That was a very low figure. I think he said 3.4%, but I think it is higher than that. I think this is a significant number of cases. I also think they are very compelling cases. He may not want to hear the facts of these cases, but to rebut that with the current Crown court backlog—I will put it politely, I think there is an element of non sequitur there. I do not want to get into a big debate about the MOJ’s finances, but I did mention that any extra money that has been put into the MOJ, or will be over the next three years, is a recognition of the ridiculous levels of cuts that have been made since 2010 and does not begin to address them

John Hayes Portrait Sir John Hayes
- Hansard - - - Excerpts

But by definition, given the success rate, these changes will take out considerably more than 700 cases. That may create room for others, I do not deny that, but it is pretty hard for someone to argue that they want to free up more resources for the courts and then to argue against provisions that do just that.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

With respect, it is not. We are talking about a sum of between £300,000 and £400,000. I do not think that will make a material difference to the Crown court backlog. That is partly—mainly—a result of underfunding, but also of mismanagement by this and previous Governments since 2010. Those listening to the debate can make up their own mind about whether that was a sensible rebuttal of the type of cases that, as a result of getting rid of Cart judicial review, will no longer have a remedy—will no longer be able to come before the courts. It is not unique; it does happen and it can be justified, but it is a very serious step to engage an ouster clause. It is for the Government to make that case, and I am sure that, when I finish today, or when we resume next Tuesday, the Minister will try to make the case. To put the onus on the Opposition is, shall we say, chutzpah.

Let me, in the time I have left, go through perhaps just half a dozen cases. I do not want to take up Members’ time, but I do want to put these cases on the record, because I think that this type of case is exactly what we are dealing with and when one hears about the victims and the potential litigants in Cart reviews, that makes a difference to how we regard them.

Jared is a Tamil who had supported the Liberation Tigers of Tamil Eelam as a teenager and was tortured by the Sri Lankan state as a result. His body was covered in more than 100 scars typical of torture methods used by the regime. Despite that, and a country expert report, his appeal was dismissed. Despite his trauma and the risk that he faced on return, he was detained pending removal. He lodged a Cart judicial review challenging how the tribunal had treated the expert evidence supplied in his case. The case was successful before the Court of Appeal, and he was then recognised as a refugee. It was accepted by the Court that he would have been at real risk of further torture and persecution if returned.

SR, a Sri Lankan national, feared persecution, in part because of his involvement in diaspora activities in the UK. His appeal was dismissed by the first-tier tribunal, and he was refused permission to appeal. Following his application for a Cart judicial review, the refusal of permission to appeal was quashed on the grounds that the first-tier tribunal had failed to consider the evidence of the applicant’s diaspora activities in the UK and whether, in light of the evidence and the arguable change in conditions in Sri Lanka since 2013 when the upper tribunal had given country guidance, he would be at risk on return. The upper tribunal found that the first-tier tribunal had made an error of law and decided to hear the case to give new guidance on risk on return for those involved in diaspora activities. Before the hearing in the upper tribunal, the Home Office conceded the appeal, accepting that SR was a refugee. Without the possibility of a Cart judicial review, SR could have been sent to Sri Lanka, where he had a well-founded fear of persecution.

16:49
Michael had a serious and enduring mental health condition. He had been sectioned several times under the Mental Health Act 1983 and diagnosed with bipolar affective disorder. The first-tier tribunal rejected his appeal against a decision to return him to Nigeria, despite finding that Michael is vulnerable, requires ongoing support and would be at significant risk of relapse if returned. He would not be able to fund healthcare on return to Nigeria, and even if he could, would not be able to access it. He did not have any material support in Nigeria. Nevertheless, it was found that there were no very significant obstacles to his reintegration on return. Permission to apply for judicial review was subsequently granted on the basis that the first-tier tribunal failed to take into account Michael’s mental illness. The refusal was quashed, and Michael was granted permission to appeal to the upper tribunal, which found that the first- tier tribunal judge had made a material error of law.
A claimant was in a relationship with a British citizen and had two children by them, who were also British citizens. The claimant’s partner suffered from serious health conditions. The claimant’s argument that removal would breach their right to respect for their family life was dismissed by the first-tier tribunal and permission to appeal was refused. Following a Cart judicial review, the decision of the first-tier tribunal was overturned. The upper tribunal allowed the appeal under article 8. Without a Cart judicial review, the family would have been separated.
CL had been trafficked for the purposes of domestic servitude in a diplomatic household. Her appeal was dismissed by the first-tier tribunal and she was refused permission to appeal. CL brought a Cart judicial review in which she argued that her case raised not only compelling reasons of risk on return but important points of legal principle and practice. After permission was granted for a Cart judicial review, the refusal of permission was quashed and the case eventually remitted to the first-tier tribunal. The Home Office conceded the appeal and granted CL refugee status before the rehearing in the first-tier tribunal.
Lord Dyson explained in the case of Cart:
“The High Court’s supervisory jurisdiction to correct any error of law in unappealable decisions of the predecessors of the UT has been beneficial for the rule of law. There is a real risk that the exclusion of judicial review will lead to the fossilisation of bad law...There are also risks in restricting the judicial review jurisdiction in relation to errors of law in unappealable decisions of tribunals in cases involving fundamental rights and EU law. In such cases, if the UT makes an error of law in refusing permission to appeal, the consequences for the individual concerned may be extremely grave…In asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture.”
I will refer to two more cases. One is the case of a trafficking victim who was trafficked to the UK from her home country of Nigeria. Traffickers in both countries had brutally mistreated her and subjected her to serious physical and sexual abuse. While in the UK she gave birth to a child, who she looked after alone. There was no question that she was a genuine trafficking victim. The Government did not dispute this. A tribunal was convened to decide what support and protection she ought to receive; but when it came to the hearing, the tribunal went beyond the statements of the parties and decided that she was not, in fact, a victim of any trafficking or exploitation. As such, she did not attract protection and could be removed from the UK. This would have resulted in her falling back into her trafficker’s hands and undoubtedly led to her being seriously mistreated and perhaps killed. The fate that would have befallen her child is difficult to even contemplate.
The Cart procedure was used to re-evaluate this decision before the High Court. The Court found that the tribunal had made a litany of errors leading to
“elementary and serious breaches of the principles of procedural fairness”
and, as such, its decision could not stand. The errors included going beyond the Government’s case and making unsupported findings against her without giving her a chance to defence herself, and departing from country guidance without good reason. On the evidence, she was clearly a victim of trafficking, and the High Court ruled that she should be treated as such. In fact, it ruled not only that the case was arguable and should have proceeded, but that it was bound to succeed, based on the strength of her claim. Without the oversight of the High Court, the tribunal’s original, fundamentally flawed ruling would not only have established a position that was wrong in law, but seriously risked putting the person in question in grave danger. The Cart jurisdiction was vital for correcting the error.
Finally, there is the case of a claimant who had suffered a tragic life in his home country. He is 12 years old and his family was tracked down, shot and killed in front of him. He drifted between states before moving to the UK. After some time, the UK sought to remove him to Palestine. This would not only have put him in great danger of being targeted and killed; medical experts confirmed that he was suffering from a serious mental health problem and that removal would likely cause serious harm to him or others. Although the tribunal dismissed the claim, the High Court was able to intervene. The High Court, and then the Court of Appeal, assessed his Cart application and found that the tribunal had been applying an outdated understanding of the law. Thanks to Cart, the senior courts were able to ensure that the correct law was applied. The relevant evidence was considered properly, and the serious medical concerns about physical and mental health were taken seriously. Were it not for the Cart jurisdiction, a seriously vulnerable man may have been sent to a country where he faced a significant risk of being killed and may have posed a serious risk to himself and others.
As those case studies and numerous others illustrate, people who benefit from the last-resort safety net of Cart judicial review are some of the most vulnerable in our society: children, survivors of torture and trafficking, and mentally unwell and traumatised people who have been subject to irrational and poorly reasoned decision making. Cart judicial reviews are used because no other legal remedy is available. As well as the risks posed to those bringing immigration cases for review, users of the tribunal service bringing cases on grounds of mental health, social security or special educational needs may also be affected by provisions that remove access to Cart judicial reviews. Cart JR cases that succeed involve either an important point of principle or practice that would not otherwise be considered, or some other compelling reason. Some 5,870 judicial review applications since 2012 are labelled “Cart immigration” in the Ministry of Justice data on civil justice and judicial review for 2020, and 423 judicial review applications are labelled “Cart other”. The Government accept that there may be a disproportionate impact on those sharing certain protected characteristics, such as disability, but they have not collected the data necessary to analyse these equality impacts.
The need for judicial review could be reduced by introducing measures that would increase the quality of decision making by public bodies through better resourcing of the courts and legal aid sector. The clause represents a misdirected attack on access to justice, instead of taking steps to improve outcomes before they reach the point of needing to rely on judicial review. It will not solve any of the problems in our justice system and may instead deny vulnerable members of our society the legal protection that they need. There is also a wider point about public interest at stake, because judicial reviews prevent the upper tribunal from becoming insulated from review by ensuring that there is a means by which errors of law, which could have significant and ongoing impacts across the tribunal system, can be identified and corrected. As Lord Phillips said, Cart judicial reviews
“guard against the risk that errors of law of real significance slip through the system.”
Upper tribunal judges will be specialists in their field. As Lady Hale recognised, however, “no one is infallible.” Cart judicial reviews mitigate the risk of erroneous or outmoded constructions being perpetuated within the tribunal system, with the upper tribunal continuing to follow an erroneous precedent that it or a higher court has set. As Lord Dyson said:
“In asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture.”
Clause 2 intends to remove a vital safeguard against life-altering decisions being forced on people due to mistakes based on faulty statistical reasoning. The reversal of Cart will lead to people who would otherwise have won their cases being deported or made homeless, entirely because of the Bill.
James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

Will the hon. Gentleman give way?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I will in a moment. Under clause 2, that crucial and focused review will be lost, and with it the potential for fundamental injustices to be prevented. I am coming on to talk briefly about amendments 43, 42 and 44, but I will give way.

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

The hon. Gentleman used the phrase “faulty statistical reasoning”. In 2004, when the current shadow Justice Secretary, the right hon. Member for Tottenham (Mr Lammy), was a Minister, he tried to bring forward a similar measure. Can the hon. Member for Hammersmith remind us of the percentage reasoning used to justify that measure at the time?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

Along with “bites of the cherry”, I cannot comment on the shadow Justice Secretary’s activities before I was elected to the House. It might be approaching lèse-majesté for me to intrude on that, particularly given that he dealt with it effectively on Second Reading.

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

I am happy to help the hon. Gentleman.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I would never refuse an intervention.

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

In a Bill Committee, the statistic that the right hon. Member for Tottenham, as Constitutional Affairs Minister, used to justify getting rid of Cart JR was 3.6%—an incredibly similar statistic, which suggests that there is some merit in that figure.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

We have heard every figure from 0.22% up to 9.6%, and some of the experts made the case for it being substantially above 3%. I am making a separate case, however, which is why I wanted to read into the record some of those case summaries of complex cases. They indicate: first, that they are compelling cases; secondly, that there are a significant number, even if they are a minority; and thirdly, that the figures that we are talking about—I wish we could get more accurate figures; perhaps the Minister could go away and help us with that—are likely to be substantially above 3.6%. I know that the Government have moved only that far at the moment, but perhaps they can be persuaded to move a little further.

I fear that I will not finish today, but hon. Members will be pleased to hear that I am near finishing. I will say a few words on what are essentially probing amendments 43, 42 and 44. As I said at the beginning, they are our way of making the best fist of improving clause 2—they are not our finest hour.

We would like to understand why it is proposed to exclude the supervisory jurisdiction of the High Court to consider upper tribunal decisions to refuse permission to appeal, where it is arguable that the statutory appellate process is tainted by bad faith or fundamental breach of natural justice, unless that question is one of bad faith or breach of natural justice by an act of the upper tribunal itself. Clause 2 permits very limited exceptions to the ouster of the High Court’s supervisory jurisdiction over the statutory tribunal appeals system.

Proposed new section 11A(4) of the Tribunals, Courts and Enforcement Act 2007 sets out the limited exceptions. Proposed new section 11A(4)(c) provides for an exception where a question arises as to whether

“the Upper Tribunal is acting or has acted…in bad faith, or…in fundamental breach of the principles of natural justice.”

That restricts the jurisdiction of the High Court when the bad faith or a breach of natural justice is on the part of the upper tribunal in refusing permission to appeal. If, however, the statutory tribunal appellate process has been otherwise tainted by bad faith or a fundamental breach of natural justice, whether before the upper tribunal or in the first-tier tribunal, the High Court’s jurisdiction would continue to be excluded. That might, for example, be on the part of the tribunal below or on the part of a party to the appeal.

Any appeal that is tainted by bad faith or a fundamental breach of natural justice would therefore not fulfil Parliament’s purpose in establishing a statutory appellate tribunal. Therefore, in the interests of both justice and parliamentary sovereignty, any appeal tainted by either of those factors should not be excluded from the supervisory jurisdiction of the High Court. The amendment could expand the current exception in clause 2 to ensure that it applies to any bad faith or fundamental breach of natural justice.

I pause to catch my breath before I go on to amendments 43 and 44, just in case the Chair was about to interrupt me. If not, I will begin. It is unclear what is proposed by clause 2 having regard to the existing and pending limitations of the tribunal system in securing access to justice for appellants before it, particularly in relation to the function of that system as guarantor of the safety and fairness of administrative decisions. The Bill could be amended to provide a further list of exceptions to the ousting of the High Court’s jurisdiction proposed by clause 2. I propose an amendment that gives examples of circumstances in which there must be special concern about the capacity of the first-tier tribunal to deliver an effective appeal for the appellant for reasons beyond the control of the tribunal.

17:00
Several of the circumstances listed in the amendment, which proposes new paragraph (1A), place a specific constraint on that tribunal to reduce its capacity to deliver justice. Some go directly to the tribunal’s independence, while others go to the safety of the process imposed on the tribunal for the performance of its function. There are two fundamental aspects to concern relating to clause 2, both of which need full consideration. The first relates to the constitutional role of the High Court in guaranteeing justice by a tribunal system. This arises directly from the clause, since the purpose is to oust the jurisdiction of the High Court to perform such a role. The second relates to the constitutional role of the High Court as the guarantor of the lawfulness of acts by public bodies. That is because the tribunal system has been introduced by Parliament to increase access to justice and relieve the High Court of the weight of this role by providing an alternative and more accessible remedy to judicial review in relation to a range of administrative decisions.
Such decisions concern specified matters, including entitlement to social welfare support, taxation, entitlement to asylum, and deprivation of British citizenship. Those are matters of huge importance to the individuals concerned. They are also matters whereby error and unfairness could have devastating consequences both for the individual and for wider public confidence in justice and Government.
The dangers of clause 2 are emphasised by what has happened and what is intended to happen to the immigration and asylum chamber of the tribunal system since the Supreme Court’s Cart decision in 2011. For example, following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, legal aid is no longer generally available for non-asylum appeals, or for the few non-asylum immigration applications in which an appeal remains. Where legal aid is available, as it is for asylum claims and appeals, the rates at which it is paid have remained unchanged for years, stretching back even before the Cart decision. The impact is that appellants in complex non-asylum claims and appeals may be without any legal assistance, and the quality of any assistance provided to those claimants and appellants who remain legally assisted is at significantly greater risk due to increased pressures of time and cost arising in what is left of the legal aid scheme.
Since the Cart decision, the Immigration Acts 2014 and 2016 introduced powers to prevent such appeals—those that could still be brought after those Acts—from being pursued while the appellant remained in the UK. That means that some appellants are unable to appear in person for their appeals or to instruct legal representatives, which significantly reduces their capacity to participate effectively in the appeal.
The Nationality and Borders Bill currently before Parliament includes provisions to direct or require judges of the tribunal system as to the findings that they may or may not make on the evidence presented to them. That Bill also seeks to constrain the judges in their interpretation and application of the definition of a refugee in the 1951 United Nations convention relating to the status of refugees. These measures interfere with and undermine the role of the tribunal and judiciary to act independently on the basis of the material before them and in accordance with the law that is applicable to the jurisdiction that they exercise.
All those matters show that the safety of the tribunal system is, in several respects, dependent on the willingness of the Government to respect the independence of that system, including to review their own decisions, whether of Ministers or officials. That willingness has been lacking in the immigration and asylum field over several years, and there is no guarantee that other areas concerning Government decision making will be immune to that. Amending this Bill will provide an opportunity to show how exclusion of the High Court’s supervisory jurisdiction risks serious failure in relation to each of the fundamental aspects identified: that justice is secured in the tribunal system and, directly related to that, that justice is secured in relation to Government decisions.
That is all I have to say in relation to those amendments. With those amendments, we seek to widen the exemptions or flexibility in Cart. I would be interested to hear what the Minister has to say, whether he has any rebuttal to that or whether he is susceptible to it. However, my feeling, anticipating that, is that we will not press the amendment to a vote today. I have said almost everything I want to say on clause 2, but I wish to briefly—I do mean briefly—explain as part of the clause stand part debate why we will be voting against clause 2.
Ordered, That the debate be now adjourned.—(Scott Mann.)
17:06
Adjourned till Tuesday 9 November at twenty-five minutes past Nine oclock.
Written evidence reported to the House
JRCB05 Assistant Professor Samuel Beswick, Assistant Professor of Law at the University of British Columbia in Vancouver, Canada
JRCB06 Amnesty International UK
JRCB07 Amnesty International UK (supplementary)

Nationality and Borders Bill (Sixteenth sitting)

The Committee consisted of the following Members:
Chairs: Sir Roger Gale, †Siobhain McDonagh
† Anderson, Stuart (Wolverhampton South West) (Con)
† Baker, Duncan (North Norfolk) (Con)
† Blomfield, Paul (Sheffield Central) (Lab)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
† Coyle, Neil (Bermondsey and Old Southwark) (Lab)
† Goodwill, Mr Robert (Scarborough and Whitby) (Con)
† Gullis, Jonathan (Stoke-on-Trent North) (Con)
† Holmes, Paul (Eastleigh) (Con)
† Howell, Paul (Sedgefield) (Con)
† Lynch, Holly (Halifax) (Lab)
† McLaughlin, Anne (Glasgow North East) (SNP)
† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
† Owatemi, Taiwo (Coventry North West) (Lab)
† Pursglove, Tom (Parliamentary Under-Secretary of State for the Home Department)
† Richards, Nicola (West Bromwich East) (Con)
† Whittaker, Craig (Lord Commissioner of Her Majestys Treasury)
Wood, Mike (Dudley South) (Con)
Rob Page, Sarah Thatcher, Committee Clerks
† attended the Committee
Public Bill Committee
Thursday 4 November 2021
(Afternoon)
[Siobhain McDonagh in the Chair]
Nationality and Borders Bill
New Clause 5
Former British-Hong Kong service personnel: right of abode
“(1) The Immigration Act 1971 is amended as follows.
(2) At the end of section 2(1) insert—
“(c) that person is a former member of the Hong Kong Military Service Corps or the Hong Kong Royal Naval service, or
(d) that person is the spouse or dependent of a former member of the Hong Kong Military Service Corps or the Hong Kong Royal Naval service.””—(Stuart C. McDonald.)
This new clause would mean that all former British-Hong Kong service personnel, plus their spouses and dependents, would have right of abode in the UK.
Brought up, read the First time, and Question proposed (this day), That the clause be read a Second time.
14:00
Question again proposed.
Tom Pursglove Portrait The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
- Hansard - - - Excerpts

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for tabling new clause 5, which provides the Committee with the opportunity to consider granting the right of abode in the United Kingdom to former British-Hong Kong service personnel, their spouses and dependants.

The Government remain extremely grateful to former British-Hong Kong service personnel. Under the British nationality selection scheme, a limited number of personnel who were settled in Hong Kong could apply to register as British citizens. All veterans would have been eligible to acquire British national overseas status between 1986 and 1997. Therefore, many should hold BNO status. Those who hold BNO status may be eligible for the BNO visa that was launched in January this year and which provides a route to settlement in the UK, meaning that many former British-Hong Kong service personnel, their spouses and dependants will already have, or be on the path to having, settlement and subsequently British citizenship, which would confer on them a right of abode in the UK.

We must consider the impact on public services both of increased usage generated by the right of access granted by expanded citizenship, and of the additional costs in granting such rights, such as casework resource and resettlement resulting in lost income that is not budgeted for and is therefore not affordable. Additionally, although I recognise the significant contribution made by this group, it may be difficult to justify why this specific cohort should be granted the right of abode when others from former colonial garrisons are not. For these reasons, I ask the hon. Member to withdraw the new clause.

Stuart C McDonald Portrait Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
- Hansard - - - Excerpts

I am grateful to the Minister for his response. I do think there are very specific reasons why this cohort should indeed be granted what this new clause is looking for, and I suspect we will be looking at this again on Report. In the meantime, however, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 13

Reporting to Parliament in relation to the prevention of death

“(1) The Secretary of State must within 12 months of the commencement of this section, and thereafter within each successive 12 months’ period, lay before Parliament a report concerning the deaths of people subject to asylum and immigration powers.

(2) A report required by this section must state the number of people subject to asylum and immigration powers who have died since—

(a) state the number of people subject to asylum and immigration powers who have died since—

(i) the commencement of this section (in the case of the first report laid under this section); or

(ii) the previous report laid under this section (in all other cases); and

(b) set out the support arrangements that the Secretary of State has implemented in that year to assist those directly affected by the deaths, and what changes in these arrangements are planned for the next year.

(3) Subject to subsection (5), the report required by this section must—

(a) in relation to each death to which subsection (2) refers, identify—

(i) whether the deceased was at the time of death detained under immigration powers,

(ii) whether the deceased had an asylum claim outstanding,

(iii) whether the deceased was in receipt of accommodation or support from the Secretary of State,

(iv) whether the deceased was a relevant child or young person,

(v) whether the deceased was under the control of any person acting under the authority of the Secretary of State,

(vi) the age, nationality and gender of the deceased,

(vii) any protected characteristic of the deceased,

(viii) the steps taken by the Secretary of State to support any family member of, or other person directly affected, by the death,

(ix) such further information as the Secretary of State shall consider relevant; and

(b) include a statement by the Secretary of State in relation to each such death concerning the impact, if any, of any relevant function, power, decision or discretion upon the circumstances causally connected to that death; and

(c) set out any changes to legislation, policy or practice that the Secretary of State proposes or has made to prevent the occurrence or continuation of circumstances creating a risk of death or to eliminate or reduce that risk in those circumstances; and

(d) describe the Secretary of State’s policy and practice in providing assistance to or receiving assistance from statutory bodies with responsibilities relating to the investigation or prevention of death.

(4) In making any statement to which subsection (3)(b) refers, the Secretary of State shall take into consideration both acts and omissions in relation to the exercise of any function, power or discretion and the making of any decision (including any omission to make a decision).

(5) Where the Secretary of State is unable to fulfil the requirements of subsection (3) in relation to any particular death by reason of there being insufficient time to compile and consider the relevant circumstances relating to the person who has died, the Secretary of State shall state this in the report and shall fulfil those requirements in the next report required by this section.

(6) In this section—

a person is “subject to asylum or immigration powers” if that person—

(a) is detained under immigration powers;

(b) has made an asylum claim that remains outstanding (including where it is being treated as inadmissible but the person remains in the UK);

(c) is in receipt of accommodation or support provided or arranged by the Secretary of State;

(d) is a relevant child or young person; or

(e) is under the control of any person acting under the authority of the Secretary of State in pursuance of asylum or immigration functions;

“relevant function, power, decision or discretion” refers to functions, powers, decisions or discretion in relation to asylum or immigration functions that are exercised or may be exercised by the Secretary of State, an immigration officer or a person to whom the Secretary of State has delegated that exercise;

“protected characteristic” has the same meaning as in the Equality Act 2010;

a “relevant child or young person” means a person who is subject to immigration control and—

(a) is in the care of a local authority; or

(b) is receiving support from a local authority as a result of having been in such care;

a person (P) is “under the control” of another person (A) where—

(a) P is being escorted by A within or from the UK,

(b) P in the custody of A,

(c) P is reporting (including remotely) to a designated place (including remotely) in compliance with a requirement imposed by A, or

(d) P is residing at a designated place in compliance with a requirement imposed by A;

“young person” means a person below the age of 25 years.” —(Stuart C. McDonald.)

This new clause would seek to ensure there was transparency and accountability about the deaths of people subject to certain asylum and immigration powers, and policies designed to prevent them.

Brought up, and read the First time.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

Everyone in this Committee has expressed concern at the loss of life in the channel when people make dangerous journeys to seek asylum here. This new clause brings us to loss of life among people already in the immigration and asylum systems. It asks: what do we know about such deaths, what do we do in response to prevent other deaths from happening, and what do we do to ensure dignity in death? I am grateful to Amnesty International, Migrant Voice, Bail for Immigration Detainees, the Scottish Refugee Council and Liberty Investigates for all their work on this.

I particularly want to mention the Da’aro Youth Project, which was established in 2018 by members of the Eritrean community in London in response to the suicides of several unaccompanied teenage Eritreans who came to the UK to seek asylum, and supports the wellbeing of young people in the UK asylum system from countries in the horn of Africa. Its research found that at least 12 teenagers who arrived in the UK as unaccompanied children seeking asylum have died by suicide in the past five years, most of them Eritrean, including several in recent months. All had either been children in the care of local authorities or care leavers, while one was subject to an age dispute, one had been denied family reunion, and several had been waiting for significant periods for an asylum decision or had in fact been refused asylum.

More recently, Scottish Refugee Council freedom of information requests initially identified 51 deaths in asylum accommodation between April 2016 and June 2021. A slightly different set of FOIs from Liberty Investigates received a different number from the Home Office: 95 in the period to August 2021. Alarmingly, 69 of those deaths—about three quarters—were in the period from 2020, so there has been a significant increase. By August this year, nearly as many people had died in the asylum system as in the whole of last year.

The first issue is why it is only through the work of Da’aro Youth Project, the Scottish Refugee Council and Liberty Investigates that we know this. Surely the Home Office should be reporting regularly on the deaths of those in its system. Can lessons be learned from these deaths, what could be done to prevent further deaths, and do the deaths have implications for broader policy? For example, there has been a significant increase in deaths over the past couple of years, suggesting that moving to institutional accommodation is a dangerous policy, but are there other reasons? What about new policies, including those in this Bill? What impact might they have on deaths in the asylum and immigration system? We cannot do very much of that analysis because it does not seem that the Home Office gathers information never mind publishes it. Which other Government Department would get away with it if deaths of those in its care and caught up in its processes were not being thoroughly investigated and responded to? It should be absolutely no different here.

The second issue is: what happens in response to every individual death? I am not even sure whether there is in existence a proper Home Office policy on this. Is any effort made to find and contact family members, or even to return the body to the family? What is done to support friends and family here in the UK, particularly those who are in the asylum system or local authority care?

Since Windrush, we have been told repeatedly that the Home Office is undergoing a culture change to see “the face behind the case”. I suggest that a vital starting place could be taking much greater interest in those who have lost their life while within the Home Office’s own asylum and immigration systems and being transparent and accountable about what has happened. The new clause simply asks for what really should have been happening for years. It is a simple matter of human decency and proper accountability.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I thank the hon. Member for tabling the new clause. I note his concerns around transparency and accountability in relation to deaths of people subject to immigration powers. I can assure him that transparency and accountability remain a key priority for the Department. We currently publish data every year on the number of deaths of people under our care in immigration detention. I recognise the importance of transparency in these circumstances to ensure that there is accountability and that we can develop effective policies and processes to prevent such instances from occurring in future. One death of a person in our care in one death too many. We must do everything in our power to ensure that these do not occur. Thankfully, deaths in detention are rare. There were no deaths in detention in 2020 and just one in 2019, where the individual died of natural causes.

We regularly review the statistics that we publish as a Department and, where it is clearly in the public interest to do so, it is our duty to consider the feasibility of publishing new statistics. We must weigh that up against other considerations. While we have a duty of care to all of those in our remit, there are many people in the asylum and immigration system who are either not required to, or choose not to, maintain regular contact with us. Some may even leave the UK without informing us while they have an open immigration claim. That means that there may be instances where we are not informed of the person’s death or we do not have all the relevant facts.

Additionally, it can take months and even years for inquests to reach conclusions. It is important that we know the facts before we publish the information. This highlights the kind of practical and deliverability challenges that we face and which affect the scope and accuracy of any information in this space. However, I acknowledge the importance of transparency. We regularly review the information that is published by the Department on the context of transparency, but also in line with the changes that the Bill will bring about. I note the interest of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in this particular area and will ensure that it is considered in line with the wider and ongoing review of statistics published by the Department. I trust that that addresses his concerns and I encourage him to withdraw the new clause.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I appreciate the Minister’s answer and the sentiments that he expresses. I am concerned that what he says does not always necessarily reflect exactly how things are operating on the ground. On the gathering and publishing of information, that is something that we will watch very closely. What he has not done is set out anything in relation to how the Home Office responds and whether there is a policy in relation to individual deaths—for example, those issues around returning the body, trying to approach family and friends, and the duty of care that we have to those individuals as well. That is something I will need to return to and raise with him again. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 14

Immigration health surcharge: exemption for international volunteers

‘(1) The Immigration Act 2014 is amended as follows.

(2) After section 38, insert—

“38A Immigration health surcharge: exemption for international volunteers

(1) A charge under section 38 may not be imposed on persons who have leave to enter, or to remain in, the United Kingdom through a visa to work voluntarily for a period of no more than 12 months, or for such period as may be prescribed by regulations, for a registered UK charity advancing the charity’s primary purpose.

(2) A statutory instrument containing regulations under this section must not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.’ .(Stuart C. McDonald.)

This new clause would ensure that international volunteers, including those working in health and social care, will be exempt from paying the immigration health surcharge.

Brought up, and read the First time.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I beg to move that the clause be read a Second time.

The new clause would introduce an immigration health surcharge exemption for international volunteers. On this occasion, I am particularly indebted to Camphill Scotland, which does fantastic work to support around 600 people with learning disabilities and other support needs, ranging from children to older people. It has built a formidable alliance of almost 50 organisations across the UK that support this new clause, including the National Council for Voluntary Organisations, the Scottish Council for Voluntary Organisations, the Northern Ireland Council for Voluntary Action, the Wales Council for Voluntary Action and many, many more which, unfortunately, I do not have time to mention. All members of the Committee will have received briefings and representations directly on this issue, and I urge them to consider it carefully.

My party objects to the immigration health surcharge altogether, but that debate is for another day. What we do welcome, as do the organisations behind this new clause, is the Government’s decision to exempt health and social care workers from other countries from paying it. The new clause seeks to ensure that those who want to come to work as volunteers in the charitable sector, including in health and social care, are also exempt. We believe that charging this surcharge to volunteers working in health and social care in charitable settings is unfair, inequitable and counterproductive. Volunteers from the EU and beyond make a significant contribution to the work of charities across the UK; Camphill Scotland currently has about 215 international volunteers, helping it to support people with learning disabilities and other support needs.

These young people have chosen to stay in the UK to provide social care to UK citizens during a national health emergency, displaying considerable dedication to and compassion for the people they support. It would be an injustice if the immigration health surcharge exemption was not extended to international volunteers working in the charitable sector. It is all the more essential that this change is made post Brexit, with volunteers from the EU and Switzerland now being caught by visa fees and other expenses. If we cannot continue to attract volunteers, the people who will suffer will be those who benefit from their care, including those with learning disabilities and support needs in the care of Camphill Scotland. The logic of the Government’s immigration health surcharge is that everyone should contribute but, just like the health and social care workforce, the volunteers are already doing just that, so surely the same logic applies. Given that such volunteers cannot have a salary here and will receive a subsistence allowance at most, there is even more reason to exempt them altogether. They are already facing considerable costs to take up these posts. It cannot be right that we also charge them a surcharge to support the very system that they are currently voluntarily supporting. I therefore ask the Minister to consider the representations made by the almost 50 organisations that have contacted him, to consider meeting them and to look carefully at these proposals.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

The Government recognise the important contribution that international volunteers make to our communities, and are committed to attracting people from overseas who wish to gain experience of our voluntary sector. The temporary work-charity worker visa is available to those who wish to undertake unpaid voluntary fieldwork for up to 12 months, where the work contributes directly to the achievement or advancement of the sponsor’s charitable purpose. The route offers volunteers the chance to experience life in the UK while making a valuable contribution to the aims of their chosen charity. At the same time, the involvement and contribution of these individuals has benefits for the UK charity sector and the wider community, and the UK Government welcome this involvement.

This is not an economic route and it should not be used to fill gaps in the labour market. Volunteers using the charity worker visa must not receive any payment beyond being reimbursed for expenses incurred during their duties. It is therefore not unreasonable to expect costs to be considered and planned for before they apply for a visa. As this is a temporary work category, the cost of a visa is already significantly less than any other work and study routes, at a rate of £244, and sponsors pay a lower licence fee, which reflects their own charity status. The immigration health charge, which applies to this route, ensures that temporary migrants who come to the UK for more than six months make a direct contribution to the comprehensive range of NHS services available to them during their stay. Income from the charge is shared between the health administrations in England, Scotland, Wales and Northern Ireland, using the formula devised by Lord Barnett. The charge is an essential part of income for the NHS and has raised almost £2 billion in much-needed income since it was introduced in 2015.

Those who make an application to come to the UK for six months or less do not pay the charge, and we know that a sizeable number of volunteers come for less than the 12 months the route allows. If they opt to stay longer than six months, however, it is right that they pay the charge, as is consistent with others who base themselves in the UK for extended periods. I understand that there are concerns about the financial impact of the charge on volunteer workers, alongside visa fees and other payments that a person may make when they choose to come to the UK. However, the Government are clear that the charge is great value, considering the wide range of NHS services, free at the point of use, for charge payers. From the moment they arrive in the UK, charge payers can use the NHS in broadly the same manner as a permanent resident, without having made any prior tax or national insurance contributions. They may access health services as often as they need, including treatment for pre-existing health conditions, and do not need to worry about unexpected health charges or obtaining appropriate health insurance.

14:14
Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

The Minister knows that I do not support the idea of an additional surcharge but, even if we accept his logic, the Government have exempted health and social care workers from the surcharge because they contribute to the healthcare system. Should that same logic not apply even more so to volunteers who are working in the health and social care system?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

In relation to the approach taken for health and social workers, the view widely felt across the House, which was subsequently reflected in policy, was that, given the enormous contribution made by those working directly in this sector during the pandemic, it was appropriate to try and put in place a form of recognition of that work, as well as other measures we have talked about, for example the pay rises that have quite rightly been afforded to NHS workers. It was seen as one means of recognising the enormous contribution that some of those who had come from overseas to work in our health and social care settings had made and rewarding them for that. There were particular circumstances that meant that it was felt that that was appropriate.

Charge payers pay only those charges a UK resident would pay, such as prescription charges in England. They may, however, be charged for assisted conception services in England, should they wish to use them. We welcome talented individuals to the UK and are immensely grateful to them for the important contributions they make, but if a person chooses to come to the UK as a worker, student, family member or volunteer, it is fair and reasonable to expect them to contribute to the high-quality NHS services available to them.

It is vital, particularly given the challenges posed by the pandemic, for the NHS to continue to be properly funded. The immigration health charge directly benefits the NHS and plays an important role in supporting its long-term sustainability. The Government are confident that the charity worker visa provides an attractive offer to voluntary workers. Individuals on some other routes can also volunteer their time to help others, and, depending on the route, they either pay the immigration health charge or may be charged by the NHS for their healthcare.

The youth mobility scheme, for example, is subject to the charge. Those on this route are free to take up work in any sector, paid or unpaid. The standard visitor visa allows people to volunteer for up to 30 days with a registered charity. The visit rules allow visitors to stay for a maximum of six months, which means that they are not subject to the immigration health charge but may instead be charged for NHS care, in line with the rules set by the relevant, devolved health administration.

The Government believe that it is right for the health charge to apply to the charity worker visa. Many nations expect newly arrived individuals to contribute, in some form, to the cost of healthcare. It is right we do the same. For the reasons I have set out, I ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the new clause, but I take on board the passion with which he made his case in relation to this issue and the various representations he referred to that have been made to me as Minister with responsibility for this Bill. I will certainly ensure that they are shared with the Minister with responsibility for this area of policy in the Department as part of their consideration of these matters.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I am grateful to the Minister for his response and those assurances. He is quite right about the reasons for the recognition that was given to health and social care staff. We are just calling for the same recognition for volunteers as well. I would be interested to know more. I get the impression that this would be a tiny hit for the Treasury, but it could have real benefit for charities. Before we think about that and make the case again before we reach Report stage, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 17

Duty regarding rights to British citizenship or British overseas territories citizenship

“(1) It is the duty of the Secretary of State to encourage, promote and facilitate awareness and exercise of rights to British citizenship or British overseas territories citizenship among persons possessing these rights.

(2) In fulfilment of that duty, the Secretary of State—

(a) must take all reasonable steps to ensure that all persons with rights to British citizenship or British overseas territories citizenship are able to exercise those rights;

(b) must make arrangements, including with local authorities, to ensure that all children in a local authority area are aware of their rights to British citizenship or British overseas territories citizenship and of the means by which to exercise those rights;

(c) must, when considering any application for confirmation or registration of British citizenship or British overseas territories citizenship, have regard to information held by or available to the Secretary of State that would demonstrate the applicant to be a British citizen or British overseas territories citizen or entitled to that citizenship; and

(d) shall have, and where reasonably necessary to ensure that all persons are able to exercise those rights shall exercise, the power to waive any requirement to attend a ceremony or in connection with biometric information.

(3) For the purposes of this section—

“rights to British citizenship” means rights of acquisition of British citizenship by birth, adoption, commencement or registration under the British Nationality Act 1981;

“rights to British overseas territories citizenship” means rights of acquisition of British overseas territories citizenship by birth, adoption, commencement or registration under the British Nationality Act 1981; and

“to exercise those rights” means to be registered as a British citizen or British overseas territories citizen on the making of an application under the British Nationality Act 1981 or to obtain documentation from the Secretary of State confirming British citizenship or British overseas territories citizenship (including by receipt of a passport) on the making of an application to the Secretary of State.”—(Stuart C. McDonald.)

This new Clause would require the Government to encourage, promote and facilitate awareness and exercise of rights to British citizenship or British overseas territories citizenship.

Brought up, and read the First time.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time. The new clause would place on the Government an obligation and a duty to undertake promotion of British citizenship rights and British overseas territories citizenship rights.

If there is one thing that members of the Committee can all agree on, it is that nationality law is complicated, and British nationality law is particularly complicated. As I have said, nationality law is also absolutely fundamental to people’s identity, and their ability to fulfil their potential and to exercise so many other rights. That is why it is enshrined in the UN convention itself. It is much superior to any form of immigration leave, which is no form of substitute for holding nationality. The very need for the Bill indicates, however, that lots of people miss out on their entitlements. That is terrible for them as individuals, and it is terrible for the country as a whole—bad for social cohesion—if people are missing out on rights of citizenship that they could have and that are set out in law.

An example is looked-after children. During the registration process for the EU settlement scheme, it was clear that a number of local authorities might have been signing children up for EU settled status when in actual fact they were probably entitled to register as British citizens. The new clause therefore simply calls for the Government to take a more proactive approach and to work with organisations such as local authorities and others to ensure that as many people as possible are aware of and know about their right to register or to access citizenship in other ways, so empowering them to do so.

One welcome thing about the EU settlement scheme was that the Home Office caseworkers did not say, “This or that is missing, so I am going to refuse the application.” There was a concerted attempt to work with people to ensure that all the necessary evidence was found. A lot of the time, the Government took it on themselves—by liaising between Departments—to track down the necessary evidence to allow that person to achieve the status to which they were entitled. We call for the same approach on the more fundamental right to nationality.

That is the reasoning behind the new clause. I look forward to the Minister’s response.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for their new clause. I understand their thinking behind it: people who are entitled to citizenship should be able to find the information that they need and that the process should be simple and straightforward. That is a sentiment I would echo.

The measures the new clause proposes represent best practice, much of which already exists in the nationality and passport processes. For example, both UK Visas and Immigration and Her Majesty’s Passport Office publish information and guidance on gov.uk, and use information that is already available on their systems when processing applications. As part of considering Windrush applications in particular, UKVI caseworkers have demonstrated a proactive approach, helping people to locate the information needed and consulting internal sources.

The existing legislation already contains discretion to excuse or exempt a person from attending a citizenship ceremony or to enrol their biometrics. The Home Secretary can disapply the requirement to attend a ceremony in the special circumstances of a case and, if it would be too difficult for an applicant to enrol their biometrics in the form of a facial image and fingerprints, an authorised person such as an official acting on behalf of the Secretary of State can defer or waive the requirement to enrol some or all of the biometrics. I am happy to listen to the thoughts of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East about the areas where we could do more.

I do not think that we can accept the new clause, however. It would impose a statutory requirement that I am not sure is measurable. For example, while we could take steps to ensure that local authorities have information about citizenship and are encouraged to pass on that information to children in their area, I do not see that we could fulfil a statutory requirement to ensure an awareness for every child—that would be outside our control.

Similarly, the new clause is not specific about the steps that the Home Secretary would be expected to take—the lengths she would be expected to go to, for example, to obtain “available” information when considering an application, without being in breach of such a statutory duty. I take on board the sentiment of what the hon. Gentleman is trying to achieve, but I ask him to withdraw his new clause.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I am grateful to the Minister for his reply and for his constructive approach to the issue. Perhaps we may continue the conversation in the weeks and months ahead. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 23

Safe and legal routes

“(1) The Secretary of State must, within 30 days of the date of Royal Assent to this Act and annually thereafter, publish a report on—

(a) all current safe and legal asylum routes to the United Kingdom,

(b) the eligibility criteria for legal entry into the United Kingdom, and

(c) details of the application process.

(2) The Secretary of State must publish a report on its resettlement target of refugees per year, and report on this every year.”— (Paul Blomfield.)

This new clause would require the Secretary of State to publish a summary of safe and legal routes to refuge in the UK each year, alongside their eligibility criteria and application process. It would also commit the UK and Secretary of State to publishing its resettlement targets, and reporting on this annually.

Brought up, and read the First time.

Paul Blomfield Portrait Paul Blomfield (Sheffield Central) (Lab)
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

The new clause raises an issue central to the Bill and tests the Government’s commitment. Ministers here and elsewhere have consistently argued that their objective for this legislation is to break the business model for the people smugglers, to stop dangerous journeys across the channel and instead to offer those fleeing war and persecution safe and legal routes to refuge in the UK. As the Opposition side have said many times, we endorse those objectives. What we have been doing over the past few weeks is looking at how the Bill achieves them.

We know that the Government’s own assessment of their proposals suggests that they will probably fail; the impact assessment they conducted went so far as to point out that they would probably be counterproductive. Obviously, the Government have brushed that evidence aside, but there is a real concern that there is a fundamental deceit at the core of the Bill, which is that the Government are not serious about offering the safe and legal alternatives.

The new clause is not particularly radical or ambitious; it simply requires the Home Secretary to publish a report on all current safe and legal routes, who is eligible and how people can apply. It would provide transparency and help the Home Office, because it would be able to point to a credible alternative to the dangerous journeys that we all want to discourage. Currently, however, that is not the case: the schemes that the UK has open—the UKRS and the Afghan citizen resettlement scheme—have little detail in the public domain and little guidance on the eligibility criteria or the process for application. I remind the Committee of the point I made earlier: in the first half of this year, only 310 people were resettled under the UK resettlement scheme. The recently published details of the Afghan scheme frankly offer little hope for those to whom the Prime Minister made grand promises about “every effort” and “open arms” back in August.

I remind the Minister that, while the Government promote the generosity of the UK and, as we have touched on previously, we should welcome every effort that has been made to support those fleeing war and persecution, in 2019, Germany resettled more than three times as many refugees as the UK; 1.5% of Germany’s population are refugees, in comparison with 0.65% in France, 0.45% in the Netherlands and 0.19% in the UK, according to the World Bank. We are not middle ranking, as I think the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said at one stage; we have traditionally been middle ranking, but under this Government we have been falling behind.

By accepting the new clause and publishing information about resettlement routes, the Home Office can at least be honest about the resettlement it is prepared to offer, and to whom. We as a Committee have read the evidence shared from Safe Passage International, which included some examples of people such as Jabir and Ahmed. Jabir is an unaccompanied child in northern France who is desperate to rejoin his family in the UK. He is willing to risk the channel to be reunited with his loved ones. His family have already lost a young family member to the treacherous crossing, so they are desperate to find a way for Jabir to be reunited with them, but it does not exist. While he would have had a clear case under Dublin III, there is no clear route for him now.

Meanwhile, 15-year-old Ahmed is stranded alone in France after fleeing Afghanistan. He desperately wants to be reunited with his brother, who was granted asylum in the UK and is now a young business owner. Under the UK’s current rules, the brothers would find it extremely difficult to reunite. If Ahmed’s parents were in the UK, the process would be straightforward, but tragically his brother is his only remaining family member. Ahmed is in an extremely vulnerable situation; he suffers from trauma and struggles enormously with the loss of his family. Being reunited with his brother is his only option to feel safe and to build a better future. I hope that in responding to these comments, the Minister will outline specifically what options for safe passage are, or are planned to be, available for those two boys.

14:30
We need transparency about how people can seek refuge in the UK, to bolster our global reputation and provide clarity to those seeking asylum, but also for all those in this country involved in welcoming and supporting those who come. Therefore, the new clause would also require the Home Secretary to publish her resettlement targets each year. I do not suggest a number; I simply suggest that the Government should reflect on it and publish one. While we are talking about numbers, it is perhaps worth noting as a reference—we talk about global leadership—that President Biden has committed the United States to an annual resettlement quota of 125,000 refugees. The equivalent in the UK would be around 25,000. The Government talk a lot about global Britain, but—
Paul Blomfield Portrait Paul Blomfield
- Hansard - - - Excerpts

The hon. Member endorses my comments, I am pleased to hear.

If the Government are serious about their words, they need to be honest about where our ambition lies in this area and how we will provide sanctuary for those who need it. As I say, that leadership and transparency on resettlement targets would not only allow safe and legal routes to ensure that those in great need can come to the UK for protection; it would also, taken alongside the discussion we had earlier about more equitable arrangements for distribution, inform local councils, our healthcare system, schools and social services how they can plan effectively to receive and welcome and integrate into our country those seeking refuge. I hope that the Government will accept the new clause.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I thank the hon. Member for Sheffield Central for tabling new clause 23, which would require the Government to publish an annual summary of safe and legal routes to refuge in the UK, including eligibility criteria and application process, and to report on their resettlement targets for each year. The UK has a long history of supporting refugees in need of protection and we are a global leader in resettlement.

Paul Blomfield Portrait Paul Blomfield
- Hansard - - - Excerpts

I am curious to know how the Minister sustains that line about the UK’s being a global leader when all the statistics published by the Home Office and others demonstrate that we are not—we are a laggard.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I am afraid that the hon. Gentleman and I simply do not concur on this point. The simple truth is that this country is generous in the opportunities that it provides for people seeking sanctuary, and that will continue to be the case. We have had many debates on that point in this Committee, and I personally believe that that is beyond any doubt whatever.

Our resettlement schemes have provided safe and legal routes for tens of thousands of people to start new lives in the UK. Overall, since 2015, we have resettled more than 25,000 refugees direct from regions of conflict and instability, more than any EU member state. We can be proud as a country of our ambitious commitments and achievements.

On 25 February 2021, we completed our commitment to resettle 20,000 refugees under the vulnerable persons resettlement scheme. That achievement was made possible because of the outstanding commitment of local authorities, the devolved Administrations, non-governmental organisations, our international partners, community and faith groups, and individual members of the public.

The UK continues to welcome refugees through the global UK resettlement scheme, as well as through the community sponsorship and mandate resettlement schemes. That commitment, alongside a fair and firm asylum system, will ensure that we continue to offer safe and legal routes to the UK for vulnerable refugees in need of protection.

Through the new plan for immigration, we have been clear that this Government will continue to provide safe refuge to those in need, ensuring that our resettlement schemes are accessible, fair and responsive to international crises. This has been evident with the Home Office being at the heart of the UK’s response to the Afghanistan crisis, including supporting, under intense pressure, the biggest humanitarian airlift in the history of this country.

On 18 August, the Prime Minister announced a new and bespoke resettlement scheme to relocate 5,000 people at risk in its first year, rising to up to 20,000 over the long term—one of the most generous schemes in our history. Ultimately, the number of refugees that we resettle every year depends on a variety of factors, including local authorities’ capacity for supporting refugees, the extent to which the community sponsorship approach continues to thrive, and funding. We work closely with our partners to assess the capacity for resettlement and will continue to welcome those in need of protection in the years to come. Committing to an annual public target would remove the flexibility that this approach provides.

Additionally, we have announced plans for a pilot to support access to work visas for highly-skilled displaced people that will run in addition to existing safe and legal routes. Furthermore, the Government also provide a safe and legal route to bring families together through the family reunion policy, which allows a partner and children aged under 18 of those granted protection in the UK to join them here, if they formed part of the family unit before the sponsor fled their country, and can demonstrate a genuine and subsisting relationship.

Robert Goodwill Portrait Mr Robert Goodwill (Scarborough and Whitby) (Con)
- Hansard - - - Excerpts

Does the Minister agree that in many cases under the Dublin regulation, children were placed with quite distant relatives here in the UK who they had never met, when their families and parents were in the country from whence they had fled because it was they who had paid the people traffickers to get the children to the UK?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

As I have said, it is very important that those established relationships exist. As we have debated on many occasions in the course of this Committee, we do not want anybody to place themselves in the hands of evil people smugglers and criminal gangs. We should all be very concerned about that particular issue, as I know colleagues on the Government Benches are.

Paul Blomfield Portrait Paul Blomfield
- Hansard - - - Excerpts

It is welcome for the Minister to reference the importance of family reunion visas, as they are clearly a vital safe route. He will be aware that more than 90% of visas are given to women and children. Will he, then, explain why in clause 10 the Government are taking away reunion rights from the majority of refugees?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

On the issue of safe routes for children, unaccompanied asylum-seeking children in Europe with family members in the UK are able to apply to join eligible sponsors, such as those with refugee leave or British settled status. The immigration rules make provision for children to be reunited with their parents. Paragraphs 319 and 297 of the immigration rules are extremely flexible and allow for children to apply to join adult family members if requirements are met, and if there are serious or compelling reasons that make the exclusion of a child undesirable and suitable arrangements are needed for a child’s care. Again, these matters are considered on a case-by-case basis, taking proper account of all the circumstances at play.

Let me finish the point that I was making before I took the interventions. Under the family reunion policy, we have granted reunion to over 37,000 partners and children of those granted protection in the UK since 2015; that is more than 5,000 a year. Our policy makes it clear that there is discretion to grant visas outside the immigration rules that caters for extended family members in exceptional and compassionate circumstances—for example, young adult sons or daughters who are dependent on family here and who are living in dangerous situations. Refugees can also sponsor adult dependent relatives living overseas to join them, when, due to age, illness or disability, that person requires long-term personal care that can only be provided by relatives in the UK.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I suggest the Minister goes away and does some investigations into just how frequently these types of application are granted. My recollection is that some of the thresholds are so high—exceptional and compassionate circumstances, and so on—that in reality, it is almost impossible for some of these applications to be successful. I do not think it is an answer at all to what the hon. Member for Sheffield Central is advocating.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I hear the hon Member’s point, which again I will take away and reflect on with colleagues in the Department.

In the light of the Government’s track record and commitment to safe and legal routes, I hope that the hon. Member for Sheffield Central agrees that the new clause is unnecessary. In particular, I highlight that information on our safe and legal routes is readily available on gov.uk including, where relevant, details about eligibility and the referral or application process.

The Home Office is committed to publishing data on arrivals in an orderly and transparent way as part of the regular quarterly immigration statistics, in line with the code of practice for official statistics. We already publish statistics on the numbers arriving through safe and legal routes. A statutory requirement to publish targets would therefore be unnecessary and unhelpfully limit the flexibility of future Governments in responding to emerging situations.

For all those reasons, I invite the hon. Member not to move the new clause. Given what has been said on family reunion, it might be helpful if I write to the Committee with more information to address some of those points, having reflected on Hansard.

Paul Blomfield Portrait Paul Blomfield
- Hansard - - - Excerpts

I would certainly welcome a letter on family reunion. However, I must disappoint the Minister, because he has failed to convince me about the balance in the Bill, which is central, on the Government’s commitment to develop safe and legal routes as an alternative to dangerous channel crossings. I must therefore press the new clause.

Question put, That the clause be read a Second time.

Division 69

Ayes: 6


Labour: 5
Scottish National Party: 1

Noes: 8


Conservative: 8

New Clause 24
Prescribed period under section 94(3) of the Immigration and Asylum Act 1999
‘(1) The Asylum Support Regulations 2000 (S.I. 2000/704) are amended as follows.
(2) In regulation 2(2) (interpretation) for “28” substitute “56”.
(3) Subject to subsection (4), this section does not prevent the Secretary of State from exercising the powers conferred by the Immigration and Asylum Act 1999 to prescribe by regulations a different period for the purposes of section 94(3) (day on which a claim for asylum is determined) of that Act.
(4) The Secretary of State may not prescribe a period less than 56 days where regulation 2(2A) of the Asylum Support Regulations 2000 (S.I. 2000/704) applies.’—(Neil Coyle.)
When an individual is granted refugee status, their eligibility to Home Office financial support and accommodation currently ends after a further 28 days. This new clause would extend that period to 56 days or allow the Secretary of State to set a longer period.
Brought up, and read the First time.
Neil Coyle Portrait Neil Coyle (Bermondsey and Old Southwark) (Lab)
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

The new clause would extend the current 28-day “move on” period for newly recognised refugees to 56 days. According to the British Red Cross, the London School of Economics and others, that could benefit the public purse by more than £7 million annually and address the profound human costs of poverty and homelessness. I thank the British Red Cross for its help with the new clause and its broader research and work in the area. I refer hon. Members to my entry in the Register of Members’ Financial Interests as I receive support from the Refugee, Asylum and Migration Policy project in this policy area.

Currently, someone who has claimed asylum and been given refugee status will see their asylum support and section 4 support stop 28 days after that decision, which is out of sync with Government welfare and housing policy and insufficient time to move on with affairs. At that point, refugees stop getting their cash allowance and have to move house. While they get permission to work, they need both a bank account and a national insurance number for that. There are potential pitfalls to opening a bank account. Zikee, an ambassador for the Voices Network said:

“The biggest problem I faced when I received my refugee status was that I was asked to move out of my Home Office accommodation within 28 days…this affected me so much as I did not have my…biometric resident card due to a Home Office error. I had to wait weeks for this…and this meant I couldn’t open a bank account.”

It can be problematic to open a bank account within 28 days and, as the Under-Secretary of State for Work and Pensions, the hon. Member for Hexham (Guy Opperman), confirmed in June, it can take weeks to access a national insurance number. The average wait for a new national insurance number is 10 to 12 weeks, not the 28 days found in measures for refugees. The current 28-day “move on” period is incompatible with the Homelessness Reduction Act 2017, which gives local authorities a 56-day period to work with households at risk of homelessness and to provide alternative accommodation.

14:45
For example, Southwark Day Centre for Asylum Seekers has been supporting a young Afghan with post-traumatic stress disorder who, sadly, has attempted suicide on two occasions. Despite notifying the council within the 28 days, he was left homeless because Newham refused to accept he had a local connection. There are massive problems accessing housing. The current 28-day limit is incompatible with social security legislation and policy. Universal credit has an automatic 35-day wait for support—that is if applicants are lucky enough to get processed in that time. There are still thousands who do not get seen within that time. It is welcome that the delay has come down, but it is still severe.
The current system is out of sync with Government policy in different areas, but there are also cost benefits, for those who care about value for money. The British Red Cross report “The costs of destitution” cites figures that suggest that extending the “move on” period to 56 days would better reflect housing and social security policy and have an overall financial benefit of between £4 million and £7 million, including £2 million to local authorities for decreased use of temporary accommodation and £3 million for reducing rough sleeping. It would save the taxpayer money to adopt this new clause, as outlined by the Centre for Analysis of Social Exclusion at the London School of Economics.
If the Minister wants to help the public purse, reducing homelessness as a result of extending the limit to 56 days would potentially save between £2 million and £3 million. That figure is based on the Government’s figures on rough sleeping—in January last year, they told us there were only 5,000 rough sleepers in the country, but the Government is rightly proud of their Everyone In initiative, which provided accommodation to 38,000 people. The actual figure for rough sleeping seems to be a bit of an anomaly, and I hope the Government will provide a more robust one. But the potential is there for much greater public saving given the higher numbers involved. If councils are better able to provide permanent housing longer term, they are less reliant on temporary accommodation, which has higher costs attached.
The LSE analysis shows there is an estimated saving to local authorities of more than £2 million a year, through the reduction in use of temporary accommodation. This should be an area of concern for the Government. In February 2020, Inside Housing found that English councils had doubled the amount they were spending.
The 2013-14 expenditure on temporary accommodation was £490 million; by 2019-20, that figure had jumped to £1.19 billion. That is an extortionate figure. The Government should commit to reduce it. This new clause would help in that regard. Allowing those households to continue living in asylum support accommodation while the local authority completes its duties, in line with the 56 days prescribed by the Homelessness Reduction Act, could result in less use of temporary accommodation by councils.
There is also evidence, although I will not go through all the figures, that if the extension to 56 days was passed, it would support people into work. That would mean national insurance and tax contributions to Her Majesty’s Revenue and Customs and less benefit expenditure over time. The estimated reduction in benefit expenditure is up to £2.5 million. There are other savings from cutting the destitution that people face and the knock-on cost for the mental health services and local authority services.
I have been as quick as I can. This is a common-sense new clause that would save the Government money and take the pressure off individuals, housing associations, councils and charities. It would combat destitution by giving refugees more time to find a home and collect the documents they need, while being in line with the Homelessness Reduction Act, social security legislation, and offering considerable savings for those who care about value for money.
Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I am grateful to the hon. Member for Bermondsey and Old Southwark for tabling his new clause. In simple terms, the longer successful asylum-seekers remain in asylum accommodation, the fewer the beds available for those newly entering the asylum support system, including those temporarily accommodated in hotels at great expense to the taxpayer. We are aware of reports that some refugees do not access universal credit or other benefits, or adequate housing, within 28 days. The reasons for that are complex, but the available evidence to date does not show that the problem can be solved by increasing the 28-day “move on” period.

I also reassure the hon. Member that we have implemented several initiatives with the aim of securing better outcomes for refugees in the 28 day “move on” period. These include ensuring that the 28-day period does not start until refugees have been issued with a biometric residence permit—the document that they need to prove that they can take employment and apply for universal credit—and that the national insurance number is printed on the permit, which speeds up the process of deciding a universal credit application.

We also fund Migrant Help, a voluntary sector organisation, to contact the refugees at the start of the 28-day period and offer practical “move on” assistance, including advice on how to claim universal credit; advice on the importance of an early asylum claim and the other types of support that might be available; booking an early appointment at their nearest Department for Work and Pensions jobcentre, if needed; and advice on how to contact their local authority for assistance in finding alternative housing.

We evaluated the success of the scheme that books an early appointment with the local jobcentre for those who want one. That showed that all applicants for universal credit in the survey received their first payment on time—that is, 35 days from the date of their application—and that those who asked for an earlier advance payment received one.

Asylum accommodation providers are also under a contractual duty to notify the local authority of the potential need to provide housing where a person in their accommodation is granted refugee status. Refugees can also apply for integration loans, which can be used, for example, to pay a rent deposit or for essential domestic items, work equipment or training.

The UK has a proud history of providing protection to those who need it, and I reassure the hon. Member that the Government are committed to ensuring that all refugees can take positive steps towards integration and realising their potential. Although we keep the “move on” period under review, we must also consider the strong countervailing factors that make increasing that period difficult. I therefore invite him not to press his new clause.

Neil Coyle Portrait Neil Coyle
- Hansard - - - Excerpts

I am almost sorry, but the Minister’s answer ignores the reality and the situation in which people find themselves. He does not have an answer about the anomaly in housing or social security policy, and he has not even tried to explain why the Government are ignoring the potential savings to the public purse. I will press the new clause to a Division.

Question put, That the clause be read a Second time.

Division 70

Ayes: 6


Labour: 5
Scottish National Party: 1

Noes: 8


Conservative: 8

New Clause 25
Asylum visa for persons in France
‘(1) On an application by a person (“P”) to the appropriate decision-maker for entry clearance, the appropriate decision-maker must grant P entry clearance if he is satisfied that P is a relevant person.
(2) For the purposes of paragraph (1), P is a relevant person if—
(a) P is in France on the date of application;
(b) P is not a national of a member State of the European Union or a national of Liechtenstein, Iceland, Norway or Switzerland;
(c) P intends to make a protection claim in the United Kingdom;
(d) P‘s protection claim, if made in the United Kingdom, would have a realistic prospect of success; and
(e) there are good reasons why P’s protection claim should be considered in the United Kingdom.
(3) For the purposes of paragraph (2)(e), in deciding whether there are good reasons why P‘s protection claim should be considered in the United Kingdom, the appropriate decision-maker shall take into account—
(a) the relative strength of P‘s family and other ties to the United Kingdom;
(b) the relative strength of P‘s family and other ties to France;
(c) P‘s mental and physical health and any particular vulnerabilities that P has; and
(d) any other matter that the appropriate decision-maker thinks relevant.
(4) For the purposes of an application under paragraph (1), the appropriate decision-maker must waive any of the requirements in paragraph (5) if satisfied that P cannot reasonably be expected to comply with them.
(5) The requirements in this paragraph are—
(a) any requirement prescribed (whether by immigration rules or otherwise) under section 50 of the Immigration, Asylum and Nationality Act 2006; and
(b) any requirement prescribed by regulations made under sections 5, 6, 7 or 8 of the UK Borders Act 2007 (biometric registration).
(6) No fee may be charged for the making of an application under paragraph (1).
(7) An entry clearance granted pursuant to paragraph (1) shall have effect as leave to enter for such period, being not less than six months, and on such conditions as the Secretary of State may prescribe by order.
(8) Upon a person entering the United Kingdom (within the meaning of section 11 of the Immigration Act 1971) pursuant to leave to enter given under paragraph (7), that person shall be deemed to have made a protection claim in the United Kingdom.
(9) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(10) After paragraph 30(1)(b) of Part 1 of Schedule 1 insert—
“; or
(c) are conferred by or under sections [Asylum visa for persons in France] and [Right of appeal against France asylum visa refusal] of the Nationality and Borders Act 2022.”
(11) In this section and in section [Right of appeal against France asylum visa refusal]—
“appropriate decision-maker” means a person authorised by the Secretary of State by rules made under section 3 of the Immigration Act 1971 to grant an entry clearance under paragraph (1);
“entry clearance” has the same meaning as in section 33(1) of the Immigration Act 1971;
“protection claim”, in relation to a person, means a claim that to remove him from or require him to leave the United Kingdom would be inconsistent with the United Kingdom’s obligations—
(a) under the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to that Convention;
(b) in relation to persons entitled to a grant of humanitarian protection; or
(c) under Articles 2 or 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950.’ —(Neil Coyle.)
This new clause would provide for a person in France to be granted entry clearance to allow them to claim asylum in the UK in certain circumstances.
Brought up, and read the First time.
Neil Coyle Portrait Neil Coyle
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss new clause 26— Right of appeal against France asylum visa refusal

‘(1) If an application by a person (“P”) for entry clearance under clause [Asylum visa for persons in France] is refused by the appropriate decision-maker, P may appeal to the First-tier Tribunal against the refusal.

(2) The following provisions of, or made under, the Nationality, Immigration and Asylum Act 2002 have effect in relation to an appeal under these Regulations to the First-tier Tribunal as if it were an appeal against a decision of the Secretary of State under section 82(1) of that Act (right of appeal to the Tribunal)—

(a) section 84 (grounds of appeal), as though the sole permitted ground of appeal was that the appropriate decision-maker was wrong to conclude that P was not a relevant person;

(b) section 85(1) to (4) (matters to be considered);

(c) section 86 (determination of appeal);

(d) section 105 and any regulations made under that section; and

(e) section 106 and any rules made pursuant to that section.

(3) In an appeal under this section, the First-tier Tribunal—

(a) shall allow the appeal if it is satisfied that P is a relevant person; and

(b) shall otherwise dismiss the appeal.

(4) In an appeal under this section, in deciding whether there are good reasons why P‘s protection claim should be considered in the United Kingdom, the First-tier Tribunal shall apply section [Asylum visa for persons in France] (3) as though for the words “appropriate decision-maker” there were substituted the words “First-tier Tribunal”.’

This new clause would allow a person whose application for entry clearance under clause [Asylum visa for persons in France] has been rejected to appeal to the First-tier Tribunal.

Neil Coyle Portrait Neil Coyle
- Hansard - - - Excerpts

New clause 25 proposes a humanitarian visa route, and new clause 26 grants a right of appeal—something that made Tory MPs very excitable yesterday. I do not intend to push the new clauses to a vote; they are aimed at opening dialogue, and they link back to the points made by my hon. Friend the Member for Sheffield Central.

If the Government are serious about finding solutions to people smuggling and trafficking, they should consider providing practical routes for people seeking sanctuary, in the way that they do for Syria and Afghanistan, and undertake to review humanitarian routes and how they could work. I thank Bella Sankey of Detention Action for her work on these clauses. There are some fantastic people working on these issues.

The purpose of the new clauses is to offer the Government a constructive solution for safe routes. They would have the benefit of cutting smuggling and potentially saving money in the long term. If they are serious about safe and regular routes, the humanitarian visa option would create them. The new clauses also make use of the border anomaly in Calais.

The Government should commit to exploring safe routes if they are serious about preventing dangerous options. The example from Detention Action is of Dylan Footohi, an Iranian refugee who says,

“I came to the UK seeking asylum. I came irregularly simply because there was no legal way for me to do so. My journey to the UK took two years; two years of exploitation and abuse and life-threatening experiences.”

He felt that that way was the only option. If there had been an alternative, he would have taken it. These new clauses offer that alternative.

The new clauses provide for certain persons in France to be granted entry clearance to allow them to claim asylum in the UK. The new clauses set out who qualifies: they have to be in France; they cannot be an EU national or a national of Liechtenstein, Iceland, Norway or Switzerland; they have to intend to make a protection claim in the UK; their protection claim, if made in the UK, must have a realistic prospect of success; and there must be good reasons why their protection claim should be considered in the UK.

The first three criteria are self-explanatory. The fourth criterion—the realistic prospect of success—is a well-established test in UK immigration law. It is used in paragraph 353 of the immigration rules, which deals with a person who has been refused asylum and has later made further submissions on asylum grounds and says that they have a fresh right of appeal against the refusal of their further submissions. Home Office officials, courts and tribunals are well used to applying that test. The leading case on the realistic prospect of success is WM (DRC) [2006] EWCA Civ 1495.

To give an example of how the criterion could work in practice, applicant X applies for a France asylum visa. She is from country A and claims that she is wanted by the authorities of country A for a political offence. The applicable country guidance accepts that if a person is detained for political offence in country A, they are likely to be subjected to serious ill-treatment, so if applicant X’s claim is found to be credible she would be entitled to asylum. The appropriate decision maker believes that applicant X is credible. Applicant X’s claim is likely to have realistic prospect of success, so the criterion is likely to be satisfied. I will keep examples brief in the interest of time.

The fifth criterion is about good reasons and is intentionally open-ended. It allows the appropriate decision maker to make a fact-sensitive evaluation of the merits of the case. In considering whether there are good reasons, the decision maker will take into account the relative strength of their family or other ties to the UK and France; their mental and physical health and any particular vulnerabilities; and any other matter the decision maker thinks is relevant.

To give a brief example, applicant X applies for a France asylum visa. She is street homeless in France due to a shortage of available accommodation. She has PTSD and depression as a result of being tortured and has not been able to seek treatment due to her insecure living situation. She has no family and friends in France but has a brother in the UK with whom she has a close relationship and who could support her if she were here. She speaks good English but does not speak French. There are likely to be good reasons for her claim to be dealt with in the UK, so the criterion is likely to be satisfied. That is an illustrative example, but decision makers would make up their minds on the facts of each individual case, having regard to all relevant factors.

The procedure for making the application would be to the appropriate decision maker—an entry clearance officer authorised by the Secretary of State—and they would be required to waive biometric and other procedural requirements if satisfied that the applicant could not be reasonably expected to comply. There would be no fee for the application.

The successful applicant would be given leave to enter for a period of not less than six months, prescribed by the Secretary of State, who would also prescribe the conditions of such leave. On arrival, they would be deemed to have made a protection claim in the UK and go through the normal asylum process. They would have access to legal aid and there would be a right of appeal in the first-tier tribunal against the refusal of a France asylum visa application. That would be a full merits appeal and would not be limited to a review of the original decision-maker’s decision. The tribunal will decide for itself whether the criteria are met.

That appeal process utilises the existing machinery of immigration appeals under the Nationality, Immigration and Asylum Act 2002. There would be onward rights of appeal to the upper tribunal and Court of Appeal under sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007, as with other types of immigration appeal.

I ask that the Government consider those practical solutions that could take the power away from people smugglers and traffickers, who the Minister routinely calls evil, with which I agree, while honouring our commitment to the refugee convention. I commend the new clauses to the Committee.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I am grateful to the hon. Gentleman for tabling the new clauses; it is fair to say that during the course of the Committee we have had many debates around many aspects of what they refer to. The Government’s position is clear: we are trying to stop dangerous journeys wholesale—in relation not just to the channel, but to the Mediterranean. We believe in upholding the long-standing principle that people should claim asylum in the first safe country that they reach. Of course, people should also avail themselves of our safe and legal routes. With that, I urge the hon. Gentleman to withdraw the new clause.

15:00
Neil Coyle Portrait Neil Coyle
- Hansard - - - Excerpts

I do not think that even the Home Office impact assessment of the Bill accepts what the Minister has just said, because it says that Bill compels some people to take dangerous routes. As I said at the start, however, this is just a probing set of new clauses. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 27

Asylum dispersal strategy

‘(1) The Secretary of State must, within 2 months of this Act gaining Royal Assent, publish a strategy on the accommodation of asylum seekers under a relevant provision.

(2) The strategy must cover, but need not be limited to, the following—

(a) ensuring an equitable distribution of accommodation across the regions of England, Scotland and Wales;

(b) the suitability of financial provision provided to local authorities relating to costs supporting accommodated asylum seekers;

(c) the suitability of financial provision provided to local authorities relating to costs incurred supporting individuals after they receive a decision on their asylum application;

(d) the provision of legal advice to accommodated asylum seekers; and

(e) the provision of support from non-governmental bodies.

(3) For the purposes of this section, “relevant provision” means—

(a) section 4 of the Immigration and Asylum Act 1999

(b) Part VI of the Immigration and Asylum Act 1999

(c) Schedule 10 of the Immigration Act 2016.’—(Neil Coyle.)

This new clause would require the Home Secretary to publish a strategy within two months of the bill gaining Royal Assent on the accommodation of people seeking asylum who are accommodated by the Home Office.

Brought up, and read the First time.

Neil Coyle Portrait Neil Coyle
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

I thank the British Red Cross for its help with the new clause, which is very simple and is line with what the Government have said they are committed to elsewhere. It would simply entail publishing a strategy to cover Home Office accommodation, and it aims to ensure an equitable distribution of people across England, Scotland and Wales, that financial support is provided to local authorities in areas where people are seeking asylum in Home Office accommodation, and other elements.

Although the Committee has heard that the Government’s intention is to move towards the use of reception centres, it is fundamentally unclear where accommodation is aimed to be and what the Government consider accommodation to be. I intend to table an amendment on the specific issue of what is and is not an accommodation centre on Report, especially with some of the sites being used as contingency accommodation, including a hostel in my constituency that Public Health England suggested should not be used for accommodation for the Everyone In scheme. The Home Office chose to override that advice and use it for refugee and asylum seeker accommodation. The Government now seem to think that dispersal is broken, and they want to open a parallel system of accommodation, but they want to use what they refer to as “reception centres”. I hope the Minister can provide some clarity on that and on whether the Government feel that they need to use the 2002 Act. Perhaps the Minister can clear up this messy situation.

Napier barracks has become synonymous with this issue. Its use has just been extended for five years, with the Home Office using a special development order to do so. In his letter to the Committee on 21 October, the Minister said Napier is not classified as an accommodation centre. I think that is a mistake, and I hope the Minister can explain why the Home Office is using a special development order, when the High Court has ruled that the standards and operational systems at Napier barracks are unlawful.

As things stand, we do not know what is and is not accommodation according to the Home Office. We have reports and court rulings on unlawful and unfit accommodation. We do not know where reception centres will be or the types of accommodation that the Government intend to provide while seeking to move away from dispersal in communities where service providers have argued that it is better for integration. That is why a strategy is required, and I hope the Government accept that they need to move towards a more co-ordinated approach.

On dispersal, the British Red Cross has said there is currently nothing in legislation that says people supported under sections 95, 98 and 4 of the Immigration and Asylum Act 1999 have to be accommodated in any particular way. Dispersal is not underpinned in the current legislation, so a strategy would help clarify the situation for the Home Office and the rest of us.

Like hotels, Napier and Penally barracks were seen as contingency accommodation—temporary measures because of a lack of suitable dispersal. The Government need to get the dispersal system in place. We do not know what the Government reception centres would look like or where they would be located, nor have the Government said whether people would be accommodated for the entirety of their asylum process. It is proposed that the centres would “provide basic accommodation” and

“allow for decisions and any appeals following substantive rejection of an asylum claim to be processed”,

but we are conscious of the delays in the asylum system, and it is possible that people could be living in the centres for several months, potentially in remote locations. I hope that the Minister will outline whether children are intended to be placed in those centres.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I refer the hon. Gentleman to my comments on earlier clauses, when I confirmed that children would not be placed in those accommodation centres.

Neil Coyle Portrait Neil Coyle
- Hansard - - - Excerpts

That is helpful, but it has been brought to my attention this week that a 16-year-old is in a Home Office accommodation hotel in my constituency. I do not know whether that is an age-disputed case for the Home Office, but there is clearly a mismatch between the Government’s intent and what is actually happening.

Rewan has been living with his two sons, aged 11 and 18, in a hotel room for 10 months. His sons cannot study, and although he is desperate to get work, their living circumstances do not allow for that. Umar was told in October 2020 when he moved into a hostel with his wife and four children—aged 7, 9, 13, and 14—that they would be there for a matter of weeks. They are still there. That is what is happening on the ground and why a strategy on dispersal is required. Dispersal is better in the local community: through work with the local community, and by using dispersal accommodation, people are better able to make connections and start feeling part of a city. As Asylum Matters states:

“Providing support for people seeking asylum, including finding suitable accommodation, should be carried out in partnership with local government and local community groups.”

That is not what we are seeing.

For the almost 700 recent arrivals in Southwark, there was absolutely no in-advance co-ordination with the council; the Home Office alerted the council only after opening accommodation. Bearing in mind that accommodation would have been commissioned and procured in advance, there was ample opportunity for discussions to ensure that support was in place, but the Home Office failed to engage. In fact, when I asked the Home Office what resources the council would receive to support the hundreds of new people, it wrote back saying, “We have given some money to the clinical commissioning group.” That is not part of the council.

I had a really useful discussion with the Local Government Association, which said that it would welcome a dispersal strategy and that it wants people to be able to work. There are workplaces that are desperate to take people on, but they cannot get them in. A proper dispersal strategy should look at employment levels in certain areas. Moving people into areas with high levels of employment, rather than into the cheapest accommodation across the country, would actually benefit the workforce and the economy. That strategy would be adopted by any sensible Government, so I do not hold high hopes.

I will give some background stats: in December 2020, around one in five people in Home Office accommodation were living in a hostel, B&B or hotel—triple the December 2019 figures. In Southwark, there were 1,022 people in dispersal accommodation in June, but, as I have just said, hundreds have arrived since then. The Red Cross suggested:

“The Home Office should, as a matter of urgency, address the supply of suitable asylum accommodation, and work with local authorities, devolved governments”,

and it pointed out an increase in the demand for asylum accommodation and a rise in the number of people living in inappropriate places. The increase in decision-making delays since 2018—prior to the pandemic—has resulted in people staying in asylum accommodation for far longer, which is something the Minister has just said he is determined to tackle, so a strategy should be welcome. The situation is unsustainable and only a strategy to build out of it will address the problem.

In April, we had a Backbench Business debate on accommodation, focusing on the National Audit Office and Public Accounts Committee reports into asylum accommodation. The NAO reported last July that the system the Government have adopted caused costs to escalate by 28%, and saw a 96% increase in short-term and more expensive accommodation. In November 2020, the Public Accounts Committee warned of a system in crisis, and it recommended:

“The Home Office should, within three months, set out a clear plan for how it will quickly and safely reduce the use of hotels and ensure that asylum seekers’ accommodation meets their individual needs.”

It would be great to hear from the Minister on how that clear plan is being developed. The new clause would help to address the problem that the Government have created.

The time involved comes with escalating costs to the Home Office and the taxpayer. Will the Minister update us on average times and what he is doing to tackle them? I have two examples from Bermondsey and Old Southwark. I have raised the cases of an Eritrean woman and a Mongolian man who have both been seeking asylum since 2017. Not only do they not have decisions four years later, but the Home Office cannot even give a timeframe for when their cases will be concluded. Perhaps the Minister can tell us today when and how the Home Office will cut the horrific backlog that his Government have created.

At the end of September 2020, there were 3,621 Sudanese, Syrian and Eritrean nationals who had been waiting longer than six months for a decision on their application. The grant rate across those countries was 94% in the most recent stats. That is an incredibly expensive waste. A strategy, as outlined in the new clause, would help address the underlying costs and focus Ministers’ and civil servants’ minds on cutting delays and lowering the cost to the public purse.

Earlier this year the hon. Member for Westmorland and Lonsdale (Tim Farron) asked the Home Office what the Government were doing to engage with local authorities to understand why offers for dispersal were not matching demand, and to ensure that there was true collaboration. He received a letter in response from the Home Office that stated:

“We remain fully committed to working towards the agreed change plan once we have been able to move people out of hotels and into more appropriate Dispersal Accommodation.”

I hope the new clause helps the Minister with that aim. I commend it to the Committee.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I am grateful to the hon. Gentleman. I want to pick up on a few of the points that he raised. In relation to Napier, as I have said previously, we have seen several improvements recently: offering all residents covid vaccinations and personal cleaning kits, the introduction of NGOs on the site to provide assistance and advice, free travel to medical appointments and dentistry services or for meetings, sports and recreation. Those significant improvements have been made since the court judgment was handed down.

Hotels are provided as a contingency because of the lack of availability of other accommodation, but it is important to make the point that those are not accommodation centres. On the unaccompanied asylum-seeking children situation, it is difficult to comment on individual cases and a hotel in the hon. Gentleman’s constituency—I do not have the specifics to hand—but I can say that, broadly, the UASC, but not other children, would be accommodated in a hotel. That is my understanding of the situation.

On a broader point, we had a significant debate on new clause 2 and dispersal accommodation, where I set out the steps that the Government are taking to try to address that. That is being considered, and I refer Members to what I said before.

Neil Coyle Portrait Neil Coyle
- Hansard - - - Excerpts

The Minister says that things have improved since the court judgment and that, for example, NGOs now have more routine access. The hostel accommodation in Bermondsey and Old Southwark was open for three months before the first visit of Migrant Help on site. I am just not convinced that the Minister has given an accurate portrayal of the current picture and the real situation in a real building affecting hundreds of people in my own constituency.

Holly Lynch Portrait Holly Lynch (Halifax) (Lab)
- Hansard - - - Excerpts

My hon. Friend is making excellent points. The Minister says there have been changes at Napier barracks since the High Court judgment, but those changes happened because of the High Court judgment, and they perhaps would not have happened had the Government not been taken to court over the use of Napier barracks and the conditions there. That is why we do not trust the Government to make the right judgment calls on the quality of accommodation, and why my hon. Friend’s new clause is important.

Neil Coyle Portrait Neil Coyle
- Hansard - - - Excerpts

I agree with my hon. Friend. The Government routinely dodge using the term “accommodation centre” because they do not want to set up an advisory group. If they went through the formal process of designating something as an accommodation centre, an advisory group would help to resolve some of the problems that we have seen at Napier and in the hostel accommodation in my constituency, where they had an almost inevitable covid outbreak.

The Minister has not committed to a strategy. We are seeing a longer process, with routine delays for applications and appeals. We are seeing damage to people’s lives. We are seeing damage to the economy because people cannot get a job and make more of a contribution as quickly as would be possible if there were a strategy and a plan. We are leaving the taxpayer with a massive bill for the Government’s failure. Therefore, we will press new clause 27 to a vote.

Question put, That the clause be read a Second time.

Division 71

Ayes: 6


Labour: 5
Scottish National Party: 1

Noes: 8


Conservative: 8

New Clause 43
Independent Child Trafficking Guardians
‘(1) The Modern Slavery Act 2015 is amended as follows.
(2) For section 48 substitute—
“48 Independent Child Trafficking Guardians
(1) The Secretary of State must make arrangements to enable persons (“independent guardians”) to be available to represent and support children to whom this section applies.
(2) This section applies to a child if—
(a) a reference relating to that child has been, or is about to be, made to a competent authority for a determination for the purposes of Article 10 of the Trafficking Convention as to whether there are reasonable grounds to believe that the child is a victim of modern slavery or human trafficking; and
(b) there has not been a conclusive determination that the child is not such a victim; and for the purposes of this subsection a determination which has been challenged by way of proceedings for judicial review shall not be treated as conclusive until those proceedings are finally determined.
(3) This section also applies to a child who appears to the Secretary of State to be a separated child.
(4) The independent guardians’ appointment shall continue to be provided to a child as determined in this section until the age of 25 to the extent their welfare and best interests require such an appointment.
(5) In making arrangements under subsection (1) the Secretary of State must have regard to the principle that a child should be represented and supported by someone who is independent of any of any public authority (as defined in section 6 the Human Rights Act 1998) other than a court or tribunal.
(6) The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.
(7) A person appointed as an independent guardian for a child must promote the child‘s well-being and act in the child‘s best interests.”
(3) After section 48 insert—
“48A Independent Child Trafficking Guardians: functions
(1) This section defines the functions and duties of person appointed as an independent guardian under section 48.
(2) The functions of an independent guardian shall be to—
(a) ascertain and communicate the views of the child in relation to matters affecting the child;
(b) consult regularly with the child and keeping the child informed of legal and other proceedings affecting the child and any other matters affecting the child;
(c) contribute to a plan to safeguard and promote the future welfare of the child based on an individual assessment of that child’s best interests.
(3) In the discharge of their functions, the independent guardian must at all times act in the best interests of the child.
(4) The advocate will assist the child to obtain legal or other advice, assistance and representation, including by appointing and instructing legal representatives to act on the child‘s behalf.
(5) The Secretary of State must make regulations about independent child trafficking advocates, and the regulations must in particular make provision—
(a) about the circumstances in which, and any conditions subject to which, a person may act as an independent guardian;
(b) for the appointment of a person as an independent guardian to be subject to approval in accordance with the regulations;
(c) requiring an independent guardian to be appointed for a child as soon as reasonably practicable;
(d) about the functions of independent guardians;
(e) requiring public authorities which provide services or take decisions in relation to a child for whom an independent guardian has been appointed to—
(i) recognise, and pay due regard to, the guardian’s functions, and
(ii) provide the guardian with access to such information relating to the child as will enable the advocate to carry out those functions effectively (so far as the authority may do so without contravening a restriction on disclosure of the information).
(6) Before issuing regulations under this section, the Secretary of State must lay a draft of the regulations before Parliament.
(7) The Secretary of State shall not launch the regulations unless the draft has been approved by a resolution of each House.
(8) Whenever any other provision of the regulations is altered, the Secretary of State shall lay a statement of the altered provision before Parliament.
(9) If any statement laid before either House of Parliament under subsection (8) is disapproved by a resolution of that House passed before the end of the period of 40 days beginning with the date on which the statement was laid, the Secretary of State shall—
(a) make such alterations in the regulations as appear to be required in the circumstances; and
(b) before the end of the period of 40 days beginning with the date on which the resolution was made, lay a statement of those alterations before Parliament.
(10) For the purposes of this Act—
“separated child” means a child who—
(a) is not ordinarily resident in England and Wales; and
(b) is separated from all persons who—
(i) have parental responsibility for the child; or
(ii) before the child’s arrival in England and Wales, were responsible for the child whether by law or custom.”’—(Holly Lynch.)
This new clause seeks to incorporate an entitlement to independent guardians for separated and trafficked children and set out their functions.
Brought up, and read the First time.
15:15
Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss new clause 44—Independent Child Trafficking Guardians: inspection

‘(1) The Education and Inspections Act 2006 is amended as follows.

(2) After Clause 145 insert—

“145A Inspection of independent guardians’ performance

(1) The Chief Inspector must inspect the performance of independent guardians.

(2) On completing an inspection under this section, the Chief Inspector must make a written report on it.

(3) The Chief Inspector must send copies of the report to—

(a) the Secretary of State, and

(b) Independent Guardians.

(4) The Chief Inspector must arrange for the report to be published in such manner as he considers appropriate.

(5) In this section, “independent guardians” means those appointed under section 48 of the Modern Slavery Act 2015.”’

This new clause sets out the duty for OFSTED to inspect the performance of independent guardians.

Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

Before I start, I draw hon. Members’ attention to the Red Box article written by the Independent Anti-Slavery Commissioner, Dame Sara Thornton, and published in The Times today. Entitled “Rushed borders bill will fail victims of modern slavery”, it is damning. Against that backdrop, I will have another go at mitigating the worst elements of part 4 with new clause 43. I start by paying tribute to ECPAT UK and the Children’s Society, which have shared their insight and invaluable expertise in helping us to shape these new clauses.

New clause 43 would amend section 48 of the Modern Slavery Act 2015, to ensure that an independent guardian was provided for all child victims of trafficking and separated children. For clarity, I point out that when I refer to “separated children”, I am referring to migrant children who are unaccompanied. The independent guardian would be a central part of a child’s life, acting as a connection to all the support services that they required, having the ability to instruct solicitors on their behalf and representing their best interests throughout. These guardians would be experts on trafficking and modern slavery, whose purpose was to safeguard and improve the wellbeing of trafficked children, as well as ensuring that statutory services could function more effectively, securing a route both to recovery and to prosecution of those ultimately responsible for their abuse. As specified in the functions laid out in the new clause, an independent guardian would ensure that the child was informed of any relevant legal proceedings, clearly communicate the views of the child and promote the future welfare of the child based on what was in the child’s best interest.

I have cited the numbers previously, but I will remind the Committee. In 2020, 47% of referrals to the national referral mechanism were children, and of the referrals for UK-based exploitation only, 57% were children. It was the case that 51% of the referrals of children were for child criminal exploitation. According to the National Crime Agency, the increase in referrals to the NRM of British children has been driven largely by so-called county lines criminality.

A great deal of the provision in new clause 43 should already be happening and be provided for between international laws, including the UN convention on the rights of the child, the EU trafficking directive of 2011 and the Council of Europe convention on action against trafficking in human beings, as well as domestic provisions. However, the measure has been only partially adopted across the UK. The Children’s Society has supported calls for it to be enshrined in statute, stating that a guardian’s role should be independent from the state, have legal authority and have adequate legal powers to represent the child’s best interests, as well as being respected by an existing regulatory body.

As the Independent Anti-Slavery Commissioner highlighted in her annual report for 2020-21, despite clear evidence of good practice she remains extremely disappointed that six years on from the Modern Slavery Act 2015 the independent child trafficking guardian service is not yet a national provision.

There has been very much a staggered approach to roll-out, with the service still not in operation across around a third of all local authorities, several years after it was adopted in three early adopter areas in Greater Manchester, Hampshire and the Isle of Wight. That shows a real lack of urgency on the Government’s part and we echo the statement by the anti-slavery commissioner that

“access to this specialist support for children should not be a postcode lottery”.

In the year ending June 2021, the UK received 2,756 applications for asylum from unaccompanied children. The majority of unaccompanied children are cared for on a voluntary agreement under section 20 of the Children’s Act 1989, rather than under a section 31 care order, whereby the local authority has full parental responsibility for the child.

Although I pay tribute to the dedicated social workers up and down the country, in reality many social workers will not have received training on the asylum and immigration system, and may lack the skills to aid children with their immigration applications. Therefore, the new clause will provide much needed consistency and security for children who have had some of the worst possible starts in life, supporting them towards recovery and through their relationship with the relevant agencies, in the hope that we can secure child victims a degree of restorative justice, which would be a service for both migrants to the UK and UK nationals.

The report conducted by the Home Office evaluating independent child trafficking guardians supported the argument that they provide a sense of stability and continuity:

“Investing time in trafficked children’s lives by a single trusted, well-informed, reliable adult became a distinct early feature of the ways child trafficking guardians stood out from other professions.”

This is demonstrated by one young person who responded to the evaluation. Speaking about their guardian, they said:

“She is so amazing... I don’t know if they’re all like that, but for me it was different, because I told her things that I haven’t told my social worker and that was beneficial. I think that’s because of her personality...she seems really open, I can talk to her about anything.”

Police offers working to combat exploitation and help young people told me recently that they were becoming aware that the drive to keep young people out of police cells for all the right reasons had led to instances where children were arrested in possession of, say, drugs and cash. Rightly, the police would have taken those items from the children before they were released, pending further inquiries, but before proper consideration of their circumstances could be made.

Officers identified that children and young people were having to go back to serious criminals to inform them that they no longer had their drugs or cash, without any of the risks to them having been identified and without safeguarding support having been wrapped around them. Thankfully, those officers were working through the best practice alternatives, but those are the types of scenarios where guardians would be able to play an invaluable role.

It is notable that the devolved nations have been far more proactive in this area, with Scotland having made greater progress and Northern Ireland introducing a comprehensive independent guardians model, which provides an individualised service for all separated children. If we are to consider the UK a world-leader in combating modern slavery, I ask the Minister to put into primary legislation what should already be happening, as a means of addressing the gaps in provision, which will help us to do what is right for these children as well as assisting the authorities in identifying and apprehending perpetrators of some of the most heinous crimes.

New clause 44 would ensure that the provision of independent child trafficking advocates is subject to an inspectorate regime. As colleagues may be aware, the measure is currently not subject to an inspection framework, which is applied to other services for children under the Education and Inspections Act 2006. We believe than an inspection framework is necessary to ensure that Ofsted can inspect the quality and effectiveness of the service.

In conclusion, I find it hard to believe that any colleagues do not support the aims and objectives of the new clause, which builds upon the commitments in the Modern Slavery Act 2015. As the campaign group Every Child Protected Against Trafficking UK has highlighted, those who are eligible under new clause 43 may have had to flee their country due to conflict and may have faced exploited en route to the UK. Others may be British children in the care system, who have been let down by the adults around them. There is a breadth of vulnerability here and we believe that the new clauses better acknowledge and cater to all child victims’ physical and psychological needs. I hope that the Minister shares the ambition behind the new clauses and understands the need for all trafficked and separated children to be recognised and supported within primary legislation.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I thank hon. Members for tabling their new clauses. They have raised important issues about the support available for child victims who have faced the most heinous crimes. Independent child trafficking guardians are an independent source of advice and support for potentially trafficked children, irrespective of nationality, and somebody who can advocate on a child’s behalf. Provision for the independent child trafficking guardian already exists in section 48 of the Modern Slavery Act 2015, as does the requirement to make regulations.

The Government have developed detailed policy for the provision of this service, which is set out in the interim independent child trafficking guardians guidance, published under section 49 of the Modern Slavery Act 2015. This guidance is kept under review through consultation with stakeholders. The correct place for the detail regarding the function of the service is in guidance, rather than, as new clause 43 suggests, the legislation itself. That enables the Government to respond flexibly to best practice and victims’ needs. The guidance is clear that acting in the child’s best interests must always be a primary consideration for the service.

New clause 43 would also ensure that an independent child trafficking guardian can continue to provide support to a child until the age of 25, to the extent that their welfare and best interests require such an appointment. Following a recommendation from the independent review of the Modern Slavery Act, the Government are currently trialling the provision of support, when appropriate, to individuals beyond the age of 18 in London, West Yorkshire and Warwickshire. An independent evaluation will look at the added value of implementing that change and consider appropriate next steps. The new clause would expand the scope of the independent child trafficking guardian service to all separated children when there are already existing provisions for separated children to receive support and assistance through other means.

I assure the Committee that the Government take their responsibility for the welfare of unaccompanied children extremely seriously. We have comprehensive statutory and policy safeguards in place for caring for and safeguarding unaccompanied asylum-seeking children in the UK, including those who are victims of trafficking. When an unaccompanied asylum-seeking child becomes looked after by a local authority, they are entitled to the same level of support and care from their local authority as all looked-after children. Under these arrangements, a looked-after child must be provided with access to education, healthcare, legal support and accommodation. They will be allocated a social worker who will assess their individual needs and draw up a care plan that sets out how the local authority intends to respond to the full range of those needs. Our record demonstrates the Government’s determination to ensure that unaccompanied children and child victims of modern slavery are appropriately safeguarded and have the support they need.

Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

Will the Minister give way?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I am conscious that we need to make progress, but I will take a quick intervention.

Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

I am grateful. I do not dispute that the provision already exists in legislation for independent child trafficking guardians; my dispute is that, as we have heard, they are not available in reality for a third of the country. If the Minister is saying that we do not need a requirement in legislation to do this, how does he plan to ensure that those guardians are available right across the country?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

If I may, I will write to the Committee. I have undertaken to write to the Committee with more information in relation to another matter we discussed earlier, and I am very happy to provide more information to the Committee in answer to that question.

Turning to new clause 44, I appreciate that appropriate methods of assessing the effectiveness of independent child trafficking guardians are required. The current independent child trafficking guardian service model is informed by the findings of the evaluation of early adopter sites, published in July 2019, and the evaluation of the regional practice co-ordinator role, published in October 2020. The provision of independent child trafficking guardians in section 48 of the Modern Slavery Act 2015 provides the Secretary of State with a duty to make such arrangements considered reasonable to ensure that specialist independent child trafficking advocates are

“available to represent and support children who there are reasonable grounds to believe may be victims of human trafficking.”

Section 48(6) places a duty on the Secretary of State to make regulations about independent child trafficking advocates, which must include the circumstances and conditions under which a person may act as an independent child trafficking advocate, arrangements for the approval of the appointment of such advocates, the timing of appointment and the advocates’ functions. As mentioned earlier, the roll-out of the independent child trafficking guardian service is being informed by the findings of the evaluation of early adopter sites. As such, regulations will be brought forward in due course.

Independent child trafficking guardians are now operating in two thirds of all local authorities in England and Wales, as the hon. Lady said. It is important that the provision is able to support those vulnerable children appropriately, and it is precisely for this reason that a staggered approach has been adopted, with built-in evaluations along the way. We will continue to monitor closely the independent child trafficking guardian service to ensure practitioners are acting in the child’s best interests and that resource is being allocated appropriately. We will adjust guidance as needed to ensure that these vulnerable victims are protected and supported to recover from their exploitation. For the reasons I have outlined, I invite the hon. Lady not to press her new clauses.

15:29
Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

I live in hope that anyone who can run a marathon for Justice and Care would understand the value of the independent child trafficking guardians and the victim navigators, and with that in mind, I very much look forward to the Minister’s further commitments in writing. If we are not satisfied, we will come back to this issue on Report, but I trust that he will do everything he can on those two fronts. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 46

Permission to work for people seeking asylum

“(1) The Immigration Act 1971 is amended as follows.

(2) After section 3(2) (general provisions for regulation and control) insert—

‘(2A) In making rules under subsection (2), the Secretary of State must make provision for persons seeking asylum, within the meaning of the rules, and their adult dependants to have the right to apply to the Secretary of State for permission to take up employment, including self-employment and voluntary work.

(2B) Permission to work for persons seeking asylum and their adult dependants must be granted if—

(a) a decision has not been taken on the person’s asylum application within six months of the date of that application, or

(b) a person makes a further application which raises asylum grounds and a decision on that new application, or a decision on whether to treat such further asylum grounds as a new application, has not been taken within six months of the date on which the further application was made.

(2C) Permission for a person seeking asylum and their adult dependants to take up employment shall be on terms no less favourable than the terms granted to a person recognised as a refugee.’”—(Bambos Charalambous.)

This new clause amends the Immigration Act 1971 to allow people seeking asylum to be granted permission to work after 6 months.

Brought up, and read the First time.

Bambos Charalambous Portrait Bambos Charalambous (Enfield, Southgate) (Lab)
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

I will try to be brief in the interests of time. I thank the Lift the Ban campaign for its sterling work on why this new clause is so necessary and why it would be so beneficial. Current immigration rules dictate that asylum seekers can apply for permission to work only if they have been waiting for a decision for over 12 months and only for jobs that are on the Government’s highly restrictive shortage occupation list, which includes professions such as classical ballet dancer and geophysicist. That has not always been the case. Until 2002, people were able to apply for permission to work if they had been waiting for a decision for more than six months. Only in 2010 was the right to work restricted to jobs on the shortage occupation list.

Today, 76% of people waiting for a decision on their asylum claim have been waiting for more than six months, according to the Government’s latest immigration statistics. During the long waits for claims to be processed, people seeking asylum are unable safely to protect themselves and provide for their families. They are forced to depend on the pitifully low asylum support payments of £5.66 a day, and people must often choose between essential items of food, medicine and cleaning products while being prohibited from using their skills and experience.

Work provides a route out of poverty, and there would be a big economic benefit from lifting the ban. The Lift the Ban coalition has calculated that, if 50% of those currently waiting more than six months for a decision on their claim found work, the net economic benefit from increased tax and national insurance contributions and from lower asylum support payments would be £178 million per year. Lifting the ban also has widespread business backing. In 2019, the Lift the Ban coalition polled 1,000 businesses for their views on whether people seeking asylum should have the right to work, and 67% of the businesses polled agreed.

In addition, lifting the ban would bring the UK into line with policy in all other comparable countries. Lifting the ban also makes sense in the covid-19 pandemic or post-pandemic context in which we find ourselves. The skills and desire to work possessed by many stuck in the asylum system could have been invaluable during the recent covid-19 crisis. Very importantly, lifting the ban would support integration. It stands to reason that early access to employment increases the chances of smooth economic and social integration by allowing people to improve their English, acquire new skills, and make new friends and social contacts in the wider community. Crucially, it enables them to be self-sufficient. The policy is also popular with the public. According to Lift the Ban coalition’s research conducted in 2018, 71% of the public support lifting the ban.

Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

My hon. Friend is making a powerful speech. I intended to speak in full in favour of new clause 46, but I will just make an intervention. On that 71% figure, he will be aware that Lift the Ban conducted research in every constituency across the country. Bearing in mind that 73% of the people of Eastleigh, 72% of the people of Calder Valley and 66% of the people in the constituency of the hon. Member for Stoke-on-Trent North support ending the ban on the right to work, does my hon. Friend share my hope that the hon. Members for those areas will reflect on the public’s support for new clause 46?

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

My hon. Friend makes an excellent point and I hope beyond hope that hon. Members will support our new clause.

In December 2018, the then Home Secretary stated that a Home Office review of the policy would be taking place. Subsequent contributions in 2019 from the Prime Minister and Home Office Ministers confirmed that the review would continue under the new Government, but to date no detail has been provided regarding the content or methodology of that review. The Government have appeared divided in their own ranks on the issue. In recent months, senior Cabinet Ministers have expressed disquiet about the Government’s position. Surely, it is therefore time that the Government listen to voices from across the political spectrum on this issue and do the right thing by adopting our clause on lifting the ban on work for people seeking asylum.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I should start by noting that, as hon. Members know, the Government’s current policy does allow asylum seekers to work in the UK if their claim has been outstanding for 12 months, where the delay was caused through no fault of their own. Those permitted to work are restricted to jobs on the shortage occupation list, which is based on expert advice from the independent Migration Advisory Committee.

I should like to set out the rationale for that policy position. The policy is designed to protect the resident labour market by prioritising access to employment for British citizens and others who are lawfully resident, including those granted refugee status, who are given full access to the labour market. That is in line with wider changes we have made through the points-based immigration system. We consider it crucial to distinguish between those who need protection and those seeking to come here to work, who can apply for a work visa under the immigration rules. Our wider immigration policy would be undermined if individuals could bypass the work visa rules by lodging unfounded asylum claims in the UK.

Neil Coyle Portrait Neil Coyle
- Hansard - - - Excerpts

Will the Minister give way?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I have been very generous throughout the duration of the Committee, but I am afraid I need to make some progress at this point.

It is also the case that unrestricted access to employment opportunities may act as an incentive for more migrants to choose to come here illegally, rather than claim asylum in the first safe country they reach. While pull factors are complex, we cannot ignore that access to the UK labour market is among the reasons that an unprecedented number of people are taking extremely dangerous journeys by small boat to the UK. I trust that hon. Members would agree with me that the UK cannot have a policy that raises those risks, and that we must do everything in our power to put a stop to those journeys.

Relaxing our asylum seeker right-to-work policy is not the right approach in this respect. Indeed, in an article earlier this month, the French newspaper Le Figaro noted the perspective in France that the “economic attractiveness” of the UK is a reason migrants attempt to cross the channel in small boats. In addition, removing restrictions on work for asylum seekers could increase the number of unfounded claims for asylum, reducing our capacity to take decisions quickly and support genuine refugees.

I would like to take this opportunity to make it clear that I do acknowledge the concerns of hon. Members. The Government are committed to ensuring that asylum claims are considered without unnecessary delay to ensure that individuals who need protection are granted asylum as soon as possible and can start to integrate and rebuild their lives. It is important to note that those granted asylum are given immediate and unrestricted access to the labour market.

I absolutely agree with hon. Members that asylum seekers should be allowed to volunteer. That is why we strongly encourage all asylum seekers to consider volunteering, so long as it does not amount to unpaid work. Volunteering provides a valuable contribution to their local community and may help them to integrate into society if they ultimately qualify for protection.

We have been clear that asylum seekers who wish to come to the UK must do so through safe and legal routes. Where reasons for coming to the UK include family or economic considerations, applications should be made via the relevant route: either the new points-based immigration system or the refugee family reunion rules. We absolutely must discourage those risking their lives and coming here illegally.

The Nationality and Borders Bill will deliver the most comprehensive reform in decades to fix the broken asylum and illegal migration system, and our asylum seeker right-to-work policy must uphold that wider approach. There is, of course, a review of the 2018 report currently under way and I reassure hon. Members that the findings of the updated recent report will be built into this. For all those reasons, I invite the hon. Members for Enfield, Southgate and for Halifax to withdraw the new clause.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I am not convinced by the Minister’s response, so I will be pushing this to a vote. Hopefully, we will be joined by other Members across the Committee.

Question put,

 That the clause be read a Second time.

Division 72

Ayes: 6


Labour: 5
Scottish National Party: 1

Noes: 8


Conservative: 8

New Clause 47
Immigration Rules: entry to seek asylum and join family
‘(1) Within 6 months of this Act being passed, under the power in section 3(2) of the Immigration Act 1971, the Secretary of State shall lay before Parliament rules making provision for the admission of persons coming for the purpose of seeking asylum.
(2) These rules shall include provision for admitting persons who have a family member in the United Kingdom who—
(a) is ordinarily and lawfully resident in the United Kingdom; or
(b) has an outstanding claim for asylum in the United Kingdom.
(3) For the purposes of this section, a “family member” means a grandchild, child, parent, grandparent, sibling, uncle or aunt.’—(Stuart C. McDonald.)
This new clause would require the Government to make provision within the Immigration Rules for people to be admitted to the UK for the purposes of seeking asylum where they have a family member in the UK.
Brought up, and read the First time.
Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time. 

I appreciate that the issue of safe routes has been explored fairly extensively already today, but I just want to make a couple more points. I think pretty much everyone on the Committee has agreed that we want to stop people from making dangerous journeys. Members would agree that part of that work involves tackling gangs through police work and so on. Fundamentally, where we have different points of view is over the role that disincentives have.

The Bill is all about disincentivising people from making journeys by putting them in the criminal justice system—breaching their human rights, breaching the refugee convention and using all manner of methods that would be regarded as completely and utterly inappropriate. Indeed, in the last debate we heard about the right to work, which exemplified that approach. The answer from the Minister, with all due respect, was totally devoid of any sort of evidence and reasoning. It is hugely frustrating. The so-called review is still ongoing three years on.

The final way to tackle these journeys is through safe alternatives. Again, I think that across the Committee there is a degree of agreement that safe routes do have a role to play. It is important that we have safe legal routes. In a sense, there is an element of justice about it, which is that we have to play our part in supporting those who suffer persecution; we cannot just leave it all to neighbouring countries, notwithstanding the fact that 80% or 90% of refugees are often in neighbouring countries—developing countries and so on.

I still do not get whether the Government totally appreciate the important role that such safe routes have in reducing unsafe journeys. To me, it is obviously significant. That is why EU countries, previously including the UK, have in place the Dublin rules. Those are far from perfect, but they recognise that if a person seeking asylum has family members or links in another member state, that is an appropriate place for the asylum case to be heard. Almost certainly, if there is no official route for an individual to use to come to the UK, whatever their ties are, an unofficial journey on an unofficial route will follow. That is why we find that many people in France who do consider, and do make, these dangerous journeys actually have relatives here in the UK. The immigration rules as they stand—I raised this in my intervention on the Minister earlier—are not fit for purpose. They include hugely demanding tests. Grants outside the rules are few and far between. I welcome the fact that the Government have indicated that they will take a look at that.

The end of the Dublin rules has almost certainly—definitely, in my view—exacerbated what is going on across the channel. Of course, the fact that there are no safe legal routes across the channel does not mean that there are not people attempting these dangerous journeys: other reasons and other ties exist that motivate people to do that. There is no doubt that providing some form of visa for those who require it would result in some reduction in those dangerous crossings.

As the situation stands, the Government are trying to secure agreements with other countries, but so far as we can see those are entirely one-sided and one-way agreements seeking only to secure the right to remove people from here. To secure deals, to encourage countries to get on board and to ensure a reduction in unsafe journeys, we also need to negotiate safe routes to here. That is why the Dubs scheme was so successful and important. It is important that we put in place something similar for the future, which is what the new clause is all about.

15:45
Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I agree with the hon. Gentleman that it is imperative that we think carefully about the issue. Expanding our family reunion policy as proposed by the new clause would significantly increase the number of people who would qualify to come here and to seek protection. Indeed, the new clause is global in scope, meaning that any asylum seeker in the world with extended family in the UK could qualify to claim asylum. That could easily run to the hundreds of thousands.

To give just one example of how that could have challenging consequences, foreign nationals already illegally present in the UK could potentially be incentivised to claim asylum to circumvent immigration rules in order to bring their family over. We need to ensure that our limited resources are focused on helping refugees who are in the UK to reunite and integrate with immediate pre-flight family. We have a proud record of helping those facing persecution, oppression and tyranny, and we stand by our moral and legal obligations to help innocent civilians fleeing cruelty from around the world, but we cannot help all the people displaced worldwide and who want to come to the UK.

Allowing extended family members to come to the UK for the purpose of claiming protection under new clause 47 might simply create further incentives for more adults and children to be encouraged—even forced—to leave their family and risk hazardous journeys to the UK in order to later sponsor qualifying extended family. That plays into the hands of criminal gangs who exploit vulnerable people and goes against the main intention of the Bill. We must do everything in our power to stop that dangerous trend. The new clause would also result in chain migration, where granting entry to each family member has the potential to bring in even greater numbers of their family members to claim protection under the rules. That is simply not sustainable.

We recognise, however, that families can become fragmented because of the nature of conflict and persecution, as well as the speed and manner in which those seeking protection are often forced to flee their own country. That is why the Government strongly support the principle of family unity. We already have a comprehensive framework for families to be reunited here safely. I will add, because this will be of interest to both Government and Opposition Members, that we are committed to reviewing the family refugee reunion rules, as we set out in the new plan for immigration. At all times, as the Committee would expect, we will be fully compliant with our international obligations.

Given that and the issues raised in Committee, everything will be taken into account when looking at the policy.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

First, that was not a fair interpretation of the new clause: it was certainly not advocating for an unlimited number of people to have access to that route. Nevertheless, it is surprising that we are expected to be encouraged about family reunion at a time when this very Bill is proposing to strip the overwhelming majority of asylum seekers and refugees of those family reunion rights. At the end of the day, the issue is one we will have to revisit on Report. In the meantime, I beg to ask leave to withdraw the motion.

Motion, by leave, withdrawn.

New Clause 48

Six month time limit for determining asylum applications

“(1) The Secretary of State must make regulations providing for—

(a) a six month time limit for determining applications for asylum; and

(b) an officer of Director level or above to be required to write to the Home Secretary a letter of explanation on a quarterly basis in the event of any failure to meet the six month time limit.

(2) The Secretary of State must report to Parliament any failure to meet the six month time limit.”—(Bambos Charalambous.)

Brought up, and read the First time.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

This new clause could be a silver bullet to solve a lot of the ills in the immigration and asylum system. We believe that, were it to be adopted, it would have many beneficial social and financial effects. It would obviate the need for some of the other clauses we have proposed, such as lifting the ban on working. The new clause would undo a host of negative consequences that arise because of the current endemic delays in the asylum system, which are creating huge social and financial costs.

During the course of this Committee, we have heard testimony from people trapped inside the system for years. We have heard about the toll on mental health and the re-traumatising of people who have fled abuse and torture. We have heard about the way in which being trapped in limbo prevents integration and how being banned from working enforces poverty. None of these negative effects would exist if our six-month time limit for processing cases were adopted. Furthermore, costs to the taxpayer, such as those currently spent on long-term accommodation and subsistence benefits, would all be hugely reduced.

Let us not be under any illusion: the current asylum system is broken. According to the House of Commons Library, as of June 2021 the total “work in progress” asylum case load consisted of 125,000 cases—57,000 of those were awaiting an initial decision at the end of 2020.

Jonathan Gullis Portrait Jonathan Gullis
- Hansard - - - Excerpts

I was in Dover yesterday, where I spoke to people from Border Force about the situation. Does the hon. Gentleman agree with them, and with me, that one big issue putting pressure on the system is that tens of thousands of illegal economic migrants are crossing the English channel right now? That is leading to our having to speed up and process people as quickly as possible, while not having the facilities available in detention centres. We are therefore having to use hotels, which is taking up a huge amount of taxpayers’ money. That is where the real strain is. This Bill, which Border Force backs, will go a long way towards helping, as we are going to a six-month process with a one-time appeal, rather than multiple appeals, which are currently being exploited by certain lawyers.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

There is so much to respond to in that. I question the hon. Gentleman’s facts first of all, but clearly we are talking about the situation as it is now, which has been built up over the past decade, and not as he would like it to be. In any event, I disagree about what this Bill does. It does not solve the problem; it keeps people here for longer.

As I was saying, what is masked by these numbers are the hundreds of people who have waited nearly 10 years or more for a decision on their asylum claims, left in limbo while they wait for an answer. In August, a freedom of information request from The Independent newspaper revealed that there were more than 1,200 asylum seekers in the system who had been waiting more than five years for a decision, with 399 people who had been waiting more than a decade. Separate figures obtained by the Refugee Council through an FOI request earlier this year revealed that the number of applicants waiting for more than a year for an initial decision, not including appeals, increased almost tenfold between 2010 and 2020, from 3,588 to 33,016. More than 250 people had been waiting for five years or more for an initial decision on their case, with dozens of children among them. As of December 2020, 36,725 asylum seekers had been waiting more than a year for a decision.

Those kinds of figures just smack of a broken system. Having tens of thousands of people waiting for more than a year for an initial decision is just totally unacceptable. I am sure that most MPs can think of asylum cases they have been dealing with that have stretched on and on, sometimes for years. I can cite the case of a constituent—I shall call them F—who came to the UK from Afghanistan as a child and applied for asylum in August 2013. It took seven and a half years, and my involvement as his MP, for the matter to be resolved in February this year. It really should not take an MP’s involvement to reach such a conclusion.

The human cost to people’s mental health and the cost to the taxpayer of these endemic delays in the system is high. We know that people in the asylum system become increasingly mentally unwell as the years of uncertainty, trauma and demonisation erode their mental and physical health. The Refugee Council reported earlier this year that this has led to an increase in the numbers of individuals self-harming and reporting suicidal thoughts. The Children’s Society report “Distress Signals” also outlined serious concerns about the damage done to children’s mental health in those conditions— this is damage done at a formative age that will last a lifetime.

Beyond the human cost of these delays is the financial cost. The backlog adds considerably to the overall cost of the asylum process. The Refugee Council has calculated that for every month of delay the additional cost to the Home Office per person is at least £730.41, equating to £8,765 per year. The delays make absolutely no financial sense. Not only that, but on the Home Office’s own figures more people are being employed but they are processing fewer cases. Paying more for less productivity is not acceptable. If this was a business, it would go bust.

A commitment to a six-month target as set out in the new clause would therefore save a huge amount of money to the Treasury and taxpayers, improve the mental health of those caught in the system, and help with integration.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I have been clear throughout Committee proceedings that the Government are committed to overhauling the current asylum system, which is obviously broken and in critical need of reform. The number of non-straightforward cases awaiting a decision has grown rapidly, meaning that in October 2018 it became clear to us that the service standard of six months from the date of claim no longer best served those who used our services. For those reasons, former Ministers agreed that we should move away from the service standard.

Although I cannot accept the new clause, as we consider it too restrictive, Members will have detected from what I have said throughout the proceedings that we want to see the faster processing of cases. I entirely recognise the shadow Minister’s point on the financial costs of delay, and the impact on individuals of delay. That is why I and my ministerial colleagues want cases to be dealt with more speedily. That is, of course, the right objective to be working towards. We are working to reintroduce a service standard that will align with changes brought about by the new plan for immigration. I encourage the shadow Minister to withdraw the new clause.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I will push the clause to a vote; we are not convinced by the Minister’s response.

Question put, That the clause be read a Second time.

Division 73

Ayes: 6


Labour: 5
Scottish National Party: 1

Noes: 8


Conservative: 8

New Clause 49
Disclosure of international agreements for prevention of unlawful border crossings
“(1) The Secretary of State must make regulations requiring–
(a) the Secretary of State to disclose the contents of any agreements with any international governments or agencies entered into in order to prevent unlawful border crossings; and
(b) the information in paragraph (a) to be laid before Parliament within 3 months of any such agreement being entered into.”—(Bambos Charalambous.)
Brought up, and read the First time.
Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

Through new clause 49, we hope to shed light on some of the murkiness that has existed in the Home Office in relation to agreements reached with agencies and other Governments to prevent unlawful border crossings and dangerous journeys. The new clause would require the Secretary of State to disclose the contents of any agreements with any international Governments or agencies reached in order to prevent unlawful border crossings, and for this information to be laid before Parliament within three months of any such agreement being entered into. This would mean that, for example, information pertaining to the UK-French agreement to tackle dangerous crossings in the English channel in July could be properly understood and scrutinised, including the use of £54 million of taxpayers’ money.

Information about that agreement and its impact has been limited, and although information has been limited, the confusion has been clear for all to see. There have been conflicting briefings between the British and French authorities regarding the use of £54 million of British taxpayers’ money. There have been reports, for example, that the UK is threatening to withhold the money. The Home Secretary appeared before the Lords Justice and Home Affairs Committee last week and this question was asked. The Home Secretary stated that the agreement is “based on results”, and includes preventing people getting to beaches, intelligence sharing, policing operations around the Belgian-French border, and technology.

For more than two years, the Home Secretary has repeatedly committed to stopping channel crossings in small boats by making the route unviable, yet unprecedented numbers of people have made the journey in this period, including a staggering 20,000 this year alone. Clearly, if we are working with the French authorities to disrupt people smuggling gangs and prevent dangerous crossings, it does not seem to be working very well, and parliamentary scrutiny of how taxpayers’ money is being spent is important if we are to learn more about the Home Secretary’s plans and why they have once again failed to deliver. For example, has anything been paid to France? Is the agreement for payment by results? If so, what are the metrics? How can we scrutinise whether this is value for money, or whether that money could be better spent elsewhere? It seems astonishing that the Home Secretary can just be given £54 million of public money to spend, but we do not know what on. There must be some accountability for that to Parliament.

16:00
I am sure all members of the Committee would agree that we need a strategy that includes tackling criminal gangs operating away from the coast of France, which are facilitating these dangerous crossings. Targeting those groups requires international co-operation, but the Bill does not lend itself to international co-operation. As we know, it effectively washes the UK’s hands of our international obligations under international human rights and maritime law. We have also heard at length from the Opposition about the importance of safe and legal routes to prevent people from undertaking these crossings in the first place, something the Government continue to neglect, with tragic consequences.
In summary, the Opposition’s new clause 49 hopes to probe unanswered questions about the Home Office’s operations and use of taxpayers’ funds. If accepted, it would require the Secretary of State to disclose the contents of any agreements with international Governments or agencies entered into to prevent unlawful border crossings, and to present that information to Parliament.
Jonathan Gullis Portrait Jonathan Gullis
- Hansard - - - Excerpts

I reiterate that, having gone down to Dover to meet the Kent intake unit in Dover docks, having met in the joint control room with deputy director Dave Butler of the clandestine threat command, and having been to Tug Haven and western Jetfoil on a cross-party parliamentary visit, it was fantastic to learn and understand. I share concerns expressed by the hon. Member for Enfield, Southgate about the use of this money by the French, and I have been quite open in my view that the French are simply not doing enough, but it was great to hear from Dave and others in the control room that what the French are doing inland is quite substantive. Dave was very happy to share the details.

I can only implore the hon. Gentleman, rather than pressing this new clause, to go on down and visit, and have a chat with Dave and the gang down there to hear what is going on in France. They were trying to say to us that the French are operating inland and trying to stop people from coming over to France and travelling through. The local Parisian community, for example, were getting very angry about being a path route towards Calais. That was a fascinating conversation.

That is why the new clause is unnecessary; we saw, after the threat of no payment was made, that suddenly we could not stop being inundated with video footage and photography of what was being done. I thought it was absolutely brilliant. The one thing the French are not doing is their job at sea. They need to step up and support the British Border Force and other British services in stopping boats once they have already launched into the English channel—not just by tracking them, as they currently do, but by tugging them back to France. They are simply not doing their job.

While I absolutely share the hon. Gentleman’s concerns about money, ultimately I believe the Home Secretary has a firm grip of this, and as we are seeing, the results are starting to pay dividends. However, I agree that more can be done, and the Bill goes a long way to achieving that.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I am grateful to the shadow Minister for his proposed new clause. He will appreciate that there is always a balance to be struck in these matters, and I should add that we have published joint statements that set out the nature of our work with France following arrangements made in July 2021 and November 2020. The content of the Sandhurst treaty, which underpins our illegal migration relationship with France, is also published.

Those arrangements are underpinned by additional administrative and operational documentation. However, it is not possible to publish that material where it includes sensitive details relating to the UK and our international partners. To disclose that information would hinder our operational response and our ability to target criminals driving illegal migration and ultimately protect the public. We must do nothing that aids their evil work—we simply must not entertain that, and that is something I am exceptionally mindful of in responding to the proposed new clause.

Paul Blomfield Portrait Paul Blomfield
- Hansard - - - Excerpts

Will the Minister give way?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I will, but I am conscious of the need to make progress.

Paul Blomfield Portrait Paul Blomfield
- Hansard - - - Excerpts

If the Minister is concerned to see that we do nothing to aid the evil work of people smugglers, what consideration has he given to the impact assessment by his own Department, which said:

“There is a risk that increased security and deterrence could encourage these cohorts to attempt riskier means of entering the UK.”?

According to his own Department, these proposals are counterproductive.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

What is being sought is further detail on the relationship that we have with France in particular to tackle these dangerous channel crossings. As I say, we must put nothing in the public domain that risks undermining that constructive collaboration through the arrangement that we have with the French, which is vital to stopping these dangerous crossings and protecting lives at sea. To do so would also result in a betrayal of trust with our international partners, who own some of this information, and could prevent us from reaching future agreements with international partners, impacting our ability to prevent illegal migration and small boat crossings. That is why the Government feel unable to support the new clause and I encourage the hon. Member for Enfield, Southgate to withdraw it.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

There is not enough scrutiny, so we wish to press the new clause to a vote.

Question put, That the clause be read a Second time.

Division 74

Ayes: 6


Labour: 5
Scottish National Party: 1

Noes: 8


Conservative: 8

New Clause 50
Route to settlement for children and young people who arrived in the UK as minors
“(1) Within two months of this Act being passed, the Secretary of State must amend the Immigration Rules so that – for persons to whom this section applies – the requirements to be met for the grant of indefinite leave to remain on the grounds of private life in the UK are that—
(a) the applicant has been in the UK with continuous leave on the grounds of private life for a period of at least 60 months.
(b) the applicant meets the requirements of paragraph 276ADE(1) of the Immigration Rules or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v) of those Rules, the applicant met the requirements in a previous application which led to a grant of limited leave to remain under paragraph 276BE(1) of those Rules.
(2) This section applies to—
(a) persons who have been granted limited leave to remain on the grounds of private life in the UK because at the time of their application—
(i) they were under the age of 18 years and had lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not have been reasonable to expect them to leave the UK; or
(ii) they were aged 18 years of above and under 25 years and had spent over half their life living continuously in the UK (discounting any period of imprisonment).
(b) persons—
(i) who were granted leave to remain outside the rules on the basis of Article 8 of the European Convention on Human Rights; and
(ii) who arrived in the UK as a minor.
(c) any dependants of a person to whom paragraph (a) or (b) applies.”—(Bambos Charalambous.)
Under this new clause, persons to whom subsection (2) applies would be able to apply for indefinite leave to remain after five years in the UK (as opposed to ten at present).
Brought up, and read the First time.
Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

The new clause would shorten the route to settlement from 10 years to five years for children and young people who have grown up in the UK and know no other home. This issue has a big impact on a relatively small number of people. These are bright young people who want to contribute to society but face a long, uncertain and financially demanding journey before their futures in the country they call home are secure.

I pay tribute to the brilliant charity We Belong, which is led by young people who themselves have been impacted by the unforgiving immigration rules. The Greater London Authority estimates that more than 330,000 children and young people who came to the UK as children have precarious immigration status. The young people who face this predicament are mainly Commonwealth citizens who are bright and want to contribute, but they have to wait 10 years before they reach settlement, at a cost of £12,771, through applications for leave to remain every 30 months.

Costs for leave to remain applications have risen astronomically in recent years, increasing by 331% since 2014. Often, more than one family member will be going through the process at the same time, so there are multiple fees to pay. That means that in many families, for at least a decade, earnings that could otherwise go towards securing a decent home or be invested in a child’s education instead have to be funnelled out of the family and paid to the Home Office. Before we even start to consider legal fees, we are asking families and young people to save more than £1,200 per year per person just to remain in the UK, when 30% of people in the UK have less than £1,000 in total savings and the average low-income family has just £95 in savings.

Each time they have to apply for leave, we raise the bar for these young people, asking far more of them than we ever would of those fortunate enough to be born with a British passport. Each time, they meet these almost impossible hurdles, often working several jobs to keep themselves and their families on this long and narrow 10-year path to security. These are clearly exceptional individuals, but it is not fair that we keep asking this of them.

For Arkam, who came to the UK aged 10, the 10-year route has meant being stuck in unsuitable accommodation. His family has lived in a one-bedroom house for 10 years because, he says

“the rent is so low and it has to be low because the Home Office fees are so high and our quality of life was non-existent.”

For Andrew, it has been the trigger for a string of evictions. His family were left without enough money to pay their rent and lost their home several times.

My own constituent, Tashi, arrived in the UK when she was seven and has since lawfully resided in the UK for almost two decades. When Tashi was just 10 years old, she was held unlawfully in immigration detention, and that experience has traumatised her ever since. Each limited leave renewal ignites the uncertainty and precarious nature of her status. If she makes a mistake on an application form, she could be back in detention and face deportation, even though she knows no other home. Living with limited leave to remain means decades of living with unrelenting uncertainty.

The more times that young people go through the LLR application process, the more they have to lose. If applicants are unable to afford the fee or fail to renew on time, they will have to begin the 10-year process from the very beginning.

That happened to Natasha, who came to the UK from Nigeria at the age of seven. Natasha was granted limited leave to remain when she was 18. When it came to renewing her visa, her family could not afford to renew due to the high fees and Natasha fell out of legal status. Unable to work, Natasha became homeless. Living in the shadows of society, it was only when she was 26 that she was able to raise enough money from family and friends to apply for LLR again and restart the 10-year route. She must renew this status every 30 months over a 10-year period. She will be 36 before she can apply for settlement and 37 years old when she can finally apply for citizenship.

How is this fair? For all this Government’s rhetoric about the importance of social integration, they continue to preside over an immigration system that isolates and stigmatises young migrants who have no other home but the UK. As highlighted by We Belong, many young people will undoubtedly be driven into poverty or lose their lawful status as a result of these high costs.

Speaking in July 2019, during his campaign to become leader of the Conservative Party, the Prime Minister said:

“I want everybody who comes here and makes their lives here to be, and to feel, British—that’s the most important thing”.

Across this Committee, I think we all agree with that sentiment. We should be proud of our country and encourage our residents to seek British citizenship, so why are we putting every hurdle in the way of ambitious young people who are already integrated into the fabric of our society? We Belong’s experience with young people on the 10-year route reveals how the demands of this process can reverse years, even decades, of integration.

The unforgiving 10-year route sows division and fear among young people, damages mental health, limits life chances and condemns even the hardest-working families to at least a decade of intense financial strain. The instability and onerous demands created by the limited leave to remain route serve nobody, and certainly not employers, educators or communities.

The financial and other constraints imposed by the 10-year process mean that many young migrants reaching early adulthood are denied the opportunity to realise their ambitions, causing prolonged financial and emotional stress. Ten years of multiple applications and multiple fees only increase the likelihood that young people will inadvertently fall out of status and have their lives ruined as a result. A five-year LLR path to settlement would be fairer and give them parity with other migrant groups, which is what this new clause aims to do.

We welcome the Home Office’s recent published guidance to case officers, which opens up a narrow discretionary five-year route for some young people. It shows that the Home Office acknowledges that there is a problem here. However the guidance is limited to those between 18 and 25, among other limitations. Many of the people in the case studies I mentioned, and many others who came to the UK as young children, are now over the age limit and will not be able to benefit from this scheme. Can the Minister tell me when the Home Office plans to rectify this anomaly?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I hope I might be able to satisfy the Committee by saying that both this proposed new clause and the related proposed new clause 45 are commendable, but we are already doing what they seek. We will consolidate our actions in the immigration rules as part of the simplification of the rules in the next 12 months. Home Office officials have discussed the proposed changes with the We Belong group of young migrants, who have indicated that they are supportive of the way the changes will be implemented. With that, I hope the hon. Gentleman will feel able to withdraw this proposed new clause.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I very much welcome the Minister’s comments, and I look forward to having more information. Based on what he has told me, I am willing to withdraw the new clause, and I look forward to progress being made in this area. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 51

Safety plan for child victims of human trafficking

“(1) The Children Act 1989 is amended as follows.

(2) In section 22, after subsection (3C) insert—

“(3D) In respect of a suspected child victim of trafficking who is looked after by the local authority, the duty of a local authority under subsection (3)(a) to safeguard and promote the welfare of the child shall include in particular a duty to consider and take all reasonable steps to ensure that arrangements of accommodation and support to meet the child’s needs and takes account of and addresses the child’s safety with a view to preventing the risk of re-trafficking.”

(3) In section 22, after subsection (4)(d) insert—

“(e) independent guardians (within the meaning of Section 48 of the Modern Slavery Act 2015) as a relevant person who the local authority shall, so far as is reasonably practicable, consult with before making any decision with respect of a child who they are looking after and who is entitled to an independent guardian.”

(4) In section 22C, after subsection (7)(c) insert—

“(d) where accommodation is arranged for a suspected or identified child victim of trafficking, due regard shall be paid to the potential risks of harm and re-trafficking and the child’s safety shall be a primary consideration.””—(Holly Lynch.)

This new clause seeks to provide child victims with a safety plan to prevent retrafficking.

Brought up, and read the First time.

16:15
Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

In the same spirit as new clauses 43 and 44, new clause 51 sets out the duty for local authorities to make arrangements for child victims of modern slavery, with a view to prevent their retrafficking, by amending section 22 of the Children Act 1989. As things stand, an unaccompanied child will become looked after by the local authority if they have been accommodated by the local authority for 24 hours under section 20 of the Children Act 1989. This will mean that they will be entitled to the same local authority provision as any other looked-after child. The Care Leavers (England) Regulations 2010 set out duties regarding care leavers and require that those duties are fulfilled with regards to the child’s circumstances and needs as an unaccompanied or trafficked child. The regulations apply to all children, regardless of their immigration status, nationality or documentation.

As we have heard previously, child victims of modern slavery are at increased risk of going missing and being retrafficked. In 2017, as many as one in four identified trafficked children were reported as having gone missing. The average missing incidents for each trafficked child have increased from an average of 2.4 times to 7.4 times between 2014-15 and 2017. The new clause therefore seeks to bring clarity to the duty on local authorities to protect victims, particularly those at risk of retrafficking. Subsection (2) highlights that there is a need to ensure that accommodation is a serious consideration for child victims. We know that concerns have been raised about the lack of agreed safety standards for accommodating child victims of trafficking, which can include the use of residential homes, shared flats and houses, bed-and-breakfast emergency housing and foster care.

In 2017, the Home Office and the Department for Education commissioned a report that found that there was

“limited availability of specialist provision”

and

“a lack of resources and specialist knowledge within local authorities and partner services.”

The report identified the placement of non-EEA migrant children in “semi-independent accommodation”, such as

“supported accommodation and/or shared housing”,

as being a cause for concern. Since the report was published, the Government have outlawed the provision of accommodation without care and supervision for under-16s, but they have continued to allow such provision for 16 and 17-year-olds.

A recent serious case review has further highlighted the problems of local authorities arranging inappropriate placements for children, and the impact of failing to conduct full risk assessments for both the needs of the child and the accommodation itself. Sarah was a looked-after child in the care of Worcestershire social services, and she died in independent accommodation away from her home borough in June 2019, at the age of 17. From an early age, Sarah had suffered from epilepsy, which had been managed by medication. In 2017, Sarah became a looked-after child under a voluntary agreement between the local authority and her parents, which meant that both Sarah’s parents maintained parental responsibility. Sarah became looked after and was accommodated with foster carers, but when these placements broke down, she resided in residential accommodation and then had semi-independent living arrangements.

Over a period of time, there were numerous occasions where Sarah was reported as missing from the placements. There were concerns regarding Sarah’s vulnerability and the effect of her medical condition. There were also concerns regarding Sarah’s relationships with older men, particularly her relationship with one man. Sarah was considered to be at risk of being criminally and sexually exploited. Sarah tragically died, having suffered a seizure at the home address of the older male in question in 2019, aged just 17. It is an incredibly sad case study and serves as an example of what can happen if the needs of vulnerable victims are not thoroughly assessed.

Currently, there is statutory guidance that outlines a local authority’s duties, such as the Department for Education’s guidance for local authorities, which was updated in 2017, entitled “Care of unaccompanied migrant children and child victims of modern slavery.” It states that:

“Local authorities have a duty to protect and support these highly vulnerable children. Because of the circumstances they have faced, unaccompanied migrant children and child victims of modern slavery, including trafficking, often have complex needs in addition to those faced by looked after children more generally. The support required to address these needs must begin as soon as the child is referred to the local authority or is found in the local authority area. It will be most effective where this support is provided through a stable, continuous relationship with the child.”

We unequivocally support the sentiments and measures incorporated in the guidance, but it should be strengthened through the adoption of the new clause, which would create a duty for local authorities to consider the risk of retrafficking and safeguard against children going missing. I have already made the case for the need, highlighted in subsection (3), for local authorities to work closely and consult independent guardians before making decisions on behalf of the child.

There is a clear, urgent need for the new clause, given the vulnerability of such children. There is also a practical requirement, given that, for multiple local authorities, missing, trafficked or unaccompanied children account for a significant proportion of the children they look after—in the case of one local authority it was as high as 15%. The new clause seeks not only to raise awareness of the needs of child victims but to provide greater definition on the role of local authorities in meeting such needs.

As this is likely to be the last time that I will be on my feet in the Committee, with your permission, Ms McDonagh, may I put on record my sincere thanks to the Children’s Society, ECPAT UK, the British Red Cross, the Immigration Law Practitioners Association, the Anti Trafficking and Labour Exploitation Unit, the Independent Anti-Slavery Commissioner, Dame Sara Thornton, and all the hard-working, dedicated frontline police officers disrupting modern slavery? I am eternally grateful for all their expertise. Finally, I thank Isabelle Bull from my team, who has worked like a trojan in preparation for the Bill, as well as the incredible Clerks of the House.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I, too, am grateful to the hon. Lady for the constructive way in which she has gone about her work on the Committee. I know how passionate she is about these issues.

Support for potential victims, including children, is a fundamental pillar of our approach to assisting those impacted by the horrendous crime of trafficking and modern slavery and reducing the risk of such victims being retrafficked. As the Committee may be aware, independent child trafficking guardians are an independent source of advice and support for potentially trafficked children, irrespective of nationality, and they can advocate on a child’s behalf. So far, the Government have rolled out the service to two thirds of local authorities across England and Wales. We have developed detailed policy for the provision of the service, which is set out in the interim independent child trafficking guardians guidance published under section 49 of the Modern Slavery Act 2015. The guidance is kept under review through consultation with stakeholders.

Within the guidance, the Government are already clear that acting in the child’s best interests must always be a primary consideration for the independent child trafficking guardian service. We are also clear that independent child trafficking guardians must be invited and provided with the opportunity to take part in all agency meetings and discussions that relate to and impact on the children that they are supporting. That is the correct place for detail on the function of the independent child trafficking guardian service. By keeping that detail in guidance—rather than putting it in legislation, as the new clause would—the Government can respond flexibly to best practice and victims’ needs.

Local authorities are responsible for safeguarding and promoting the welfare of all children in their area, including child victims of modern slavery. The “Working Together to Safeguard Children” statutory guidance is clear that the individual needs of children, including the risk of re-trafficking, should be taken into account when determining their recovery needs. That is to ensure that safeguarding processes and multi-agency support can be put in place to protect and prevent harm to children at risk of a range of exploitation harms and abuse. The approach enables us to focus on a range of exploitation harms, whereas the new clause would stipulate that we focus specifically on the risk of retrafficking. Although I am sure that that was not the new clause’s intention, prioritising safeguarding against the risk of retrafficking could consequentially lead to the prioritisation of action against specifically the risk of retrafficking in place of other risks, which would inherently pose a risk to individuals whose risk of retrafficking may not be the primary consideration. With that, I encourage the hon. Lady not to press her new clause.

Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

I think I followed what the Minister said and that he heard my concerns about some of the gaps in the provision. I will look to that statutory guidance for further detail. I will not press the new clause, so I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 52

Effect of British National (Overseas) visas

‘(1) Within six months of this Act being passed, the Secretary of State must commission and lay before Parliament an independent assessment of the effect of British National (Overseas) visas and the Government’s implementation.

(2) The Secretary of State must appoint an Independent Chair to conduct the assessment.

(3) The assessment must consider such matters as are deemed appropriate by the said Independent Chair.’—(Bambos Charalambous.)

This new clause would require the Government to publish an independent assessment of the effect of the British National (Overseas) visa scheme.

Brought up, and read the First time.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

We believe that the new clause is needed because there is clear evidence that the British national overseas scheme may not end up working as it was intended. That is particularly the case for young Hong Kong nationals. As everyone on the Committee knows, the BNO scheme has, in theory, been designed to offer a path to citizenship for Hongkongers. This was particularly designed in the wake of Beijing’s national security law being imposed last year, which has led to Hongkongers facing police brutality and severe repression. Although we in the Opposition therefore very much welcome attempts to support all those facing repression in Hong Kong, we believe that there is a need to examine how the BNO visa scheme is operating in practice and whether it is having the desired effect.

As the Home Affairs Committee pointed out in July, there are reasons for concern about individuals and groups who may be missing out on offers of support. There remain worrying gaps in the offer of support, and loopholes in the way that the BNO scheme may be implemented. That is particularly the case for younger pro-democracy activists in Hong Kong. It is evident that people under the age of 24 cannot benefit from the BNO visa scheme because of how it has been defined. That is because younger people do not hold BNO passports, which were issued in 1997. The BNO scheme requires that applicants hold a BNO passport. Those documents were issued to citizens following the handover of Hong Kong from the UK to China in 1997. Obviously, that means that a lot of people will be excluded from the scheme even if their parents or older siblings would qualify for it.

As a result of that, some people who have fled police brutality are now battling with the sclerotic and inefficient UK asylum system. That is simply because they are arbitrarily excluded from the Home Office settlement route due to their age. It has nothing to do with the validity of their claims, the severity of the oppression that they have experienced or the danger that they face in Hong Kong. All of those would have qualified them for a BNO visa had they been lucky enough to have been born a little earlier.

As we know, there are huge problems with the UK asylum system. We know that the average waiting time for an initial decision on an asylum case in the UK is between one and three years. Last week, some young Hongkongers told The Independent newspaper that they have been waiting for a year or more for a decision. Of course, the current inhumane rules of the Government’s hostile environment also mean that these same young people are banned from working, and often prevented from studying, while waiting for a decision. As Johnny Patterson, policy director of Hong Kong Watch, said, these Hongkongers in the asylum system are subjected to an “agonising wait”. Furthermore, the ban on them being able to work is undermining their chances of integrating in the UK.

The problem is only going to get worse unless it is tackled head on. Home Office figures show that there were 124 asylum claims from Hong Kong nationals in the year to June 2021, compared with 21 the year before and just nine in the 12 months to June 2019. It is even more concerning that 14 of those claims in the past year were unaccompanied minors, marking the first time on record that the UK has received asylum claims from children from Hong Kong.

We believe that the BNO visa scheme should be independently assessed to take account of the realities on the ground in Hong Kong. The truth is that it tends to be young people who were at the forefront of demonstrations to defend democracy and who are therefore likely to face the most repression. As well as that, people who are here under the BNO visa scheme have raised a number of concerns, such as their qualifications not being recognised, access to work, formal access to English language classes, and access to housing and banking services because they do not have a credit or renting history. There are also concerns about the lack of co-ordination between Government and local authority services. There are lots of reasons, therefore, why a review is needed.

It may well be the case that older parents wish to remain in Hong Kong while their children need to flee because they are in greater danger. Although the scheme allows applicants to bring relatives, including adult children, with them to the UK, the reality is that many young people will need to flee alone. They cannot rely on the parents coming to the UK who would have made their claim valid under the BNO scheme. We think it would be worth the Government exploring a revision of the scheme so that a child of a BNO Hong Kong citizen could make an application independently of their parents.

If such anomalies remain unaddressed, it will be deeply unfair on young Hongkongers. It is those young people who have often been on the frontline of the pro-democracy protests opposing the Chinese Government’s unlawful power grab. If they remain excluded from the BNO route for reasons entirely beyond their control, they will face an agonising wait in the UK asylum system, which we all know is beset with huge delays.

Given the UK’s deep connection to Hong Kong, should we not be offering a life raft to all Hongkongers who need one? The Opposition believe that the Government should accept independent scrutiny of the BNO scheme, with a view to exploring such steps as allowing children of BNO visa-eligible parents to make independent applications, provided there were evidence of their parents’ status, of course.

16:32
There are other reasons why we believe that an independent assessment of the BNO scheme will be necessary. The Select Committee on Home Affairs has raised concerns in connection with the operation of the BNO scheme in practice. For instance, it remains a possibility that visas could be refused to those who do not satisfy the suitability criteria in the immigration rules because of a criminal conviction, without the context of the conviction being taken into account. A conviction might relate to free speech or peaceful protest in Hong Kong, for example—actions that would not be considered offences under UK law. Although the Government have said that discretion will be given in respect of such applicants, we believe that an independent assessment of the effect of the BNO visa scheme would ensure that.
Possible mitigations for the current loopholes in the BNO visa scheme are evidently not sufficient on their own. For instance, the youth mobility visa for Hongkongers aged 18 to 30 does not provide any sort of substitute for the BNO scheme, because it is capped—it provides only for a two-year stay for work in the UK—and does not contribute to the residency requirement for settlement in the UK. Although it is a welcome scheme on its own terms, it does not address the issue that I have highlighted. That shows the need for an independent assessment.
In conclusion, we believe that the Government’s decision to offer the Hong Kong BNO scheme is a welcome expression of the UK’s historic relationship with the citizens of Hong Kong. We believe that individuals and families arriving from Hong Kong will enrich the cultural life of the UK and contribute to our economy, but unless the Government look at the existing loopholes in the BNO scheme and how it is being implemented, the scheme is in danger of being mainly warm words, rather than actually helping the people we have promised to help. An independent assessment of the scheme would allow the Government to improve it and offer help to those vulnerable young people most likely to be politically targeted by Beijing. In that way, the scheme could provide the genuine protection that we all believe people from Hong Kong deserve.
Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

The Hong Kong British national overseas route was launched on 31 January 2021, and the route has already been a success. As of 30 June, approximately 64,900 applications to the route have been made by BNO status holders and their family members who have chosen to make the UK their home. An impact assessment was published on 22 October 2020, setting out the projected impacts of the BNO route on the UK. As well as the direct impacts for the Government of operating the route, the impact assessment sets out the expected net benefit to the UK of between £2.4 billion and £2.9 billion over five years.

We believe that a review is not necessary. The policy is generous and barriers have been minimised. As the shadow Minister said, the Home Affairs Committee recently published a report on the route, and we have responded in full. I encourage him to withdraw the new clause.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I will not press new clause 52 to a vote, but I do hope that the Government will keep monitoring the system and provide the protection for young Hongkongers that I outlined. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 53

Electronic monitoring: conditions and use of data

“(1) Schedule 10 to the Immigration Act 2016 is amended as follows.

(2) In paragraph 2, in sub-paragraph (3)(a), leave out ‘must’ and insert ‘may’.

(3) In paragraph 2, in sub-paragraph (3)(b), leave out ‘by virtue of sub-paragraph (5) or (7)’.

(4) In paragraph 2, after sub-paragraph (3) insert—

‘(3A) If immigration bail is granted to a person subject to an electronic monitoring condition, the electronic monitoring condition shall cease to apply on the day six months after the day on which immigration bail was granted to the person, unless sub-paragraph (3B) applies.

(3B) This sub-paragraph applies if the Secretary of State or the First-tier Tribunal (as the case may be), when granting immigration bail to the person, has directed that the electronic monitoring condition shall not cease to apply in accordance with sub-paragraph (3A).

(3C) But the Secretary of State or the First-tier Tribunal (as the case may be) shall not make a direction under sub-paragraph (3B) unless the Secretary of State or the First-tier Tribunal (as the case may be) is satisfied that there are very exceptional circumstances which make the continued application of the electronic monitoring condition necessary in the interests of—

(a) public protection; or

(b) national security.’

(5) In paragraph 2, after sub-paragraph (7) insert—

‘(7A) Sub-paragraph (3)(a) does not apply to a person who is granted immigration bail by the First-tier Tribunal if the Tribunal considers that to impose an electronic monitoring condition on the person would be—

(a) impractical, or

(b) contrary to the person’s Convention rights.

(7B) Where sub-paragraph (7) or (7A) applies, the First-tier Tribunal must not grant immigration bail to the person subject to an electronic monitoring condition.’

(6) In paragraph 4, after sub-paragraph (2) insert—

‘(2A) The Secretary of State must not process any data collected by a device within the meaning of sub-paragraph (2) which relates to the matters in sub-paragraph (1)(a) to (c) except for the purpose of, and to the minimum extent reasonably necessary for, determining whether P has breached a condition of his bail.

(2B) In sub-paragraph (2A), “processing” has the same meaning as in section 3(4) of the Data Protection Act 2018.’”.(Stuart C. McDonald.)

This new clause would place certain safeguards and restrictions on use of electronic monitoring.

Brought up, and read the First time.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

New clause 53 is really just to probe the Government on a new issue that has started to arise this year: the significant increase in the use of the GPS monitoring of certain people on bail for immigration purposes, largely foreign national offenders awaiting deportation. I am not for a moment suggesting that such monitoring does not have its role. It absolutely does; indeed, there would be occasions on which I would be upset with the Home Office if it did not use it. There is a genuine concern, however, about the lack of safeguards and limits on its use, and on how data from GPS tracking is being used. Indeed, even compared to the criminal justice system, it seems that the safeguards and limits are somewhat light touch. Cases have arisen where it seems that use was totally inappropriate.

New clause 53 suggests putting in place some appropriate safeguards and restrictions. It is designed to prompt the Minister, if not today then in due course, to answer certain questions. First and foremost, how will data be used in practice and in what circumstances will it be used in relation to somebody’s article 8 claim? That is an area of controversy, in that the use of tracking goes way beyond the original intention in previous relevant legislation, which was to prevent people from absconding.

Secondly, the criminal justice system imposes strict limits and safeguards on how long electronic monitoring is used for and in what circumstances, with limits on collection, processing, storage and use of data. Why, therefore, are those electronic monitoring safeguards absent in the immigration system?

Thirdly, why have the Government not made the data protection and equality impact assessment for such an intrusive scheme available to the public? Fourthly, what guarantee can the Government give that they will not expand their use of this technology and use it on people who have come to the United Kingdom to seek asylum? Can the Minister give us assurances on that today?

Finally, the Government’s own data suggests that absconding rates are exceptionally low. A recent FOI response found that of people granted bail between February 2020 and March 2021, there were 43 cases of absconding out of 7,000, so what evidence does the Home Office have that this intrusive measure is really necessary on anything other than a very limited scale?

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

Our immigration system must encourage compliance with immigration rules and protect the public. Electronic monitoring of foreign national offenders using satellite tracking devices was a Government manifesto commitment, which the public voted for, and the measure which enacts it was passed into primary legislation under the Immigration Act 2016. It has already been subject to parliamentary scrutiny and debate during the passage of the 2016 Act.

Electronic monitoring is a condition of immigration bail. During the debate on the Immigration Act 2016, it was open to Parliament to set a limit on how long a person can be made subject to electronic monitoring, but it chose not to do so. However, I want to be clear that a person’s electronic monitoring conditions are already automatically reviewed on a quarterly basis as a minimum. Compliance with bail conditions, including electronic monitoring, will be a major factor in deciding whether it will remain a condition of that person’s bail. Any representations regarding the person’s electronic monitoring conditions or a breach of those conditions will also generate a review.

Prior to being placed on electronic monitoring when released, a person is given an opportunity to advise the Department as to why electronic monitoring may not be appropriate for them. That includes where there is strong evidence to suggest that an electronic monitoring condition would cause serious harm to the person’s health. A person can also make representations at any point while wearing a tag and those representations will be considered promptly.

Currently, there is a duty on the Secretary of State to consider electronic monitoring for those who are subject to a deportation order or deportation proceedings, known as “the duty”. The proposed clause makes the consideration of imposing an electronic monitoring condition discretionary. However, there is already a caveat within current legislation that electronic monitoring will not be applied to a person who is subject to the duty where its imposition would be impractical or contrary to the person’s convention rights. The proposal to remove the compulsory consideration of electronic monitoring for all those subject to the duty could lead to a scenario where serious offenders who should be electronically monitored are not considered for electronic monitoring and are granted bail without that condition.

I turn to the new clause’s reference to the use of data. Any data that is gathered from the devices will be processed automatically and will not be routinely monitored by the Department. We have undertaken a data protection impact assessment in relation to the introduction of GPS tagging, which sets out the specific permitted circumstances where data can be accessed, and any access outside those circumstances is considered a data breach. Those who are subject to electronic monitoring are made aware of the circumstances as to when their data can be accessed during the induction process.

Restricting the data in the way the new clause sets out will impact on the ability to use data to try to locate a person after it has been identified that they have breached their immigration bail conditions and are viewed as an absconder. The inability to share data with other law enforcement agencies where a lawful request had been made would be out of alignment with the agreement on sharing data for the purposes of preventing or solving crime. In the broadest terms, only knowing that a person had breached their bail conditions and not being able to use the data for any other purpose would greatly limit the efficacy of electronic monitoring.

I do not consider that the new clause would have the effect that hon. Members intend. Rather, it would impair our ability to monitor and deport those who had committed crimes and were not entitled to remain in the UK. Foreign criminals should be in no doubt of our determination to deport them. We make no apology for keeping the public safe and clamping down on those who have no right to be in the UK.

In summary, the restriction of the use of electronic monitoring as proposed in new clause 53 would significantly impair our ability efficiently to remove foreign national offenders who have no right to be here. I am conscious that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East raised a number of questions at the outset. I have covered quite a lot of ground, but if there are any matters that he feels I have not addressed and he would like to follow up, I of course invite him to please do so.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I am grateful to the Minister for that response. I will have a look through everything that has been said and consider whether any follow-up is necessary. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 54

Instructions to the Migration Advisory Committee

“Within two months of this Act coming into force, the Secretary of State must instruct the Migration Advisory Committee to undertake the following work—

(a) a review of the minimum income requirements for leave to enter and remain as a family member of persons who are British citizens or settled in the United Kingdom;

(b) a report making detailed recommendations on the design of a work visa for remote areas.”—(Stuart C. McDonald.)

This new clause would require the Secretary of State to seek further advice in order to take forward certain recommendations made by the Migration Advisory Committee in recent reports.

Brought up, and read the First time.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

This is the final new clause. On that note, I should start by thanking all the organisations that have been incredibly helpful in providing briefings, draft amendments and so on; thanking the staff of the House for their incredible patience in dealing with millions of amendments and new clauses; and thanking you, Ms McDonagh, and Sir Roger for the way you have chaired the Committee.

This new clause asks the Government to commission from the Migration Advisory Committee two incredibly important pieces of work. One relates to family visas, and the other to a possible remote areas pilot scheme. The first issue, which we touched on earlier in relation to the Chagos islanders and the family visa rules, gives me the opportunity to reiterate our passionate view that currently the UK family visa rules are absolutely atrocious and indefensible. In the grand scheme of things, the UK is an absolute outlier in this regard and has been for about a decade. The rules are incredibly restrictive on families. When the then Children’s Commissioner for England did a report on the matter back in, I think, 2015, she wrote in considerable detail about the dreadful impact that this has on children in particular, but also on spouses—British citizens and British settled people—who end up separated from their other halves or from their kids, and all for absolutely unevidenced policy reasons on the part of the Government.

Research shows that in large parts of the country—Northern Ireland in particular, but elsewhere as well—close to and above 50% of the population would not be able to meet the requirements to allow their spouse to come and join them in this country. That is absolutely extraordinary. Even on the Government’s own terms—the Minister spoke earlier about the policy goal being to make sure that folk can stand on their own two feet without having to rely on public funds—all of this is contested.

There is academic research that suggests that, in fact, the way the rules operate means that some families have to place more reliance on public funds. For example, a person who is here with a child and is not able to bring their spouse in ends up having to work fewer hours or not at all, because of childcare. Some institutions have calculated that this actually costs the taxpayer money rather than saving the taxpayer money. In any event, it is totally unjustified and a deeply horrible intrusion into people’s family lives.

In its last annual report, the Migration Advisory Committee said:

“We also think now would be an opportune time to reconsider the minimum income requirements associated with this route. The MAC are concerned that previous analysis may have given too much weight to the fiscal contribution of such migrants and insufficient attention to the benefits that accrue, to both the family and society, from the route. In addition, it is a considerable time since the current income requirements were introduced, so more evidence should now be available to review the impact of these requirements.”

I absolutely endorse that. We must now revisit these anti-family rules. Even if the Minister is not prepared to look again at the financial thresholds, he should look at the rule that means that the Home Office almost never takes into account the earning capacity of the spouse applying for a visa to come in. It seems absolutely absurd that we could have somebody who could earn £20,000, £30,000 or £40,000, yet that is not taken into account in the application process. I just gently ask the Home Office to look again at this.

The second bit of work that this final new clause would ask of the MAC is to look in a little more detail at the possibilities of a remote areas pilot scheme. When the MAC prepared its report to the Government on salary thresholds for the new points-based system, it expressed a sympathetic view about the problems faced by more remote parts of the UK, and recommended that the Government consider a remote areas pilot scheme. In the Government’s response to the review, they noted that the pilot was an idea that they were intending to pursue. Indeed, the words of the current Secretary of State for Health and Social Care, who was then Home Secretary, were that this was “an idea worth pursuing”. The MAC is quite clear that it hopes that the Government will still carry through with the pilot, and that it should involve all devolved Administrations. Part of the scheme could involve a lower salary threshold for those areas.

16:46
The MAC itself was not utterly convinced that the scheme would deliver success—I appreciate that the Home Office may also have those concerns—but it was quite clear that it is an idea worth pursuing, because the small numbers that are likely to be involved could make a huge difference to our remote communities. Even if it does not work out, the problems for the rest of the UK if the scheme turns out not to be successful are next to non-existent, so the potential benefits are huge for these communities. The downsides are not even worth worrying about.
The recommendations were made two or three years ago, but the current situation—with, as we all know, labour market issues and worker shortages in all sorts of areas—makes the idea all the more imperative for remote areas. I have been to some remote areas recently, where restaurants are having to close at ridiculous hours and for half the week, because they just cannot get the staff. It is time for us to look at this suggestion again. The then Home Secretary was absolutely right to say that the Government would look at it, and I wish that the Home Office would revisit it and get on with doing what the MAC recommended.
Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

I thank the hon. Gentleman for the way in which he has gone about his work during the course of proceedings, and for pursuing a number of angles with great tenacity and vigour.

The Migration Advisory Committee is an independent, non-statutory, non-time limited, non-departmental public body that advises the Government on migration issues. The minimum income requirement was implemented in July 2012, following advice from the MAC and has not changed since its introduction. We will consider whether to commission the MAC to review the minimum income requirement within the next three months.

In addition, the MAC considered the issue of work visas for remote areas in is January 2020 report, “A Points-Based System and Salary Thresholds for Immigration”. The MAC recommended a pilot for remote visas, but the Government did not accept this. The UK has a single, flexible immigration system that works for the entirety of the UK. Applying different immigration rules to different parts of the UK would overly complicate the immigration system and would cause significant difficulties for employers who need the flexibility to deploy their staff across the UK. As the MAC itself has said, when considering sustaining remote communities we need to consider why people leave these areas. This is more important than bolstering local communities with migration. I therefore do not consider re-reviewing this issue to be a good use of the MAC’s time or public money.

It is not appropriate to put an amendment such as new clause 54 into primary legislation, as the commissioning of the MAC is done on a priority basis. The Secretary of State retains the power to change the topics, which the MAC reviews at short notice, if a more pressing matter becomes a priority. The Secretary of State should be able to respond flexibly to any new priorities. For those reasons, I encourage the hon. Member to withdraw his new clause.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I am grateful to the Minister for his answers. He is certainly candid, as he has been throughout Committee proceedings. I am bitterly disappointed about the answer in relation to the remote areas pilot scheme. Those areas are really suffering, not just in terms of labour shortages and the accompanying economic challenges, but even with depopulation.

I will hang on and finish on an optimistic note in that there is a possibility that the Government will commission a review of the salary threshold for family visas. I very much hope that that does happen and they look at how that route operates all together. I cling to that little bit of silver lining. With that, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Schedule 1

Prisoners returning to the UK: Modifications of Criminal Justice Act 2003

‘This is the Schedule to be inserted after Schedule 19A to the Criminal Justice Act 2003—

“Schedule 19B

Prisoners returning to the UK: Modifications of Chapter 6 of Part 12

Modification of dates for referral to the Board

1 Paragraph 2 applies where section 244ZC(2), 244A(2) or 246A(4) (when read with section 260(4A)) would require the Secretary of State to refer a person’s case to the Board on a day falling before the end of the period of 28 days beginning with the day on which the person is returned to custody.

2 The applicable provision is to be read as requiring the Secretary of State to refer the person’s case to the Board at any time up to the end of the period of 28 days beginning with the day on which the person is returned to custody.

3 For the purposes of paragraphs 1 and 2, a person returns to custody when the person, having returned to the United Kingdom, is detained (whether or not in prison) in pursuance of their sentence.

Person removed after Board had directed release but before being released

4 Paragraphs 5 and 6 apply where, before a person’s removal from the United Kingdom—

(a) the Board had directed their release under section 244ZC, 244A or 246A, but

(b) they had not been released on licence.

5 The direction of the Board is to be treated as having no effect.

6 The person is to be treated as if—

(a) they had been recalled under section 254 on the day on which they returned to the United Kingdom, and

(b) they were not suitable for automatic release (see section 255A).

Person removed after referral to the Board but before disposal of the reference

7 Paragraph 8 applies where—

(a) before a person’s removal from prison their case had been referred to the Board under section 244ZB(3), 244ZC(2), 244A(2) or 246A(4), and

(b) the reference lapsed under section 260(4B) because the person was removed from the United Kingdom before the Board had disposed of the reference.

8 Section 244ZC(2), 244A(2) or 246A(4) (as applicable) is to be read as requiring the Secretary of State to refer the person’s case to the Board before the end of the period of 28 days beginning with the day on which the person is returned to custody.

9 For the purposes of paragraph 8, a person returns to custody when the person, having returned to the United Kingdom, is detained (whether or not in prison) in pursuance of their sentence.

Person removed after having been recalled to prison

10 Paragraphs 11 and 12 apply where, at the time of a person’s removal from prison under section 260, the person was in prison following recall under section 254.

11 Any direction of the Board made in relation to the person under section 255C or 256A before their return to the United Kingdom is to be treated as having no effect.

12 The person is to be treated as if—

(a) they had been recalled under section 254 on the day on which they returned to the United Kingdom, and

(b) they were not suitable for automatic release (see section 255A).”’—(Tom Pursglove.)

This new schedule inserts a new Schedule 19B into the Criminal Justice Act 2003 to make modifications of that Act in relation to prisoners who have returned to the UK after their removal from prison. It is introduced by section 261 of that Act, which is amended by NC12.

Brought up, read the First and Second time, and added to the Bill.

New Schedule 3

Working in United Kingdom waters: consequential and related amendments

Immigration Act 1971

1 The Immigration Act 1971 is amended as follows.

2 In section 8 (exceptions for seamen etc), after subsection (1) insert—

“(1A) Subsection (1) does not apply in relation to a member of the crew of a ship who is an offshore worker within the meaning of section 11A.”

3 In section 11 (references to entry etc), after subsection (1) insert—

“(1ZA) See also section 11A (additional means by which persons arriving in United Kingdom waters for work can enter the UK).”

4 In section 28 (proceedings for offences)—

(a) before subsection (1) insert—

“(A1) Proceedings for an offence under this Part that is committed in the territorial sea adjacent to the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.”;

(b) in subsection (2A), for “section 25 or 25A” substitute “this Part”.

5 In section 28L (interpretation of Part 3) —

(a) in subsection (1), at the beginning insert “Subject to subsection (1A)”;

(b) after subsection (1) insert—

“(1A) In this Part ‘premises’ also includes any artificial island, installation or structure (including one in the territorial sea adjacent to the United Kingdom).”

6 In section 28M (enforcement powers in relation to ships: England and Wales), in subsection (2)(a)—

(a) for “section” substitute—

“(i) section 24B,”;

(b) for “, and” substitute “, or

(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and”.

7 In section 28N (enforcement powers in relation to ships: Scotland), in subsection (2)(a)—

(a) for “section” substitute—

“(i) section 24B,”;

(b) for “, and” substitute “, or

(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and”.

8 In section 28O (enforcement powers in relation to ships: Northern Ireland), in subsection (2)(a)—

(a) for “section” substitute—

“(i) section 24B,”;

(b) for “, and” substitute “, or

(ii) section 21 of the Immigration, Asylum and Nationality Act 2006, and”.

9 (1) Schedule 2 (administrative provision as to control on entry etc) is amended as follows.

(2) In paragraph 2—

(a) in sub-paragraph (1), for the words from “who have” to “United Kingdom)” substitute “within sub-paragraph (1A)”;

(b) after sub-paragraph (1) insert—

“(1A) The persons are—

(a) any person who has arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom);

(b) any person who has arrived in United Kingdom waters by ship or aircraft who the immigration officer has reason to believe is an offshore worker.

(1B) In sub-paragraph (1A), ‘offshore worker’ and ‘United Kingdom waters’ have the same meaning as in section 11A.”

(3) In paragraph 27—

(a) after sub-paragraph (1) insert—

“(1A) Sub-paragraph (1) also applies to the captain of a ship or aircraft arriving in United Kingdom waters if—

(a) there are offshore workers on board, or

(b) an immigration officer has informed the captain that they wish to examine any person on board in the exercise of the power under paragraph 2.

(1B) In sub-paragraph (1A), ‘offshore worker’ and ‘United Kingdom waters’ have the same meaning as in section 11A.”

(4) In paragraph 27B—

(a) after sub-paragraph (1) insert—

“(1A) This paragraph also applies to ships or aircraft—

(a) which have offshore workers on board, and

(b) which—

(i) have arrived, or are expected to arrive, in United Kingdom waters, or

(ii) have left, or are expected to leave, United Kingdom waters.”;

(b) after sub-paragraph (9A) insert—

“(9B) ‘Offshore worker’ and ‘United Kingdom waters’ have the same meaning in this paragraph as in section 11A.”

(5) In paragraph 27BA—

(a) after sub-paragraph (1) insert—

“(1A) The Secretary of State may also make regulations requiring responsible persons in respect of ships or aircraft—

(a) which have offshore workers on board, and

(b) which—

(i) have arrived, or are expected to arrive, in United Kingdom waters, or

(ii) have left, or are expected to leave, United Kingdom waters,

to supply information to the Secretary of State or an immigration officer.”;

(b) in sub-paragraph (2), after (1) insert “or (1A)”;

(c) after sub-paragraph (5) insert—

“(5A) For the purposes of this paragraph, ‘offshore workers’ and ‘United Kingdom waters’ have the same meaning as in section 11A.”

10 (1) Schedule 4A (maritime enforcement powers) is amended as follows.

(2) In paragraph 1(2), after the opening words insert—

“‘the 2006 Act’ means the Immigration, Asylum and Nationality Act 2006;”.

(3) In paragraph (2)(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(4) In paragraph (3)(1)(a), for “25, 25A and 25B” substitute “24B, 25, 25A or 25B of this Act or section 21 of the 2006 Act”.

(5) In paragraph 4(1), for “25, 25A or 25B” substitute “24B, 25, 25A or 25B of this Act or section 21 of the 2006 Act”.

(6) In paragraph 12(2), after the opening words insert—

“‘the 2006 Act’ means the Immigration, Asylum and Nationality Act 2006;”.

(7) In paragraph 13(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(8) In paragraph 14(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(9) In paragraph 15(1), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(10) In paragraph 23(2), after the opening words insert—

“‘the 2006 Act’ means the Immigration, Asylum and Nationality Act 2006;”.

(11) In paragraph 24(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(12) In paragraph 25(1)(a), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

(13) In paragraph 26(1), for “25 or 25A” substitute “24B, 25 or 25A of this Act or section 21 of the 2006 Act”.

Immigration, Asylum and Nationality Act 2006

11 In section 21 of the Immigration, Asylum and Nationality Act 2006 (offence of employing a person who is disqualified from employment by their immigration status), after subsection (3) insert—

“(3A) Proceedings for an offence under this section that is committed in the territorial sea adjacent to the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.

(3B) Section 3 of the Territorial Waters Jurisdiction Act 1878 (consent of Secretary of State for certain prosecutions) does not apply to proceedings for an offence under this section.”’—(Tom Pursglove.)

This new schedule makes consequential and related amendments in NC20.

Brought up, read the First and Second time, and added to the Bill.

Question proposed, That the Chair do report the Bill, as amended, to the House.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

I want to put on the record my thanks to the Clerks, in particular Sarah Thatcher and Rob Page, for their amazing work in getting our new clauses and amendments into some form of legible parliamentary-type wording. I also thank the other staff, those in the room in particular, the Doorkeepers and those keeping a record of our sometimes very long speeches. I also thank you, Ms McDonagh, and Sir Roger, for the excellent way in which you chaired proceedings of the Committee.

I thank the members of the Committee—the Minister and all members, but in particular my friends and colleagues in the Opposition for their support and for helping us get to where we are today. I put on the record my thanks to my fellow shadow Minister, my hon. Friend the Member for Halifax, and my hon. Friends the Members for Bermondsey and Old Southwark, for Sheffield Central and for Coventry North West, and to the hon. Members for Glasgow North East and for—I will attempt to say the name—Cumbernauld, Kilsyth and Kirkintilloch East.

Finally, I thank my staff, Katherine Chibah, Giulia Monasterio, Cian Fox, Charlotte Butterick and Tashi Tahir, for all their hard work on the research and the speeches, and for their general support. It has been a challenging Bill Committee and I am pleased that we have got to the end of it in one piece.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

Before you adjourn the Committee for the final time, Ms McDonagh, I also take the opportunity to thank everyone who has been involved, in particular the Opposition spokesmen of both parties, who have put an awful lot of work into their preparations. I know that it is not just them involved in their work, but their teams, who go to extraordinary lengths and really look at the detail of the measures that the Government are proposing to draw up suggested new clauses. It is a herculean effort, so I thank the spokesmen and those working with them.

I thank you, Ms McDonagh, and Sir Roger, for your firm but fair chairing of the proceedings. That is always much appreciated, and you have done a brilliant job at keeping us all in order in—I think it is fair to say—a controversial Bill, which Members come at with very strong opinions on all sides.

I also thank my colleagues and in particular our departmental Whip, who as ever has done a fantastic job and stood in at very short notice for my absence on Tuesday. It was extraordinary.

Bambos Charalambous Portrait Bambos Charalambous
- Hansard - - - Excerpts

We were gentle with him.

Tom Pursglove Portrait Tom Pursglove
- Hansard - - - Excerpts

He did very well. I was concerned that I would not be wanted back. I also thank our standing departmental Parliamentary Private Secretary.

I also thank my officials, without whom it simply would not be possible to do this, for all the work they put in behind the scenes. I thank the Clerks of the House, too, who do a fantastic job in structuring the proceedings and ensuring that everything runs in an orderly fashion.

To finish, Sir Roger’s comments as he departed the Chair this morning put it rather well. These are controversial matters that people feel strongly about. Passions run high, but it is fair to say that the Committee has considered the matters in great detail and, I would argue, has done consideration of the Bill great justice.

Robert Goodwill Portrait Mr Goodwill
- Hansard - - - Excerpts

I thank the Minister, because everyone else has been thanked. He had not been long in his position when the Committee started, and he has shown tremendous skill and adeptness. I am pleased indeed that he recovered from the dodgy prawn he had the other week, which caused the Whip to have to stand in. The Minister started his career as my PPS, and I like to say that I taught him everything he knows, but not everything I know.

Question put and agreed to.

Bill, as amended, accordingly to be reported.

16:55
Committee rose.
Written evidence reported to the House
NBB47 Apna Haq
NBB48 Rights of Women
NBB49 AVA (Against Violence and Abuse)
NBB50 Safety4Sisters
NBB51 Anti-Slavery International
NBB52 SafeLives
NBB53 Doughty Street Chambers Anti-Trafficking Team
NBB54 Somerset and Avon Rape and Sexual Abuse Support
NBB55 Latin American Women’s Rights Service
NBB56 The Children’s Society
NBB57 The Rights Lab, University of Nottingham
NBB58 Safe Passage International
NBB59 Women’s Aid Federation of England
NBB60 Drive Partnership
NBB61 Welsh Women’s Aid
NBB62 Refuge
NBB63 Modern Slavery Survivor Collective
NBB64 Surviving Economic Abuse (SEA)