Grand Committee
(2 years, 9 months ago)
Grand CommitteeRead Full debate Read Hansard Text
Commercial Rent (Coronavirus) Bill
Thursday 10th February 2022
(2 years, 9 months ago)
Grand CommitteeRead Full debate Commercial Rent (Coronavirus) Bill 2021-22 View all Commercial Rent (Coronavirus) Bill 2021-22 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 92-I(a) Amendment for Grand Committee (Supplementary to the Marshalled List) - (9 Feb 2022)
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, Members are encouraged to leave some distance between themselves and others and to wear a face covering when not speaking. If there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Member’s explanatory statement
The amendment would ensure that subsection (3) applies to requirements for the closure of businesses or parts of businesses as well as those for the closure of premises or parts of premises.
The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)
My Lords, it is a pleasure to debate this important Bill in Grand Committee. I would first like to speak to a group of technical amendments tabled in my name, starting with Amendment 1 to Clause 4. This clause is vital to the Bill. It sets out what is meant by a business being “adversely affected by coronavirus”, with certain rent debts under such businesses’ tenancies being in scope for arbitration. Essentially, businesses or premises that were required by regulations to close during a specified period meet the test. Subsection (3) provides important clarity that a requirement to close at particular times is a closure requirement. Amendment 1 ensures that this provision applies in relation to closure of either premises or businesses, or parts of premises or businesses. I am sure noble Lords will agree that this minor amendment produces important clarification.
Turning to Amendment 4, arbitration under the Bill will provide a legally binding solution to unpaid commercial rent from the pandemic. This is important to give certainty and enable parties to return to normal contractual relations. If a tenant is awarded relief, such as a reduction in the protected rent they must pay, they should not have liability for the rest of the original debt. If a guarantor or former tenant ultimately pays the protected rent following an arbitral award, they should be required to pay only the sum required by the award. This should be the case whether, technically, a guarantee or an indemnity has been provided. Amendment 4 expressly sets out those effects of an award. This is intended to give clarity, as requested in a comment in written evidence in the other place. I am grateful to all those who took the time to give their feedback on the technicalities of the Bill. I am pleased to propose this additional clarity through Amendment 4.
Finally, I shall address Amendments 11 and 12. Schedule 2 contains a provision specifying that the Bill’s moratorium and related provisions on debt claims apply both to tenants and anyone who guarantees the tenant’s obligation. I am sure noble Lords will agree that this is important to ensure that the tenant has a genuine opportunity to access arbitration. Amendment 11 ensures that this provision’s protection applies to former tenants who may be liable for unpaid rent under a business tenancy, whether or not they have entered into an authorised guarantee agreement. Amendment 11 also clarifies that the provision applies whether, technically, a guarantee or indemnity has been provided. This amendment addresses a helpful comment made in written evidence in the other place.
Amendment 12 has the same effect as Amendment 11, but applies to Schedule 3’s moratorium and related provisions on winding-up petitions, bankruptcy orders and petitions.
I hope noble Lords will agree that these technical amendments provide useful clarity. I commend them to the Committee and I beg to move.
The Earl of Lytton (CB)
My Lords, far be it from me to delay any part of this important Bill, but I would like to be clear about the Minister’s insertion of “businesses or premises”. There does not necessarily seem to be a direct alignment between the two terms. For instance, is the closure of the business inescapably the product of a prohibition, as opposed to something that is advisory? I refer back to the great debate over whether something was guidance or mandatory. It seems to me that we could be looking at businesses with subsidiary operations and so on. If we are not careful, something that affects one part of a business but not the particular part we are talking about, namely the rent on particular premises, would not necessarily align. I would be grateful if the Minister could clarify what is intended there.
Lord Fox (LD)
My Lords, fools rush in where angels fear to tread—I shall try to speak briefly. I welcome the fact that the Minister has been flexible and responded to points raised in the other House. Government Amendment 4 is a really good thing, but I have the same question: is this guidance or a mandatory process for the arbitrators? My understanding is that, if a tenant is able to reach a settlement through this process, that tenant no longer carries the stain of the unpaid element of the arbitration process. That therefore means that this would not stand against their credit rating and I wonder whether the Government have considered how this might not filter through into the credit rating system. As I am sure the Minister knows, the credit rating system tends to make life very difficult if you get on the wrong side of it. Some clarity on that would be really helpful.
Baroness Blake of Leeds (Lab)
My Lords, I also extend our thanks to the Minister for his courtesy, as always, and for picking up these—as he made clear—technical issues. We have received numerous representations on the Bill from stakeholders. I was pleased to hear the Government picking up some of the very detailed concerns about liabilities. We recognise Amendments 11 and 12 as positive, reflecting the concerns raised by stakeholders. I shall be interested in hearing the clarifications from the Minister on the points raised by the noble Earl, Lord Lytton, and the noble Lord, Lord Fox, particularly on definitions. The complexity of these areas makes us all try to look at the unintended consequences that could flow from making one change. Sadly, we know the pressures that so many of these businesses and tenants are under and the potential risk to their future liability.
Lord Fox (LD)
With apologies to the Minister, I forgot to complete what I was going to ask with respect to government Amendments 11 and 12. Would they in any way change the relationship with former tenants who have unpaid rent when it comes to the process of recovering that rent? That was not clear to me from what the Minister said, probably because it was not the intention of what he was describing. Can he clarify that they would not in any way downgrade the landlord’s ability to pursue unpaid debt from a former tenant?
Lord Grimstone of Boscobel (Con)
My Lords, I thank noble Lords for those points. I will answer them as best as I can because there are some technical issues underlying this. I hope noble Lords will not mind if I have to write in amplification of the answers I give.
First, on the point made by the noble Earl, Lord Lytton, the coronavirus regulations imposed mandated closure requirements on either businesses or premises. Sometimes the run two together but they do not necessarily do so. The Bill applies to all such cases where there was a requirement in the coronavirus legislation so one has to look back to that legislation to understand the difference between businesses and premises in it. However, I will write to clarify that further for the noble Earl.
On the question asked by the noble Lord, Lord Fox, the intention is that the arbitral award, which is binding, will substitute itself for the debt that previously existed. On that basis, it should not apply to the credit rating of the person concerned. Having said that, I guess we all have experience, either directly or through colleagues, of where that perhaps has not flowed through to the outcome as it should have done—in which case, the answer, I am sure, is that one must take it up with a credit rating agency. However, if that were to happen, it would be an error that would then have to be corrected.
Lord Fox (LD)
In the likely event that the Bill becomes law, might there be some way for the department to inform the credit rating agencies about this process? The last thing a business needs if it is trying to get back up and running is to find that its credit has been shut down. Some pre-emptive action with the key credit rating agencies might help to alleviate the situation.
Lord Grimstone of Boscobel (Con)
I thank the noble Lord for that suggestion; I will make sure that we look at it and take it up. Again, it may even be something that we can mention in the guidance as a point of information for those affected.
On the noble Lord’s further point, when a former tenant is liable for the current tenant’s obligations, the Bill prevents landlords exercising relevant remedies against them in respect of protected debt. This is during the Bill’s temporary moratorium period, which is considered as the period during which the arbitration system is open to applications or an arbitration is ongoing. That may not have answered the noble Lord’s questions fully, but I will amplify my answer in correspondence with him.
Baroness Blake of Leeds
“(2A) The Secretary of State must ensure that bodies approved under subsection (1) have adequate resources and sufficient numbers of arbitrators as are (whether alone or as a member of a panel of arbitrators) required to conduct arbitrations under this Part.”Member’s explanatory statement
This probing amendment would require the Secretary of State to ensure that the approved arbitration bodies collectively have sufficient capacity, and resourcing, to hear all arbitrations under this Part.
Baroness Blake of Leeds (Lab)
I am grateful for the contribution that the noble Lord, Lord Fox, has made in this grouping and look forward to the discussions that we will have, recognising the additional amendment in this group.
I again thank the Minister for the attention to detail in representing the representations from stakeholders —importantly, from both tenants and landlords. I thank him, too, for his letter responding to the concerns raised by noble Lords at Second Reading. I just want to make the point about understanding the real pressure that businesses, tenants and landlords are under at the moment. It has been an incredibly difficult winter for many businesses, as we know and, of course, we are in a situation where we face ongoing pressures from the national insurance rise, energy costs and inflationary pressures. It is a time of great uncertainty for many people affected by the Bill before us. We welcome the moves forward as outlined in the Bill, recognising the complexity and the absolute need to get the detail right, but also the time pressures and the fact that the clock has been ticking for many businesses for some time now.
Of course, running through all that, it is essential that stakeholders have confidence in the system. The reason for Amendment 2 is the need to ensure absolutely that bodies under subsection (1) have adequate resources and sufficient numbers of arbitrators. Through this amendment, we seek reassurance with regard to immediate capacity, but I would also like to ask about evidence and what understanding there is of how much work has been done on resourcing the needs and future demands on services for all those involved. It is essential that everyone feels that they have proper access to a fair hearing. I should like the assurance that all due consideration has been given to the proposed nature of the hearings.
I understand that the assumption is that the hearings will be in public and that oral hearings may be desired by the parties involved. Could that have an undue impact on costs? Would they add to the capacity requirements of the arbitrators? Am I right to understand that a document-only approach would allow for a more efficient process? Is that the understanding behind the direction of travel, and would this be seen to keep costs and time lower?
We understand from our discussions at Second Reading that many cases have now moved to be settled. Would we be right in assuming that the outstanding ones may well be more complex, which explains why they are moving forward to seeking arbitration, as laid out? My question remains: has a full assessment been undertaken with regard to the demands of the services of arbitrators? I am sure that the noble Lord, Lord Fox, will expand on the issues around accessibility to the services.
Amendment 3 would increase the transparency of the arbitrator’s decision, which we have emphasised in the debates in the other place—and I refer to the discussions that were held there.
I regard Amendment 5 as positive and, again, is one that we tabled in the other place. We are concerned that the arbitration fees could be the final cost to push landlords and businesses over the edge. Therefore, we consider that the Secretary of State should ensure that fees are capped. As I said at the outset, this is a time when costs are escalating in so many different areas; we would like the absolute assurance that this area has been considered and controlled.
Can we also be assured that arbitration fees and expenses will be proportionate to the arrears that have caused the dispute? High arbitration costs will have a huge impact on businesses that are doing everything they can to emerge from the pressures that they have been facing. The fact that they need to go to arbitration highlights those pressures. Will the Minister expand on the powers that the Secretary of State will have to make regulations specifying limits on the fees and expenses of arbitrators? What circumstances would lead to the Secretary of State becoming involved, and how will affordability be judged?
With regard to Amendment 7, also in my name, can the Minister say more about what, in his view, constitute viable and unviable businesses? Further, could he expand on what guidance will be provided to arbitrators? Do we know how much flexibility they will have? We all recognise the difficulty of defining what constitutes viability or affordability, but this is such an important area that we need to push further to make sure that we have a clearer definition. That is why we seek more answers in this area and to add more depth to some of our previous discussions.
The noble Lord, Lord Fox, has tabled Amendment 7A, and I shall listen with interest—sorry, this is a double use of the word—to the cap on interest. I am interested in the interest on the interest. With those points, I beg to move.
Lord Fox (LD)
My Lords, I shall speak to Amendments 3, 5 and 7A in my name, and in support of the other amendments in the group, most of which I countersigned and one that I, mysteriously, did not. I am not sure why, because I agree with it completely. It certainly does not have any lower rating because I failed to sign it.
My three amendments are relatively self-explanatory and I shall be brief, but the Minister should not mistake that brevity for the idea that I do not think they are important. I can speak for longer if necessary. Amendment 3 would ensure that arbitration decisions are easily accessible. The basis for that is that, although we do not have long to get through this process, building up a body of case law, or case decision-making, will be important for consistency. What worries me most is complete inconsistency in how these rulings are made. I think we will come to the last point that the noble Baroness, Lady Blake, made about viability, which is where inconsistency will be most a problem. One starting point is to publish fully and accessibly. It would be better if the Government had their own website which scraped them up and put them all in one place so that people would not have to go to various places but, at the very least, they should be easily available somewhere.
Amendment 5, which has some crossover with parts of Amendment 6, requires the Secretary of State to make regulations specifying limits on arbitration fees. The Minister will see that the word “may” is employed, and I am sure he will tell us that this is a legislative trope and that this is how it is done. That is what I expect. Therefore, it will be sufficient if the Minister stands up at the Dispatch Box and says that such regulation will be brought forward at the earliest opportunity and the word “may” remains in the legislation. That would clearly clarify the Government’s intention as to whether this process will happen.
I apologise for the late arrival of Amendment 7A, and I really appreciate the help of the Public Bill Office and others in drafting it so that it is in scope of the Bill. The aim of this amendment is to put a cap on the level of interest that can be baked into the arbitration. This is important because otherwise it will be a lever used in the negotiation. In other words, the landlord will say, “Yes, I’ll do this deal but I expect interest of X or Y”, and clearly that interest level may not be to the advantage of the tenant. Therefore, putting this in removes that lever from the arbitration process. It knowingly and deliberately moves it so that the negotiation is on different ground. The Minister will have noted that I often speak up against secondary legislation—indeed, we have some coming later—but in this case it seems to me that Amendments 5 and 7A are good examples of what secondary legislation was designed for.
I turn briefly to the amendments in the name of the noble Baroness, Lady Blake. Amendment 2 is a sensible measure to ensure that there are sufficient arbitrators. The Minister has said on occasion that there are sufficient, but to some extent he is relying on the word of the organisations concerned. I think it unlikely that they would say, “No, Minister, we can’t do it”. This amendment forces that assurance process a little harder.
Amendment 6 further supports Amendments 5 and 2, in my view. I thank the Minister for his letter. One element of that was to set out the distribution of potential cases. The question I have is whether the availability matches the potential cases. For example, it seems that there is a concentration of potential cases in the south-east, and it seems likely to me that there is probably a concentration of resources for arbitration in the south-east. But what of the towns where the commercial infrastructure has dwindled and where there are not the people who fit the arbitration photofit that the Minister described? How has the Minister ascertained that those towns, cities and villages, which will need arbitration just as much as the bigger places, will have the supply they need? If they do not have the supply locally, on their doorstep, how will that be supplied otherwise? It is not just whether they are sufficient in the country but whether the footprint of those arbitrators matches the expected need.
Then we come to Amendment 7, the one I did not sign, which is strange because I think it is really important. The questions I asked in the debate before Second Reading were, “What is viability?” and “On what forward data is viability assessed?”. One percentage point on expected interest rates, one or two percentage points different on expected inflation and one percentage point up or down on the RPI are the difference between life and death for a business. When the arbitrator sits down at looks at viability, from where is that arbitrator going to get that data and how can we ensure that the data is consistent? The Treasury and the Bank of England often get it wrong when it comes to forecasting data—with all due respect to the Deputy Chairman’s son, who I believe has the job of making some of that data. The point is that we have to use something. Is it up to the arbitrator to decide which projection for RPI, which interest rate data and which inflation data are to be used? This is the difference.
What does viability mean? Is it wiping your face in the colloquial, is it a 5% return on capital employed or what? What do we mean? How do we make sure that businesses are not shut down that in other places are determined viable? This is a difficult question to answer but it is a crucial point, on which the effectiveness of this legislation will turn.
The Earl of Lytton (CB)
My Lords, I shall make a few general comments about this group, which I certainly relate to. The Minister will doubtless have seen the item I sent in the past day or so from the Property Litigation Association, which I copied to a number of other noble Lords, about its concerns over the geometry of the arbitration process. With regard to the number of arbitrations, a matter raised by the noble Baroness, Lady Blake, and the noble Lord, Lord Fox, the final quantum of those willing to participate will not be known until the Bill and any regulations have been finalised, so willingness to participate may well depend on what is set out in them, what happens about any caps and proportionality relating to costs in the arbitration.
On the costs in the arbitration, my limited experience suggests that the process is capable of being gamed with bad behaviours referred to in an email I had from the property industry and brinkmanship as a predetermined tactic. Given that arbitration is not an inherently cheap process in such circumstances, I wonder what safeguards there are against, for instance, a bully-boy multiple having a go at a series of small landlords, a not unheard of situation. Unfortunately, the British Property Federation, which represents larger landlords, does not have data on what the impact is. I will be very interested to know whether there is any data.
I have concerns about arbitrator discretion. As I understand it, under the provisions of Arbitration Act 1996 the parameters of the arbitrator’s decision-making function are that he has to decide on one or other of the two cases before him. He is not in an inquisitorial position to try to fillet out bits of one and insert them in bits of the other, so when it is a question of what interest rate will be applied, it will be a matter of what is presented to him or her as arbitrator. If there is to be some change in this non-inquisitorial function of arbitrators—I am not suggesting that there could or should be—I can see that, if we are talking about the interests of justice rather than the much vaunted justice of Solomon, we might wish to review what is happening.
On the question of arbitration awards, again, my understanding is that these are normally private, not public, occasions. To the extent that it is proposed that the outcomes of those should be relaxed, I should like to know what revised terms, guidance or direction will follow. That might well have an impact—going back to the first point I made—on those who are already trained arbitrators who might wish to participate in this scheme and may regard the matter as a sufficiently aberrant novelty not to want to participate. I see this matter as a somewhat circular approach and would very much like clarification because I want the Bill to work in practice.
Lord Fox (LD)
I hope it is order for me to ask if the noble Lord agrees with me that the so-called bully-boy tenants that the Minister described are going about their bullying within the current system? How much more does this system facilitate their ability to bully or otherwise than the current system, given that we have seen high-street multiples hold their landlords to ransom without this legislation? Why would this legislation make it any easier for them to do that?
The Earl of Lytton (CB)
My Lords, the noble Lord asked a pertinent question and the short answer goes back to my earlier intervention. The impact on business and on premises are two separate things. Those are being coalesced into what has happened in terms of non-payment of rent and a build-up of arrears. All I would say is that it is just another factor that adds into a range of factors that he rightly points out are already in play. It adds to the complexity.
Lord Thurlow (CB)
Perhaps I may address the group on some general points that have been touched on already. I am concerned about whether we in the surveyors’ industry, or wherever the other arbitrators may be sourced from, will be able to provide sufficient numbers of arbitrators. There are mixed opinions on the anticipated number of cases requiring arbitration and there will be a significant difference in their characteristics.
I know that the Bill sets out that the Government will ensure that there will be adequate arbitrators but what will happen if there are not? Arbitrators cannot be trained overnight or sourced quickly. There could be a logjam, which would also spill over into proposals to review the progress of the system.
I turn from Amendment 2 to Amendments 6 and 7. I echo the comments of the noble Baroness, Lady Blake, and the noble Lord, Lord Fox, about cost and proportionate fees for arbitration. One cannot compare an arbitration on 250,000 square feet in Canary Wharf with one on a small shop in the Balls Pond Road. It is a different universe and will require different skills. The sums of money involved are hugely different. The fees must be proportionate and, in particular, must not penalise the small trader or small landlord. It might involve a private landlord with a single shop; we have heard about the multiple traders bullying landlords and the issue would apply there, too. I just wanted to make those two points.
Lord Grimstone of Boscobel (Con)
Again, I thank noble Lords for their contributions on this group. I thank the noble Baroness, Lady Blake, and the noble Lord, Lord Fox, for their attention to the important issues raised through their amendments. I am grateful for the constructive debate we have had on this, complicated though it is. I have to say to start with that I very much agree with the noble Baroness about the extreme pressure that businesses have been under during this very worrying time. I hope that this Bill will be a small contribution, at least for some, to easing that worry.
Turning first to Amendment 2, I thank the noble Baroness and noble Lords for their consideration of the issue of ensuring adequate arbitrator capacity and administrative support by arbitration bodies. These are key to achieving our aim for disputes to be resolved quickly. As I said before, we have thought it right to adopt a market-based policy approach. This means that approved arbitration bodies, which have expertise in running schemes like this and mounting these things—they will not have run an identical scheme to this one but they will have run similar schemes in the past because it is, in a sense, their core business—will manage their internal capacity processes to perform their functions in the Bill to the required standard.
I believe that this approach of empowering arbitration bodies to manage their internal workflows is the optimal way to ensure that there is enough capacity in the system to deal with the caseload. Not only have my officials been in deep contact with the arbitration bodies about this but I myself held a round table with some of them earlier in the week. I probed them very hard on these matters and, I must say, I got replies that satisfied me as to their ability to cope with this and put the systems in place. In a sense, their very reputation as arbitral bodies depends on them being able to do things like this.
Of course, adopting a more market-based approach does not mean that we are not taking action to engage with the issues of arbitrator capacity and arbitration body resource capability. As I said, we have been engaging extensively and on an ongoing basis with arbitration bodies in relation to these issues, and we will continue to do so. If tweaks have to be made, we will certainly make them.
Let me give a bit more colour to that. The application process for bodies to become approved contains a question on the number of arbitrators listed with the body that would be potentially suitable for the scheme. This is designed to ensure that the arbitration bodies that are approved will be able to list, and therefore appoint, a sufficient number of arbitrators. In any event, simply looking at the number of arbitrators that arbitration bodies can list underrepresents the capacity in the system because it disregards the fact that an arbitrator will be able to take on more than one case at a time.
The noble Lord, Lord Fox, asked, quite properly, about the geographical dispersion of arbitrators. It is very much our intention in the Bill that this is a documents-based process; to that extent, geographical location is less relevant. Also, our belief is that a lot of this will be conducted online by the arbitrators, so the things in this Bill will not necessarily turn on whether there is a local arbitrator on this.
Lord Fox (LD)
I thank the Minister for his answer and accept that position, but I think he would also agree that, in order to assess the viability of a particular business correctly, local knowledge is quite helpful. The idea that, at its extreme, you are sat in a village in Herefordshire conversing with someone in Westminster and doing the process, could create confusion.
Lord Grimstone of Boscobel (Con)
I thank the noble Lord for that intervention. Of course, in the cases put before the arbitrator, one would expect either the tenant or the landlord themselves to refer to those local issues, but it is of course absolutely open to the arbitrator to call for more information or evidence to deal with that local point. Indeed, it may well be sensible in many cases to appoint an arbitrator who has local knowledge, but I think that the system will adjust and do that as necessary.
The noble Baroness, Lady Blake, asked whether the outstanding cases—we are down to a number in the low thousands now—are, by definition, likely to be the more difficult ones. Some of them are likely to be more difficult but, frankly, quite a proportion of them will involve people who have just been ignoring this topic, hoping that it will go away and something will turn up. Obviously there is something in the noble Baroness’s point, but there is a variety of factors that may be the reason why people have not yet come forward to settle by themselves. Of course, as I have said previously, it is very much our wish that people settle this themselves when they can.
I was asked about viability—and I will come back to it again later. It is difficult to be overly prescriptive about viability. The Bill deliberately does not define viability specifically because—this comes back to the geographical point from the noble Lord, Lord Fox—arbitrators need to make the assessment in the context of each individual business’s circumstances, especially given the variety of businesses that may use the scheme. It is essential that arbitrators do that, and have the flexibility to do that, to achieve a fair outcome. We will produce more statutory guidance for arbitrators on this, but I have confidence because, in a sense, it is their whole business to be able to arbitrate matters—that is, to weigh up the necessary factors and come to a sensible conclusion.
Lord Fox (LD)
I appreciate that, and I am pleased that there will be more statutory guidance. It seems to me that the sources of data should not be the topic under discussion during the arbitration process. Can the Minister give us some sense of the basis on which people are making decisions, while at the same time accepting my point that there are local variations in markets and that this element would take out some aspects of what could be, in the words of the noble Earl, Lord Lytton, gamed?
Lord Grimstone of Boscobel (Con)
I thank the noble Lord for that intervention. From talking to some of the arbitration bodies, I know that the way they operate is that, when a case like this comes to a body for it to decide on the arbitrator, normally a list of arbitrators is put in front of the parties for them to choose. This is a thoughtful process, as it were. The list of names that the arbitral bodies put before the parties to choose an arbitrator is done rationally. Frankly, one would expect that, if there are locally based arbitrators to do this, they will be the people on the list; the parties may then choose them. I cannot give the noble Lord an absolute guarantee in relation to that but it seems to me that, sensibly, this will be how the system should, and will, operate.
Turning to Amendment 3, I thank the noble Lord, Lord Fox, for his interest in the publication of awards. We absolutely want to ensure that the public can easily access arbitral awards issued under this scheme. That is why Clause 18 already requires arbitrators to publish an award made, together with the reasons for making it. I am sure that, as this scheme rolls out, if we find that this publicity is not reaching the people it needs to, we will take steps to ensure that it does.
We do not believe it is necessary to require approved arbitration bodies to publish decisions as well, although some may well choose to. In addition, we envisage that as part of its function of overseeing an arbitration, an approved arbitration body would ensure that the award is published as required. Frankly, the convenient way to do that would be on the website of the arbitral body. We are in ongoing discussions with arbitration bodies regarding how to ensure that awards are published in an accessible manner for landlords and tenants who are considering making a reference to arbitration.
I think we are in absolutely the same place on the need for this. I hope I have persuaded the noble Lord that this amendment is not necessary and I request that he does not press it.
Turning to Amendment 5, I thank the noble Baroness, Lady Blake, the noble Lord, Lord Fox, and other noble Lords who have spoken for their consideration of the important issue of arbitration fees and the Secretary of State’s power to cap those fees. I assure your Lordships that we also want to ensure that all those who need to access the scheme can do so. That is why, for example, when arbitration bodies seek approval we are specifically asking them what they intend to do to make sure the scheme is affordable for SMEs.
As I have mentioned, the Bill adopts a market-based approach. Approved arbitration bodies, which have expertise in running and costing similar schemes, will have the function of setting fees. It has been made clear that while fees should be set at a level that incentivises arbitrators to act, it is important that the scheme is affordable for all those who need to access it. Capping fees prematurely could reduce the number of arbitrators able to act and in a sense would compound the problem that we are trying to solve. A cap should therefore be imposed only where there is evidence that it is needed. There is presently no such evidence but, if it were to emerge, the Secretary of State is prepared to exercise the power to cap fees.
Lord Thurlow (CB)
Just to add a little substance to the Minister’s point about the proportionality of fees, I think it worth mentioning that in order to present their case to the arbitrator, SMEs in particular will be engaging professionals who charge fees—accountants, surveyors and possibly many others. All this presses upon the delicate P&L of SMEs and, I fear, will have the effect of reducing the numbers that seek arbitration simply because they cannot afford it. That is a supplementary point to the cost of the arbitration. I am just pointing out that there are a lot of ancillary fees.
Lord Grimstone of Boscobel (Con)
I thank the noble Lord for that intervention. I understand the point that he is making. Having said that, I think it is right to see how this develops in practice as it moves forward. The Secretary of State has the power to cap fees, but to do that at the beginning could have the perverse effect of worsening the situation by meaning that there will be fewer arbitrators coming forward to do this.
Perhaps I may clarify a point I made earlier about the parties choosing an arbitrator. Formally, of course, the arbitrator is chosen by the arbitral bodies but, from discussion with those bodies, it is clear that they work through with the parties who might be the most appropriate arbitrator to appoint in a certain case.
We do not intend to produce guidelines specifying the factors to be considered in relation to the use of the power to cap fees, but I say categorically that the affordability of the scheme and whether arbitrators are sufficiently incentivised to act will be considered with any other relevant factors, if ever the Secretary of State decides that the power has to be exercised. In conclusion on that amendment, I know that, like us, the noble Baroness and the noble Lords who have spoken are keen to ensure that there are enough arbitrators to administer the scheme, and I therefore ask for Amendment 2 to be withdrawn.
On Amendment 6, which also concerns the Secretary of State’s powers to cap arbitration fees, I am again grateful to the noble Baroness and the noble Lord for emphasising the point about the affordability and accessibility of the scheme, should the power to cap fees be exercised. As I have said before, I agree that these are crucial issues. If the Secretary of State were to exercise the power to cap fees, I can reassure the noble Baroness and the noble Lord that the ability of landlords and tenants to access the scheme and the affordability of arbitration fees would of course be considered, along with other relevant factors such as whether arbitrators are sufficiently incentivised to take on cases. I reiterate that the Government will continue to work with approved arbitration bodies to monitor arbitration fees as well as arbitrator capacity. As I said, the Secretary of State will use these delegated powers only if it seems the right thing to do, taking into account the factors at the time.
The Bill gives arbitration bodies that are experienced at costing such schemes the power to set their own fee levels according to market demand. These fees will be publicised, and it will be possible to compare the fees of one arbitral body with those of another. We will absolutely monitor this and make sure that it is balanced with the other considerations to which I have referred. In conclusion, we will continue to work with approved arbitration bodies to monitor arbitration fees, as well as arbitrator capacity. Therefore, I hope that the noble Baroness and the noble Lord are reassured, and I request that Amendment 6 not be pressed.
On Amendment 7, the noble Baroness has proposed an amendment that would require the Secretary of State to issue guidance to arbitrators on two specific points: how the viability of the tenant’s business should be assessed and over what timescale. I agree that these issues are important, but I hope to persuade her that the amendment is unnecessary.
I hope she would agree that a very large variety of businesses of different sizes in a diverse range of business sectors may use the arbitration process provided in the Bill. In light of that, it is clear that arbitrators need the flexibility to make the assessment of viability against the context in which the individual business operates, considering the different kinds of evidence that may be available. We have to be alive to the danger of being too prescriptive, as a one-size-fits-all approach could lead to unfair arbitration outcomes.
That said, the Government are providing assistance to arbitrators who have to make these assessments. There is a list of factors that the arbitrator must consider when assessing viability in Clause 16. Annexe B of the revised code of practice sets out a detailed non-exhaustive list of the types of evidence that tenants, landlords and arbitrators should consider when assessing the viability of a tenant’s business and the impact of any relief on protected rent debt on the landlord’s solvency.
The Earl of Lytton (CB)
Perhaps I may pick up on a couple of points that the Minister made. It appears that he envisages that the arbitrator will have to use quite a lot of his own discretion. In my way of thinking, that does not fall under the Arbitration Act 1996 and is, in fact, an adjudication process of a rather different nature. He is probably not in a position to answer that right now, and if he would write to me, that would be fine. However, I worry that the way in which the Government see arbitration here is irregular in terms of what most people would understand as the strictures of arbitration.
Lord Grimstone of Boscobel (Con)
My Lords, I thank the noble Earl for his intervention. The best answer I can give is that it has been fully discussed with the arbitral bodies whether this is something that they feel the arbitrators they are responsible for can do. I have had complete reassurance on this point, but I will consider it again and write to the noble Earl.
Baroness Blake of Leeds (Lab)
I conclude by thanking the Minister for his very full responses to the concerns raised in this group of amendments. It is fair to say there is still some concern that we will probably pursue at the next stages. I wonder whether the Minister can write to let me know when the statutory guidance, particularly on viability, is likely to be made public. Again, we are in difficulty when we have not had sight of the guidance around the Bill. I do not want to open old wounds again, but it is a recurring theme that we have to deal with. Any clarity on that would be helpful.
I am grateful for the responses but, without going through all the detail again, in taking this work forward it is essential that all the parties have confidence in what is being put before them. The issues raised today are consistency, clarity, transparency and fairness. We must make sure that whatever comes through is deemed to have all those principles or qualities, wherever in the country you happen to be. I admit that I share the concerns of the noble Lord, Lord Fox, about local knowledge. Looking at the statistics, it is clear that certain parts of the country have been affected more than others. The stress that those areas are feeling is also not equally shared in relation to some of the big issues we have coming forward.
Lord Grimstone of Boscobel (Con)
It may be helpful if I say that I understand the noble Baroness’s point about guidance. It is very much our intention to publish the draft guidance before Report. I will keep the noble Baroness and noble Lords in touch with that. I understand why that question has been asked.
Baroness Blake of Leeds (Lab)
I thank the Minister for that intervention. We will look forward with interest to the guidance coming through. It is essential that it comes before Report, if I am allowed to say that. With those comments, and looking forward to further clarification, I beg leave to withdraw the amendment.
“(8A) An award giving the tenant relief from payment of a protected rent debt is to be taken as altering the effect of the terms of tenancy in relation to the protected rent constituting the debt. (8B) Subsection (8A) means, in particular, that—(a) the tenant is not to be regarded as in breach of covenant by virtue of—(i) non-payment of an amount written off by the award, or(ii) failure to pay an amount payable under the terms of the award before it falls due under those terms;(b) a guarantor of the tenant’s obligation to pay rent, or a former tenant who is otherwise liable for a failure by the tenant to pay rent, is not liable in respect of anything mentioned in paragraph (a)(i) or (ii);(c) a person other than the tenant who is liable for the payment of rent on an indemnity basis is not liable—(i) to pay any unpaid protected rent written off by the award, or(ii) to pay an amount payable under the terms of the award before it falls due under those terms;(d) any amount payable under the terms of the award is to be treated for the purposes of the tenancy as rent payable under the tenancy.”Member’s explanatory statement
The amendment would clarify that an arbitrator’s award of relief from payment of protected rent alters the effect of tenancy terms as to the payment of that rent. This means that any other person liable to pay the protected rent is only liable in relation to payments required under the award.
Member’s explanatory statement
The amendment would bring the language into line with the corresponding wording in Clause 4.
Lord Grimstone of Boscobel (Con)
My Lords, in moving Amendment 8, I am pleased to speak also to Amendments 9 to Clause 27. Both are in my name. Clause 27 provides a power to apply provisions of the Bill again in order to act swiftly in the event of another wave of coronavirus requiring further mandated closures.
Amendment 9 would ensure that the power can be used for mandated closure after the protected period in the Bill, whether before or after the Bill is passed, and whether or not the closure requirement has ended when regulations are made. Amendments 8 and 9 also clarify the meaning of a closure requirement, and more closely align the drafting with corresponding provisions of Clause 4. We have seen that the Covid landscape can change very quickly; Amendments 8 and 9 are therefore to ensure the power is clear and robust for any new waves. I beg to move.
Lord Fox (LD)
My Lords, I shall reserve almost all that I shall say about Clause 27 for the next debate—but it is good, if Clause 27 survives, that its language should be consistent with the other parts of the Bill. However, we shall debate its existence later.
“(2) A business tenancy is adversely affected by a closure requirement for the purposes of subsection (1) if—(a) the whole or part of a business carried on at or from the premises comprised in the tenancy, or(b) the whole or part of those premises,is of a description subject to a closure requirement imposed at any time after 7 August 2021.(2A) In this section “closure requirement” means a requirement imposed by regulations as a public health response to coronavirus and expressed as an obligation—(a) to close businesses, or parts of businesses, of a specified description, or(b) to close premises, or parts of premises, of a specified description.(2B) In subsection (2A) “coronavirus” means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).(2C) The power under this section is exercisable whether or not the closure requirement remains in force when the regulations are made.(2D) Subsections (3) to (5) of section 4 apply for purposes of this section as they apply for purposes of section 4.”Member’s explanatory statement
The amendment would clarify the meaning of terms used in Clause 27 and bring its drafting more in line with corresponding provisions of Clause 4. It would also ensure that the Clause 27 power is exercisable in relation to new closure requirements imposed before the Bill is enacted as well as any imposed subsequently.
Lord Fox (LD)
My Lords, Clause 27 would establish the Henry VIII power, which has drawn the ire of the Delegated Powers and Regulatory Reform Committee—so this speech will come as no surprise to the Minister or, indeed, the noble Baroness, Lady Bloomfield, who heard a slightly different version of it earlier this week. Thereby hangs a tale, because this is a consistent practice of the Government in legislating not just for the present but putting in place measures whereby the Bill cannot just be continued or rolled over but rolled over and substantially changed. In this case, Clause 27 gives Ministers very broad discretion to change how the Bill would work in future periods of coronavirus control. It would allow changes of a kind that would give rise to serious policy issues and this ought not to be a matter for secondary legislation.
Turning to the detail, the Bill applies to business closures that took place in two specific periods—11 March 2020 to 18 July 2021, for businesses in England, and 21 March 2020 to 7 August 2021 for businesses in Wales. However, Clause 27 gives the Secretary of State powers to make regulations that allow the Bill to apply to future periods of coronavirus control.
Baroness Blake of Leeds (Lab)
I put my name to this stand part notice in the name of the noble Lord, Lord Fox, in the light of the very direct comments we can see in the DPRRC’s report. I am sure that those comments were not made lightly and came from a position of real concern. In my short time in this House, I have picked up that this is a recurring theme and concern. Wherever we have the opportunity to call this out and seek to address the direction of travel, I believe it is our duty to do so.
Having said that, we recognise that it is important to make sure that mechanisms are in place to deal with future potential outbreaks of this pandemic or, indeed, other situations or pandemics that might arise in future. So, in supporting the direction of travel, we ask that the Act be amended by primary legislation to update the arbitration moratorium period. I hope that this would support the DPRRC’s recommendation but ensure that we would be able to extend the period if further restrictions became necessary.
Lord Thurlow (CB)
I do not want to make any specific points here, but I echo the very important point made by the Delegated Powers and Regulatory Reform Committee. As a House, we have been assaulted with these clauses with increasing frequency over the past few years. The Delegated Powers Committee has written an unprompted report criticising the adoption of these powers.
On this Bill, I think it unnecessary because we are dealing with a generic problem. I feel that it could be comfortably addressed if there was a need for further extensions as a result of outbreaks. It could be rolled forward, with amendments as required, in primary legislation. The bulk of the work—the hard work—has been done, so I echo the comments in the previous speeches.
Lord Grimstone of Boscobel (Con)
My Lords, I am grateful to the noble Lord, Lord Fox, and the noble Baroness, Lady Blake, for notification of their intention to oppose the Question that Clause 27 stand part of the Bill, and for highlighting the concerns expressed by the DPRRC. I also listened carefully to the comments of the noble Lord, Lord Thurlow, of course.
As has been stated in both the other House and this House, we have already seen with the omicron variant that the future of the pandemic is uncertain. I believe that the power in Clause 27 is important because it provides the Government with the ability to take a flexible and targeted approach to reapply any or all of the provisions in the Bill to respond to the specific circumstances of any future periods of coronavirus. None of us can predict what will happen. I assure noble Lords that we will of course always exercise this power in accordance with human rights.
Having said that, we are grateful for the report of the Delegated Powers and Regulatory Reform Committee. I acknowledge that it makes some important points, which I will consider carefully as we prepare for Report.
Lord Fox (LD)
I am not sure whether I have to withdraw, but I thank the Minister for his comments. We look forward to consulting between Committee and Report. This is important. I cannot speak for the noble Baroness, Lady Blake, but I suspect that we would both consider it necessary to take this forward in the event that the Minister was unable to meet the DPRRC at least most of the way.
“Review of the impact of this Act
(1) Four months after the day on which this Act is passed the Secretary of State must publish a review of the impact of this Act and whether it has provided tenants and landlords with an effective process of arbitration.(2) The review in subsection (1) must make an assessment as to whether awards issued under this Act have been given in a fair and consistent manner.(3) The review must also include an assessment as to whether further guidance should be issued as a result of its findings.(4) The Secretary of State must lay a copy of the review before both Houses of Parliament.”Member’s explanatory statement
This amendment would require the Secretary of State to review the impact of this Act four months after the Act has been passed.
Lord Fox (LD)
My Lords, we are on the last group— so soon. The amendment
“would require the Secretary of State to review the impact of this Act four months after the Act has been passed.”
That is unusual because, normally, the review process is one year, or five years, or whatever. However, we need to look at Clause 9, which sets a time limit of six months from when the Act is invoked or enacted for people to submit their process. I may have misunderstood —if so, I hope the Minister can put me right—but, if that is the case and that six months is a serious period, we need to assess the progress of this Bill in time for the Minister to roll it forward; the Bill makes provision for that, as I understand it.
We have talked about availability; the Minister has said that he will keep this under review. We have talked about cost; the Minister has said that he will keep this under review. We have talked about regional distribution and how that works; the Minister has said that he will keep this under review. My amendment would create a process that allows this review to happen formally so that your Lordships’ House and the Commons have time to roll this forward if some of the issues that we have discussed are preventing the process going forward.
I want to say one thing on the subject of fees. It comes back to a point that I ask the Minister to continue to review. As the noble Lord—Lord who? Sorry, Lord Thurlow—pointed out, there are a lot of ancillary costs other than the cost of the arbitration process itself; there is the cost of preparing for it, for example. In the end, this can be a loaded gun that the landlord—or the tenant, depending on which way it goes—can use. In other words, “It’s going to cost you this anyway so you might as well give me that”. I do not think that that is the purpose of this Bill. The Bill’s purpose is not to enrich massively dozens of service industries; it is designed to keep commerce rolling. One thing that must be reviewed, and one reason why we are keen to have this four-month review, is the question of whether the cost of fees is causing unfair settlements to occur. With that, I beg to move.
Baroness Blake of Leeds (Lab)
I am pleased to put my name to Amendment 10 and stand here to support it.
Constant reference has been made to monitoring the progress of the matters we have discussed, in particular to assessing the impact on all parties in the spirit of fairness and consistency. I believe that such a review would be welcomed by all parties: landlords, tenants and arbitrators. We must ensure that it is fully understood and clear as to whether the system is well understood, is working well and, most of all, is bringing benefit to those areas where it is needed most.
I would not be persuaded if the argument against this was that it would be onerous or too costly. The cost of failure in an area such as this would be far greater than the cost of keeping a close eye on progress and making sure that adjustments can be made if they are deemed appropriate.
With those few comments, I am pleased to support the amendment.
Lord Thurlow (CB)
My Lords, as a punishment for the noble Lord, Lord Fox, forgetting my name, I must object to his proposal and support the Government. In fact, four months is not enough. As we are likely to launch this legislation as an Act, which I hope is soon, just as the holiday season bears down upon the country, four months will become three months. There will not be enough momentum, precedent or example to really form a worthwhile review after such a short time. I realise that time is short and that we must not waste any time at all; we must give guidance based on results as quickly as we can to the sector, to the arbitrating bodies and to landlords and tenants. But I think the period proposed is too short.
Lord Grimstone of Boscobel (Con)
My Lords, I rise with some sadness, given that this is the last group. I thought that we were getting into the swing of it this afternoon. I should have hoped for further groups in which noble Lords could have demonstrated their expertise.
Amendment 10 proposes a new clause after Clause 27. I thank the noble Lord, Lord Fox, for his contribution and the noble Baroness, Lady Blake. I am also particularly grateful for the support of the noble Lord, Lord Thurlow.
The Government recognise the importance of appropriately reviewing legislation. I would like to reassure the noble Lord and the noble Baroness that the Bill contains appropriate means of monitoring the arbitration system, which is the essence of the Bill, including the awards made by arbitrators. The period under the Bill for making an application for arbitration is six months, and we anticipate that cases should be resolved as soon as possible thereafter.
The Bill already requires approved arbitration bodies to provide a report to the Secretary of State if requested. This can include details of the progress of arbitrations and the awards made. The Bill also requires arbitrators to publish their awards and reasoning. This will provide transparency and help with consistency of approach. If the need arises, the Secretary of State can also issue updated guidance to arbitrators, for example to clarify or add any points that may arise.
It is neither necessary nor beneficial to require publication of a review within just four months of the Bill being passed. That could slow the arbitration process and the prompt resolution that the whole scheme intends, should parties to arbitration and arbitrators await any findings and any new guidance. I appreciate that the noble Lord and the noble Baroness have proposed this with good intentions, but I ask the noble Lord to withdraw his amendment.
Lord Fox (LD)
Turning the telescope around the other way, the reason for specifying four months was the Government specifying six months in Clause 9(2). It seems perverse to have a review that comes after the process has essentially ended. That is the problem. I acknowledge the point made by the noble Lord, Lord Thurlow—I shall always remember his name; “That’ll learn you”, as they say where I am from—and I accept his point that three to four months is too short to review this. Therefore, six months is too short for the cut-off point. In a strange way, the noble Lord, Lord Thurlow, kind of makes my concern clear. If we are to review this, the review needs to come when changes can be made and when significant numbers of potential future cases are better served by the process. Does the Minister agree?
Lord Grimstone of Boscobel (Con)
My Lords, I think I will stick by my previous comments. I believe that not just the interests of landlords and tenants but those of the country are best served by getting on with this. Even though I respect the points that the noble Lord made, I stick with my previous comments.
Lord Fox (LD)
I thank the Minister for his comments, which I clearly do not agree with. Everybody’s interests are best served by getting on with something as long as what we are getting on with is a good thing. As someone who climbs and rambles, I know that heading off in the wrong direction and keeping walking for a period before starting to assess the direction in which one is walking is not a good idea. What one does when one sets out on a journey is check and check again, and make changes. This amendment would make sure that any trimming that is required to add direction is done in time for it to have a meaningful effect on the outcome of the largest possible number of cases. Having said that three times in three different ways, I beg leave to withdraw the amendment.
“(b) a person other than the tenant who is liable on an indemnity basis for the payment of rent under a business tenancy, and(c) a former tenant who is liable for the payment of rent under a business tenancy.”Member’s explanatory statement
The amendment would secure that references to the tenant include any other persons who are liable under a business tenancy for payment of rent.
“(b) a person other than the tenant who is liable on an indemnity basis for the payment of rent under a business tenancy, and(c) a former tenant who is liable for the payment of rent under a business tenancy.”Member’s explanatory statement
The amendment would secure that references to the tenant include any other persons who are liable under a business tenancy for payment of rent.
House of Lords
(2 years, 9 months ago)
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Retirement of a Member: Lord Fellowes
(2 years, 9 months ago)
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The Lord Speaker (Lord McFall of Alcluith)
My Lords, I should like to notify the House of the retirement with effect from today of the noble Lord, Lord Fellowes, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I thank the noble Lord for his much-valued service to the House.
National Disability Strategy
(2 years, 9 months ago)
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Lord Holmes of Richmond
To ask Her Majesty’s Government what progress they have made with implementing their National Disability Strategy.
Baroness Scott of Bybrook (Con)
My Lords, good progress is being made. Of more than 100 commitments across government, over 25 have already been delivered in just six months. Among them, the DfE invested over £8 million in 2021-22 on children and young people with complex needs, improving outcomes for these disabled children. The DWP is piloting an adjustment passport supporting disabled people’s transition to employment, and BEIS has launched an online advice hub offering accessible information and advice on employment rights for disabled people. But we understand there is more to do.
Lord Holmes of Richmond (Con)
Disabled people in the UK today face an education attainment gap, an employment gap, a pay gap, a public appointments gap, a suboptimal disabled students’ allowance scheme, inaccessible accommodation and inaccessible transport. Will my noble friend agree three things? First, there is no shortage of issues in urgent need of being addressed, as the strategy rightly sets out. Secondly, this will require unflinching commitment from Ministers and officials across Whitehall. Thirdly, there is an urgent need to get on with it.
Baroness Scott of Bybrook (Con)
My noble friend is absolutely right: there is no shortage of issues. I have mentioned some that are being changed and some that are on their way to changing, but there are a lot more that need to change and many more that are not in the strategy and need to be covered. As the Prime Minister said when he launched the strategy, this is just a “down payment”—this is just the beginning—but we are committed. We are making strides, going forward and delivering.
Baroness Lister of Burtersett (Lab)
My Lords, last week the Work and Pensions Committee took the highly unusual step of publishing a 2020 research report commissioned by the DWP but, in effect, suppressed by it and ignored by last year’s disability Green Paper. What does the Minister think is the policy implication of that report’s finding that disabled people, totally reliant on benefits, are often unable to meet basic needs, such as food, rent and heating?
Baroness Scott of Bybrook (Con)
I am sorry; I have not read that report. The DWP takes a lot of interest in all these reports and it is important that we look at the issues for disabled people, at all times. But we are spending a record £59 billion on benefits this year to support disabled people and people with long-term health conditions. That is 2.5% of GDP. There is another £421 million in the household support fund, so we are putting money into this and supporting disabled people, wherever and whenever we can.
Lord Singh of Wimbledon (CB)
Does the Minister agree that a country’s civilisation is measured by the care and compassion it gives its disabled and vulnerable citizens—a role all too often left to charities with inadequate resources? Charities such as Action for ME work with inadequate resources to improve the lives of those with this debilitating condition. Will the Government conduct a full review of current ME provision, with a view to establishing a national strategy for ME in the UK?
Baroness Scott of Bybrook (Con)
I agree with the noble Lord that charities do a lot in this country, but when the Government work with charities and others in the third sector, we can do more. I will certainly take the question on ME provision to colleagues in the Department of Health to discuss this. I do not know whether they are willing to do a review, but I will ask them to get in touch with the noble Lord.
Lord Ashton of Hyde (Con)
My Lords, it is the turn of the Lib Dems. The noble Baroness, Lady Thomas of Winchester, wants to speak virtually.
Baroness Thomas of Winchester (LD) [V]
My Lords, disabled people look forward to being consulted properly on the National Disability Strategy; in particular, on more accessible housing for rent, fair benefit assessments and reliable social care. Does the Minister agree and please will she give us timescales?
Baroness Scott of Bybrook (Con)
My Lords, across government, we are talking continually to stakeholders and charities for disabled people, nationally and locally. There is a commitment across government to continue to do that. On housing, DLUHC—as it is now called—has committed that 10% of the 180,000 homes being built in the affordable homes programme will be for supported housing and I think this is extremely important. We are doing all we can. We know that consulting everybody who needs a voice is difficult, but we will continue to do that across government.
Baroness Eaton (Con)
My Lords, I ask my noble friend how pupils with special educational needs are being supported.
Baroness Scott of Bybrook (Con)
I thank my noble friend for her question. It is important that we continue to support children with special educational needs, because, if they get the right education, they can go on to living fulfilling lives. The DfE has put a further £2.6 billion over the next three years into delivering new places and improving existing provision for young people with special educational needs. The DfE is also contributing £9.3 million in the next financial year to train educational psychologists—very important in this field. High-needs funding for children and young people with complex needs is increasing by £1 billion to £9.1 billion in the next financial year.
The Lord Bishop of Chichester
My Lords, last year, the Chief Medical Officer’s annual report focused on health in coastal communities, noting higher levels of deprivation and disability in these locations. What will the Government do to tackle the levels of multiple need and disability in these communities?
Baroness Scott of Bybrook (Con)
My Lords, I cannot say specifically, but I will certainly write with the answer. Across the whole of this country, there are areas where disability is more of an issue than in others. That is why we have this cross-government strategy, and why we will deliver on it.
Lord Ashton of Hyde (Con)
My Lords, the noble Baroness, Lady Masham of Ilton, wishes to speak virtually, and I think this is a good time to call her.
Baroness Masham of Ilton (CB) [V]
My Lords, is the Minister aware that some people with a disability just need a little personal help and assistance to get up and to go to bed, so that, once up, they can reach their full potential? Can the Government make it easier for this help to be forthcoming?
Baroness Scott of Bybrook (Con)
I thank the noble Baroness for that question. I know that on a very personal level because I have an adult daughter who is disabled and needs exactly that kind of care. I think it is important that we look to how we can do that better, if that is what disabled people in consultations say is necessary. I will take that back to the department.
Baroness Ritchie of Downpatrick (Lab)
My Lords, will the Government commit to increase the funding for research into conditions such as ME, which has already been referred to, so that children and adults across the UK can receive the right care and support that they so urgently and desperately need?
Baroness Scott of Bybrook (Con)
I think that, working with the charitable sector, exactly as I said to the noble Lord previously, that is something we should do. I will take that back to my noble friend in the Department of Health.
Lord Addington (LD)
My Lords, we have heard a great deal from the Minister—and we are all glad to—about money spent on initiatives. What are the Government going to do to bring them together as a coherent whole? At the moment, we suffer from a multitude of schemes and good intentions that do not co-ordinate. A coherent whole is the primary thrust of any successful strategy here.
Baroness Scott of Bybrook (Con)
My Lords, that is exactly what this strategy is all about. That is why, across Government, we have ministerial disability champions meeting quarterly with the Minister for Disabled People, in order to have a co-ordinated strategy for this country to improve the lives of disabled people.
Children: Online Protection
(2 years, 9 months ago)
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Baroness Merron
To ask Her Majesty’s Government what discussions they have had with the new Information Commissioner about the importance of protecting children online.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the Government are committed to protecting children online and are in regular contact with the Information Commissioner, whom we welcome to his post. The forthcoming online safety Bill will provide children with world-leading protections from harmful content and activity online, and the Information Commissioner will continue to enforce the safeguards for children’s privacy in the children’s code.
Baroness Merron (Lab)
I thank the Minister for that Answer and welcome the recent announcement that the draft online safety Bill will better protect young people from online pornography. Regrettably, the Government have dragged their feet on this, meaning that more young people have been exposed to extreme content than was necessary. A new regime will take several years to come on stream. What consideration is the Minister giving to interim measures to better protect children, including, but not limited to, instructing the Information Commissioner to apply the age-appropriate design code to hosts of adult content?
Lord Parkinson of Whitley Bay (Con)
I am grateful for the noble Baroness’s support for the newer measures the Government announced this week. Of course, we will be responding in full to the work of the Joint Committee and the DCMS Select Committee in the other place. We have looked at the draft online safety Bill to respond to the further recommendations and suggestions they have made. However, we have not been inactive in the meantime. In June last year, for example, we published safety by design guidance and a one-stop shop on child online safety, which provided guidance on steps platforms can take to design safer services and protect children. Last July, we published our Online Media Literacy Strategy, which supports the empowerment of users. So we are taking steps, as well as introducing the Bill, which will be coming soon.
Baroness Kidron (CB)
My Lords, I also welcome the new commissioner, John Edwards, to his role, and congratulate the Government on this week’s announcement that the online safety Bill will include statutory guidance for privacy-preserving age assurance. Given that, to date, many of the eye-catching changes brought about by the age-appropriate design code, such as safe search and dismantling direct messaging by unknown adults to children, have been rolled out globally, are the Government working with the new commissioner to encourage the UK’s allies and trading partners to adopt the code in other jurisdictions to better enforce its provisions? Does he agree that regulatory alignment between the online safety Bill and the code is essential if we are to keep children safe?
Lord Parkinson of Whitley Bay (Con)
I am very grateful for the noble Baroness’s welcome for the new measures. There is agreement at an international level and within the UK that much more needs to be done to create a safer online environment for children, and the noble Baroness has played a significant part in fostering that agreement. The Information Commissioner has an international team responsible for engaging with data protection and information regulators all over the world. He is himself a former privacy commissioner in New Zealand, while his predecessor worked in this area in Canada, and I think that is to the great benefit of international dialogue. The international team works to ensure that the ICO’s regulatory and other priorities are appropriately reflected in international discussions. Through its work in organisations such as the OECD, the Council of Europe and the Global Privacy Assembly, the ICO also influences work on the interoperability of global data protection regimes.
Baroness McIntosh of Pickering (Con)
My Lords, I congratulate my noble friend and the Government on introducing the regulatory sandbox.
Lord Ashton of Hyde (Con)
My Lords, there is plenty of time. One of your Lordships can give way to the other.
Baroness McIntosh of Pickering (Con)
My Lords, as chairman of the Proof of Age Standards Scheme board, I join the noble Baroness, Lady Kidron, in congratulating the Government on the work they are doing in this area. Can the Minister give us an update on the sandbox trial of technologies and an idea of when those trials might reach a conclusion, so that they can be rolled out? This is something that, for proof of age for buying alcohol and children’s online activities, will be an immensely positive step forward and one that is very welcome.
Lord Parkinson of Whitley Bay (Con)
I am grateful to my noble friend for her support for the new measures. I am afraid I do not have details of the specific trial to which she refers, so, if she will permit me, I will write to her with those details.
Lord Clement-Jones (LD)
My Lords, the Government seem to be bringing out their response in tantalising instalments. I can only speculate why, but, as a former member of the Joint Committee alongside the noble Baroness, Lady Kidron, I can only welcome what the Government have already announced. There are crucial elements to the control of commercial pornography: first, the age-assurance measures that were set out in the noble Baroness’s Private Member’s Bill, and, secondly, the age-appropriate design code protections for young children. There is, as yet, no indication that the Government have actually accepted the alignment of the age-appropriate design code with the online safety Bill regarding the commercial pornography elements. That is an important factor if we are really going to make sure that young people are safe.
Lord Parkinson of Whitley Bay (Con)
I hope we can continue to please the noble Lord and others with the work that we are doing in this area. The age-appropriate design code will play a key role in delivering protections for children ahead of and alongside the new online safety regulatory framework. We have aligned our approach with the code, which requires companies to apply its standards to protecting children’s personal data where they have assessed that children are likely to access their services. That will provide consistency for companies that may be required to comply with both the code and the provisions of the online safety Bill.
Lord Cormack (Con)
My Lords, does my noble friend agree that this Bill, perhaps more than any other, demands post-legislative as well as pre-legislative scrutiny? It is terribly important to see that things are really working. I add my congratulations to the noble Baroness.
Lord Parkinson of Whitley Bay (Con)
I certainly agree that the Bill has already benefited from the work of the Joint Committee and all the representations that have been made about it by parliamentarians in both Houses. One of the pre-legislative recommendations was for post-legislative attention, and we will respond to that and all the other recommendations ahead of publishing the Bill.
Lord McNally (LD)
My Lords, I think the Minister should beware TS Eliot’s:
“Woe unto me when all men praise me!”
There is clearly a direction of travel which is welcomed in the House. Could he assure me that the British Board of Film Classification will be involved in ensuring that this safety legislation is watertight? It has long experience in age verification and other matters that would make it invaluable to whoever will take responsibility for these matters.
Lord Parkinson of Whitley Bay (Con)
The noble Lord makes an important point. We have been speaking to the BBFC and others. The questions which we are addressing through the online safety Bill are not entirely new. The questions of access and how we can protect children, in particular, are ones that we have addressed in relation to other media. We are learning from those who have experience as we look to future regulation.
Lord Brooke of Alverthorpe (Lab)
My Lords, I do not bring any praise. Age assurance can be driven through easily by a coach and horses. The noble Baroness asked what further work is being done on facial recognition and the other factors which are now developing with technology. When we reflect on the great difficulties we have with so many areas on security, was it not a disaster, in 2011, when the then newly elected coalition Government threw away the Labour Government’s work on identification of individuals, when this is needed in so many areas? What are the Government doing to look back, reflect on that, change direction and produce proper self-identification for everyone, not just children?
Lord Parkinson of Whitley Bay (Con)
I am not sure that a national identity card scheme would be the right approach in this area. In the decade since, technology has moved on in a number of ways to enable both age verification and age assurance in a lighter touch way that affords the protections we need for children online while respecting the privacy of legitimate adult users.
Lord Farmer (Con)
My Lords, the Government’s announcement acknowledges that porn gives children unrealistic expectations about sex and relationships and encourages misogyny. However, it fails to mention the addictiveness of its consumption up the age range. Are the Government concerned about the effect on adults’ relationships, as is revealed by this worrying research? The Bill is urgently needed, and I join others in asking, because the Bill is urgently needed, when it will be introduced.
Lord Parkinson of Whitley Bay (Con)
I thank my noble friend, too, for his welcome. He raises points about the further potential harms of pornography and, although the strongest protections in the Bill are for children, it looks at the harms that online content can pose to people of all ages. On the time- table: it remains our intention to introduce the updated Bill in the coming weeks and to respond formally to the Joint Committee and to the Select Committee in the other place at the same time as the Bill is published.
Covid-19: Lateral Flow Tests
(2 years, 9 months ago)
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Baroness Finlay of Llandaff
To ask Her Majesty’s Government how many COVID-19 lateral flow tests are awaiting approval under the Medical Devices (Coronavirus Test Device Approvals (Amendment) Regulations 2021; how many have been approved; and how many that already hold Medicines and Healthcare products Regulatory Agency approval will fall if not re-approved by the extended deadline of 28 February.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall)
As of 3 February 2022, 87 lateral flow devices were in the CTDA approval process, and none have been approved—
Lord Kamall (Con)
I am sorry, this is a 2.45 am hang- over. Lateral flow devices from 20 CTDA applications are currently included on the temporary protocol. If we interpret the phrase “Medicines and Healthcare products Regulatory Agency approval” as CE marking, we are currently considering proposals to ensure the continued supply and usage of tests beyond 28 February and will announce plans once a decision has been confirmed.
Baroness Finlay of Llandaff (CB)
I am grateful for the Minister’s response despite the late hour of last night’s debate. I am concerned that the information I have is that there are still 200 tests waiting, 46 have been assessed and validated at Porton Down, and the process is not well-aligned with the MHRA processes. What is being done to bring those processes back in line? What is being done to bring forward applications from devices that provide a differential diagnosis between Covid and influenza? These are already being used in Europe, but I understand that none are available in the UK because they have been held up in the validation process.
Lord Kamall (Con)
I should perhaps start with some background on this and why we have reached the situation we are in. Her Majesty’s Government began the large-scale procurement of Covid-19 test kits at the height of the pandemic. To ensure supplies for the universal testing offer, Porton Down assesses tests offered to Government. It found that three-quarters of those offered failed to meet their stated performance in their instructions for use. For most testing technology, the manufacturer needed only to do self-assessment to meet the CE marking rules, but clearly, when they were tested, they were not meeting those standards. We considered that the current standard was insufficient and did not keep bad tests off the market. That is why we had a public consultation in April that showed strong support for a more rigorous regime. In terms of avoiding a cliff edge, as it were, if they have not been validated, we are looking at solutions.
Lord Scriven (LD)
My Lords, reports indicate that the Government are seeking to implement testing only in health care settings and for the most vulnerable people, along with stopping the requirement to self-isolate if a person has Covid-19, in the next two weeks. What evidence from SAGE and NERVTAG do the Government have to show that at present, this is in the best public health interest of the country?
Lord Kamall (Con)
I am not aware of any announcements or measures that accord with the noble Lord’s question.
Lord Brownlow of Shurlock Row (Con)
My Lords, for some time I have been testing every day and use testing kits that I acquire online and pay for from the same manufacturers that the Government use to distribute free tests. Why are those tests not registerable through the Government website, so that you can get an email confirmation of a negative test? The QR codes are not recognised if you buy tests yourself.
Lord Kamall (Con)
I must say to my noble friend that I was not aware of that, and therefore I will have to go back to the department. If he could write to me about that, I will be happy to respond.
Lord Hunt of Kings Heath (Lab)
My Lords, can the Minister say how many British companies are caught in this and waiting for approval? Can he also say how many billions of pounds we have spent importing these tests from China?
Lord Kamall (Con)
I will try my best to answer the questions, but if I do not, I hope the noble Lord will accept a written response. Some 25% of approved devices are from UK manufacturers, but it is important, as a fair and neutral regulator of market access that all applicants are treated equally. The Government are working to review applications for devices submitted by the process. At the same time, while we want to make sure that the British tests are of the highest standard, we are determined to harness the power of the UK’s leading diagnostic industry. We will continue to be enormously engaged with UK manufacturers and trade bodies to support a thriving domestic diagnostic industry.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I wish the Minister a speedy recovery. He has been working late hours and deserves our total sympathy. I wonder, however, whether he could give us some indication of how much was wasted in preferential procurement of this kind of equipment. How much has all the equipment that is now out of date and has to be destroyed cost? I do not blame him for any of it, because he has relatively recently become a Minister, but will we have some kind of inquiry into preferential procurement and the wastage of all this equipment?
Lord Kamall (Con)
It is interesting that an earlier question asked if we are looking at British-based manufacturers. We want to be very careful that there is no preference, it is all based on merit and we have tests that meet all standards. To answer the question about the wider procurement process, there was a Question last week when I gave some detailed answers about the write-down of some of the value. We bought some of that equipment at the height of the market when people were desperately trying to buy equipment all over the world. Ships were being redirected en route when people thought they were receiving goods. That is why we paid the market price at the time.
Baroness Wheatcroft (CB)
My Lords, there is still the occasionally ping heard. Can the Minister bring us up to date with how many people are still employed on Test and Trace and what the total cost has been so far?
Lord Kamall (Con)
That is a valid question and if the noble Baroness could write to me, I will respond.
Baroness Merron (Lab)
My Lords, in addition to the need to improve the approval process for lateral flow tests, when can we expect to see a real plan for living well with Covid? Will this include proper provision for better sick pay, improved testing and those who are clinically vulnerable.
Lord Kamall (Con)
Clearly, the noble Baroness raises a number of important considerations for when we come up with a living with Covid strategy. At the moment, we are consulting on it to make sure that we have an appropriate strategy that covers many of the issues she referred to.
Lord Cormack (Con)
My Lords, am I right in thinking that my noble friend said that 25% of the testing kits are made in this country? Does it follow from that that the other 75% are made in China, or is there a wider field of manufacture?
Lord Kamall (Con)
As far as I am aware, they are from other countries; I do not know the exact figure for China. The suppliers that have been chosen have passed our protocol and meet the requirements of the procurement framework. It is really important that we have a rigorous standard, given that we found that many of the tests did not meet the instructions for use, as they claimed. We want a testing regime that is not only one of the best in the world but also very well trusted, especially if we are looking at using home testing for future diagnostics to identify more diseases and viruses, rather than waiting for people to go into hospital.
Baroness Featherstone (LD)
My Lords, given the Prime Minister’s announcement that in a couple of weeks, people will no longer have to isolate, what can the Minister say to those who have been shielding for all this time and who are now terrified that if they go out of their door, they will meet someone who is positive, so they will have to stay at home? Are their lives not as valuable as those of the rest of us?
Lord Kamall (Con)
I am sure the noble Baroness will appreciate that you always have to get the right balance. There will be those who do not want to stay at home and who want to return as quickly as possible, and you also have to consider the wider economy. We cannot shut down the whole economy for a small section of people. What we have to do is make sure that they are looked after. I have recently seen a submission about what we are going to do in future with people who are now termed clinically vulnerable and extremely vulnerable, and we will be publishing that in detail. In fact, just recently I approved a letter to the noble Baroness, Lady Brinton.
Lord Watts (Lab)
My Lords, will the Government learn the lesson of Covid and look at supply chains and the need to stockpile equipment in the future?
Lord Kamall (Con)
I could bore for Britain on supply chains. It was one of the academic subjects that I looked at, globally. As we become more economically efficient and supply chains become more efficient, they become more brittle. We saw how the shops were affected by lockdown and by China, and much of the manufacturing, as part of that supply chain, started in China. Companies across the world have looked at different options. Some have looked at sourcing elsewhere; some have looked at stockpiling; some have looked at reshoring; but all those options add considerable costs to the supply chain. Some have even looked at intermediary solutions, including warehousing in cheaper countries and then bringing the goods in closer. I am very happy to go on at length to the noble Lord at any time, but not now.
Medical Abortion Pills
(2 years, 9 months ago)
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Baroness Sugg
To ask Her Majesty’s Government what plans they have to extend the availability of the home use of pills for early medical abortion.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
We are carefully considering all evidence submitted to the Government’s public consultation on whether to make permanent the temporary measure allowing for home use of pills for early medical abortion. We will publish our response as soon as possible and before the end of March to give providers sufficient time to plan for whatever the outcome is.
Baroness Sugg (Con)
I thank my noble friend the Minister for that Answer. The consultation on this finished 12 months ago and the current regulations expire next month. Abortion providers have made it clear that without telemedicine services, we will face enormous demand pressures resulting in longer waiting times, later abortions and even women having to resort to unsafe abortions. It would be very helpful to understand the delay to a permanent decision and why it cannot be reached when the evidence is so clear.
Lord Kamall (Con)
One of the reasons, as my noble friend would acknowledge, is that we had lockdown and then we were let out, and then we had more restrictions. We did not want to announce something and then have to go back on it. All I would say is that it was always intended to be a temporary measure. We have looked at the responses to the consultation in order to reach a decision, and we will be issuing our considerations later.
Baroness Blackstone (Ind Lab)
My Lords, I wish to declare my interest as chair of the trustees of the Royal College of Obstetricians and Gynaecologists. Following up on the question from the noble Baroness, Lady Sugg, I find it very strange that the Government are taking so long to make this decision. The temporary service that was provided for early medical abortions comes to an end at the end of next month. The evidence is clear. According to a survey of 50,000 women published in a leading medical journal, telemedical abortion is
“effective, safe, acceptable and improves access to care.”
In these circumstances, what is holding up the Government’s decision? It seems obvious that it would be welcomed by doctors involved in the treatment of such women, and by the women who need this care.
Lord Kamall (Con)
As I am sure noble Lords will acknowledge, this is a very sensitive area. Initially, it was meant to be a temporary-only service. If we do decide to respect its temporariness, an extension will probably be made to ensure that the clinics and other medical services have time to adapt before returning to the position before the pandemic.
Baroness O'Loan (CB)
My Lords, is the Minister aware of a recent study, based on FOI requests to NHS trusts, which revealed that in 2020 more than 10,000 women who took at least one abortion pill at home, provided by the NHS, needed hospital treatment for side-effects? That is equivalent to more than one in 17 women, or 20 women a day, needing hospital treatment. Does the Minister agree that such reports indicate a serious and disturbing lack of understanding by its advocates of the dangers of the telemedical abortion policy?
Lord Kamall (Con)
I am grateful to the noble Baroness for giving the other side of the debate; it shows what a difficult subject this is. Sometimes people dig up the wider debate, but I think we have to be very careful and focus on the issue. This was a service offered to women, and the initial consultation was in person, but we made temporary provision, rightly, during the pandemic to ensure that women were treated with dignity, while appreciating that it had to be done at distance. We have looked at whether this should continue to be temporary or become permanent, and we are still weighing up this difficult decision. I think the debate today shows that there are a number of views, and it is not as simple as either side proposes.
Baroness Barker (LD)
My Lords, the telemedical abortion service has been evaluated separately in England, Wales and Scotland and it has proven to be world leading. The US Food and Drug Administration has recently approved telemedical abortion care in America on the basis of the UK studies. Does the Minister agree that women’s access to safe, high-quality abortion care in the UK should be non-negotiable?
Lord Kamall (Con)
I do not think that is in question. There is no doubt that women should have access to abortion services and to the right advice, but as the noble Baroness who spoke earlier indicated, there are some concerns and risks. We have to consider all the factors. Of course, it would be wonderful for some people if it was made easier and was available online; others say you must be prepared for the risks. Whatever happens, if something goes wrong, I am sure that the noble Baroness and others would be back here questioning why we did what we did.
Lord Winston (Lab)
My Lords, I declare an interest as a fellow of the Royal College of Obstetricians and Gynaecologists and of the Academy of Medical Sciences. Have the Government considered the evidence from Imperial College London—indeed, from my own laboratory—showing that most human embryos are born with abnormalities which are potentially lethal, and they usually die? They are then aborted by the same process which this Bill causes, only at a later stage of pregnancy. This method of natural abortion, which occurs all the time, is mostly without symptoms to the woman: they do not even know that they have lost an embryo. It is safe and does not cause the medical complications which invariably happen with a late abortion, which a woman is then committed to. What are the Government going to do about this, firmly, to make it avoidable in future?
Lord Kamall (Con)
I am grateful to the noble Lord for informing me about that—it is something I have learned today. I will take it back and consider what he has said. To return to the Question, when we made this measure it was clear that it was supposed to be temporary. Will have consulted and will look at the consultation and decide what we will do. If we do go back to what it was like before, we will make sure there is a sufficient period to ensure there is no cliff edge.
Lord Patel (CB)
My Lord, to return to the original Question asked by the noble Baroness, Lady Sugg, may I respectfully suggest that the Minister is trying to defend the indefensible? The evidence is quite clear about the safety of the procedure. We can have a debate about alternative views, but the evidence from other countries which routinely use this method of treatment is clear: it is safe and more convenient for women, and it should be implemented immediately. Will he take this back to the Department of Health?
Lord Kamall (Con)
I think the noble Lord is being slightly unfair. It is a complicated issue and not as simple as people make out. The noble Baroness said that we should be aware of dangers. These are the issues that we considered during the consultation. Whatever we do, we will be criticised— rightly so—but we want to make sure that when we make a decision it is the right decision.
Baroness Wheeler (Lab)
My Lords, RCOG data has shown that complications related to abortion have decreased since the telemedicine for EMA service was introduced. The college has warned that failure to make it permanent could lead to more women accessing an illegal abortion. NICE has recommended the service as best practice, so does not its future urgently need to be secured by making it permanent? It does not have to be temporary.
Lord Kamall (Con)
As I said, we are looking at the consultation carefully and considering all views. If we made it permanent, there would be lots of criticism, which we have to be aware of and make sure that we have the answers for. If we continue to expect it to be temporary, there will be plenty of criticism. Whatever we do, we will be damned, but we are going to try our best.
Baroness Bennett of Manor Castle (GP)
My Lords, the noble Lord, Lord Patel, talked about convenience of telemedicine for women. The fact is that women from the most disadvantaged backgrounds are three times as likely to need an abortion as those from the wealthiest backgrounds. It is not just an issue of convenience. It is a question of whether childcare is available and affordable; whether someone has a zero-hours contract job and cannot afford to take time off; or whether someone does not have access to public transport. This is very much an equalities issue—that abortion is available to every woman who needs it.
Lord Kamall (Con)
I agree with that statement but it is not what the Question is about. The Question is about a temporary measure that was put in place and whether it should be made permanent. It involves the consideration of difficult issues, including ethical issues, and we want to make sure that when we come to a decision, it is justified.
Baroness Boycott (CB)
Does the Minister accept that, as this provision is medically supported by all the experts, this decision is a political one that discriminates against women and is not based on sound medical evidence?
Lord Kamall (Con)
First, I remind the noble Baroness that we have not made a decision. I completely refute the allegation. It is unfair but I expect that, whatever we do on this issue, people will refer to the wider debate and accusations will fly around. I accept that, but we will concentrate on looking at the data and the consultation and make a decision.
Learning Disabilities (Access to Services) Bill [HL]
Thursday 10th February 2022
(2 years, 9 months ago)
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Lord Wigley (PC)
My Lords, I draw attention to my registered interest as a vice-president of Mencap.
North Sea Oil and Gas
(2 years, 9 months ago)
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Baroness Chapman of Darlington (Lab)
My Lords, the energy price crisis is a fossil fuel crisis. This means we must go further and faster on zero-carbon energy, energy efficiency and clean energy storage. In their White Paper, the Government said that they would
“develop the existing checkpoints in our processes before proceeding with future licensing rounds.”
How is what the Government said yesterday consistent with that approach? Further, can the Minister explain whether he believes that any licensing decisions must be compatible with keeping warming to 1.5 degrees and how the Government will make that assessment?
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
I thank the noble Baroness for her question. She is right: we intend to introduce a climate-compatibility checkpoint for all new licences, which will be used to assess whether any future licensing rounds remain in keeping with our climate goals.
Lord Fox (LD)
My Lords, in Q3 of last year, which is the last time for which data is available, exports from the UK North Sea were double those of the period in the previous year. At the same time, Ministers were reported to be scrabbling to Kuwait to secure extra supplies of LNG to the UK to meet the energy crisis. This is very counterintuitive. Does the Minister agree that shipping expensive—in environmental terms—LNG from the Middle East, rather than using gas that comes from our doorstep, is not sensible or good for the planet? Will he tell your Lordships’ House how the Government will turn that around and make better use of the resources we already have and are already producing?
Lord Callanan (Con)
First, I agree with the noble Lord that it is much more sensible to use our own domestic resources, rather than LNG. However, the reality is that, throughout this period, the UK remains a net importer of oil and gas. Therefore, it makes no sense to pursue the operations he is proposing. We do not produce enough of our own domestic energy. We are expanding our renewable capacity massively and have the largest developments of offshore wind in the world. We need to go further and faster, but it makes no sense to isolate ourselves from the rest of the world and cut off imports and exports.
Lord Howell of Guildford (Con)
My Lords, in running down North Sea oil and gas for climate purposes, is it not vital to ensure that supply does not shrink so fast that it falls behind continued demand, with the resulting price explosions in all the fossil fuels that we see now, which are causing such misery and crisis?
Lord Callanan (Con)
I totally agree with my noble friend. I know he speaks with great authority on this matter as a former Energy Minister. As I just said in response to the noble Lord, Lord Fox, we remain a net importer. Production from the North Sea is sadly declining. We need to make sure that we ramp up our renewable capacity as quickly as possible, but it remains a fact that we will still have demand for oil and gas during the transition. If we have that demand, it makes sense to produce this domestically rather than importing it from other, unstable, parts of the world.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, can the Minister confirm whether decisions on these matters are within the total competence of the United Kingdom Government? Is there any way that the Scottish Government could thwart them?
Lord Callanan (Con)
No, these decisions remain a matter for the UK Government. The noble Lord makes a good point. It is sad to see the reaction of the Scottish Government in not being totally supportive of the tremendously successful North Sea oil and gas fields which, as well as employing thousands of people in good, well-paid jobs, also contribute large amounts to the UK taxpayer.
Lord Brownlow of Shurlock Row (Con)
My Lords, can my noble friend the Minister tell me whether the Government are reviewing their position on fracking?
Lord Callanan (Con)
No, we are not reviewing our position, is the short answer to my noble friend’s question. Let me explain this issue: there is currently a moratorium on fracking because of the tremendous seismological damage that it caused. We remain open to reviewing this if it can be demonstrated that fracking can go ahead in a safe and responsible manner, but nobody should run away with the idea that this could be a solution to our problems. The quantities produced would be relatively small and they would not impact on the current high prices and it would be many years, perhaps even decades, before significant quantities could come on stream, even if we overcame all of the environmental problems and gave the go-ahead tomorrow.
Lord Watts (Lab)
My Lords, a previous question was about why we are exporting something that we desperately need in the UK. People cannot understand why we are still exporting, when there is a shortage and we are having difficulties getting supplies in the UK. Can the Minister explain it?
Lord Callanan (Con)
Yes, I realise that it is counterintuitive but supplies are required in different parts of the country. We are importing and exporting. The corollary to the noble Lord’s question would be to say that we seal the borders, disconnect all our interconnection pipelines and import no further LNG—and we would not have enough supplies to satisfy our domestic demand in such circumstances. We import and we export, but the point remains that we are a net importer of both oil and gas supplies.
Lord Naseby (Con)
Bearing in mind that the four Governments previous to this one have ignored the role of nuclear—that appears to be the situation—can my noble friend assure this House that we will now see what useful role nuclear can play in giving us, in a sense, a defensive supply?
Lord Callanan (Con)
Indeed, my noble friend makes a very good point. The House will shortly have the opportunity to consider the Nuclear Financing Bill, which has its Second Reading on 21 February, I believe.
Lord Walney (CB)
The Government agree—do they not?—that the actions of President Putin show that the whole of the West needs to increase the priority it gives to energy security. New nuclear must be part of that, but it should cause us to rethink some of the finely calibrated decisions on fossil fuels here in the UK if it can mean extra security for our western partners.
Lord Callanan (Con)
The noble Lord makes an excellent point. Regarding energy, first, it takes many years to develop new sources—sometimes even tens of years—and, secondly, we need diversity of supply. Yes, we need continued oil and gas production during the transition period; yes, we need to encourage new renewables; and, yes, we need to encourage nuclear. We need a diverse mixture of supplies.
Baroness Fox of Buckley (Non-Afl)
My Lords, can I press the Minister? People have stressed the importance of reliable domestic energy sources. In response to the question on fracking, the Minister raised all sorts of problems of safety and so on. These are contentious but could it be possible for the Government to lift the moratorium or at least commit themselves to looking again at this important issue? Nobody suggests that shale gas will solve all the problems but in an energy crisis that is really serious, we want to look at nuclear, fracking and all reliable energy sources. Fossil fuels should not be demonised so that we move away from them, and safety fears should not be used to stop what would be sensible for the British economy.
Lord Callanan (Con)
The noble Baroness makes some good points. As I said in response to my noble friend earlier, we keep these matters under review. If it can be demonstrated that fracking can be carried out in a safe and reliable manner, then of course we need to consider it. But we have to be realistic about this: it is not going to be the answer to our short-term difficulties. In preparation for this, I was chatting to some specialist officials and they said it could easily be 10 years—even if we got rid of the moratorium tomorrow and overcame all the environmental problems that were caused—before any fracked gas came on stream.
Baroness Wheatcroft (CB)
My Lords, the oil companies, including BP and Shell, have been making record profits. Yet for their North Sea operations they have had a negative tax rate for several years. Given the current circumstances, might the Government re-examine the fiscal regime in the North Sea? Can the Minister tell the House?
Lord Callanan (Con)
Of course, I leave all tax decisions to the Chancellor. But, again, I think that the noble Baroness is wrong and looking at this too simplistically. First, most of the profits announced by the companies in recent days were made in worldwide operations; a very small percentage came from British domestic production. Secondly, it was only last year or the year before that they were making net losses; I do not remember the noble Baroness or others saying that we should give them taxpayer support. Thirdly, where do these profits go? First, they pay more corporation tax and, secondly, they go to UK pension funds, shareholders and people who need that income to help them though the crisis. There are no easy answers; the idea that there is some magical, mythical pot of money that we can just extract from to solve all of our problems is not true, I am afraid.
Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regulations 2022
(2 years, 9 months ago)
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Lord Stewart of Dirleton
That the draft Regulations laid before the House on 11 January be approved.
Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 8 February.
Money Laundering and Terrorist Financing (Amendment) Regulations 2022
(2 years, 9 months ago)
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Baroness Penn
That the draft Regulations laid before the House on 6 January be approved.
Considered in Grand Committee on 8 February.
Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2022
(2 years, 9 months ago)
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Lord Kamall
That the draft Regulations laid before the House on 14 December 2021 be approved.
Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 8 February.
Representation of the People (Proxy Vote Applications) (Coronavirus) (Amendment) Regulations 2022
(2 years, 9 months ago)
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Lord True
That the draft Regulations laid before the House on 10 January be approved.
Relevant documents: 27th Report from the Secondary Legislation Scrutiny Committee and 22nd Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument). Considered in Grand Committee on 8 February.
Non-Domestic Rating (Levy and Safety Net) (Amendment) Regulations 2022
(2 years, 9 months ago)
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Baroness Bloomfield of Hinton Waldrist
That the draft Regulations laid before the House on 10 January be approved.
Relevant document: 28th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 8 February.
Waste and Agriculture (Legislative Functions) Regulations 2022
(2 years, 9 months ago)
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Baroness Bloomfield of Hinton Waldrist
That the draft Regulations laid before the House on 13 January be approved.
Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 8 February.
Organ Tourism and Cadavers on Display Bill [HL]
Thursday 10th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Organ Tourism and Cadavers on Display Bill [HL] 2021-22 View all Organ Tourism and Cadavers on Display Bill [HL] 2021-22 Debates Read Hansard Text
Lord Hunt of Kings Heath (Lab)
My Lords, I understand that no amendments have been tabled to the Bill and no noble Lord has indicated a wish to move a manuscript amendment or speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Nationality and Borders Bill
Thursday 10th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-V(a) Amendment for Committee (Supplementary to the Fifth Marshalled List) - (9 Feb 2022)
Lord Coaker
“(1A) The Secretary of State may not serve a slavery or trafficking information notice on any person who— (a) is aged 17 or younger, or(b) was aged 17 or younger at the time they were a potential victim of slavery or human trafficking on the basis of which they have made a protection claim or human rights claim.”Member’s explanatory statement
This would exclude children from the provisions of Clause 57.
Lord Coaker (Lab)
My Lords, I declare my interests as set out in the register as a research fellow at University of Nottingham, in the Rights Lab, and as a trustee of the Human Trafficking Foundation. I hope that can be noted as we go through this part of the Bill, rather than me saying it at the beginning of every group of amendments, if that is in order.
Part 5 of the Bill deals with modern slavery. There are a couple of things to say before I turn to my amendment and some of the other amendments in this large group. It is sad to see modern slavery in what is essentially an immigration, refugee and asylum Bill. That is to be regretted. Notwithstanding that, it is in this Bill, and we have a large number of amendments and important issues to discuss.
I regret much of what is in Part 5, given that one of the iconic achievements of any Government over the last few decades was that of the Conservative Government under David Cameron, with Theresa May as Home Secretary and then as Prime Minister: the Modern Slavery Act. As a Labour politician, I was pleased and proud to support it. It was a fantastic achievement, and a model for the rest of the world, and indeed the rest of the world has followed it. That should be set down as a marker in this place. I hope that the right honourable Member for Maidenhead, the former Prime Minister, hears loud and clear what I think the vast majority, if not all, of this House believe with respect to the Modern Slavery Act.
I find it therefore somewhat difficult to understand why the Government have come forward with a number of proposals which undermine some of the basic principles upon which that Modern Slavery Act was established. Clauses 57 and 58 put victims on a deadline to give information or evidence and penalise them for late disclosure. They take no account of the realities faced by victims of slavery and trafficking, and will make it harder for victims to access support.
Like much in this Bill, the starting point for the Minister must be why the Government are doing this. What evidence is there of a real problem here that needs urgently to be tackled? There is none—I cannot find it. I can see no explanation from the Government for why they are doing this, other than a belief that part of the modern slavery legislation—the national referral mechanism, or whatever you want to call it—is being abused and misused by those who seek asylum or get into this country using the devious route of claiming to be victims of slavery when they are not. Where is the evidence for that? Where are the statistical points that the Government can use to show us the scale of the problem, to say that this is what is happening, and that this is why we must deal with it?
This goes to the heart of the problem. I do not know what the politically correct term is, but the Government have set up this target to justify legislation and legislative change on the basis of attacking some mythical statistical problem—“We have to do this to deal with that”. The first thing to know is what has caused the Government to believe there is such a problem that they need this to deal with it. From memory, about one-third of referrals to the national referral mechanism are from British citizens, so you start to wonder.
Those are the parameters of the debate. I will return to many of those themes as we go through Part 5.
It is very unclear what problem the Government are trying to fix with these changes and what is gained by the clauses, because the cost of them is stark. We look forward to the Minister justifying that at the beginning of his remarks. What assessment have the Government done on the impact that these provisions, if passed unamended, will have on the national referral mechanism?
Clause 57(3) suggests that a slavery and trafficking notice will be used even before a reasonable grounds decision can be made, putting up barriers before a victim has taken even their first step into the national referral mechanism. Can the Minister explain if that is the case? Is that the purpose of Clause 57(3)?
At Second Reading, the former Prime Minister Theresa May said:
“It takes time for many victims of modern slavery to identify as a victim, let alone be able to put forward the evidence to establish that.”—[Official Report, Commons, 19/7/21; col. 728.]
This is not from some wild, middle-class liberal or a person who is blinded by the belief that refugees, asylum seekers and those fleeing modern slavery can do no wrong; the former Prime Minister of this country outlined one of the deficiencies that many in this Chamber believe is a real problem. Does the Minister agree or disagree with the former Prime Minister? If he agrees, why does he not do something about it? If he disagrees, I think we will come to our own conclusions. How is that reflected in measures that create artificial deadlines, which have not been needed until now, and that penalise victims for not meeting them?
Also on Clauses 57 and 58, it is not clear, and I ask the Minister to explain, whether slavery or trafficking information notices will be served on all asylum applicants or on only some. It would be discriminatory if they were served on some asylum seekers or certain categories of asylum seeker—for example, the people the Government expect to be captured by these clauses. That point was made by the Joint Committee on Human Rights.
Clause 58 provides that decision-makers must take account of a missed deadline and that it must damage a victim’s credibility, unless they have “good reasons” for providing information late. Why is the national referral mechanism all of a sudden not trusted to make decisions and give weight to these matters?
Amendment 154, which I have tabled with the noble Baronesses, Lady Prashar and Lady Hollins, and the noble and learned Baroness, Lady Butler-Sloss, seeks to find out what the Government mean by “good reasons” in Clause 58(2)—
“unless there are good reasons”.
No doubt the Minister will say that this will be clarified in guidance, that we can look forward to regulations and that, when the clause talks about “good reasons”, we can trust them, and that of course “good reasons” means good reasons”, et cetera. We will get into the nightmare situation in which nobody has a real clue what it means. That is why I am grateful to other noble Lords in the Committee for supporting that amendment.
I particularly highlight paragraph (g) in Amendment 154, which deals with the
“fear of repercussions from people who exercise control over the person”.
Time and again, you meet victims who are terrified of the system, and therefore will not co-operate, or victims who are coerced into activity that all of us sat in here—in the glory of the wonderful House of Lords Chamber—would think wrong, but which completely misunderstands the coercion that victims or survivors in those circumstances face. It is not the real world to believe that they cannot be coerced into doing activity that we might sometimes think is not right. It is not the real world; it is not their life; it is not the reality of their situation. I say to every noble Lord here, if you were told that unless you co-operated fully with individuals you were entrapped by, your parents, grandparents or family in the country from which you originated would be attacked or worse, I wonder how many of us would say, “Don’t worry, I won’t do it”. It is just not the real world.
Baroness Butler-Sloss (CB)
My Lords, I declare my interests in the register. I was much involved with the Modern Slavery Act and the review led by the noble Lord, Lord Field, so I feel I have some knowledge of this. I do not know whether the Minister, who is not at the Home Office, realises the extent to which all the non-governmental organisations of this country—including the Salvation Army, which works for the Government on modern slavery, together with the anti- slavery commissioner—deplore this part of the Bill without exception. This Minister may not know that but, goodness me, the Home Office does.
I am very concerned about children, but I heard what the noble Lord, Lord Coaker, said, so I propose to refer specifically to Clause 58. Again, because he is not at the Home Office, the Minister may not have read the statutory guidance on the Modern Slavery Act. I have it with me—it was published this month. I wonder whether the Home Office’s right hand does not know what the left hand is doing, because the requirement to be timely in providing the information needed is totally contrary to the entire work set out by the statutory guidance.
I do not want to bore the Committee, but I must refer very briefly to one or two points so the Minister can know. Under “Introduction to modern slavery”, the guidance says:
“It is important for professionals to understand the specific vulnerability of victims of modern slavery and utilise practical, trauma-informed methods of working which are based upon fundamental principles of dignity, compassion and respect.”
For goodness’ sake, does Clause 58 have anything to do with that? The guidance sets out how you should deal with identifying potential victims of modern slavery. In particular, paragraph 3.6 on page 35 states:
“In practice it is not easy to identify a potential victim—there are many different physical and psychological elements to be considered as detailed below. For a variety of reasons, potential victims of modern slavery may also … be reluctant to come forward with information … not recognise themselves as having been trafficked or enslaved”
and, most importantly, may
“tell their stories with obvious errors and/or omissions”.
One important aspect—which the Home Office on the one hand states in the statutory guidance and yet is clearly totally unaware of in relation to the Bill—is that a lot of victims who come to this country are given a story by the traffickers. That is the story they tell first, and it will not be the truth. Just think what will happen to them consequently under Clause 58. They will be treated as liars who have not given accurate information. Through the NRM—imperfect though it is—they will probably have got to reasonable grounds, but then they will get this appalling notice and find themselves not treated as victims. This is totally contrary to the Modern Slavery Act. It is totally contrary to the best of all that has happened in this country, in the House of Commons and this House, which will be ruined by this part of the Bill.
Having worked in this sector since about 2006, I am absolutely appalled that the Government think they are doing a good thing in putting this part of the Bill forward. For goodness’ sake, will they for once listen and get rid of it?
Baroness Ludford (LD)
My Lords, I will speak to Amendments 153 and 155 in the name of the noble Lord, Lord Dubs. Before I do so, I fully associate myself with the powerful words of the noble Lord, Lord Coaker, and the noble and learned Baroness, Lady Butler-Sloss. The only correction I will make to the noble Lord is that the Modern Slavery Act originated in the coalition Government, and we had a Liberal Democrat Minister in the Home Office in the person of my noble friend Lady Featherstone, who was here earlier.
Group 1 covers amendments and proposed deletions to very objectionable clauses, as we have heard. Clause 57 shifts the onus from the state to the potential victim to identify themselves and possess the relevant expertise to know what information is relevant to a slavery and human-trafficking determination. There is no provision for the specified date for supplying the information to be reasonable, or for whether and how an extension could be granted. Can the Minister say whether there will be guidance on these matters? As the noble Lord, Lord Coaker, asked, will notices be served on all asylum applicants or only on some? There would be potential for these notices to be discriminatory, in breach of the European Convention on Human Rights, if they were served only on certain categories of people. What criteria will be used if only certain people will get these notices?
There is no clarity or guidance as to what might be considered good reasons for why information has arrived late. Vulnerable or traumatised victims might take time opening up; they might well be unfamiliar with the legal process, or they might not realise that a particular detail was relevant until later. There at least needs to be guidance on what constitutes good reasons to improve legal clarity and certainty, otherwise Amendment 154 from the noble Lord, Lord Coaker, needs to be accepted.
On Clause 58, the Court of Appeal in a 2008 case said that the word “potentially” should be included if the decision-making authority were required to assess late supply of information as damaging to credibility. Hence, Amendment 153, inspired by the Joint Committee on Human Rights, changes “must take account” to “may take account” as potentially damaging to credibility. Amendment 155 would amend Clause 58 so that it does not apply to child victims or victims of sexual exploitation, similar to Amendments 151D and 152 from the noble Lord, Lord Coaker.
The bottom line is that Clauses 57 and 58 should not be in this Bill and, as has been said, Part 5 as a whole should not be in this Bill. They are arguably in breach of both the European Convention on Human Rights and the Council of Europe Convention on Action against Trafficking in Human Beings.
I think that my noble friend Lord Paddick will refer to the worries of the Independent Anti-Slavery Commissioner—we are all very conscious of this matter. Indeed, Dame Sara Thornton has a comment article in the Times today, to which I shall refer in a later group. She has been very active, not least in briefing the JCHR and outlining her extreme worries, and we have heard from the noble and learned Baroness, Lady Butler-Sloss. The whole of the sector believes that this tightening up, to the disadvantage of vulnerable and traumatised victims of human trafficking and slavery, is wholly inappropriate.
Lord Henley (Con)
My Lords, I have not yet spoken on this Bill—I missed the Second Reading for reasons beyond my control—but, like the noble Baroness, Lady Ludford, and the noble Lord, Lord Dubs, I am a member of the Joint Committee on Human Rights, which issued a number of reports on the Bill. I want to refer to the 11th report, covering Part 5, where we unanimously, as a committee, came forward with a number of recommendations. I hope that the Committee will bear with me—bearing in mind the strictures of the Chief Whip a day or two ago—if I make a brief intervention on this to support those amendments in the names of the noble Baroness, Lady Ludford, and the noble Lord, Lord Dubs. The noble Baroness was speaking to Amendments 153 and 155, but all of us are also, to some extent, in support of all the other amendments, and take note of everything that the noble and learned Baroness, Lady Butler-Sloss, said.
I offer my thanks to the noble Lord, Lord Coaker, for his very kind words about all the work my right honourable friend Theresa May has done on modern slavery over the years. I served briefly in the Home Office, as I have served briefly in a great many departments, before I was moved on—as happens so often. I know from when I served with my right honourable friend just how seriously she took this issue—she treated it as important even before she became Home Secretary. She was a member of the shadow Cabinet in the run-up to the 2001 election and then continued with this work beyond. She will be grateful for everything the noble Lord, Lord Coaker, has said. If I do not pass it on to her, I am sure she will read Hansard.
The Lord Bishop of Bristol
My Lords, I have added my name to those noble Lords who oppose Clause 57 standing part. I am very grateful to the noble Lord, Lord Coaker, and others, who have already so eloquently made the case about concerns for this part of the Bill. As the Church of England’s lead bishop for modern slavery, I have had the privilege to sit with and listen to many charities, agencies and survivors of modern slavery, so it seemed appropriate to bring those conversations from the grass roots to your Lordships’ attention.
This is a clause which resonates deeply with the Church. Through the Clewer initiative, the Church of England is working across England with many partners to raise awareness of all aspects of modern slavery and to help support victims and vulnerable groups. This includes running training courses on county lines, producing apps which allow for reporting of suspected modern slavery cases in car washes and the farming sector, and working with many churches to raise up and equip volunteers in this area.
Only yesterday, around the corner from here, the General Synod of the Church of England discussed a motion on modern slavery and trafficking brought forward by members of the diocese of Durham and supported by members of the diocese of Southwark. This was prompted by the practical experience and difficulty in supporting a victim who had come to their attention. The synod voted to acknowledge the leading role which Her Majesty’s Government have played internationally in challenging slavery. Voting unanimously, the synod asked Her Majesty’s Government to introduce legislation to ensure proper provision for the ongoing support and protection of trafficked minors, and for this to be enshrined in law.
As a Church, and like many faith groups—I pay tribute, as others have, to the Salvation Army and the Medaille Trust—we wholeheartedly welcomed the Modern Slavery Act 2015. It has been such a crucial piece of legislation, and one we have long harboured hopes of seeing expanded and enhanced to do more to protect victims, to prevent future cases and to work with businesses and civil society in a collective effort against this appalling evil. Accordingly, it is so disheartening to see Clause 57—and others to which we will come to in due course—in this Bill. From so many charities and faith-based initiatives, and from survivors themselves, I have heard a torrent of the same message: “This is not going to work. It is going to exclude legitimate victims. It will result in fewer people being identified. It will result in fewer people being supported.”
The numbers who remain trapped and incapable of receiving the support that they need outstrip by an enormous margin the relatively small numbers seeking to abuse the system. Clause 57 seeks to eliminate abuse. I humbly suggest that we have a system in place that is already able to identify and refuse support to those who are not truly eligible. The noble Lord, Lord Coaker, alluded to this. What Clause 57 will do, in order to cut down on a relatively small level of abuse, is add to the barriers that are put before victims.
I want to end by emphasising that point. Those who work on the ground are desperate to do more to work with the Government to identify victims and eliminate modern slavery. This is the time to be accelerating and increasing our engagement to break the business models that exploit and enslave human beings. It is not the time to be making it harder for victims to come forward. I hope that we can rethink and remove this clause.
Baroness Prashar (CB)
My Lords, I am grateful to the noble Lord, Lord Coaker, for introducing these amendments with such clarity and conviction and to the noble and learned Baroness, Lady Butler-Sloss, for her passionate plea for the Government to have another look at these clauses. What I am going to say will repeat the points that they have made, but I think that they are worth repeating because they are serious concerns.
One of the main concerns of all those working with victims of modern slavery—NGOs, police, prosecutors—is Clause 58. It is humbling when you talk to those working on the front line to hear of the compassionate way in which they work with victims of trafficking. I have listened carefully to their concerns and I think that the Government should pay heed. I urge the Minister to talk properly to those working on the front line with these people.
Clause 58 will have the devastating effect of damaging the credibility of victims of modern slavery if they fail to disclose their trafficking experience within a set framework. The UK, as we have heard, is seen as a world leader in tackling modern slavery. We need to build on that experience and the achievements gained over the last few years, not undermine victims by starting from a position of disbelieving them and then requiring them to prove otherwise. That would be regressive. It would breach the Council of Europe Convention on Action against Trafficking by putting the onus on victims to identify themselves and removing the state’s obligation to identify victims and investigate trafficking offences.
Clause 58 will deter victims from coming forward, reduce the number of successful prosecutions and police investigations and leave the most dangerous criminals free. It is for this reason that the police and prosecutors have voiced their concerns. The Government’s own NRM supporter, the Salvation Army, which has held the victim care contract for over 10 years, has expressed grave concerns. Most worryingly, children are not exempt. That will be a significant setback for the achievements of the Modern Slavery Act and children protection legislation. As we have heard, the conflation of immigration with victims of trafficking, particularly children, is beyond comprehension. This clause goes against experience, undermines a legal principle and displays a complete lack of understanding. As we have heard, both Sara Thornton, the Independent Anti-slavery Commissioner, and Theresa May—rightly, compliments have been paid to her—have expressed concerns. This clause should not stand part of the Bill.
To tackle the problems that Clause 58 is designed to resolve requires operational, not legislative, change. The clause goes against the Government’s own aims. It will push victims away from support, hamper efforts to track down trafficking gangs and likely reduce numbers of prosecutions. What is needed is the improvement of the NRM, reductions of delays in decision-making and better funding. I am not clear how a set framework will help with abuse and I am not aware of any data published by the Government to illustrate misuse of the NRM. Perhaps the Minister can explain how a set framework will help and what evidence, if any, the Government have about the level of abuse.
The Government argue that this measure will help to ensure that victims are identified as early as possible to receive support. Speeding up the process is in everyone's interest, but I am not sure how the clause will help. The probing amendment of the noble Lord, Lord Coaker, which I support, would add a list of good reasons for late disclosure to Clause 58. There needs to be clarity in the legislation that the notice period can be extended. It needs to be stated clearly that there are circumstances when a late disclosure should not be penalised.
With regard to children, will the Government publish a children’s rights assessment and draft guidance before Report? As the noble Lord, Lord Coaker, said, we need that in the Bill.
Baroness Hamwee (LD)
My Lords, I have added my name to the opposition to both Clauses 57 and 58. The Minister will understand by now the view that has been expressed, with no exceptions, that the Bill does not advance our world-leading work to support victims of modern slavery and is a retrograde step. No one would say that all the work that is needed has been done. There is a lot of learning going on and it has to go on, but the Bill does not advance that work at all.
The noble Lord, Lord Coaker, asked why the Government are doing this. This had not occurred to me before but maybe it is the pervasive culture of disbelief raising its head again. I am glad that the debate on Part 5 was opened by the noble Lord and the noble and learned Baroness, both of whom I feel I should refer to as my noble friends; I have been hanging on to their coattails in this area.
I am going to say very much less than I could today. Part 5 merits—if that is not too positive a term—a whole day’s debate at least, but I, too, am aware of the pressures on time. Being constrained in the scrutiny of a Bill to which so many of us are opposed, pretty much across the board, is particularly concerning. I must investigate the procedures for moving to leave out a whole part of a Bill on Report. This is so shaming because this part of the Bill affects people whom we are so keen to support and protect.
Reference has been made to late information. I am going to give a couple of examples, both of which cases I have some particular knowledge of, not because I think that they will come as news to most people in the Chamber but because there are many of our colleagues who are not aware of all this. I refer to two victims. The first is a learning-disabled man who worked on a farm for decades in the most appalling conditions, conditions that are difficult to read about. He was not able to leave but did not even think he ought to try to do so because he did not know where else he might go. He even referred to his falling-down insanitary shed as home. The second is a young woman, who, in speaking to the police, could not get beyond the fact that in her head the perpetrator was her boyfriend. Sadly, those are both common situations. I will leave the matter there.
Lord Alton of Liverpool (CB)
My Lords, like the noble Lord, Lord Coaker, I refer to a non-financial interest: I am a trustee of the Arise Foundation, which works for victims of human trafficking and modern-day slavery. Like the noble Baroness, Lady Hamwee, I too wish Part 5 was not in this Bill at all. As the noble Lord, Lord Coaker, told the Committee, it is odd to put issues concerning immigration and human trafficking together in this way, as though they are part and parcel of the same problem. They are not.
That is why my noble and learned friend Lady Butler-Sloss was right to be as passionate as she was and, reinforced by the remarks of my noble friend Lady Prashar, to say that the Government really need to recast and rethink this all over again. My noble and learned friend referred to the Salvation Army which is, as she said, the advisers to the Government on this issue. It says:
“The Salvation Army has held the Government’s Modern Slavery Victim Care and Co-ordination contract for over 10 years. In that time, we have supported 15,000 survivors of modern slavery. We, along with our colleagues across the anti-trafficking sector”—
all of us have seen reams of representations from pretty much every representative group that there is—
“would urge you to … ensure that vulnerable survivors of trafficking and slavery are not prevented from accessing the support they deserve.”
It is hard to see how many of the measures that we are debating very briefly in the context of such an important set of provisions will enable that to happen. I do not want to pre-empt what I am going to say on my Amendment 156A on the national referral mechanism, but simply to reinforce what the noble Lord, Lord Coaker, said in his curtain-raising remarks for the whole of this section.
My noble friend Lord Hylton, and I, along with my noble and learned friend Lady Butler-Sloss and the noble Baroness, Lady Hamwee, worked with the noble Lord, Lord Coaker, who was in another place at that time and doing incredibly energetic hard-working things to get the 2015 legislation on to the statute book. We all paid tribute then, as that came through on a bipartisan, bicameral basis, through both Houses, to the right honourable Theresa May, for what Lady May did in working for this legislation to happen. However the history books judge her period as Prime Minister or Home Secretary, I believe this is her most lasting legacy and something she should be enormously proud of. That is why I too quoted her remarks at Second Reading, and I was glad to hear the noble Lord refer to them again today. I urge the Minister to go back to what she had to see had to say about this.
The right reverend Prelate the Bishop of Bristol and I go back a long way. She was once a curate in what was then the Liverpool Mossley Hill constituency, so, we also have something in common with the Minister. Bristol and Liverpool have something in common: their knowledge of the transatlantic slave trade. In 2015, we saw this as a way of cleansing some of the past: not breaking down monuments or trying to cancel history but doing something positive. My worry is that what we are doing now is undoing so much of that good work. What are these imaginary windmills that, like Don Quixote, we are being encouraged to tilt at today? There is no data. Where is the justification? Knowing that the Minister has a forensic brain, I hope he will take us through what the justifications are for what we have here. Why, as the noble Lord, Lord Henley, said, are we disregarding what our own Joint Committee on Human Rights has said to us?
I have one more thing to say, and that is on Amendment 154, referred to by the noble Lord, Lord Coaker: Proposed new subsection (2A)(g) refers to
“fear of repercussions from people who exercise control over the person”.
Certainly, through the work that I have been privileged to be involved in with the Arise Foundation, we have seen many examples of that. That children are being treated no differently in this legislation beggars belief.
Amendment 154 also refers to victims of trauma. If someone has been traumatised, then of course the statements they will make, even possibly the untruths they feel they have to tell to prevent being sent back where they came, should not be held against them. This section also deals with people with diminished capacity, and I was struck by what the noble Baroness, Lady Hamwee, said in one of her examples about people with diminished responsibility. We have all seen cases like that. The noble Lord, Lord McColl, who we will hear from later on, has done more than anyone in your Lordships’ House to draw to our attention the need to do more to help vulnerable people in that situation.
These amendments are good, but you cannot make a silk purse out of a sow’s ear. I wish this was not in this Bill at all. There is still time for the Government to recast. Given the concerns that have been echoed, not just here, but right across the sector, I hope that the Minister will take this back to the Home Office, take it back to the Government, and say let us think again.
Lord Dubs (Lab)
My Lords, I am also a member of the Joint Committee on Human Rights, and I am grateful to my colleagues on that committee who have spoken. The committee looked very hard at this issue, and we came up with very clear recommendations. I pay tribute to the noble Lord, Lord Coaker, for having set the scene for this debate.
I want to be brief but will repeat the question put by my noble friend Lord Coaker. Why are the Government doing this? On some aspects of the Bill with which I am in profound disagreement, at least I understand why the Government, in their own way, want to do what they are doing—it might be quite wrong, but I understand it. In this case, I do not even know what the case is for the Government to do this. Are they trying it on so that they can withdraw the provision and seem to be meeting the wishes of the House? There is no justification at all.
Most Members of this House will be aware that people who have been in slavery, trafficked or traumatised by sexual exploitation, often find it very difficult to talk about their ordeal. They often want to keep quiet, because the experience has been so horrifying for them that they cannot put their own case to officialdom here. I have seen this over the years when I have met people. In fairness, some of them want to talk a great deal to get their experience out of their system, but many others do not. It is a natural human reaction; one does not want to talk about one’s awful experiences; one wants almost to shut them out. Then one finds there is a need to reveal information.
I was talking to some NGOs which were working with people who had crossed the Sahara. They said that the majority of women who fled for safety across the Sahara had been raped on the journey. Many of them do not want to talk about that. It is not within their tradition and culture to talk about it, yet here we are demanding that they should.
I find it very depressing that we have to debate this at all. I urge the Minister to say that the Government will think again. That is the only way out, otherwise, when we get to Report, it will not be a nice day for the Government, because we are bound by the comments we are making today, and by having a sense of integrity in putting forward the case for people who have been in slavery or traumatised to have a reasonable chance of being dealt with. The Government should not be trying to find ways to keep them out. I ask them to think again.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support this group of amendments; I have signed only one, simply because I am not terribly well organised. I agree with the comments about Theresa May, whom I admired for many things, including the fact that she gave me a colleague in this House; it was six long, lonely years without my noble friend Lady Bennett.
An Urgent Question was left off the Order Paper today. It was put in the other place by the honourable Member for Brighton Pavilion, Caroline Lucas, who is the Green Party MP. Either me or my noble friend Lady Bennett would have liked to have contributed to that debate. I should like an explanation from the Government as to why it was left off the Order Paper. I am a great believer in cock-up rather than conspiracy, but I would like an explanation at some point and have chosen to put it into Hansard for that reason.
I return to this “shaming” part of the Bill, as the noble Baroness, Lady Hamwee, described it. Every time I think we have got to the worst part, I turn a page and it is even worse. The combined resources of this House will make this a difficult section for the Government to push through.
Noble Lords have spoken from a depth of understanding and experience that I probably do not have. Evidence is evidence wherever it is uncovered, and delays in producing evidence might be considered when weighing up the quality and value of such evidence. Essentially, the Government are making this an absolute requirement, which is unfair and unjust.
We are talking about the incredibly distressing circumstances of many of these people. We have already had examples. They are victims of slavery. They have possibly been groomed, tricked or kidnapped and brought to the UK. Instead of helping them or demonstrating even an ounce of compassion, this Government are treating them all as if they have done something wrong. I urge the Government to rethink this. I would hate to see another 14 votes go against the Government in one evening but, on the other hand, that was great fun and we could probably do it again.
Lord Cashman (Lab)
My Lords, I shall speak briefly, because I was not intending to speak. I want first to congratulate my noble friend Lord Coaker on the way he introduced these amendments. I support the amendments and particularly what has been said in relation to victims of modern slavery.
I think I can rely on history to reinforce this, and I ask the noble Lord, Lord Wolfson of Tredegar, to listen carefully. History shows us that when each of us experiences appalling discrimination and persecution, that pain and that shame are buried for decades. To revisit that sometimes takes us to an area that we never want to be in again. Therefore, with that thought, I urge the Government to think again.
Baroness Meacher (CB)
My Lords, I support the noble Lord, Lord Coaker, in his intention to oppose Clauses 57 and 58 standing part of the Bill. I have a speech but I am not going to deliver it, because the arguments of the noble Lord, Lord Coaker, in particular, the noble and learned Baroness, Lady Butler-Sloss, and many others have been so powerfully put that they are simply irrefutable. I have been in the House now for 15 years or so and have heard thousands of good arguments as to why a Government should not do this, that or the other, but I have never heard such powerful arguments for a part of a Bill to be removed.
I am going to ask something that I have never asked before. Will the Minister invite the Home Secretary to come to a meeting with representatives from all sides of this House to hear the arguments first-hand from the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Coaker, and others? It is not good enough for our poor Minister, if I may refer to the noble Lord, Lord Wolfson, in that way, to hear all these arguments, to go back and say whatever he is going to say—I do not know what it will be—and then to have to come back here and say, “Sorry, guys, it’s all going to stay there”. That is not good enough. The case is so incredibly powerful. The wickedness of Part 5 should not be allowed to go by without the Home Secretary facing noble Lords directly.
Lord Hylton (CB)
My Lords, I notice that my noble friend Lady Hollins cannot be in her place today, but I urge the Minister to consider her wealth of medical, psychological and therapeutic experience, as she has her name to Amendment 154. That will strengthen the case for him taking back this group.
Lord Paddick (LD)
My Lords, the Independent Anti-slavery Commissioner, Dame Sara Thornton, wrote to the Home Secretary about this Bill on 7 September last year. I should declare an interest: I know Sara Thornton very well. We were police officers together and spent six months together on a residential course. She is extremely able and fiercely independent, and, in my opinion, the best commissioner the Metropolitan Police never had.
In relation to trafficking information notices, Sara said in her letter that trauma suffered by victims of modern slavery can result in delayed disclosure, difficulty recalling facts or symptoms of post-traumatic stress disorder. She went on to say that evidence from the Salvation Army pointed to the fact that many victims initially recall their experiences with contradictions and inconsistencies, and it can often take a considerable time before they feel comfortable to disclose fully what has happened to them, as many other noble Lords have said. Her conclusion was that to place a deadline on when they can submit evidence and to interpret late compliance as damaging to credibility fails to take account of the severe trauma suffered by victims. For those reasons alone, Clauses 57 and 58 should not stand part of the Bill.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I thank all noble Lords for their contributions to this debate. I have listened to all of them with care. With respect to everyone else, I say that I always listen with care to the noble Lord, Lord Cashman, in particular, as I think he will appreciate from our exchanges on other matters. I got the impression that voices in support of the Government were a little thin on the ground on this matter, but I can assure the noble Lord, Lord Paddick, that my noble friend Lady Williams of Trafford is not doing these amendments not out of any personal reluctance; it was decided some weeks ago that my assistance on the Bill would include this group, and that is why I am doing it. It is fair to say that she has gone above and beyond on the Bill and others.
Lord Paddick (LD)
My Lords, just on that point, I was clearly not suggesting that the noble Baroness, Lady Williams of Trafford, did not deserve a break from her duties; she has been committed to this throughout. I said that I hoped that these parts of the Bill might be the reason, but I was obviously implying that they clearly were not.
Lord Wolfson of Tredegar (Con)
I think it might be best if we just moved on from that because, respectfully, I am not sure that it was a particularly good comment in the first place.
The measures in the Bill build on the landmark—it really was landmark—legislation brought in by the future Prime Minister, Theresa May, in 2015. On this occasion, I am very happy to acknowledge that it was brought in by the coalition Government; it was a joint effort. Notwithstanding that I am not a Home Office Minister, as the noble and learned Baroness, Lady Butler-Sloss, reminded me on a number of occasions, I can say that the Home Secretary is committed to bringing forward further legislation in the area of modern slavery as a priority, to ensure an efficient and resilient system in tackling modern slavery. That department, which is obviously not mine, will look to introduce those measures when parliamentary time allows.
Lord Alton of Liverpool (CB)
In that case, why do we not wait for that legislation and do it comprehensively, rather than put into law things to which there is so much opposition? Does the Minister also accept that, in 2015, a number of really positive changes were made to that Act in your Lordships’ House because the Government chose to listen?
Lord Wolfson of Tredegar (Con)
There were two questions there. Why now? I was going to come to that, because that is a point that the noble Lord made earlier. As to listening to your Lordships’ House, the Government always listen to what goes on in this House. They always listen but they may not always agree.
The noble Baroness, Lady Meacher, I think with some sympathy, referred to me as the “poor Minister” responsible for responding. I am poor in the sense that you do not take this job for the money, I can say that. I also cannot promise the meeting with the Home Secretary. What I can promise is that I will pass on what the noble Baroness said to the relevant people in the home department.
We have heard a number of arguments for removing Clauses 57 and 58 from the Bill. I will deal with those first, because I think that is really the head-on charge that has been put to me. I suggest that these clauses are important provisions to encourage disclosure of information at the earliest stage so we can identify victims and provide them with direct support as early as possible. The noble Lord, Lord Coaker, moving the amendment, asked why the provisions were necessary and quoted the former Prime Minister asking why artificial deadlines were required. The right reverend Prelate the Bishop of Bristol suggested that the clauses would stop people coming forward. Far from deterring victims, these clauses are intended to encourage genuine victims to come forward and get protection and support on the earliest possible occasion.
Baroness Butler-Sloss (CB)
I am sorry to interrupt the Minister, but how does he see what he is saying as compatible with the statutory guidance issued only this month?
Lord Wolfson of Tredegar (Con)
Of course we have considered the statutory guidance, not least because it comes from the Home Department and was issued this month. With great respect, we do think they are compatible. We do not see any contradiction between the aims of the statutory guidance under the 2015 Act and what we are proposing here. As to who will be served with a notice, individuals who will be served with a slavery and trafficking information notice are those who have previously made a human rights or protection claim in respect of removal or refusal of entry. They are therefore potentially subject to removal action.
The noble Lords, Lord Coaker and Lord Alton, asked: why are we doing this? I think that was then refined to: why are we doing this now? That is pretty simple to state. As I have said, we want to identify genuine victims of modern slavery or trafficking within this group as quickly as possible so that they receive both protection from removal and access to the support given during the recovery period.
This may not be the best form of providing statistics, but the number of those detained in the UK following immigration offences in 2020 was obviously affected by the pandemic. However, even prior to this there was a clear rise in the number of referrals to the national referral mechanism, from 3%—501—in 2017 to 16%—1,767—in 2019. In 2019, only a small proportion, about 1%, of individuals detained in the UK following an immigration offence who made a national referral mechanism referral were returned. We published a report last year providing data on some of the concerns we are seeking to address through the Bill and outlining pressures in the system and where referrals of modern slavery are coming from. The reports are available on the government website but, to make it simpler, I will write to the noble Lords, Lord Coaker and Lord Alton, with a copy available, with the URL so they can find the relevant material.
I suggest it is right that we reduce the opportunities to misuse the system for immigration purposes and improve the efficiency of the processes, targeting resources where they are most needed to help victims recover from exploitation and rebuild their lives. We want to address concerns that some referrals are being made intentionally late in the process, to frustrate immigration action and divert resources away from legitimate claimants. It is not right that foreign criminals subject to deportation and those who have absolutely no right to remain in the UK can seek to delay their removal by waiting until the very last minute before raising new claims or putting in endless evidence or information relating to their status in the UK. So what Clauses 57 and 58 seek to do is on the one hand ensure that vulnerable victims receive appropriate and timely support, and on the other hand enable investigative and enforcement activities to take place with reasonable dispatch.
I should point out—this did not feature too much in the debate—that Clauses 57 and 58 are underpinned by access to legal advice, under Clauses 65 and 66, to help individuals understand whether they are a potential victim of modern slavery or human trafficking, and to support a referral into the national referral mechanism if that is the case. As I have said before, a constant theme, particularly in modern slavery measures within the Bill, is that decisions are made on a case-by-case basis, taking a needs-based approach. Therefore, turning to Amendments 151D, 152 and 155, it would be wrong in principle to create a carve-out for any one group of individuals, and to create a two-tiered system based either on age or the type of exploitation claimed. I am sure that this is not the intention of those moving the amendments, but, in the real world, which at some point we must think about, it could incentivise individuals to provide falsified information regarding their age or to put forward falsified referrals regarding timings or type of exploitation to delay removal action.
It was interesting, in the course of what was, with respect, a very forceful speech supporting his amendment, that the noble Lord, Lord Coaker, referred to 12 or 13 year-olds and not, for example, to a 17 and a half year-old. When it comes to children, if we define children as all under-18s, the approach that we want to take is to ensure that decision-makers have the flexibility to approach the claims of all children of different ages and maturities appropriately, and therefore I suggest that a blanket approach is inappropriate.
By introducing a statutory requirement to provide information before a specified date—we are not talking about neat files here—we hope to identify those victims at the earliest opportunity. Clauses 57 and 58 have safeguards built in, and I assure in particular the noble and learned Baroness, Lady Butler-Sloss, that, when considering the “reasonable grounds” decision, the decision-makers in the SCA are already well experienced in taking into account the specific vulnerabilities of children. I also point out to the Committee something that the noble and learned Baroness will know but other noble Lords may have forgotten: namely, that at the “reasonable grounds” stage the threshold is lower for children due to there being no requirement to show means of exploitation. That position will not change.
Baroness Jones of Moulsecoomb (GP)
I have been biting my tongue, but the Minister talked about the real world, and I do not think that this Government have any concept of what exists in the real world. The Minister has heard examples from the real world, given by noble Lords who understand what is going on. It is not appropriate for the Minister to talk about the real world when he is denying the stories that he has heard today.
Lord Wolfson of Tredegar (Con)
My Lords, I am not denying any stories. I set out statistics earlier on which were absolutely from the real world, and that is the issue that we are dealing with.
Lord Paddick (LD)
My Lords, I apologise for interrupting, but the Minister has cited the statistics that he quoted earlier in answer to the question of why the Government were doing this. He talked about the number of referrals going from 3% to 16%. There could be three explanations for that increase: a rise in modern slavery; more cases being reported, even if modern slavery is not going up; or an increase in misuse. Bearing in mind that the majority of referrals to the national referral mechanism are made by the Home Office, and bearing in mind what he said about very few of the people who are referred being returned— I did not quite get the percentage—it sounds like the majority of those cases are not misuse. What we need are not the statistics that the Minister is relying on but the statistics on how many cases of misuse there are.
Lord Wolfson of Tredegar (Con)
My Lords, I have already said that I will write. I will copy everybody in, particularly the noble Lord, Lord Paddick, with the relevant data. We can have an interesting discussion about potential explanations for it, but what it shows is that there is a significant increase. The question I was seeking to meet was: why do something now, why not wait until a future Bill? The short answer is that we have a manifesto commitment to deal with immigration and asylum issues. It is right that we address all issues at this stage, but, as I have underlined, this is not the Government’s last word on modern slavery. Now I really want to make some progress or we will be here until 3 am again.
Lord Paddick (LD)
Does the noble Lord not accept that 24% of modern slavery cases are UK nationals and have nothing to do with what the Conservative Party put in its manifesto?
Lord Wolfson of Tredegar (Con)
I am certainly willing to accept that a significant number of modern slavery victims are UK nationals. I do not know whether it is 24%, off the top of my head, but I am willing to have a look at that and come back to the noble Lord. I want to make some progress now, because I think we are going round the same points again and again.
Coming back to the noble and learned Baroness, Lady Butler-Sloss, all child potential victims of modern slavery in England and Wales will be provided with an independent child trafficking guardian to support them in navigating the immigration and national referral mechanism systems. Decision-makers are obviously trained in making those decisions, and the particular needs of children are an important part of that. In fact, I hope what I have just said responds also to some of the points made by the right reverend Prelate the Bishop of Bristol.
Moving to Amendment 153, as the noble Lords, Lord Cashman and Lord Paddick, also recognised, we understand that there will be cases where individuals are unable to comply with a deadline. There might be objective reasons, such as being under coercive control of an exploiter, or subjective ones, such as trauma, mental health issues or mental capacity, which can affect somebody’s ability to recall events. The clauses as drafted provide for this. As I have said on previous groups, we will set out in guidance the details of this approach, giving decision-makers the tools to recognise the effects of exploitation and trauma.
Where a person has raised evidence late, I suggest that it is right that decision-makers consider whether there is any merit in the reasons for that lateness. Credibility is not necessarily determinative of the case, should other factors indicate that the individual is a victim or potential victim of modern slavery. Amendment 154 asks what will be defined as a “good reason” for late disclosure. That has deliberately not been defined in the Bill, as setting out a list reduces flexibility. Decision-makers will be able to consider all relevant factors, which may include everything set out in the list in this amendment.
Clause 58 is underpinned by the provision of legal aid, as I have said. Amendment 172A would provide non-means-tested legal advice on all immigration matters to individuals who might not be victims of modern slavery. This amendment is a wide expansion of the legal aid scheme which is entirely uncosted and ignores the Government’s responsibility to use taxpayer funding wisely, in a way that obtains value for money. Such a wholesale expansion of the legal aid scheme would allow anyone claiming that they are a victim of modern slavery, but who might not be, to receive immigration advice with no financial eligibility checks in place. Legal aid for immigration matters is already available for victims of modern slavery who have a positive decision from the national referral mechanism, and the Bill does not change this. This includes ongoing support from the mechanism if required by the victim. Of course, the exceptional case funding scheme is available on top of that.
The intention of Clauses 65 and 66 is to bring advice on the national referral mechanism into scope from the outset. This builds on what is already available by helping unidentified victims who are within the immigration system to enter the mechanism. Without Clause 66, we will miss the opportunity to identify potential victims when they are receiving legal aid on their removal case.
I have two further short points. I listened very carefully to my noble friend Lord Henley, a member of the Joint Committee on Human Rights. Indeed, I appeared before that committee I think only last week. I have read the report carefully. It is on the Bench with me—it is a thumbed copy, not just a copy from the Royal Gallery. I hope I have set out the reasons for the Government’s approach, even if I apprehend that I may not have convinced him of their correctness.
Finally, I will ensure that the point raised by the noble Baroness, Lady Jones of Moulsecoomb, is passed on. My understanding—and I am newer here than she is—is that a decision on whether and when to repeat an Urgent Question taken in the Commons is for the usual channels. Even if I were a Home Office Minister, and I am not, I could not help on that further.
Lord Kerr of Kinlochard (CB)
I am impressed by the Minister’s argument that the intention is benevolent, but how does he square that with the opening point of the powerful speech of the noble and learned Baroness, Lady Butler-Sloss: that the whole voluntary sector is convinced that this is damaging and unhelpful? As for his criticism that Amendment 154 would limit flexibility, could he reread the amendment and note that the opening line includes the phrase
“include, but are not limited to”
in respect of the list of reasons? In other words, it deliberately retains flexibility.
Lord Wolfson of Tredegar (Con)
I hope the noble Lord will forgive me if I reply to his points in reverse order. On the second, of course I appreciate that it is a non-exhaustive list. The point I was making is that even a non-exhaustive list is more prescriptive, when it comes to court, than absolute discretion. When you are arguing a case, even if the statute says A, B, C, D, E on a non-exhaustive basis, you are in greater trouble coming along with F, than if the discretion is free-standing. That is the point I was seeking to make.
Of course, my colleagues in the Home Office engage carefully with the commissioner and other entities in the voluntary sector. Ultimately, it is for the Government to decide what legislation to bring before the House.
Baroness Jones of Moulsecoomb (GP)
My Lords, I want to deal with Urgent Questions again, because the Minister answered a different question from mine. I asked why it was advertised so late. He may not know this, but the Greens are excluded from the usual channels, so we would have no way of knowing.
Lord Wolfson of Tredegar (Con)
At this point, all I can do is pass that on, and I will.
Lord Paddick (LD)
On Amendment 172A, I think the Minister said that victims of modern slavery already have access to legal advice, once the national referral mechanism has made an initial decision. If he looks at that amendment carefully, he will see it is entitled “pre-national referral mechanism advice”.
Lord Wolfson of Tredegar (Con)
The noble Lord is absolutely right, which is why I was making the point about it being a fundamental extension of the legal aid system, which is uncosted.
Lord Coaker (Lab)
My Lords, I thank everyone who has contributed to this incredibly important debate. It lasted just over an hour, so I will be brief to allow us to move on; otherwise, we could have a huge debate again in me responding to the Minister. I am sure many of the same points will, quite rightly, come up in the other groups. I hope noble Lords understand and accept that.
I will reiterate the point made by the noble and learned Baroness, Lady Butler-Sloss, and referred to by the noble Lord, Lord Kerr. It is interesting to note that, when a Government are in trouble, they defend themselves against everybody. You know when a Government are in difficulty because they resort to exactly the sort of defence—quite rightly; I have done it myself—that the Minister resorted to: “If only you understood the statistics and appreciated the difficulties”. That officialdom then rains on everything. When everybody else thinks you are wrong, you usually are. I gently suggest to the Government that they have got this wrong.
I am pleased the Minister was honest about this and I thank him for his response. It is clear the Government think the system is being abused and that people are claiming to be victims of modern slavery, either straightaway or late in the day. The Government are determined to shut down this loophole in the system. That is what is going on and it is why the danger that all of us raised about including modern slavery in an immigration Bill or the Nationality and Borders Bill—whatever you want to call it—sets a context that is difficult for modern slavery, to put it mildly.
All that I would say to the Minister is that even if the Government are right in saying that there is a problem here, by trying to deal with the issue as an immigration offence, which is essentially what they are doing, they are driving a coach and horses through the principles of the Modern Slavery Act. That is why people are so upset about it, so disappointed about it, so angry about it and so frustrated about it. They accept that the Government have to deal with immigration and that there are difficulties but this country has been proud of the way in which we deal with victims of modern slavery. Treating them, as they will be, as potential immigration offenders will change the dynamic. There are victims who we do not know and have no idea who they are. Children, whether they are 17 and a half or 13 are going to be impacted. As a consequence of what the Government are doing, innocent victims are going to be penalised in the name of tackling the problem of immigration. That is why people are so disappointed.
In conclusion, I say to the Minister that it must come to something when large numbers of the governing party as well as all the other parties that make up this House, including organisations of all faiths, are arraigned against this measure, along with all the voluntary sector, including the Government’s own voluntary organisation, the Salvation Army. I should have thought that that would have given the Government pause for thinking that maybe they have not got this quite right. Let us hope that between now and Report that they do so, otherwise I can foresee real problems on Report with respect to the clause and the other clauses in Part 5. I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment deletes Clause 59 subsection (4).
Baroness McIntosh of Pickering (Con)
My Lords, I congratulate the noble Lord, Lord Coaker, for setting the scene and others who contributed to the previous debate on this part of the Bill. I welcome my noble and learned friend Lord Stewart to his place on the Front Bench. He is a much more distinguished member of the Faculty of Advocates. I am grateful to the Law Society of Scotland for raising its concerns with me, which has led to my tabling the amendment. I very much look forward to hearing from others on this group, particularly the noble Lords, Lord Alton of Liverpool and Lord Coaker. We will hear their views on their amendments in due course.
This amendment seeks to delete Clause 59(4), which states:
“Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (d) is to be made on the balance of probabilities.”
The amendment is to raise my concerns and dismay but also to provide the opportunity for my noble and learned friend in summing up the debate to explain the Government’s thinking on raising the bar for evidence.
Clause 59 makes specific reference, as we heard earlier, to the Modern Slavery Act 2015 and seeks to amend Sections 49, 50, 51 and 56 of it. The clause raises the standard of proof for determining a reasonable grounds decision for a victim of trafficking from “suspect but cannot prove” to “balance of probabilities”. Indicators that a person is a victim of trafficking can be missed by first responders, meaning that a referral to the national referral mechanism is not made. If a referral is made, reasonable grounds represents a sift to determine whether someone may be a victim of trafficking and whether further investigation is needed.
Home Office statistics reveal that 92% of reasonable-grounds decisions and 89% of conclusive-grounds decisions on the balance of probabilities are positive. The evidence basis for so-called overidentification is not made. The lower standard of proof at the reasonable-grounds decision stage helps ensure that potential victims do not miss out on being properly investigated and progressed to the conclusive-grounds stage of the national referral mechanism.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, if Amendment 156 is agreed I cannot call Amendment 156A by reason of pre-emption.
Lord Alton of Liverpool (CB)
My Lords, it is a great pleasure to address Amendments 156A and 156B in this group and to follow the noble Baroness, Lady McIntosh of Pickering, and what she said about the Scottish Law Society. I very much associate myself with her remarks. I turn the attention of the Committee to these two amendments, the kernel of which is
“(1ZA) Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (c) is to be made on the standard of “suspect but cannot prove”.”
My explanatory statement says—I will not read it all—
“This amendment would ensure that amendments made to the Modern Slavery Act 2015 do not raise the threshold”—
the point the noble Baroness has just referred to—
“for a Reasonable Grounds decision when accessing the National Referral Mechanism in line with—”
the guidance.
One thing that came out of the last debate was that it was pretty clear that the whole Committee is agreed about one thing: that the national referral mechanism is vital to the recovery and safety of survivors of modern slavery. Since its introduction in what the noble Lord, Lord Coaker, was right to refer to as “landmark legislation” in 2015, a point echoed by the noble and learned Lord in replying to that debate, it has allowed us to identify survivors and ensure they receive the right support and are able to assist law enforcement in tackling this abhorrent trade in human beings and human suffering. I am very grateful to my noble friend Lady Prashar and to the right reverend Prelate the Bishop of St Albans for signing Amendment 156A.
Accessing the NRM is the crucial first step on a survivor’s journey to recovery, giving them access to vital legal and financial support, safe accommodation and an exit from the kind of exploitation that the noble and learned Baroness, Lady Butler-Sloss, referred to earlier. It enables them to start the process of rebuilding their lives, empowering themselves and even bravely supporting the prosecution of traffickers so that more potential victims are saved from exploitation. First established in 2009, and supported by successive Governments, the NRM was recently highlighted by the Organization for Security and Co-operation in Europe as being a key element in the fight to end slavery. Since then, with the introduction of the Modern Slavery Act 2015, the UK has become a world leader in this fight and a beacon of hope for those who have been trafficked and enslaved.
However, as the noble Lord said earlier, and I agree with him in this sense, the national referral mechanism is not perfect. That is clear but the opportunity to do something about it is up the track. There is no need for Part 5 to be incorporated in the Bill, when it is inconsistent with much else in it anyway. The noble Lord told the House earlier that there is to be new legislation, so why on earth can we not wait for that? There is an old saying that when you legislate in haste, you repent at leisure; that is what we will do if we simply push this through in a pell-mell way. The mechanism may not be perfect, but it is better than anything else at the moment and we should be very careful about what we do to it.
There is a catalogue of confusion and delays, but I am sure the Government do not believe that the only solution is simply to reduce the number of poor people able to access support. However, that is exactly what Clause 59 will do. Effectively increasing the threshold that these traumatised individuals must meet, almost from the get-go, to receive support will not only leave many with the choice of slavery or destitution; it will fundamentally undo the years of hard work by government, police, NGOs, charities and Members of both Houses.
Even now, far too many survivors go unrecognised and are excluded from support. Despite our understanding of the nature of trauma and the horrors so many have gone through, many do not receive a “reasonable grounds” decision and are forced to reapply. In the previous debate, we were urged to get into the real world. The noble Lord, Lord Coaker, had a better definition of what the real world is than the one we heard from the Government Front Bench. I will do as the noble Baroness, Lady Hamwee, did earlier and share one example with the House, if I may.
It is the case of a poor woman who was the victim of trafficking and violent sexual exploitation. By the time she arrived in the UK, she already had severe PTSD. Her symptoms included involuntary numbing, avoidance, dissociation and shame. She failed to disclose her trafficking experience in her early interactions with the Home Office, due to the severe trauma she had experienced. These inconsistencies later contributed to her receiving a negative decision on her trafficking claim. However, they needed to be understood in the context, as I said earlier, of prolonged exposure to trauma at an early age and fear of reprisals from her abusers.
Clause 59 risks raising the threshold for a positive reasonable grounds decision at this vital first stage, meaning that survivors such as that woman will be forced to meet an even higher threshold of evidence almost immediately, before they have accessed safety and a lawyer, translator or advocate to help provide the evidence that is expected of them. The noble Lord who addressed the House earlier has promised to write to the noble Lord, Lord Coaker, me and others with more data. Here is a little data that I will share with the noble Lord, Lord Sharpe.
It is worth noting that 81% of all negative decisions at this first stage which where reconsidered were found to have been wrong, and the victim deserved a positive reasonable grounds decision. Currently, there are an estimated 136,000 victims of modern slavery in the UK, and a little over 10,000 were referred to the NRM in 2020. That means there is a vast number of individuals who have been trafficked and enslaved in our country and are already far from the safety offered by the national referral mechanism. Were we to raise the threshold to access safety and support, it would surely only play into the hands of the traffickers and slave masters by preventing survivors sharing their experience and supporting criminal investigations.
I note that the Government have denied that Clause 59 will increase the threshold, and that the intention behind it is to bring us in line with the European convention on action against trafficking—ECAT. However, many who are in the anti-slavery movement, to which we heard a lot of references earlier, and on the ground in the real world supporting vulnerable people every day believe that it is already harder today than it was, even a year ago, to get a positive decision. As such, if not remedied in the guidance, the change in language represented in this clause would effectively raise the NRM threshold.
Furthermore, the Government have rightly decided to include in the Bill that conclusive grounds decisions be made on the balance of probabilities. If the intention is not to raise the threshold, then I simply ask the Minister that they put in the Bill that reasonable grounds decisions be made on the tried and trusted standard of “suspect but cannot prove”, which is the essence of Amendments 156A and 156B. That would allow the Government to change the language of the Modern Slavery Act to be more in line with ECAT, in order to provide more consistency between conclusive grounds decisions and reasonable grounds decisions in the Bill. Vitally, it would not raise the threshold for survivors of trafficking to receive a positive decision, therefore ensuring that these poor people receive the support they so desperately need and the authorities have the evidence they need to end slavery.
Article 10(2) of ECAT says that
“if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence … has been completed”.
Both ECAT and the Modern Slavery Act envisage that support be given to victims through the NRM as the earliest stage possible, when someone is identified as a potential victim. Raising the threshold only to those who prove their status as a victim of trafficking would undermine the point of the three-stage referral system currently in place. That support is crucial to enable victims to make any discourses from a position of safety.
No doubt the Minister will say that the NRM may have been abused, but I ask him to provide the justification for that claim. As the noble Lord, Lord Coaker, and I said earlier, where is the data? I refer the Minister to the report by the Rights Lab at the University of Nottingham for evidence that the NRM is not being abused. Indeed, according to many reports, one of the biggest problems with our NRM is that it is underutilised; there are already a low number of referrals to the NRM. According to the Global Slavery Index, the estimated figure for the prevalence of modern slavery in the UK is 136,000, yet in 2020 only 10,613 potential victims were referred to the NRM. Raising the threshold would serve only to further restrict those who access the vital resources of the NRM.
I therefore felt it necessary to table these amendments. Those who are referred to the NRM are often among the most vulnerable, in the most traumatic moments of their lives. We should not be raising the threshold; we should be doing everything we can to facilitate their access to support. I beg to move.
The Lord Bishop of St Albans
My Lords, I shall speak to amendments 156A and 156B in the names of the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Prashar, to which I have added my name. I hope I can be fairly brief because much of the ground has been set out brilliantly by the noble Lord, Lord Alton, and I am very grateful for that.
The reality of Clause 59 is that raising the threshold—from “reasonable grounds” to believe that someone maybe a victim of modern slavery, to “is” such a victim—could lead to the national referral mechanism failing to identify victims of modern slavery, effectively shutting them out of the support that they so desperately need. That was picked up yesterday in our General Synod debate across the road, to which the right reverend Prelate the Bishop of Bristol has already alluded.
The Clewer initiative, to which she has also alluded, is our response to modern slavery. It was set up in 2016 and published three strategies for 2022. Two of these included promoting victim identification and providing victim care and support. Our concern, along with the Clewer initiative, is not just to get down to the legal minimum but to try to accompany people on what is the most traumatic journey, through which many of them will need considerable help. Part of the reason for that—many Members of your Lordships’ House will grasp this but many people in wider society do not—is that much modern slavery is effectively hidden, and sometimes so subtle that even the people involved in it do not always get what is going on. That is why it affects drug traffickers, fruit pickers, beauticians, people working in nail bars and so on, as well as the obvious areas where people find themselves caught up—for example, in the sex industry.
This coercion is a subtle thing, but it plays a central role in keeping individuals in this misery. It can range from violence to substance addiction, debt bondage and, of course, withholding people’s papers. So, it is a long and complex process. The CURE initiative states that beyond these factors, one of the key elements in controlling victims of modern slavery is creating a fear of any authority so the victims simply do not know where to go. Often, victims will hide.
Baroness Prashar (CB)
My Lords, I rise to support Amendments 156A and 156B, in the name of the noble Lord, Lord Alton, and supported by the right reverend Prelate the Bishop of St Albans and myself. I will be extremely brief as all the points I wished to make have already been covered. Therefore, I really want to say that I strongly support the amendments and the arguments made by the noble Lord, Lord Alton, that the Government should put on the face of the Bill that a reasonable grounds decision should be made on the tried and trusted standard of “suspect but cannot prove”. I think his explanation and the logic of his arguments were compelling, so I would urge the Government to pay some heed.
Lord Deben (Con)
My Lords, I declare an interest because, in my work on sustainability in the business that I chair, we of course help companies to deal with modern slavery. That is why I wish to rise. It does mean we know a bit about it, and I have to say to the Government that everybody who knows a bit about it does not agree with the Government. That is why we have to say this very clearly.
The problem with modern slavery is that people who are involved in it hardly know where they are and what it is all about. That is the difficulty because, whatever we do, access to whatever we do is always going to be the problem. We have to find ways of ensuring that as many people as possible can enter into the beginnings of a conversation which will, in the end, reach the position in which they will be released from modern slavery—and it is that beginning moment that is most important and delicate.
I agree with the noble Lord, Lord Alton, that what is being proposed in this part of the Bill should not be here at all, simply because, in this context, it makes a comment which it should not make. In this context, it comments that this is something to do with nationality, borders and immigration. But it is nothing to do with any of those except accidentally—and I use that word in the technical sense.
We ought to be immensely proud of this legislation. I sit as the independent chairman of the Climate Change Committee, so I do not often mention the fact that I have been a Conservative for many years. I am not quite sure of the situation in certain circumstances, but that is the position in which I find myself, and I will say that I think it is one of the great statements of the Conservative Party that it was at the centre of passing this legislation. It shows that we have a real understanding of the responsibility of those who have to those who have not. That is why the intervention of the right reverend Prelate is absolutely appropriate, because this about the attitude to human beings that we should have if we are people of faith.
Anything that detracts from a triumph should be opposed, above all, by those who have been proud of it in the past. That is why I do not want this particular debate to go on without somebody from these Benches making the points. It is wrong to make it more difficult for people to get into the system. The moment you move away from “suspect but cannot prove”, you make it more difficult, and I hope that this House will not allow the Government to do this. Above all, I hope that the Government will think again about why they want to do this. They have presented no proof that there is any widespread misuse of this. Even if they did, I put it to the Minister that that is a price we have to pay. They have not proved it; there is no evidence for it; but, even if there were, one has to accept that the nature of the people we are dealing with means that we have to reach out further than we would in other circumstances.
At the moment, I fear that the Government are like the Levite rather than the Good Samaritan, and I wish them to return to their proper place, which is to cross the road to find out what is happening.
Baroness Butler-Sloss (CB)
My Lords, for the reasons given by other speakers—particularly the last speaker, with whom I profoundly agree—I support these amendments. However, I want to raise a slightly different point on Clause 59. It appears to apply to children. I have had, over the years, numerous meetings with the Home Office, and I thought we had got to the position where the Home Office agreed that the NRM was not the right place for children to go, because anyone under the age of 18 becomes immediately, on arrival in this country, the responsibility of a local authority under Part 3 of the Children Act 1989. Consequently, local authorities take over these children.
As the Minister, the noble Lord, Lord Wolfson, pointed out, there are these independent guardians—advocates, who act as guardians—but the children are supposed to be cared for by a local authority with an independent guardian and should not be going through the NRM. What disturbs me about Clause 59, in addition to the points that have already been so ably made, is whether it is really intended that the Government want children to go through the NRM. Should not they in fact all be dealt with entirely through local authorities, with the help of the advocate?
Baroness Hamwee (LD)
My Lords, my name is to Amendment 157. This is a rhetorical question, but is not it interesting that the noble Lord, Lord Deben, who, if I am right, was not able to be here for the first group of amendments, has made points that were not rehearsed in his presence but are exactly the same points, as he says, from the point of view of the best traditions of Conservatism?
Clause 59 again prompts the question: why, and what is the problem? What is the evidence for what the Government perceive as a problem? Are there too many people claiming to be victims? Like other noble Lords, I thought the problem was that we do not know how many there are. We try to identify them, but we know that we do not manage to identify them all—but we know that all the indicators are that modern slavery goes wide and deep. The problem is that we do not identify everyone that we want to support. What underlines the Modern Slavery Act is getting people to the situation in which they can be supported.
Under Amendment 157, the Member’s explanatory statement actually refers to “current statutory guidance”, a point that was very well made in the previous debate.
I want to say a word about Amendment 173, on navigators. I am quite intrigued by this—guardians for adults, is that what is intended? Some police forces have a much better understanding of how to deal with victims, or possible victims, of slavery. I am not sure whether I have the name of this right, but I think that there was a transformation unit; the noble Lord, Lord Coaker, may remember. The police did a lot of work at one time. Can we hear about that from the Minister?
Baroness Butler-Sloss (CB)
I may be able to help the noble Baroness—it was at Exmouth. I went to see it.
Baroness Hamwee (LD)
Indeed, it was excellent. That is why I raised it—because I wonder what has happened to it. As I say, I find the suggestion made in Amendment 173 intriguing, and I hope that it will be taken very seriously.
Lord Coaker (Lab)
I rise briefly to say that we support the amendments in this group. I say to the noble Lord, Lord Deben, as the noble Baroness, Lady Hamwee, said, and we have said right across the Chamber, the points that he made about the contribution that Theresa May made—within the coalition Government, as I was reminded—were fantastic.
Lord Deben (Con)
I was not there for that, but it seemed to me that it was worth repeating, if I may put it clearly.
Lord Coaker (Lab)
Well, it is the first time that I have heard repetition in this Chamber, so I thought that the noble Lord could not have been here. But it was a serious point, and it deserved to be made again, because we all agreed with it.
We support all the amendments in the group. I will speak specifically to Amendments 157 and 173. The other amendments have been spoken to very ably by the noble Lord, Lord Alton, and others, so I will not address those, in the interests of time. With respect to Amendment 157, it is intriguing that the statutory guidance says that
“a Conclusive Grounds decision will not be made until at least 45 days of the recovery period have passed”.
Why does the Bill reduce that to 30? That is my understanding, unless I have misread it. We talk about enhancing, but, as I say, 45 days is the period in the statutory guidance, while the Bill talks about 30 days.
Given that we are in Committee, it would be interesting to hear more on this. Am I wrong? Does the 30 days refer to something different? I cannot find references to 45 days in the Bill, but that is what is in the statutory guidance. Could the Minister respond to that? It would be helpful to the Committee to know what the 30-day period is vis-à-vis the 45 days set out in the statutory guidance, which is what the whole sector uses with respect to the recovery period and is, indeed, how I have understood it.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I am grateful to all noble Lords for their contributions. The amendments in large part concern provisions around the identification of modern slavery and trafficking victims.
First to speak was my noble friend Lady McIntosh of Pickering, who sought an explanation for Clause 59. The clause places the conclusive grounds threshold of a “balance of probabilities” into legislation. This is in line with the threshold that is currently applied and accepted by the courts and aligns with our current obligations under the treaty to which a number of speakers have referred: the Council of Europe Convention on Action against Trafficking in Human Beings —ECAT.
We submit that to remove this provision, as Amendment 156 would, would cause an inconsistent approach towards the two thresholds: the reasonable grounds threshold would be contained within legislation, whereas the conclusive grounds threshold would remain only in guidance. By legislating for both thresholds, decision-makers are able to rely on clear precedent and the process is both certain and ascertainable. This search for clarity will run through and inform the answers I will put before the Committee in this debate.
Amendments 156A and 156B from the noble Lord, Lord Alton of Liverpool, would amend the test for a reasonable grounds decision in legislation. The matter of whether there are “reasonable grounds to believe” that an individual is a victim is the appropriate threshold —again, as it mirrors our obligations under ECAT. For those reasons, I cannot accept Amendments 156, 156A and 156B.
I shall expand on matters raised by the noble Lord, Lord Alton, touching first on the ability that exists in legislation for people to challenge a decision made. Multiagency assurance panels are required to review all negative conclusive grounds decisions made by the competent authority for all cases submitted to the relevant competent authority. Multiagency assurance panels do not review negative reasonable grounds decisions. The role of multiagency assurance panels and the processes they follow are set out in the modern slavery statutory guidance for England and Wales promulgated under Section 49 of the Modern Slavery Act 2015. There is equivalent non-statutory guidance for Scotland and Northern Ireland; it is not found in primary legislation. The guidance states:
“An individual, or someone acting on their behalf, may request reconsideration”
of a negative reasonable grounds decision by the competent authority
“if additional evidence becomes available that would be material to the outcome of a case, or there are specific concerns that a decision made is not in line with guidance.”
The final conclusive grounds decision remains the responsibility of the competent authority. Multiagency assurance panels do not have the ability to overturn negative conclusive grounds decisions made by the competent authority. The competent authority can be asked to review a case where there is concern that the decision has not been made in line with existing guidance; that, in the view of the multiagency assurance panel, that would add value and clarity but has not been sought; or that the evidence provided and used in the decision-making process was not weighed appropriately and considered. So an element of its ability to reconsider and discretion remains in place.
I think the whole Committee will be aware that understanding of the painful effects of trauma and suffering on individuals and their ability to recollect is developing and has developed considerably over recent years, as a better comprehension of these strains and pressures comes to be understood. That understanding filters into this field, as into others. In particular, I refer your Lordships to understanding in the criminal justice system as to why people may make declarations or give statements that are not in their best interests or that they subsequently seek to go back on.
This topic seems to inform the points raised by the right reverend Prelate the Bishop of St Albans and my noble friend Lord Deben. Victims may well not want or be able to relive their trauma to state officials. Moulded by forces that those of us who have been happy enough to lead comfortable and sheltered lives can barely comprehend, they may find state officials intimidating.
Will the policy inhibit such people and impact adversely their ability to come forward and speak up? We recognise that some victims of exploitation may be fearful of coming forward to talk to the authorities, including some of the organisations that operate as first responders. That is why a range of organisations operate as first responders, including charities—some of which the Committee has heard about—that work closely with victims and local authorities.
We are keen to ensure that potential victims of trafficking are identified as early as possible and are supporting this with an improved legal aid offer for victims of trafficking with no immigration status within the United Kingdom and subject to immigration removal. This is to ensure that individuals receive the correct support package at the earliest opportunity to address their needs, regardless of when cases are brought, to make sure that those who need protection are afforded it.
Lord Alton of Liverpool (CB)
My Lords, the Minister is dealing with these issues with great sensitivity and I welcome the tone of his remarks. He has—I think deliberately—left a number of questions hanging, saying that a lot of work is being done on this and that people are considering these sensitive and detailed questions and looking at them more thoroughly. This all begs the question: who has demanded this change in this legislation at this time, in advance of us having detailed information laid before us?
It seems that we have it the wrong way around. Given that his noble friend said earlier that there will be a Bill specifically to improve the modern-day slavery legislation, why cannot we hold this over until we see more clearly where the information is wrong, where it is right and what the evidence is? Is it not the nature of good government to look and examine the evidence before bringing measures forward? I do not see any evidence that this has happened so far.
Lord Stewart of Dirleton (Con)
My Lords, I do not wish to appear to give a cursory answer to the noble Lord in a debate of this sensitivity, but my noble friend Lord Wolfson of Tredegar committed to write on the data—I am grateful to the noble Lord for nodding his head in recognition. I imagine that the point he seeks to raise will be discussed in any such correspondence. Does that satisfy him at this stage?
Lord Alton of Liverpool (CB)
I am grateful to the Minister, but it seems to be the wrong way around. Normally, there is pre-legislative scrutiny of complex and sensitive issues, and this is a classic example where there should have been pre-legislative scrutiny, as there was before the 2015 legislation, in some detail and at some length. Why was it thought that in a Bill dealing specifically, as the noble Lord, Lord Deben, said, with nationality, borders and immigration, we should deal with an issue of this sensitivity? Would it not be better for the Government to withdraw this section of the Bill and come back with comprehensive legislation that we could all support?
Lord Stewart of Dirleton (Con)
My Lords, I hear the points that the noble Lord makes. With respect, it seems that he moves forward into a question already put to my noble friend Lord Wolfson of Tredegar when he stood at the Dispatch Box in relation to the earlier matter. As he advised the Committee, the Government are concerned about misuse of the system. Rather than seeking to anticipate data that I confess not to having, with the noble Lord’s permission, I will move on from this point. I am again grateful to him for nodding his head.
I was expanding to the Committee on matters raised by the right reverend Prelate the Bishop of St Albans. We recognise that potential victims may not feel able at an early point to discuss information relevant to these matters bearing on their experience. That is why, in Clause 58, we have included the safeguard of “good reasons”. Each case will be considered carefully, including any reasons for not bringing information earlier, which will enable decision-makers to take trauma into account.
I am sure that I am merely rehearsing matters already within the knowledge of the Committee, but examples of what may constitute good reasons for late disclosure of information include where the victim was still under the coercive control of the trafficker, did not recognise themselves as a victim at that point, or for reasons relating to capacity—intellectual, emotional or age capacity—did not understand the requirement or the proceedings.
We will set out our approach in guidance, giving decision-makers the tools to recognise the effect that traumatic events can have on people’s ability to accurately recall or share or recognise such events. We are concerned that by too prescriptively setting out the parameters of what can constitute good reasons in guidance, we will inhibit the flexibility of decision-makers to take a case-by-case approach, as my noble friend Lord Wolfson of Tredegar sought to emphasise in his submission to the Committee earlier, depending on a person’s specific situation and vulnerabilities.
Baroness McIntosh of Pickering (Con)
I am anxious not to delay matters but to seek clarification at this stage. A number of noble Lords have raised concerns about why the burden of proof has been changed and the fact that, through this higher standard, a number of victims may not enter the system at all. I cannot believe it is the Government’s wish to prevent genuine victims of modern slavery and trafficking to be excluded from the process. My noble and learned friend gave a simple, clear clarification that it was to make the bar the same for both, but the fallout, in the view of legal opinion from practitioners who will be using this on a daily basis, seems to be that we will inadvertently exclude justified victims from the whole process. I cannot believe that this is the Government’s intention, where they are genuine victims.
Lord Stewart of Dirleton (Con)
I am grateful to my noble friend for her intervention, which permits me the opportunity of not only repeating what I said from the Dispatch Box earlier about the importance of decisions being taken on a case-by-case basis, but advising the House—perhaps I should have done so in answering the noble Lord, Lord Alton of Liverpool—that in addition we are providing enhanced support and training to first responders.
The rationale underpinning the change proposed in relation to burdens of proof is certainly not to seek to exclude persons who ought to receive help and assistance from receiving it. The Government’s wish is that all who are victims should receive assistance and all who are criminal should receive their due punishment.
Lord Deben (Con)
If that is the rationale, I do not see why we need the change. I seriously do not understand what possible advantage changing this could be, whereas I perfectly clearly see what the disadvantage is. Although the Minister seeks in the most effective way to present the Government’s case, the word “rationale” is not one I would have used I these circumstances.
Lord Stewart of Dirleton (Con)
My noble friend sends me back to the dictionary. I shall include the use of that word in my reading later, among the other things which I expect I will be asked to reflect on. I think we are—or maybe I am—guilty of mixing up two things. The reason for the change to the test to introduce the balance of probabilities is to align ourselves with our international obligations under ECAT. It is in order to avert any baneful consequences thereof that I made reference to the enhanced support and training which first responders will receive, and to the other measures which I discussed.
Lord Deben (Con)
I am sorry; I will not interrupt again. I still do not understand the rationale of bringing ourselves into line with our international obligations. We do not break our international obligations by going further than the international obligations, so we are already in line with them; all we are doing is withdrawing to what are, in many of our minds, unsatisfactory international obligations. Without getting into the Brexit issue, I very much agree with the right reverend Prelate when he suggested that we thought this was precisely what the Government did not want to do. I happen to want to do it but that is a different thing. I feel rather hit by this in both ways.
Lord Stewart of Dirleton (Con)
The justification is to ensure clarity across the legislation, and I appreciate the comment made by the right reverend Prelate, and rehearsed by my noble friend, about advantages flowing or not from the Brexit process, which so many of your Lordships will have discussed. However, our ability to act differently from our partners across the channel is a valuable one, but what we seek to obtain by this measure is legislative clarity and a consistency in decision-making which will, we hope, benefit victims and develop understanding among all the agencies in this important sector. My noble friend is resuming his mask, and he did say that he would not interrupt again, although I hope that he will not bar himself from further interventions later in the debate.
I turn to Amendment 157, tabled by the noble Lord, Lord Coaker. I thank him for his powerful and compelling opening contribution to this debate and to earlier debates on the topic, and for his work at Nottingham University. I offer the Committee reassurance that we are committed to providing victims with at least a 45-day recovery period, or until a conclusive grounds decision is made, whichever period is the longer. Our position is—I maintain that this does not need to be placed on the face of the Bill, and I return to the earlier discussions with my noble friend Lord Deben—that it would create a misalignment with our international obligations under ECAT.
Lord Coaker (Lab)
I thank the Minister for all of that, and the commitment to 45 days. Why does it say 30 days in the Bill? Have I got that wrong?
Lord Stewart of Dirleton (Con)
No, I think the noble Lord is correct. It is 30 days for the alignment with ECAT, but the 45 days appears in the guidance, and we commit to providing support over that period: a 45-day recovery period as expressed in the guidance, or until a conclusive grounds decision is made.
Lord Coaker (Lab)
So there is an absolute commitment to 45 days for the gap between reasonable grounds and conclusive grounds, even though legislation which we are going to pass says 30 days?
Lord Stewart of Dirleton (Con)
The noble Lord shrugged his shoulders, but I repeat that the justification for this is to align with our international obligations with our partners in ECAT.
Baroness Hamwee (LD)
My Lords, this did not stop us passing the Modern Slavery Act, which was ahead of the rest of the world.
Lord Deben (Con)
I am sorry to remove my mask, but I am told in the Climate Change Committee, of which I am chairman, that we have to have a British ETS which is not aligned with the rest of Europe because that is what we want. Why does it apply to climate change but not to modern slavery? On both of those issues we are in advance and wish to continue to be in advance. I do not understand this alignment element.
Baroness Ludford (LD)
Can I join the maskless crew? Surely international law, and certainly EU directives, are usually a minimum requirement, so if we wanted 45 days and a European instrument said 30, that is brilliant; it is better. It at least complies, so what is the problem?
Lord Stewart of Dirleton (Con)
I hear from all sides of the Chamber, including from the noble Baroness, Lady Chakrabarti—
Lord Stewart of Dirleton (Con)
Sorry, I do not mean once again from the Dispatch Box to rain brickbats upon the noble Baroness’s head.
Once again, I am not in a position to answer or explain myself on the basis of views taken by the Climate Change Committee, but in this context alignment with our ECAT partners was considered desirable.
I move on to Clause 60, which sets out the minimum time for the recovery period in line with our international obligations under ECAT. It provides us with the flexibility to set the operational practice as needed in guidance, which is important to reflect the changing needs of victims and the understanding of victims’ needs in a developing area of law.
In practice, in 2020 the average time for a conclusive grounds decision was 339 days. This long period stems from pressures on the system, which we are working to reduce through our transformation project to ensure that victims get certainty more quickly, but it is notably longer than the proposed 45-day minimum.
In light of this explanation and the assurance of continuation of the current support set out in guidance, I hope that noble Lords in the Committee agree that Amendment 157 to Clause 60 is unnecessary. I urge noble Lords to take the view that promotes clarity and to consider that the objective of making sure that we are aligned with our international obligations is such to prompt the noble Lord not to press this amendment.
Amendment 173, again from the noble Lord, Lord Coaker, seeks to introduce victim navigators for modern slavery and human trafficking victims in every police force in England and Wales. This matter was discussed in the Commons during the passage of the Bill. As was expressed on behalf of the Government, we are absolutely committed to ensuring that victims of modern slavery have the support they need when engaging with the police and through the criminal justice process.
As to the development that the noble Lord from the Front Bench advised the Committee of—that of victim navigators—we strongly support police forces using these NGO-led support models. Victim navigators are one model within that category. For that reason, we have commissioned independent research of three existing NGO victim support programmes, to help us better to understand what provision is in place and what effective support looks like for these victims. This will help inform advice to forces in the future about best practice and encourage national take-up of the most effective models of support. I also agree with the sentiment behind this proposed new clause that providing support to victims to help them navigate is something that can be studied and will inform advice to forces in future about best practice. We are already working to understand the most effective support measures, and we have made grant funding available to police forces and the GLAA to help identify and fill gaps in support.
I am grateful to the noble Lord for his nods of assent and for agreeing that the work already under way should be completed and will help us to develop an understanding of how best we can support victims in engaging with the criminal justice system. It is right that we conduct that evaluation before putting a specific model of support into legislation. That is why I resist this amendment at this time and invite the noble Lord not to press it.
Baroness McIntosh of Pickering (Con)
My Lords, it has been an excellent debate. I thank everyone for their contributions. I think there may be a question outstanding from the noble and learned Baroness, Lady Butler-Sloss, as regards children under the age of 18, but I take it as read that anyone aged under 18 would still be referred to the local authorities. I assume that my noble and learned friend will write to us if that is not the case.
Lord Stewart of Dirleton (Con)
I am grateful to my noble friend for that, and I beg the pardon of the noble and learned Baroness for not addressing her question directly. If she is content, I will have that expressed in writing to her.
Baroness McIntosh of Pickering (Con)
I am grateful to my noble and learned friend. He has endeavoured to be as full as possible in his response to all noble Lords. I express my disappointment that the guidelines are being changed in the way the Government envisage. I am slightly confused, because a lot of the situations for which this Bill makes provision would not have arisen if we had kept our international and European responsibilities under the Dublin convention, whereby we could have returned many asylum seekers to the first country in which they arrived.
It is a regrettable change. I do not think my noble and learned friend disagreed that a number of victims will be omitted from the system as a result. I will consider with others what to do at the next stage, but at this stage I beg leave to withdraw the amendment.
Lord Coaker
“(aa) the person was aged 18 or over at the time of the circumstances which gave rise to the first RG decision;”Member’s explanatory statement
This amendment seeks to preclude those exploited as children from being denied additional recovery periods if they are re-trafficked.
Lord Coaker (Lab)
My Lords, before I start my remarks on this group of amendments, I want to say in answer to the question asked earlier by the noble Lord, Lord Deben, that the problem the Minister has—and he has it all the way through this part of the Bill—is that what the Government do not like saying is that the reason they are doing this is not really to do with modern slavery. They are trying to sort out what they see as an immigration mess and the problem they have with everybody moaning about immigration, asylum and so on, and this has ended up in a Bill it should not be in. That is the problem. The noble Lord, Lord Deben, asked why we were doing this. The answer is, “because we think the modern slavery system is being abused and lots of people who shouldn’t be applying to it are applying to it, and they’re immigration offenders and not victims of modern slavery”.
What this Committee is saying is that it should not be in this Bill. Victims of modern slavery are being conflated with immigration offenders, and it will lead to the undermining of the Modern Slavery Act and the principles on which it is based, and to potential victims not receiving the support and help they need. That is the motivation for the Government in doing this. I do not think that it is the motivation for this Minister, which is why it is sometimes particularly difficult for him to answer the specific questions asked by the noble Lord, Lord Deben, as a one-nation Conservative—I think that is a compliment to him. The noble Lord has been trying to say to him that it was that brand of conservatism which drove the Modern Slavery Act. Perhaps the current Government—I can say this not as a lifelong Conservative—could learn from that. But that is a matter for internal grief and beyond the scope of this Bill.
I want to draw the Committee’s attention to the titles of these clauses. I will say something on Clause 61, “No entitlement to additional recovery period etc”, but there is a particular difficulty with Clause 62, “Identified potential victims etc: disqualification from protection”, which goes to the heart of the problem. Essentially, it is another way for the Government to say that potential victims of slavery are abusing the system to get round it because they are really immigration offenders. The Government are saying, “The system is being abused and we are going to stop it, and this is the way we’re going to do it”. The problem is that they are going to undermine the Modern Slavery Act and the modern slavery system that they have put in place, of which they should be proud, and indeed of which people—including all of us—are proud. It is that contradiction that goes to the heart of Part 5 in every single utterance, whether it is made from the Government Front Bench, the Opposition Front Bench or others in this Chamber.
I point out that Clause 62 does not even say “potential victims”; it talks about “identified potential victims”. No wonder there is such disquiet, upset and anger about this clause, which I will come on to in a minute. There are very real problems with Clause 61, but particularly with Clause 62, hence the amendments that I and other noble Lords have tabled, and the clause stand part notice.
Again, I come back to this question on Clause 61: what problem are the Government actually trying to fix that requires primary legislation? Again and again that has been asked by noble Lords across the Chamber without the Government really being able to answer—apart the noble Lord, Lord Wolfson, intimating the explanation I gave in his remarks on an earlier group.
The Explanatory Notes state that Clause 61 is there:
“In order to prevent the recovery period being misused by those wishing to extend their stay in the UK and to remove unnecessary support and barriers to removal”.
Again, that goes to the heart of it. The Government are seeking to change an immigration offence using a modern slavery context. It is a contradiction. It is not supposed to be like that. The whole point of the Modern Slavery Act was to take this out of the immigration context of the Home Office. That perennial battle between immigration and modern slavery is unresolved and requires parts of the Government to stand up and say, “You’re wrong and we’re not going to do that”.
What evidence is there of recovery periods being abused? That is of interest, I think, as evidence for the proposed change before us. What evidence is there of us providing “unnecessary support” to a person using the NRM? Re-trafficking has increasingly become part of the traffickers’ operating model, including where people return to their enslavers for fear of repercussions for their families, which we touched on earlier. How does Clause 61 respond to or break that model? Does not the refusal of a further recovery period simply strengthen the perpetrators? I think that is a real risk.
As the noble and learned Baroness, Lady Butler-Sloss, has asked on a number of occasions, will children be subject to the restrictions under Clause 61? Every single part of this Bill makes no distinction at all between adults and children. The Minister has experience of the legislative system, which, as a basis, divides children and adults on the grounds of good justice. Why is that not the case here? This is what Amendment 158 seeks to probe. Does the Minister have any figures for the number of children who go missing and are re-trafficked? Does he agree—again, the noble and learned Baroness, Lady Butler-Sloss, also asked this—that a missing child at risk of exploitation is a safeguarding issue, not an immigration or enforcement issue?
On Clause 62, the key question is what action, if any, the Secretary of State intends to take on the comments made by the Independent Anti-slavery Commissioner, who has written a scathing article in the Times today—note the word “independent” in the commissioner’s title. The headline says:
“Fears about bill that would take support away from some modern slavery victims”.
She has concerns about the way Clause 62 will operate and the wide way in which certain phrases in it could be drawn. Is it the Government’s intention to ignore the Independent Anti-slavery Commissioner, including where she says that Clause 62 will empower and embolden people traffickers and criminal gangs? Why is something that the anti-slavery commissioner says is harmful included in the Bill? Can the Minister also give further detail on how Clause 62 will operate in relation to children who are victims of criminal exploitation?
The lead signatory of Amendment 169 is the noble Lord, Lord Randall, but he cannot be with us today and has sent his apologies. The noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, have also signed it. Amendment 169 suggests to the Government that, if they are going to have Clause 62, which many would say should not be part of the Bill, this is a way they could redraft it to try to address some concerns. I personally would not keep Clause 62 but, instead of just a vague reference to a “threat to public order”, whatever that means, the amendment’s proposed new subsection (2)(a) inserts the words
“is prevented from doing so as a result of an immediate, genuine, present and serious threat to public order”,
rather than a wider definition.
Similarly, under
“Identified potential victims etc: disqualification from protection”,
we have put the words:
“in exceptional circumstances … following an assessment of all the circumstances of the case.”
Then there is the importance of international co-operation and the fact that we have also not included children. These specific points seek to address some of the concerns that have been raised by many groups and other noble Lords.
My Amendment 164A is to probe a specific question: where a person is covered by Clause 62, is it the Government’s intention that that person will still be entitled to and receive a conclusive grounds decision, as they do at present, or do the Government consider that the duty to investigate trafficking and exploitation no longer applies?
The criticism of Clause 61 and particularly Clause 62 is that, in the Government’s efforts to deal with what they perceive is an immigration problem, they are undermining the protection that the Modern Slavery Act gives victims. That view is held by many noble Lords in this Committee, many Members in the other place and the various NGOs that seek to inform our debates. I beg to move.
The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
My Lords, I must inform the Committee that, if Amendment 160A is agreed to, I will not be able to call Amendments 161 to 163, by reason of pre-emption.
Baroness Ludford (LD)
My Lords, I want to speak to the JCHR amendments in this group in the name of the noble Lord, Lord Dubs. Those were very strong words from the noble Lord, Lord Coaker, and I found them extremely persuasive, including his remarks on one-nation conservatism. I see the noble Lords, Lord Fowler and Lord Deben, in their place, and I commend the speech of Sir John Major today, which I have followed a little on Twitter.
Amendment 159 was inspired by the JCHR and seeks to remove the discretion around whether a person who has a positive reasonable grounds decision and a conclusive grounds decision pending could avoid removal. Instead of saying that the competent authority “may determine” that removal should not take place, if that is appropriate in the circumstances of the case, we suggest it “must”.
Clause 59 has already changed the Modern Slavery Act so that we are talking about people who “are” victims of slavery or human trafficking, not those who “may be”. Therefore, it is surely right that such victims, who have been given an additional positive reasonable grounds decision for new or more recent slavery or trafficking allegations, must not be removed.
Baroness Butler-Sloss (CB)
My Lords, I support all these amendments but I will speak to Amendment 169, to which I have put my name. I will deal with two other people apart from the anti-slavery commissioner who said that her gravest concern lies with Clause 62 above all the other clauses in this part of the Bill.
The United Nations rapporteur said:
“We are concerned that Clause 62(3) would be in violation of the State’s obligation to ensure non-punishment of victims of … forms of slavery for any unlawful acts … that are a direct consequence of trafficking.”
That, of course, is exactly what the Modern Slavery Act says in relation to people who commit offences if they are done in the course of being a trafficked person. So far as children are concerned, if they are under 18, they cannot be responsible for acts that they have done under the coercion of being a trafficking victim.
Perhaps of more significance to the Government is the issue of prosecution. Caroline Haughey QC, who advises the Government and regularly prosecutes traffickers—with great success I am glad to say—has described this Bill as catastrophic. She is a very successful QC. She is very measured and “catastrophic”, to my mind, is the most unusual word for a sensible prosecuting QC to use. She goes on to warn of the risks of losing witnesses for prosecutions because they have been guilty of offences themselves. We do not have enough prosecutions. It is an extremely serious matter that we do not have enough, and this clause is certain, if it is left in its original state, to reduce the number of prosecutions that Caroline Haughey and other QCs are trying to do in the criminal justice system.
I think again the Government ought to bear in mind why so many people who are victims have criminal records. It is perfectly obvious—they are much easier to identify and traffic, children as well as adults. They are the sort of people the traffickers go for because they know they are much less likely to come voluntarily to the public eye. They need protection against having been trafficked just as much as anybody who has a clear record. I implore the Government to think very carefully about this effect on prosecutions and the fact that criminals are very likely to be trafficked people.
Baroness McIntosh of Pickering (Con)
I am delighted to follow the noble and learned Baroness. The Committee has benefited greatly from her insightful comments on the background. This is a particularly murky world about which we are talking. People are in an extremely vulnerable and unfortunate position, and they may well be preyed on and further exploited by the very people I applaud the Government for trying to target.
I will speak briefly to Amendments 160 and 163 in my name. Amendment 160 is the key amendment; again, it is a concern raised by the Law Society of Scotland, which is keen to ensure that these provisions be brought to account only in exceptional circumstances. The reasoning for this—which follows very well from the discussion we have heard in this debate—is that Clause 62 excludes from the national referral mechanism persons who have committed criminal offences as well as other offences relating to terrorism. It excludes those who have claimed to be victims of terrorism in bad faith. However, it appears to divide victims into the worthy and the unworthy. Surely the Government must explain their reasoning behind this. In my view, and that of the Law Society of Scotland, no one should be disqualified from being a victim of one crime because they have been a perpetrator of another—precisely for the reasons that the noble and learned Baroness, Lady Butler-Sloss, gave us. Victims of trafficking could be criminalised for conduct relating to their trafficking. This is in breach of Article 26 of the Council of Europe trafficking convention. I cannot believe for a minute that this is the intention of the Minister or the Government in this regard.
The noble Baroness, Lady Ludford, referred to a recent court case; I do not know if it is the same one to which I will refer. A violation of Article 4 of the ECHR was recently found against the United Kingdom, in this regard, by the European Court of Human Rights in VCL and AN v the United Kingdom. For those who would like to research this further, the reference is application numbers 77587/12 and 74603/12.
I conclude with a question to the Minister. Does he not share my concern that the clause, as it stands and without reference to exceptional circumstances, introduces a high risk of a double punishment for those victims who have received convictions? Moreover, disqualifying certain victims from protection increases the prospect that they will be further exploited by organised criminal groups as they will be unable to access protection from the state.
The Lord Bishop of Bristol
My Lords, I have added my name to those of noble Lords who oppose Clause 62 standing part of the Bill. I echo remarks made by noble colleagues.
As the noble Baroness, Lady McIntosh, just said, Clause 62 goes to an essential point of principle in the entire operation of how modern slavery protections ought to work. The proposal is that Clause 62 makes victimhood a conditional state. In fact, it sets up a division between worthy and unworthy victims, as the noble Baroness commented. This would be such a retrograde step. If we are serious about destroying the business model of modern slavery and identifying and prosecuting as many slavers as we can, we must find ways of incentivising and supporting all victims to come forwards. By excluding from support those who have acted in bad faith—a term for which I greatly welcome more clarity from the Minister on what it would mean—or those deemed a threat to public order, we are creating two categories of victim.
Baroness Hamwee (LD)
My Lords, my name is on Amendment 160A, which is from these Benches. I fear that we are rather in lipstick on pigs territory—a phrase used a good deal earlier in our deliberations on the Bill. Clause 62 refers a “threat to public order”, which is then explained as various terrorism offences. It says that the list is not exhaustive, and I recognise what the Minister, the noble Lord, Lord Wolfson, said about how non-exhaustive lists are dealt with in the courts and that the longer lists are, the more rigorously they are dealt with. Our amendment refers instead to a threat to national security.
My noble friend Lord Paddick also has his name on the Clause 62 stand part notice and mine is on Amendment 169. I do not want to take the time of the Committee by repeating what has been said, very clearly, about activity “attributable” to being a victim of slavery or trafficking.
In the previous group of amendments, the Minister referred to an ability to recollect. I think, from other things he has said, in a sympathetic manner, he would agree that very often there is also, among victims, an inability to express—it is not just the inability to recollect. It might be worth saying—I am not sure it has been said before—that there is even more difficulty than in disclosing that one has been a victim of forced labour in disclosing that one has been a victim of sexual exploitation.
I agree with others about words such as “worthy” and “unworthy”. I noted “deserving” and “undeserving” —here we are again—like “deserving” and “undeserving” refugees and asylum seekers; that distinction is replicated here.
Lord Dubs (Lab)
My Lords, again, as a member of the Joint Committee on Human Rights, I shall speak very briefly. I should say how much I appreciate the contributions made by my noble friend Lord Coaker, by the noble Baroness, Lady Ludford, who is on the Joint Committee with me, and by the noble and learned Baroness, Lady Butler-Sloss, in her very powerful remarks.
Many years ago—if I may tell a little anecdote—I heard of a certain conversation that took place in the Home Office when an official was told by her boss to justify a certain position. The official said, “But that is indefensible”. Her boss said, “Yes, of course—defending the defensible is easy. You’re paid to defend the indefensible”. I say that as a word of comfort to the Minister, who is defending the indefensible. He knows it, we know it and the officials know it—and I suppose he has to do it, unless he does what the noble Lord, Lord Agnew, did and decides to distance himself from it.
I will say this very briefly. I find it hard to remember, and keep needing to remind myself, that we are talking about Part 5 of a Bill about modern slavery. Some of these issues are so remote from the rest of the Bill, as has already been said. The amendments to which I have put my name are concerned about a number of things. One is public safety and security. The amendments seek to get the right balance between public safety and security, which of course is important, and the rights of individuals who seek safety in this country. I contend that the Government, particularly in Clause 62, have got the balance quite wrong.
As the right reverend Prelate has already said, some of the people who are victims of traffickers or slavery are under threat; they are fearful, and the fact is that some of them at least will have been compelled to take up the position that they have taken up. We should respect that. These are frightened and anxious people, who are not secure and who do not know this country at all well. They may have been in this country for some time, or they may not have been, but they do not feel all that secure. We have to be sensitive to their situation, and I contend that what the Government are doing in this section, particularly in Clause 62, is to show insensitivity to some very vulnerable people—which is why I hope they will get rid of this provision, which does not make any sense at all.
Lord Stewart of Dirleton (Con)
My Lords, in opening from the Front Bench, the noble Lord, Lord Coaker, made a number of points in relation to the position of the Government in relation to the one-nation Conservative tradition, if I may put it like that. I will preface my remarks to the Committee by saying that, just as with our then coalition partners the Conservatives were in the forefront of dealing with the issue of modern slavery, so we were, hundreds of years ago, in dealing with the issue of slavery, as it then stood. Where slavery exists, Conservatives will always be found in the forefront of any attempts to confront it.
In relation to Clause 61, there is currently no policy on whether, or in what circumstances, individuals should or should not receive additional recovery periods under the national referral mechanism. Clause 61 addresses this gap by introducing a power to withhold additional recovery periods where an individual has already benefited from a recovery period and the further reported exploitation happened prior to the previous referral into the national referral mechanism, unless appropriate circumstances are set forth. This is not an attempt to create two tiers, however it may be read; rather, it is an attempt to put into legislation appropriate controls against misuse, where that misuse takes place.
Amendment 158 seeks to remove this power if any of the incidents of exploitation occurred when the individual was under 18 years of age. I seek first to reassure the Committee that the provision may be applied only when the further positive reasonable grounds decision arises from things done wholly before the previous reasonable grounds decision was made. Therefore, this power does not apply in cases of re-trafficking.
From the Front Bench, the noble Lord, Lord Coaker, like other noble Lords at an earlier stage, raised the question of why these provisions appear on the face of an immigration Bill. It is because there are overlaps between immigration and modern slavery, which the Bill recognises and seeks to address, but it also goes further in providing clarification on people’s entitlement.
As I said in relation to the previous grouping, and as I am sure we will all have occasion to say again, the complex nature of exploitation, as the noble Lord, Lord Coaker, identified in his opening speech and at other times in this debate, and the potential resulting safeguarding needs, particularly for children, are recognised by the Government. This clause is designed to allow for discretion in how decision-makers apply the disqualification, ensuring that the welfare of children will be taken into account. This discretion is an important part of our needs-based approach to the provision of support, and in the circumstances there is no need for the carve-out that the amendment proposes.
Moving on to Amendment 159, while we understand the intention behind this amendment, the existing discretionary element strikes the right balance between allowing decision-makers flexibility to grant additional recovery periods and preventing the misuse of the NRM protections to which I referred. Decision-makers will be able to consider the vulnerabilities and circumstances of the individual.
Turning to the amendments tabled by the noble Baroness, Lady Ludford, in relation to Clause 62, as noble Lords have outlined, ECAT envisages that recovery periods should be withheld on grounds of public order and improper claims. However, ECAT does not include a definition of “public order” and, to date, that omission has hindered our ability to disqualify suitable individuals in practice. The question was posed of whether the provision as it stands might impede operational decisions in relation to prosecution, but I submit that these decisions would be taken at all times in relation to that developing understanding of the pressures and difficulties. I fully appreciate that I am understating those things by using those expressions. Those pressures and difficulties are upon persons who are victims of modern slavery or human trafficking.
Lord Alton of Liverpool (CB)
I am grateful to the Minister. In Clause 62, the phrase “bad faith” seems extraordinarily ambiguous. Can he clarify that? What jurisprudence does this phrase come from and on what basis will it be interpreted in the courts?
Lord Stewart of Dirleton (Con)
I am grateful to the noble Lord for that intervention. I was proposing to deal later with the expression “bad faith” and its source, but, to help him at this stage, it is not drawn from any comparable legislation, nor from the authority of the courts. We do not hark back to that. Rather, the nature of the problems that must be confronted in relation to this is sufficiently protean and diverse that a need was identified to arrive at a broad expression in the Bill, and “bad faith” was the language selected after consideration among Ministers and officials to represent that.
Baroness Ludford (LD)
I am sorry to interrupt the Minister, but I now realise that he has now moved on from Clause 61 and is talking about Clause 62. I was wondering whether he was going to answer my point about incompatibility with the ECHR memorandum. That says that
“where the person’s previous conclusive grounds decision was negative, the Secretary of State will be required to make a new conclusive grounds decision on the new referral, and the person will be protected from removal in the meantime, ensuring compliance with Article 10(2) of ECAT.”
However, you are not protecting them from removal in the meantime under Article 61, as far as I can see, so how is the Bill compatible with the ECHR memorandum?
Lord Stewart of Dirleton (Con)
If the noble Baroness will bear with me, I will seek to get an answer to that question that I can deliver in the course of the debate—doubtless the Committee will remind me if I have not reverted to the noble Baroness by the time I sit down.
Amendments 160 and 162 do not define “exceptional circumstances” or “serious and ongoing” threat in relation to withholding protection from removal. As such, our view is that they would risk undermining the clarity which this clause seeks to provide and would make the power very difficult to use, meaning that potentially dangerous individuals would continue to receive the generous protections afforded by the NRM.
On Amendment 160A, Clause 62 specifies that disqualification applies when in the interests of national security, but it is right that the Government should also be able to withhold protections from individuals who pose a threat to public order more broadly, including where they have been convicted of serious criminal offences or have made a claim in bad faith, to use the expression that the noble Lord, Lord Alton, referred me to. I say that “bad faith” is appropriate in these circumstances because it is so broad and because it comprises so many aspects.
Baroness Chakrabarti (Lab)
I want to intervene briefly on the “good faith” and “bad faith” point, in case it is of assistance to the noble Lord, Lord Alton, and others. Concepts such as “good faith” and bad faith” are commonly used in civil and commercial matters; we understand that. In contracting matters, it is incumbent on parties to act in good faith, subject to the deal they have done with each other. Why I think the Committee is so concerned about what the Minister called the protean nature of the phrase here is that this is human rights protection, and we cannot afford to be protean or vague in the same way that we can when we are talking about how we enter into a contract. This is life and death.
Lord Stewart of Dirleton (Con)
The point I was seeking to make by that expression is, I think, the same one that my noble friend Lord Wolfson of Tredegar made earlier, when he spoke about this—it is as familiar to the noble Baroness as a practising barrister as it is to me, and I think it was referred to by the noble Baroness, Lady Hamwee. If we have a list that sets out heads A to E, and then counsel attempts to rely on point F which is not otherwise comprehended, or not specifically enumerated but which may be comprehended within the expression “or any other circumstance”, that always—as my noble friend Lord Wolfson said—places counsel at a disadvantage.
On the threats, or potential threats, and the potential scope for abuse which lie within the power of a person seeking to exploit and make a false application under these circumstances, what we are seeking to do is to identify a phrase or term which is sufficiently wide to encompass all those potential points. Noble Lords in the Committee have identified, under reference to the traffickers and criminals whom it is the intention of the entire Committee to thwart, their cunning, resilience and resourcefulness in finding ways to slip between the cracks of aspects of legislation.
Amendment 169 does not provide a definition of “public order”. I reassure the Committee that we adhere to relevant provisions in our international obligations but it is unnecessary to specify that in legislation, and we are satisfied that the current definition of public order complies with ECAT.
My noble friend Lady McIntosh of Pickering proposes that we replace the “bad faith” provision with one of “improper claims”. That proposal can be addressed in conjunction with Amendment 163, which seeks to remove the bad faith provision entirely. Another reason for the expression “bad faith”, and its breadth, is to avoid inadvertently excluding administrative mistakes made when submitting claims, which may be interpreted as falling under “improper claims”. We believe that “bad faith” is the appropriate language.
In answer to submissions made by the noble Lord, Lord Coaker, under Amendments 169, 161 and 164, which seek to exclude children from this clause, ECAT does not specify an age limit. We deem it important that the United Kingdom maintains the full scope while ensuring that all decisions to withhold the protections of the NRM are balanced against our priority to safeguard children. The proposal set out in these amendments would create, in effect, a two-tiered system that could encourage those looking to misuse the NRM protections to provide falsified information regarding their age. We all sat late enough the other night in relation to the age amendment provisions elsewhere in the Bill for me not to wish to go into that area again, but we are concerned lest the proposals in the amendment provide an opportunity for persons to provide falsified information.
In relation to Amendment 168, the Government are aware that potential and confirmed victims of modern slavery may already have been convicted of serious offences or be involved in terrorism-related activity. I make it clear that neither the additional recovery period nor the public order disqualifications can be taken as being a blanket disqualification. Any decisions relating to disqualifications will be taken on an individual basis, taking into account the individual’s circumstances and vulnerabilities. This includes consideration as to the nature of any criminal exploitation that may have been made of them and the need to safeguard individuals. We think it is right that further details of how to apply this discretionary element should be set out in guidance for decision-makers rather than being placed in the Bill. That will give the Government the flexibility to meet the needs of victims and respond to changing patterns of criminal activity that may seek opportunities to misuse the NRM.
We do not consider that Clause 62 will present a barrier to people who have had convictions and prevent them coming forward, because of that discretionary approach and because there will not be a blanket disqualification on the basis of public order. All of us—the whole Committee, I am sure—want victims of modern slavery to continue to come forward for identification and support, irrespective of their personal circumstances or the circumstances in which they came to be exploited. However, we maintain that it is right that the Government can remove individuals who pose a threat to public order from the protections and support that the NRM affords.
Together with the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Ludford, was concerned lest such victims did not come forward if they had criminal convictions. First responders should still always refer victims into the national referral mechanism, in line with modern slavery statutory guidance, even where the individual has had a previous recovery period or has a criminal conviction. Decision-makers trained in the field will then carefully consider each individual case and take into account specific vulnerabilities and the needs of each individual, again on a case-by-case basis.
The recovery period may be withheld following a reasonable grounds decision, and the rights that flow from a conclusive grounds decision may also be withheld at that stage if relevant disqualifications apply. I emphasise that we will carefully consider each individual case to ensure that people who genuinely need protection and support will receive it. I reiterate that it is right that we should be able to withhold rights from individuals where appropriate—for example, from those who pose a national security risk to the United Kingdom.
I return to the matter raised by the noble Baroness, Lady Ludford, in relation to compatibility with the European Convention on Human Rights. The protections of the NRM will be withheld in accordance with Clause 61 only when so to do would be compliant with our international obligations—
Baroness Ludford (LD)
I am glad to hear that the Government want to comply with our international obligations—some of us feel that that is not entirely evident from the Bill—but I was asking about compatibility with the European convention against trafficking. Clause 61 allows “a competent authority” to remove someone even when a conclusive grounds decision is pending. I am sorry to repeat myself, but the European Convention on Human Rights memorandum, produced presumably by the Home Office for the Bill, says at paragraph 76.d:
“the Secretary of State will be required to make a new conclusive grounds decision on the new referral, and the person will be protected from removal in the meantime, ensuring compliance with Article 10(2)”.
That is not what Clause 61 does; it allows the Government to remove the person. They are not “protected from removal” pending a new conclusive grounds decision, so the ECHR memorandum and the Bill are in direct contradiction. Can the Minister take further advice and answer that point? If he cannot do so today, I am sure that he will be able to write to me. I am pretty sure that this was identified by the Joint Committee on Human Rights, which is why we wanted to change “must” determine the person’s removal to “may”, so that there is wiggle room that might be in compliance with ECAT. On the face of it, I cannot see that this provision is compliant, notwithstanding the assertion in the memorandum that it is.
Lord Stewart of Dirleton (Con)
The noble Baroness graciously affords me the possibility of replying perhaps in more detail and later. Unless I have further information to provide to her, I propose to take that course. I am obliged to her for her consideration.
In relation to how to assess whether a person is involved in terrorism-related activity or is otherwise a national security concern, the Government have extensive experience of assessing these things, together with our operational partners, and using these assessments to inform executive decision-making.
Whether there are reasonable grounds to suspect that a person is or has been involved in terrorism-related activity is a crucial part of consideration for public order disqualification. Amendment 165 would weaken the United Kingdom’s ability to withhold protections from people of terrorism concern, and we therefore consider that it would increase the risk to the national security of the UK.
Regarding Amendment 166, NRM referrals for foreign national offenders and foreign nationals held on remand are rising, with an average of 85 per month for the first five months of 2021, compared to 19 per month in 2018. It is right that foreign nationals who have been convicted of the serious offences referred to in Section 32 of the UK Borders Act 2007 should be included within scope for consideration of the public order disqualification. This ensures that we will have a clear definition provided for in legislation to support decisions.
Lord Coaker (Lab)
My Lords, I thank the Minister for his typically courteous and thoughtful reply, and the way in which he attempted to answer every question put to him by noble Lords across the Chamber. We are very grateful and that was well received by everyone. I believe, however, that there is a very real problem at the heart of the Bill, with respect to Clause 61 and particularly Clause 62, notwithstanding his reassuring words.
It remains on the face of the Bill that an identified potential victim can be disqualified from the section if they are a threat to public order, or they have given information in bad faith. As noble Lords have said, there is no real clarification, notwithstanding the Minister’s response, on what a threat to public order means. We can see from what has been said, by many of the organisations that made representations, including lawyers and the Independent Anti-slavery Commissioner, that a threat to public order can include very minor offences. The Minister says, “Don’t worry, the decision-makers understand that Clause 62 does not apply if they are minor offences”, but that really is not good enough. It should be on the face of the Bill; it should be clearer, in primary legislation, what a “threat to public order” means—and indeed “acting in bad faith”. What on earth does “acting in bad faith” mean? That is usually something people use when they cannot think of anything else—“That’ll do, that will be something we can say because it encompasses everything.” It is not good enough, in primary legislation, to legislate in that way.
The purpose of the amendments that have been tabled, and the debate that has been had in Committee, will cause the Government to have to think again and, at the very least, be clearer in what they actually mean with respect to where they are going to disqualify somebody from protection when they are an unidentified potential victim.
The last point I will very quickly make is that there is real issue with respect to children. Both this Minister and the Minister who responded to the earlier groups say again, “Don’t worry, there is nothing to worry about. We understand the particular needs of children”. I say again that in virtually every area of government a distinction is made between adults and children, for obvious reasons. It beggars belief that it is not done anywhere in this Bill. We will come back to this at Report, but I thank the Minister for his reply and, with the leave of the Committee, withdraw the amendment.
Lord McColl of Dulwich
Member’s explanatory statement
This amendment would define the objective of assistance and support in line with Article 12 of the European Convention on Action Against Trafficking in Human Beings 2005.
Lord McColl of Dulwich (Con)
My Lords, I should declare an interest in that I presented the original anti-trafficking and anti-slavery Bill as a Private Member’s Bill to your Lordships, and your Lordships very kindly passed it in all its stages, thanks to the support of the whole House. I then sent it to the then Prime Minister, Theresa May, who made it a government Bill and made it comprehensive, with the support of many people in both Houses.
I wish to speak to the amendments in my name to Clauses 63 and 64, on support and leave to remain respectively. While I believe that issues of modern slavery should not be in an immigration Bill, we must nevertheless use the opportunity to improve the care provided to approximately 100,000 victims of modern slavery in the UK. These individuals deserve the opportunity to rebuild their lives. We have the potential to give them the support needed to ensure that each victim becomes a survivor.
Your Lordships will know that I have long argued, through my Private Member’s Bills, that support for victims in England and Wales during the so-called recovery period should be statutory, as it has been in Northern Ireland and Scotland since 2015. I very much welcome the Government addressing this matter at last in Clause 63. However, I have three concerns about Clause 63 which my Amendments 169A, 170 and 170A address. I thank the noble Lords, Lord Alton, Lord Paddick and Lord Coaker, for their support for these amendments.
First, in Clause 63, proposed new subsection (2) of the new clause restricts support only to that necessary to assist with recovery from the conduct that resulted in the “positive reasonable grounds” decision in question. This is more restrictive than in Northern Ireland and Scotland. How do the Government intend to identify the harm caused directly by exploitation? Why have they decided to restrict the support in this way?
Article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings, known as ECAT, requires states to provide various support to assist victims in their physical, psychological and social recovery. ECAT does not restrict support and assistance to only those matters that relate to a person’s immediate exploitation. Amendment 169A would amend the wording so that it is in line with ECAT.
Secondly, Clause 63 is not clear on the scope of support, and Amendment 170A would define the types of assistance and support to be provided in line with ECAT obligations. The Government said in another place that a list of what support should be available is not needed, even though such a list does exist in Scotland and Northern Ireland. While individual victims will have different needs and requirements, there still needs to be a framework, which Amendment 170A would provide. The Joint Committee on Human Rights asked whether the support provided will cover all the elements required by Article 12. I look forward to hearing confirmation from the Minister that it will.
My third concern is the lack of support once a person is identified as a victim, something I have been campaigning on with the support of the Free for Good movement, a coalition of 27 organisations which believe that long-term support is essential to a victim’s recovery. Without it, already vulnerable individuals are at risk of homelessness, destitution or even re-trafficking, as has been mentioned.
I welcome the assurance given by the Government on Report in another place, and reiterated here at Second Reading, that 12 months’ support will be provided to confirmed victims in England and Wales. However, to date the Government have not brought forward an amendment to ensure that this support is on a statutory footing, nor set out any details of what that might involve, saying instead that the details will be in guidance. The support needs to be more than an extension of current arrangements under the Government’s recovery needs assessment.
Amendment 170 would put the Government’s commitment to 12 months’ support in the Bill. The cross-party support for this amendment is both indicative and representative of an understanding across the House that long-term statutory support is vital in order to assist victims of modern slavery in their recovery. The problem with it not being in the Bill is that it gives the Government what one could describe as wriggle room. We do not know when the guidance will be issued, nor what it will say; by the time we do, we will have missed a valuable opportunity to make a significant difference to victims.
Clause 63 already puts support during the recovery period on a statutory footing. Amendment 170 is a simple extension to Clause 63 to put in a support provision after a person has been confirmed as a victim of modern slavery. I urge your Lordships to support Amendment 170 to ensure recovery, prevent re-trafficking and enable victims to work with the police to restrain the perpetrators responsible for their abuse. I sincerely hope the Minister will be able to tell the House that he will be tabling an amendment on this matter on Report.
I turn to my Amendments to Clause 64. The Government are putting the current discretionary leave-to-remain criteria on a statutory footing. In principle, that is welcome—except that, in doing so, they have made them narrower than the current guidance. We are taking one step forward but two steps back. I also want noble Lords to realise that very few victims who apply actually get that leave, so Clause 64 falls short of what victims really need. The Government have already recognised the need for confirmed victims of modern slavery to receive 12 months’ support. However, those individuals need leave to remain in order to access that vital support.
My Amendment 170B would ensure that anyone receiving support after being confirmed as a victim of modern slavery would be granted temporary leave to remain. My Amendment 171A would ensure that the leave would be for the length of time that support is being provided or for at least 12 months if granted under Clause 64. Without these amendments, long-term support is a mirage. It is something that confirmed victims who are non-UK nationals desperately need but, without immigration status, cannot access. They will also help the Government achieve their aim of increasing the prosecutions and convictions of perpetrators of modern slavery. Without clarity about their immigration status, victims are fearful, potentially subject to re-trafficking, and hesitant about engaging with the police. Amendments 170B and 171A would enable the Government to be firm on criminals who are profiteering off the exploitation and abuse of victims.
Lord Alton of Liverpool (CB)
My Lords, with his usual clarity, the noble Lord, Lord McColl, has introduced his amendments to Clauses 63 and 64. I regard it as one of the privileges of serving in your Lordships’ House to have become a friend of the noble Lord, Lord McColl, over these last 20 years. I not only deeply admire everything he has done on the issue of human trafficking but have seen first-hand some of the extraordinary work he has done with Mercy Ships, where he has given so much of his life and time as a notable surgeon. I have no hesitation today in echoing the remarks he has made to your Lordships’ Committee. I am not sure I can echo the Zulu remarks he quoted, but I think Nelson Mandela once quoted a Zulu saying about “ubuntu”, meaning “brotherhood”, that
“we are only people because of other people.”
In many respects, that goes to the heart of what we are trying to express in these debates and amendments today.
Statutory support for victims in England and Wales during the time they are in the national referral mechanism—the recovery period—which was the subject of Amendments 156A and 156B, which I spoke to earlier, is long overdue. We are seven years behind Northern Ireland and Scotland, and I welcome the Government catching up with the rest of the UK. I would like to say with the noble Lord, Lord Morrow, in hearing distance that I deeply admire what he managed to achieve in Northern Ireland, and I look forward to hearing what he has to say about his Amendment 171B, which, again, I associate myself with. Indeed, I support all the amendments in this group.
I draw the Committee’s attention to the current version of the statutory guidance on victim support in England and Wales, which says:
“The Modern Slavery Victim Care Contract operates as a bridge, to lift adult victims out of a situation of exploitation and to set them on a pathway to rebuilding their lives. As such, it is important that no support provided through the Modern Slavery Victim Care Contract prevents potential victims or victims from accessing support they would otherwise be entitled to receive.”
The statement about what a victim is entitled to receive goes straight to the heart of Amendments 169A and 170A.
Under the Bill, what do the Government intend to provide in terms of support? The noble Lord, Lord McColl, said that without support, the Bill simply becomes a mirage—a good metaphor to use. What are the Government going to do to provide support during the recovery period? Will the support be in line with Article 12 of the European convention? Both Ministers talked earlier about the importance of compatibility in these areas. But, as the noble Baroness, Lady Ludford, said, we seem to pick and choose what we want to have compatibility with and what we do not.
The frequently referred to and admirable Joint Committee on Human Rights recently published its review of Part 5 and highlighted that
“clause 63 (new section 50A MSA) does not specify details as to what ‘any necessary assistance and support’ should include, leading to some ambiguity”—
a word I referenced earlier in connection with being in good faith—
“as to whether clause 63 (new section 50A MSA) will indeed adequately give effect to the UK’s obligations under Article 12 ECAT to provide the types of assistance specified in that Article.”
It is worth recording in Hansard what the Committee said:
“The Secretary of State should confirm whether ‘necessary assistance and support’ will include all of the types of assistance listed in Article 12 ECAT”.
We will all listen closely to the Minister’s response to these amendments and specifically on that point about whether the support will be in line with Article 12 of the European convention.
I have also co-signed Amendment 170. As I have already said, the stated objective of the Government’s support to victims is
“to lift adult victims out of a situation of exploitation and to set them on a pathway to rebuilding their lives.”
Who could disagree with that? All the evidence from those working with victims is that this goal is far from completed when a person is confirmed as a victim of modern slavery by the Government. To continue on the pathway to recovery, as the Government themselves have acknowledged, a victim needs much longer support.
The noble Lord, Lord McColl, has been making that case for many years in your Lordships’ House and I have been happy on previous occasions to give him support. 1am glad that he has taken the opportunity provided by the Bill today. If the Minister cannot agree to incorporate this now, will he tell the noble Lord, Lord McColl, and Members of your Lordships’ Committee that, when the putative legislation that was referred to earlier in this area is brought forward, it will at least be attended to then? I am glad that the Government have recognised the need, but they should now act to bring their commitment into a concrete reality.
I also want to touch briefly on the amendments to Clause 64 in the name of the noble Lord, Lord McColl, which seek to give victims who are eligible for support leave to remain. It is not just the right thing to do for these individuals, it makes policy sense to ensure that we are able to bring perpetrators to justice. It has been said again and again, by the noble Lord, Lord Coaker, the noble Baroness, Lady Hamwee, and others who have re-emphasised this throughout today’s debate. Without evidence from victims, cases are much harder to prosecute. Here is an interesting point: it also makes economic sense.
A 2019 report from the University of Nottingham, which the noble Lord, Lord Coaker, will be well aware of, on an earlier version of the Modern Slavery (Victim Support) Bill introduced by the noble Lord, Lord McColl of Dulwich, showed that his Bill was “value for money”. I hope that the Minister’s officials have drawn that report to his attention, so I ask him: why would the Government not support the amendments in the name of the noble Lord, Lord McColl, and give this vital support to victims of modern slavery?
Lord Morrow (DUP)
My Lords, I thank the noble Lord, Lord Alton, for his kind remarks. For victims of modern slavery, escaping from their exploitation is only the beginning of their journey towards recovery. I will direct my remarks today to Amendment 171B in my name, which would assist victims on this journey.
I have been astounded by the individuals whom I have come across over the years, particularly those who I had the privilege of meeting during the passage of my Private Member’s Bill in the Northern Ireland Assembly who have been victims of modern slavery in this country. These victims have experienced extreme exploitation and abuse in this country yet have shown commendable fortitude and strength in their determination to recover from their ordeal. When I consider Part 5, and in particular Clause 64, it is those individuals I think of. It concerns me that Clause 64, if unamended, will make the leave to remain criteria narrower and, in doing so, make vital support for survivors even more inaccessible.
Clause 64 will impact victims of modern slavery across the UK, yet there has been no impact assessment published to date—at least, I have not had sight of it—on how many victims will be granted leave to remain under the Bill, compared to the current numbers. I hope the Minister can address why this is the case and provide a timeframe for when we can expect to see one.
Previously, I had the opportunity to meet Anna, a young Romanian girl who was kidnapped here in London, trafficked to Galway and then moved to Belfast to be sold into the sex trade. This young girl was moved from pillar to post, to be exploited in one place then another. The only consistency she knew was exploitation. When victims like Anna escape from their situations of exploitation, they need stability and certainty as they start their recovery and begin to work through their trauma.
I am concerned that whilst Clause 64 puts discretionary leave to remain measures on a statutory footing, in the process of doing so the Government have made the criteria much narrower than current guidance. In particular, Clause 64(4) would prevent leave to remain being granted to a confirmed victim on the grounds of their need for support for their recovery, if they could receive that support elsewhere—even when the alternative country is not a signatory to the European trafficking convention. The Government have also not set out which countries without ECAT would be acceptable. This restriction is likely to affect EU citizens who have recently become entitled to automatic consideration for discretionary leave if they have no other right to remain, since the Secretary of State is likely to argue that these citizens could receive support within the EU. It sounds very much as if the Government are unfairly trying to skirt their moral duties and responsibilities to these victims. This goes to the point that, contrary to what the Government have said, this Bill is not fair for victims of modern slavery.
Amendment 171B in my name would ensure greater stability by removing the criteria of not granting leave to remain if assistance could be provided or compensation sought in another country. Without this amendment victims such as Anna, upon exiting their situation of exploitation, could find themselves without leave to remain and instead relocated to another country where they may not know anybody, speak the language or understand the customs. This will be disorientating, unsettling and frightening, and it will compound their vulnerability to re-trafficking.
I agree with the noble Lord, Lord McColl, and Sir lain Duncan Smith MP in the other place on the need for 12 months’ leave to remain to ensure that all confirmed victims can receive support, as proposed in the noble Lord’s Modern Slavery (Victim Support) Bill. I put on record my support for Amendments 170B and 171A in the name of the noble Lord. While Amendment 170 to Clause 63 in the noble Lord’s name applies only to England and Wales, I am pleased to see that steps are being taken to provide statutory support to confirmed victims in Northern Ireland. Through Section 18(9) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, statutory support is already available to victims with a positive conclusive grounds decision on a discretionary basis.
Baroness Hamwee (LD)
My Lords, my noble friend Lord Paddick has his name to Amendment 170. I know that he—I join him in this—is always pleased to have an opportunity to support the noble Lord, Lord McColl of Dulwich. Given that we are now past 4 pm, which, in the terminology of this House, was to be the lunch hour, I will not say anything more on this amendment. I hope that noble Lords can read between the lines.
Similarly, I particularly support Amendment 171A in the name of the noble Lord, Lord McColl, for reasons to which the noble Lord, Lord Alton, referred.
Finally, when I bumped into the noble Lord, Lord Morrow, the other day, I said, “I don’t know what you’re going to say but I’ll support you”. He said, “I thought you would”.
Baroness Ludford (LD)
My Lords, we have been quicker than I anticipated but what my noble friend said is true; I must admit that I am starving.
I will speak to Amendments 171 and 172 from the JCHR, in the name of the noble Lord, Lord Dubs. They aim to remove the worst of Clause 64. Leave to remain is important for victims who are vulnerable to destitution and further exploitation without welfare benefits and other entitlements but, according to the anti-slavery commissioner, the number of victims being granted discretionary leave is very low. In 2015, it was 123. In 2019, it was 70. In the first three months of 2020, it was only eight; we do not have statistics for the whole of 2020-21.
Being granted leave can improve mental health by offering stability and thus a chance of recovery, but the equivalent reference to assistance and support in the Modern Slavery Act reads “physical or psychological harm”; that includes social harm. This Bill would put the law out of line with that and raise real doubts about compatibility with Article 14 of ECAT, which uses the phrase
“necessary owing to their personal situation”.
That is wider than what is in Clause 64(2)(a), which is why I commend Amendment 171 to the Committee. I was pleased to hear the noble Lord, Lord Morrow, refer to the JCHR’s report; he also mentioned the importance of family relationships.
Amendment 172 aims to rectify the omission from Clause 64 of any consideration of the best interests of the child so as to make it compatible with ECAT and the UN Convention on the Rights of the Child. I seem to have mixed up my notes; I am sorry about that because I will now go back to Amendment 171.
In a case last year, the High Court held that refusing to grant discretionary leave while a slavery victim’s asylum application was being processed violated Article 14 of the European Convention on Action against Trafficking. It appears that, before amendments were made in the other place, Clause 64(2)(a) included a reference to the victim’s social well-being as well as their physical and mental health. However, it was removed on Report. Can the Minister explain why? Would the Government like to rectify this omission in the Bill regarding personal, situational and social harm so as to make me, the noble Lord, Lord Dubs, and the JCHR very happy?
Lord Coaker (Lab)
My Lords, in the interests of time, let me just say respectfully to the noble Lord, Lord McColl, whose amendments I have signed, that I very much support him and the arguments and points that he made so well. We look forward to the Minister’s response. I pay tribute to the doughty work the noble Lord has done over a number of years to try to move the Government in what many of us regard as a simple and sensible way forward. Let us hope.
I shall speak to my Amendment 171AA. Clause 64 provides for limited leave to remain
“if the Secretary of State considers it is necessary for the purpose of (a) assisting the person in their recovery from any physical or psychological harm … (b) enabling the person to seek compensation”—
unless this can be done outside the UK
“or (c) enabling the person to co-operate”
with law enforcement. The standard, however, does not meet the UK’s obligation to children under the Council of Europe’s Convention on Action against Trafficking. Article 14.2 of ECAT specifies that in the case of children, residence permits
“shall be issued in accordance with the best interests of the child.”
Paragraph 186 of the Explanatory Report to ECAT explains that
“the child’s best interests take precedence”.
Amendment 171AA, which is a probing amendment, simply asks why the Government cannot include leave to remain where children are protected and where it is in the best interest of the child.
Lord Stewart of Dirleton (Con)
My Lords, in consideration of the flight of the noble Lord, Lord Morrow, I start by addressing Amendment 171B. ECAT sets clear parameters around when a signatory state is obliged to grant a residence permit to confirmed victims, which is where it considers that the stay is necessary either due to the confirmed victim’s personal situation or for the purpose of their co-operation with the competent authorities in an investigation or criminal proceedings. The Government have gone further than this and provided for a grant of leave not only on both of these bases, but also where it is necessary to enable a confirmed victim to seek compensation in respect of their exploitation.
A temporary leave provision is deliberately designed to allow for leave to be provided for as long as needed, where appropriate. It will be considered on a case-by-case basis and does not set an arbitrary time period. To specify a length of leave does not follow our overall approach of having a truly needs-based approach to addressing victim support. If it is necessary for leave to be granted for longer than 12 months in order to pursue a thorough investigation, or where an individual’s personal circumstances require it, leave can and should be granted.
I turn next to Amendments 169A, 170 and 170A. In Clause 63 we have sought to define the support entitlement during the recovery period for potential victims following a positive reasonable-grounds decision. Amendment 169A, however, would remove clarity on what these terms mean for victims and decision-makers and reduce the effectiveness of the clause in supporting victims. Our approach to the wording of Clause 63 has been chosen specifically to provide more detail on the circumstances in which support is provided, while being in line with our international obligations. Our approach is not to go into detail on the types of support provided for in legislation, as Amendment 170A suggests, but to do this in guidance, the purpose being to ensure flexibility in our approach in future, so this can be tailored to victims’ needs as our understanding of trauma develops. I refer your Lordships to remarks made earlier in the debate that understanding the impact and the effect of trauma on individuals is an ongoing and developing thing.
Further to this, and in response to a matter raised by the noble Lord, Lord Alton of Liverpool, where necessary, all those who receive a positive conclusive-grounds decision and are in need of tailored support will receive appropriate individualised support for a minimum of 12 months. We committed to this in the other place and will consider where and how this commitment is delivered to ensure that it delivers best for victims. More details will be provided in guidance or in future modern slavery legislation, should parliamentary time allow. My noble friend Lord McColl of Dulwich has been given that assurance by the Home Office Minister. The Home Office and, in particular, my noble friend Lady Williams are keen to continue working with the noble Lord on the implementation of this policy.
Lord McColl of Dulwich (Con)
I thank all noble Lords for taking part in this debate. However, it is quite clear that we will have to have further lessons in Zulu to make sure that things are done. The Minister has raised lots of questions, which will be brought up on Report, where I am quite sure there will be a very lively discussion. I beg leave to withdraw the amendment.
Integration White Paper
(2 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Thornton (Lab)
My Lords, in the almost five years that I have been doing this job, we have been waiting for a social care White Paper. My noble friend Lady Wheeler, month after month, asked where it might be and was told that it would be in the summer, the spring or the following winter, and it did not arrive. Indeed, in desperation, the House’s Select Committee, chaired by the noble Lord, Lord Forsyth, brought forward its own proposals for the future of social care, and extremely good they are, too. But here we are—the Government are now spoiling us with a third White Paper in a year. However, this one is a disappointment, I have to say, given the importance right now of the future for social care. Given the Government’s commitment to fixing social care, it is even more of a disappointment. We know that integration of health and social care, however it is defined, is extremely difficult, but I fear that its integration will not be delivered by this White Paper. It is long on description and has really great examples and aspirations, but it is very short on actual solutions and action.
Before I ask the Minister some questions that we need to address, I should also say that what is very disappointing in the White Paper is the lack of attention it gives to carers. They are not mentioned very often, even though the NHS and social care depend heavily on unpaid carers supporting people with long-term conditions and disabilities in the community. Some 1.4 million people in the UK provide more than 50 hours a week of unpaid care, and while unpaid carers provide the bulk of care, they are still not systematically identified, supported or included throughout the NHS. We have one system, social care, that recognises carers legally as an equal partner, while the other, the NHS, does not. That has been discussed in your Lordships’ House very recently, in the passage of the Bill before us, and is still not resolved. If there is going to be an integration of health and social care, one of the first things that needs to happen is the integration and legal recognition of the role of carers and our duty to support them and their well-being.
Moving on, it is not clear how this White Paper fits with the Bill before us. Even the experts involved repeatedly trip over the crucial issues, such as the relationship and responsibilities of integrated care boards, integrated care partnerships and integrated care systems, as well as the new joint committees and how they will work with the statutory health and well-being boards, which as we know have no commissioning powers, as the noble Lord, Lord Lansley, has said on at least one occasion. What is the role of health and well-being boards? If they are necessary, why are they not integrated into the system being proposed in the Bill before us? Now that we have a new Joint Committee, my first major question is, how will it work with the health and well-being boards, and with the ICBs and ICPs? Where will the clinical leadership sit, and where is the accountability to local people?
It is not clear how this latest offer fits with the proposals before us today. I suggest to the Minister that this is not really a plan. It is a description, an aspiration, but it is not a plan. It does not tell us which bit is responsible for what. If the new individual proposed in this White Paper is to take responsibility for shared outcomes, who will appoint them? How will they get there? Will NHS England, which is appointing the ICB chair and chief executive, be accountable to this new super-leader? Will they be inspected by the CQC? What if a huge local foundation trust misbehaves? What powers will the new leader have to act? That is why it is not a plan.
The second reason this is not a plan is that it has no workforce component—an issue that we are very seriously concerned with in the Bill before the House now. There is no workforce strategy or a commitment to one. If we want integration, it has to be a workforce strategy that covers health and social care, and it has to be long term.
The aspirations and vision are fine, but we have signed up to strategies before—for example, the NHS plan in the noughties; we thought that would be good. I regret that it almost feels as if this document has been put together as part of finding lots of new things to say to detract from the issues facing the Prime Minister and No. 10, which is a huge missed opportunity.
So, the issues the Minister needs to address include the workforce and the question of how you integrate and pool two systems which operate in different ways. One is means tested, and the other is not. One has national criteria for entitlement, and the other does not. The ways they are governed and funded are totally different, and they are kept going by two separate workforces with no aligned terms and conditions.
The White Paper talks about local initiatives and building things locally, but unless the infrastructure is there to produce the alignment needed, those local initiatives—many of which are very successful—will not be the pattern for how this works. So, I leave the Minister with a series of questions I hope he might be able to address.
The White Paper also does not help children and young people. It does not address the challenge of how to care for and support working-age adults with a disability. As I have said, it does not value or assist the informal workforce or carers. For an NHS under enormous pressure after years of austerity funding and then the impact of Covid, this is a disappointment. I am afraid that I could not decide whether it should get a C or a D.
The Deputy Speaker (Lord Haskel) (Lab)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.
Baroness Brinton (LD) [V]
My Lords, I declare my interest as a vice president of the Local Government Association. Both the Statement and the White Paper set out a laudable ambition to integrate health and social care and communities, but I am afraid that we echo the disappointment of the noble Baroness, Lady Thornton, especially at the glaring omission of children, young people and disabled people who need care.
While reading the White Paper, I had a sense of déjà vu, and I dug out my copy of the White Paper Integration and Innovation: Working Together to Improve Health and Social Care for All, which was published on 11 February last year—almost exactly one year ago. The tone and the ambition were remarkably similar. All noble Lords know that the Health and Care Bill we are debating at the moment sets out in part how the Government believe that the White Paper from last year is going to be turned into legislation and changes in practice. The Minister knows the real concerns across the House about that practical implementation, and I do not believe that this new White Paper takes matters further forward.
From these Benches we also ask: where are carers? There is zero mention of carers in the Statement but 13 in the White Paper, two in the index and two as part of headings. The remaining nine in the text relate only to the people carers care for. There is no formal recognition of the role and no mention of support directly for them as carers. It says:
“People will move seamlessly between health and care settings because people and those supporting their health and care, including … unpaid carers, will be able to see and contribute to their care record and care plans.”
Is that the best on offer for carers—that they will actually be able to see the care plans? They can usually see them now, although most, I must confess, are still in paper format.
That was one example; I want to go on now to a couple of other issues. Much of the paper talks about how data will transform care in the future. On page 14 it says:
“A core level of digital capability everywhere will be critical to delivering integrated health and care and enabling transformed models of care.”
Can the Minister say—because the White Paper is absolutely silent on this—whether there will be funding for fast broadband across the country, especially in rural areas, to deliver that capacity to every single home? Without it, this entire system will fail before it even starts.
The White Paper also says that
“the data and information required to support them should be available in one place, enabling safe and proactive decision-making … We will aim to have shared care records for all citizens by 2024 that provide a single, functional health and care record which citizens, caregivers and care teams can all safely access.”
Can the Minister say how citizens’ data will be protected so that only those who need access to it will see it? As the Minister knows, this is another area where there is real concern over the Bill.
The paper talks extensively about leaders but in a generic way. There are muddles over NHS leaders, social care leaders and leaders of ICBs. Is it referring to council leaders or just leaders? I have to say that the organogram on page 37 makes the classic assumption of councils being single-tier metropolitan authorities, ignoring the plethora of two-tier council arrangements as well as other key stakeholders such as housing associations. It talks about
“3-5 local authorities within an Integrated Care System”.
Even at upper-tier authorities, that number is way too small with the shadow boards at the moment, and dwarfed when you add in district councils, which have key roles in delivering support for care. Unless this is hiding a proposal from the Secretary of State for Levelling Up, Housing and Communities, this is another massive reorganisation for local government.
Housing is vital to the aims of the Bill. The paper says:
“People’s homes should allow effective care and support to be delivered regardless of their age, condition or health status.”
But housing is not mentioned in the “Next Steps” section. I ask the Minister whether there will be specific funding to ensure that housing can be improved at a local level for people who will need it for the next stages of their lives.
The Statement and White Paper recognise the importance of the workforce—in theory. The section in the White Paper talks about continuous development and joint roles, some of which is very laudable, but what is actually happening in the Health and Care Bill at the moment, where the Government will not commit to proper planning for the workforce, makes this unattainable too.
Above all, from our Benches, we want to know where the resources are that will enable this transformation to take place. Even before this week’s announcement about the patient backlog, the levy for health and social care was already prioritised for the NHS. Every time we have asked the Minister when the social care sector will get the resources it so desperately needs—and what they will be—we are told that it will happen at some point in the future.
We need to know when social care and councils will get the support they need, particularly councils with extra responsibilities in this White Paper and the Bill. The LGA has said, correctly:
“Adult social care is in a fragile position, with councils struggling to balance their budgets … A long-term funding solution is urgently needed.”
Can the Minister tell the House what, where and when resources from both departments will be announced and made available to at least give this White Paper half a chance to get going?
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
I begin by thanking both noble Baronesses for their questions. I will try to answer them within the time and, if I do not, will write to the noble Baronesses or others. I will go through some of the issues, first on place-based models.
As we discussed on the Health and Care Bill, ICBs operate at a system level. They will be working with place-based organisations, including health and well-being boards. We expect several models of place-based alignment and governance to emerge and we are not going to be prescriptive about a single model. We are clear that, whatever model is adopted, in the coming years all places must be characterised by clarity of leadership and accountability; a strong shared mission across the sectors, informed by local citizens; a commitment to integration manifested in removing unnecessary boundaries between services and strengthening connections to agencies able to influence the wider determinants of health and well-being; a strong culture of improvement; and a linked sense of urgency about the need to deliver more integrated care to improve outcomes, particularly care quality.
By that we mean that we do not start thinking in siloed ways—of hospitals or primary care, with social care over there. All these White Papers are building-blocks to help explain some of the intentions behind the Health and Care Bill. The Bill itself creates a flexible framework based on the real experience of making effective change happen locally. This flexibility is designed for a purpose: the stronger integration of health and care services. The White Paper picks up that ambition by making clear the strong commitment of the Government to this agenda and our ambition to make progress. The White Paper will ensure that we go further and faster on health and care integration with local authorities and the NHS to make the most of the forthcoming legislation. It does not contradict the Health and Care Bill.
I will pick up on accountability. Three things are different. There is a wider recognition of the demographic challenges we now face, which will increase. We cannot manage it as just health any more or, even within health, primary, then secondary and care over there. The pandemic showed us that some of the cultural and governance barriers to change that seemed impossible to shift have moved. We have seen this work in lots of places up and down the country. There are some model ICSs, which many noble Lords have drawn my attention to, and case studies; we want to learn best practice without being overprescriptive. The noble Lord, Lord Mawson, has talked effectively about place-based organisations many times and getting the right mix of skills and people for a particular place. What works in east London will not necessarily work in South Yorkshire. Some of it will, but some of it will not. We will learn from best practice.
We can be confident that the approach to accountability set out in the paper will work, because it draws on real examples that are already in place. If you ask local leaders what accountability means to them, they will be able to tell you who can ultimately hire and fire them. That is one version of accountability. They will also give you a list of the people and bodies to which they are accountable—partner organisations, local democratic institutions, staff, patients and service users, as well as regulators. We want to make sure that all that comes together to address accountability.
We hope to have shared care records for all citizens by 2024 but, as noble Lords will remember from the debate about data last night or early this morning, we have to get that balance right to make sure that people trust that data will not be shared unnecessarily or inappropriately. One of the key challenges for any integration is that it needs data across primary, secondary, social care and other agencies but, at the same time, we have to allow people to opt out. When people opt out, they might have to re-register a number of times. We want to avoid people, particularly vulnerable people, being asked the same question time and again. We hope that integration and people speaking to each other will help across the health and social care sector.
On carers, I was in fact having conversations yesterday on that subject, and I am going to be doing a round table with a number of noble Lords. One of the issues is making sure that we professionalise and give real respect to the caring workforce. One of the reasons why we set up the voluntary register was to understand the landscape of care, the different qualifications and levels, so that we can get a clearer understanding of what qualifications carers need and how we can make sure that works across both health and social care, so that staff can move between health and social care without feeling that one is better than the other.
We want to build on existing reforms. We want to talk to a number of partners—the noble Baroness, Lady Brinton, mentioned housing, for example—and in the adult social care White Paper we looked at ideas about people being treated at home, some of the things that will have to be done at home, whether that is done at system level and how to make sure that partners are working together.
One thing I will say is that the vast majority of care workers are employed by the private sector. The increase the national living wage means that they will benefit from a pay rise, but we have also put in money. Some private providers feel that they are using private profits to subsidise others. We are making sure there is more money to make sure that we get a better quality of service right across. What we really want to do is say, “Tell us where it doesn’t work and where it breaks down” and to make sure that at the place-based level they are able to work together. We will speak to as many stakeholders as possible and we will continue to ask them to inform us.
I will try not to run over time, but I shall talk about the single accountable person. This will be agreed by the local authority and the integrated care board. An increase in long-term conditions and an increase in the number of people being treated for them means that, increasingly, the co-ordination between the range of services looking after them can fall apart; we know that too many people fall between the cracks. That is why we want to have the single accountable person—so that we can make sure that people are no longer falling through the cracks.
I know I have gone on a bit long, so I will allow other questions to come in, but I hope that addresses some of the concerns.
Baroness Finlay of Llandaff (CB)
My Lords, before I ask my question, perhaps I might formally apologise to the House for an error I made last night in Committee on the Health and Care Bill in responding to the debate on my Amendment 287 on dispute resolution and children’s palliative care. I had missed email correspondence from Together for Short Lives prior to the debate, in which the organisation had offered to discuss my amendment with me. I hope the House can accept my sincere apologies and regret at my inaccuracy. I have had helpful correspondence with the charity today.
I turn to today’s Statement. In my role as chair of the Mental Capacity Forum, I welcome the mention in item 5.14 of training in mental capacity, because there is a tremendous need for training at every level.
I also welcome the concept of personalised care, but I am concerned that the paper before us just does not go far enough. We need to document what matters to a person, and that needs to be an ongoing dialogue, not a tick-box exercise. If we know what matters to a person, that can inform best-interest decisions if the person loses capacity, and it is important for informal carers and family members to know that beforehand. Personalised care must include emotional care.
I am also concerned that there is nothing here about training the unpaid carers. They do not just need training in physical aspects of care; they need emotional training and training in how to de-escalate their own emotional stress, particularly when dealing with mental health issues in the person that they are caring for. There is nothing here about child carers and how information goes to a school that a child is a carer and may be under tremendous stress—or it may be that I have missed it in the documentation.
I hope the paper will stress the importance of people being listened to, which will inform decisions when deterioration happens. I would welcome the Government’s comment on how they are going to train enough people and instigate training across the board, both in sensitive listening skills and in achieving the high aspirations that I think the paper has attempted to set out.
Lord Kamall (Con)
I thank the noble Baroness for her clarification and for notifying me earlier about the issue that she apologised for. One of the issues for us is that we want to make sure that if all the parts of the healthcare and social care systems are talking to each other, and there are accountable people, we hope that people will not fall through the cracks and that there is a multi-agency approach. It will be difficult to be overly prescriptive here, because what would work in one area might not work in another.
The point that the noble Baroness makes about training is critical. In many debates in this House, we have understood that we need to take the social care workforce seriously and give support to unpaid carers of whatever age, whether they are children or family members. Sometimes they are doing it because they do not want their loved ones to go into a home and sometimes they just need a bit of respite. We are looking at a number of issues around carers—first, unpaid carers but, secondly, making sure that being a carer is a rewarding career and is not seen as being at a lower level than, say, a nurse in the health service.
One reason for having a voluntary register, for example, is to understand the landscape and then put in place proper and different educational pathways, and other pathways, into care. Having national qualifications at levels 4, 5 and 6 and so on will show parity of esteem and that this is a worthwhile career. We have the Made with Care campaign to start to encourage more people back. We are looking at a number of different ways to make sure that carers are not just forgotten. If they work in care homes, that is fine, but we want to make sure that there is a real career structure for them, and also that they can move between health and social care, both ways. There may well be nurses or doctors who want to move across. We have to make sure that going from one place to another is not seen as disadvantageous in any way and that the system is truly joined up.
Of course, this is all top level and shows our ambition to integrate. We do not want to be overly prescriptive; decisions have to be made at place level.
The Lord Bishop of St Albans
My Lords, I declare my interests as a vice-president of the Local Government Association and president of the Rural Coalition. I want to pick up very briefly on what the noble Baroness, Lady Brinton, said about rural issues. It is disappointing that there are no explicit references to rural health. One of the concerns of the APPG on Rural Health and Social Care parliamentary inquiry was the way in which inappropriate data, metrics and funding formulas can disadvantage rural areas. National programmes are one thing, but when they are delegated to local areas how are we going to ensure that they are properly rural-proofed and will integrate both health and care?
Lord Kamall (Con)
It is important to stress once again that the key to this is that we cannot overly prescribe from here in Westminster and Whitehall. We must make sure that at whatever place, whether it is rural or urban, the people and patients who are cared for in the system are being understood. One reason why we want one person to be accountable, whether in urban or rural areas, is the fact that they must take responsibility for ensuring that all these things are joined up—not only health and social care as we understand them but technology, housing and all those other issues. I know that the right reverend Prelate and my noble friend Lady McIntosh have often raised this issue. We think that the proposal is flexible enough, whether in an urban or a rural area, to make sure that one person really understands the local area of integration.
Lord Lansley (Con)
My Lords, paragraph 1.11 of the White Paper states:
“Our focus in this document is at place level.”
Paragraph 3.11 goes on to state:
“Success will depend on making rapid progress towards clarity of governance and clarity of scope in place-based arrangements.”
As far as I can see, the Government are proposing that by spring next year such place-based arrangements will be put in place across the country, with a single accountable person to whom my noble friend referred. There is no reference at all to place-based arrangements in the Health and Care Bill. For years, the NHS has been saying, “We are creating integrated care systems but they don’t have statutory cover, so we want legislation that reflects our way of working”. The Government are now proposing legislation that creates a way of working with no legislative cover. I am afraid that this will not work unless the Bill changes to reflect place-based arrangements and a single accountable person, and defines adequately who they are, what their powers are and how their accountability works.
Lord Kamall (Con)
I respect my noble friend for his willingness to pass on the benefit of his many years of advice to me.
We do not want to get overly prescriptive. We have talked about health and well-being boards and I know that my noble friend has talked about their importance. In the papers I laid in the Library the other day, where we looked at integrated care boards and integrated care partnerships it was quite clear that, in some places where the health and well-being boards may well completely overlap with the ICPs in a smaller area, that will continue to be the place-based level. Where there is a larger system, we expect the integrated care board and integrated care partnership to work with the local place-based organisations underneath them at a more local level. That is what we have been saying all the way through. We want to make use of existing fora. In some places they will overlap and may well end up as the same thing. We will update the health and well-being board guidance in due course to reflect the implications of policies set out in the White Paper and what comes out of the Health and Care Bill when it passes.
Baroness Donaghy (Lab)
My Lords, mine is a simple question. We have two separate pieces of legislation on the same area. How does the Minister guarantee that we will not end up with two contradictory systems?
Lord Kamall (Con)
The only legislation I am aware of is the Health and Care Bill; this White Paper complements that, just as the adult social White Paper does. This is not legislation.
Lord Mawson (CB)
My Lords, I welcome the White Paper and the direction of travel. I thank the Minister and his colleagues for being willing to listen to me and colleagues in the NHS who are involved in actual practical pieces of innovation in this space. It is good to see real examples of the implications for real people in this White Paper. There is also lots of focus on practical and detailed changes—for example, streamlining training and qualifications and shared outcomes. I wonder whether sufficient attention is paid to the social determinants of health and getting upstream with regard to prevention. Is there still too much assumption that the state is doing all the work? The private and voluntary sectors are the major delivers of care. Does the model of partnership proposed fully reflect this? The Minister might like to reflect on that.
Finally, as always, the devil is in the detail and will be all about implementation. One of the ways of achieving this focus is, as I have said before, through establishing innovation platforms that embody the ideas of not only the White Paper but the Health and Care Bill, levelling up and many other current initiatives. Innovation platforms can start to bring together some of these initiatives. It is our experience on the ground that a lot of the public sector systems and processes are not in place and are not fit for purpose. There needs to be innovation in this space. The problem could be an opportunity if we start to join some of this up. How do the Government intend to join up these various initiatives?
Lord Kamall (Con)
In many ways, the answer is not what the Government intend to do but what happens at the place-based level. As the noble Lord has reminded me on a number of occasions, some of the projects that he has been involved in and other social enterprises have been really good at bringing people together. Sometimes it has been led by local councils; sometimes it has been led by social enterprises; sometimes it has been led by networks. I completely understand the premise of the question and agree that it has to be a partnership. It is not just a state, but social enterprises, co-operatives, local movements and local civil society all working together with common aims. Go to any part of this country and you will see a number of these people working together. We have to make sure that there is no overlapping or duplication. This is the real aim of what we are trying to get, making sure that people talk about health and social care but well-being as well.
Lord Davies of Brixton (Lab)
My Lords, the one thing I admire about the document is the way in which the meaningless term “levelling up” has been shoehorned into the text. I want to raise the bundle of issues which have been grouped under the heading of parity of esteem between physical and mental health. It is not an issue we need just to have in the back of our minds; it needs always to be front and centre in the development of policy. More could be covered than is in the White Paper. One of the examples given in the White Paper is of Mandeep. It is well chosen. It is a case of someone with mental health problems and diabetes where there is a success to point to: where joined-up working has reduced the differential in suffering from diabetes experienced by people with and without mental health problems. That is a good example of what can be achieved. I hope that parity of esteem will be central in what the Minister is doing.
Lord Kamall (Con)
I thank the noble Lord for raising the issue of mental health and parity of esteem, not only here but in our debates on the Health and Care Bill, and for our continuing conversations. We hope that we will be able to find a solution to make sure that mental health has parity of esteem. In previous Bills, health has meant physical and mental health, but I recognise the mood of the House when noble Lords ask for it to be stated explicitly somewhere, even in the triple aim. We are looking at solutions for that. He is absolutely right that it is not just about physical health; it is about mental health, about well-being, about tackling inequalities and about disparities. However, we cannot do that from here. We have to make sure that the place-based organisations, working in partnership with integrated care systems, really understand what is happening locally and are best placed to do that.
Baroness Jolly (LD)
My Lords, I welcome the White Paper. How will adults with a learning disability and their carers see a difference in their care and support as a result of it?
Lord Kamall (Con)
That is a really important issue. A single point of responsibility will make sure that these things do not fall between the cracks. It ensures that physical health, mental health and well-being all come together. A number of noble Lords have spoken about social prescribing, for example, and where that has been tried and where it might not work in other places. It is important that by talking about integration we get people thinking about integration at the place-based and the system level, but also that we can learn from good examples of what works elsewhere. That is what we hope to see. Sometimes, you just have to put in on the tin and say, “Think in an integrated way.”
Nationality and Borders Bill
Thursday 10th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-V(a) Amendment for Committee (Supplementary to the Fifth Marshalled List) - (9 Feb 2022)
Lord Coaker
“(1A) This section may not come into force until the Secretary of State has conducted a review of the impact of subsection (1) and laid a copy of the review before Parliament.(1B) A review under subsection (1A) must include, but is not limited to—(a) identification of any parts of the Trafficking Directive which the Secretary of State considers to be incompatible with provisions made by or under this Act;(b) analysis of the costs and benefits of the disapplication of the Trafficking Directive;(c) the impact that the disapplication of the Trafficking Directive is likely to have on the identification, protection, support and access to wider remedies of victims of all forms of slavery in the United Kingdom.”Member’s explanatory statement
This would require the Secretary of State to review the impact of disapplying the EU Trafficking Directive before this section can come into force.
Lord Coaker (Lab)
My Lords, my Amendments 172B and Amendment 174A relate to Clause 67.
I say at the outset that I do not want to reopen a debate about Brexit, but I do want to reopen a debate about the practical implications of the UK being outside the EU and how it relates to the protection of children and those who are victims of slavery and trafficking.
The Government actively chose to opt into the trafficking directive in 2011, stating that it would send a powerful message to traffickers. The modern slavery strategy of 2014 stated that opting in showed
“our commitment to working with other countries in Europe to drive up standards across the continent in tackling trafficking.”
Can the Minister say what has happened to that and how the Government are demonstrating those continuing commitments? Why is Clause 67, on disapplying the directive, necessary? What the Committee would like from the Minister—which may be difficult to do now as he may need to refer to others before coming back to us—is to explain which specific provisions of the Bill the Government consider to be incompatible with the directive? The Government have not given any detail on this. Is it victims’ rights or children’s rights? In other words, what difference has it made, what was covered and what is not covered? These answers are necessary for us to make a comparison and see whether there are any gaps which we believe would be important to close.
In the Commons, the Minister said that
“the transition period for this measure finished in January, so in effect it has already been disapplied.”—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; col. 547.]
I hesitate to suggest this, but I certainly would not be able to tell noble Lords exactly which bits have been applied, which have been disapplied and whether it makes any difference. Can the Minister provide clarity on this? Are we disapplying it under this Act, or have the Government already decided that it does not apply? In other words, has it just been abandoned?
My amendment does not prevent the disapplication, but simply asks the Government to complete an impact assessment before this part comes into force—including identifying which parts of the Bill are incompatible and, crucially, what impact this would have on the identification and protection of victims of slavery. The Government may have already conducted an impact assessment but if so, I could not find one. If they have, it would be interesting for the Committee to note that. This is particularly important because a Google search finds all sorts of regulations and legislation which have been passed, presumably to protect victims of slavery and trafficking. So, my amendment is a simple probing amendment to ask the Minister what difference the disapplication has made. How do we know it has not made a difference if we have no information about the difference between what there was and what there is?
I do not intend to commence a huge new debate for this Committee, but I want to use this grouping as an opportunity to highlight the issue of internal trafficking and county lines. The Minister will know that large numbers of children are referred to the national referral mechanism. He will also know that 34% of referrals are British citizens. There is a real problem with slavery and trafficking within the UK. Euphemistically, this is called county lines, and we know what that means. This will be the tip of the iceberg. The Government have set up all sorts of initiatives to try to deal with this, but what I am seeking to do is simply to raise the issue of slavery and trafficking of children—British children—within the UK. How big is the problem, what is its extent and what are we doing to get on top of it? People of this country would be shocked at the numbers of British children being trafficked and enslaved. Often, including in the debate we have had on this Bill, much of the discussion has been about people coming into the country—rightly or wrongly—what the numbers are and what the impact of the new provisions will be.
Although this is a probing amendment, it is nevertheless really important. I am pleased to see that the Home Office Minister, the noble Baroness, Lady Williams, is now in her place. Perhaps these are issues that should be debated elsewhere, but county lines and internal trafficking are important issues and the number of British children in slavery is increasing. It is a growing phenomenon that is a great shock to us all, and we need to do more to tackle it. I beg to move.
Baroness Ludford (LD)
My Lords, I would like to lend our support from these Benches to both the amendments of the noble Lord, Lord Coaker. The subject of retained EU law is one on which it is easy to go down a rabbit hole. But at least this is being put in primary legislation instead of being done by the stroke of an executive pen, which is what the noble Lord, Lord Frost—who is, well, I had better not say—who used to be the Brexit Minister, appeared to suggest would happen. So, I suppose we should be grateful for small mercies.
The EU trafficking directive is, in a sense, a classic EU directive. It aims to get common standards as a measure of human rights protection, in order to establish robust provisions to prevent and prosecute the crime of trafficking and to protect, assist and support its victims. But also, the point of trying to get similar standards was to facilitate cross-border co-operation between member states’ law enforcement authorities through police co-operation, exchange of information and best practices, and dialogue between police, judicial and other authorities. Sometimes misunderstood, the whole point of EU harmonisation was to enable things to happen better, not least law enforcement.
I too do not want to rerun the issue of Brexit, but it is hard to see how pulling out of the EU trafficking directive is a Brexit opportunity. It is a lost opportunity to co-operate internationally across European borders with Europol on major crime. I am afraid that major criminals are one of the beneficiaries of Brexit.
It is a great pity that the part of the TCA on security is so thin. Things like the EU trafficking directive deserve a place in it. You can withdraw unilaterally, but that means you do not get the reciprocity of other police forces co-operating when you have criminal perpetrators who come from all over. Of course, we know this is an international crime. The EU directive also enables the pursuit of action in non-EU countries, such as raising awareness, reducing vulnerability, supporting and assisting victims, fighting the root causes of trafficking and supporting third countries in developing appropriate anti-trafficking legislation. That is an action that would rebound to the benefit of EU countries and the UK, if we were to stay plugged in to the EU’s directives. So, I do not see that pulling out is other than a lose-lose situation.
On the other amendment from the noble Lord, Lord Coaker, as has been mentioned—I believe this figure comes from Care UK—in 2020, 34% of all potential victims of modern slavery referred to the NRM were UK nationals. So, the noble Lord, Lord Coaker, is right to focus on that and on the many children involved in county lines drug dealing. We fully support the call for a report on these issues.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, Amendment 172B, moved by the noble Lord, Lord Coaker, and concerning Clause 67, disapplies the EU trafficking directive so far as it is incompatible with provisions in the Bill. This means that any provisions in the directive that continue to have effect—I stress that we do not think that any do—and remain compatible with the Bill will be unaffected by this clause. Clause 67 provides an important point of legal clarity to ensure that victims can understand their entitlements, that we are clear on the rights that we are providing and that these are in line with our international obligations. I appreciate that this is a probing amendment, but what it proposes is unnecessary. In future, should it be required and parliamentary time allows, we will consider whether further legislation is needed to clarify other elements of the EU trafficking directive. Here, we seek to provide clarity on the specific measures in the Bill.
In speaking from the Liberal Democrat Front Bench, the noble Baroness, Lady Ludford, took the opportunity afforded by this short debate to land some side swipes at Brexit and its consequences, a topic I would be happy to debate with her all night. However, not to take up the Committee’s time, I simply stress that we are not removing any entitlements from victims. I can confirm that this will not have an impact on victim identification, protection or support.
Turning to Amendment 174A, tabled by the noble Lord, Lord Coaker, I take the opportunity to reassure the Committee that there are already robust mechanisms in place across government, the police and the criminal justice system for gathering, recording and publishing victim data. There are measures in place for collecting and publishing data on the areas in which the noble Lord is interested and to which he referred in Committee. The Home Office publishes data on potential child victims of modern slavery referred through the national referral mechanism. Anticipating my answer in greater detail to the noble Lord’s point about the need to collate statistics on the incidence of trafficking of British children, the Home Office also publishes the nationality of recorded potential victims, based on information provided by the first responder on arrival. The noble Lord is shaking his head; I suspect he knows these things better than I do but, for the benefit of the Committee, that information may be updated by the competent authority staff as further information is gathered.
Lord Flight (Con)
My Lords, can the Minister say what the contemporary definition of slavery is? We all know what slavery meant 400 years ago, but I find the word used in a way that makes it difficult to assess what it means.
Lord Stewart of Dirleton (Con)
I am grateful to my noble friend Lady Williams here: the short answer is to look at the Modern Slavery Act. It can involve coercion, which can be occasioned by way of threats to others or by threat to the individual. It can come in many different forms; it can be emotional or psychological as well as physical. It is a pernicious practice that exists among nationals of this country as much as it does overseas. Perhaps, therefore, it gives an insight into the universal failings of the human character. The short answer—I have detained the Committee for too long—is the advice that I gave, for which I was the conduit for my noble friend Lady Williams.
I was about to expand on the fact that data concerning criminal gangs is operational and held by each police force. Adding reporting requirements for this data would, we submit, require a significant change in the way the Home Office collates and publishes data on crime. Changing this reporting approach would be unnecessary since we already publish data on county lines NRM referrals through the NRM statistics publication.
I hope that goes some way to answering the noble Lord’s important concern over how we identify, go to the defence of and offer protection to children—nationals of this country who are the victims of these gangs. Modern slavery offences committed against children are, as I say, recorded and published by the police, the Crown Prosecution Service and the Ministry of Justice. The Crown Prosecution Service maintains a central record of the number of offences in which a prosecution commenced, including offences charged by way of the Modern Slavery Act 2015. All modern slavery offences committed against children are identified through the child abuse monitoring flag. The Crown Prosecution Service definition of child abuse covers any case where the victim was under 18 years of age at the time of the offence.
I reassure the Committee and the noble Lord that a child’s welfare and best interests are the primary considerations in any decision-making—in this Bill and any other. Local authorities are responsible for safeguarding and promoting the welfare of all children in their area, including child victims of modern slavery. In addition to this statutory support, the Government have rolled out independent child trafficking guardians, who are an additional source of advice and support for potentially trafficked children. These have been rolled out in two-thirds of local authorities across England and Wales. The Government remain committed to rolling them out on a national basis.
Given all this, I respectfully request that the noble Lord withdraws his amendment at this stage.
Lord Coaker (Lab)
I thank the Minister for his answer. It was a short debate but an important one. There are couple of things that the noble Lord said in his answer about the EU directive that I think are helpful. It is something I might suggest with respect to the other amendment on county lines.
I think the people who read our debates will be pleased to hear the Minister say that no entitlement will be removed on victim support, protection or identification. I think I have that quote right. That will be helpful because, in the sector certainly, that is what a lot of people have been worried about: that the disapplication of the directive will impact on those aspects. The Minister’s reassurance will be welcome, although, as with everything, we will see how it works out in practice.
It was also interesting that the Minister said that other legislation may be needed to clarify the disapplication of the EU directive in due course—a fabulous phrase. As we move forward, we will see how it goes. Like Clause 67, this is very important. Sometimes, Governments fail to spell out how the disapplication works and what the practical consequences are. So, short debates like this are important.
On county lines and the report, I think that, despite the information being available, the British public have no idea that 34% of the referrals to the national referral mechanism—the body set up to deal specifically with this—are British children. I do not think that people have any idea that it is that high—that is an astonishing figure. Given that 47% of referrals to the NRM are children, this means that a very high proportion of all the people who are referred are British children. So that is the purpose of this.
It is not that the Government are not doing anything. If I had been the Minister, I would have mentioned the co-ordination centre that the Government set up in 2018, which is actually about all of the things that I am talking about: the need for more data, greater co-ordination, greater prioritisation of this work and greater identification of this as a new crime that people have not taken as seriously as they should; the fact that children are moving across county boundaries without being tracked or followed; the lack of statistical sharing between police forces, social services and children’s services; and children ending up on the south coast and coming back to London. All of those sorts of things are what the co-ordination centre was set up to deal with.
All I would say is that the Government, through the Home Office, need to keep their foot on the pedal on this because it is a growing problem. What is happening in our country is an absolute disgrace. Some of the children involved are not even teenagers; they are not even 17 and a half—I was admonished earlier by the noble Lord, Lord Wolfson, for mentioning 12 and 13 year-olds rather than 17 and a half year-olds, which is what he wanted me to say. Some of these children are seven, eight and nine years old. It is a disgrace, which is why I make no apology for bringing this forward in that context. British children are being enslaved and trafficked within our shores. I know that this is a priority for the Government and for all of us, and this has given me the opportunity to raise it, so that the people of this country can hear how bad the situation is and what we are seeking to do to try to address it. I beg leave to withdraw the amendment.
Baroness Hamwee
“Migrant domestic workers
(1) The Secretary of State must amend the Immigration Rules to make provision for the matters the subject of subsection (2).(2) All holders of domestic worker or diplomatic domestic worker visas, including those working for staff of diplomatic missions, must be entitled—(a) to change their employer (but not work sector) without restriction, but must register such change with the Home Office;(b) to renew their domestic worker or diplomatic domestic worker visa for a period of not less than 12 months, provided they are in employment at the date of application and able to support themselves without recourse to public funds, and to make successive applications;(c) to apply for leave to enter and remain for their spouse or partner and any child under the age of 18 for a period equivalent to the unexpired period of their visa and of any subsequent visa;(d) to be granted indefinite leave to remain after five continuous years of residence in the United Kingdom if at the date of application their employer proposes to continue their employment.”Member’s explanatory statement
This amendment would serve to reinstate the rights and protections that domestic workers originally had under the terms of the original Overseas Domestic Worker visa, in place from 1998 to 2012.
Baroness Hamwee (LD)
My Lords, in moving Amendment 174, I will leave my noble friends Lord German and Lord Wallace to speak to their Amendments 181 and 183. I received a message asking me to pass on the apologies of the right reverend Prelate the Bishop of Bristol, who signed this amendment; she is in her place, but I suspect that she is going to make a hasty exit at some point fairly soon. She is of course the bishop with safeguarding responsibilities. I have her speech on my iPad; we are not allowed to read out other noble Lords’ speeches, which is a pity because it is much more neatly set out than the rather scrappy notes that I have.
The very unhappy position of some—too many—overseas domestic workers and the appalling situations that many of them are in were explained very powerfully to many of your Lordships during the passage of the Modern Slavery Act. One of the things that remains in my memory is the thanks that we received after the discussion on the Bill, even though we had not achieved the changes that we sought. A number of women who had been treated as slaves and prisoners but who had escaped and have connections with the charities working in the sector, particularly Kalayaan, were very keen to get us all together after those defeats to say thank you and of course to continue the campaign. They presented each of us with a single flower, which felt very significant.
It was a cross-party effort at that time. At the end of the day, we did not succeed in amending the Bill, but the Government commissioned an independent review into the terms of the overseas domestic worker visa to see whether it facilitated abuse and, as a result of that, made some changes to the visa regime in 2016. I am advised that these remain, in practice, ineffectual. The Government accepted in 2015-16 that workers need an escape route and should not be trapped working for abusive employers, so they reinstated the right of workers to change employers, but it is limited to the time remaining on the worker’s visa, which is kept at six months—so in practice a worker has weeks or, rarely, months, but very little time remaining to find new employment. Of course, most employers need the certainty of having someone working for a longer period. Many workers do not have their passports and they cannot demonstrate that they have valid leave, so automatically they fail work checks.
Lord German (LD)
My Lords, Amendment 181 seeks an exemption from the immigration health surcharge for international volunteers who come to the UK to work with vulnerable adults and children. International volunteers make a significant contribution to the work of UK charities across the whole of our country, particularly in the health, social care and education sectors.
The decision of international volunteers to travel hundreds and thousands of miles to help vulnerable people in the UK is a huge decision and commitment. Though they might get a subsistence allowance and board and lodge, they receive no salary. Additionally, the volunteers have to pay for their visa, insurance and flights. The additional impact of the immigration health surcharge simply adds to the financial burden on these volunteers and the charities they support, with the net result that the UK will probably attract fewer international volunteers.
Beyond the role they play in our domestic work, helping our society, these volunteers often become friends for life, not just to the individuals they have helped but as friends of the United Kingdom, in much the same way as international alumni of UK universities become friendship ambassadors of this country. They have formed bonds of friendship that can pay big dividends for us as time passes.
This amendment has the support of 55 charities and voluntary sector bodies across Scotland, Northern Ireland, Wales and England. These organisations are feeling the impact of this surcharge and are seeking an exemption for their international volunteers. One of these organisations is Camphill Scotland, which supports more than 600 people with learning difficulties and other support needs. It works in the social care sector and has the support of more than 300 international volunteers. Without them, the charity would have to curtail its work. The Welsh Centre for International Affairs supports international volunteers, many of whom work with young people in disadvantaged areas in the south Wales valleys.
By way of comparison, if the work of international volunteers was undertaken by full-time paid staff, each post would cost the charities more than £17,000 per year. Volunteers cost charities about £600 plus subsistence, board and lodge. But the volunteers have to pay £625 for a visa, plus now another £230 for the immigration health surcharge, plus their air fares, plus their insurance. As an example, this is what international volunteer Constantin Jacobs says of the problem:
“There will be so many people that cannot afford to volunteer abroad any more, it might not sound like a huge difference for everyone but for young people who have just finished their school or their studies, and who do not have a lot of money, this difference can mean the decision to go or not to go to the UK to spend their voluntary year there. The UK would be much less attractive as a host country. I am sure that there would be many people who would actually love to go to the UK, deciding in the end to go to another country because of this change. This would be very bad for the volunteers and even worse for the organisations in health and social care systems that rely on volunteers from abroad!”
International volunteers are unpaid—not because they are worthless but because they are priceless. If they are priceless, I hope the Government will consider removing this charge from this one special group of people to allow us to continue the work being done and to create such good will around the world.
Lord Wallace of Saltaire (LD)
My Lords, I will speak to Amendment 183, which I hope the Government may be willing to accept before Report.
Investor visas were introduced in 1994. They became tier 1 investor visas in 2008. Conditions were tightened under the coalition Government in 2011 and further in 2014. Successive Governments, from different parties, have allowed them to continue. Theresa May announced a review of the scheme in 2018, after the Salisbury poisonings raised concerns about the numbers of wealthy Russians resident in the UK, but so far that review has not been published.
The majority of investor visas have been given to wealthy people from Russia, China and central Asia—all countries with high levels of corruption and extreme inequality. Given the FCDO’s recognition that the greatest state threats to the UK come from Russia and China, this does not fit easily with the Prime Minister’s aspirations for “global Britain”. It has been reported that more than 6,000 golden visas—half of those ever issued—are now being reviewed for possible national security risks. Many of those who received them will by now have acquired full UK citizenship.
Two Court of Appeal judgments in the past year have thrown up new questions about the regulation of this scheme and the sources of the finance pledged by applicants. Paragraphs 49 to 52 of the Intelligence and Security Committee’s Russia report, now published over three years ago and to which the Government have been extremely slow to respond, let alone to implement its recommendations, say that
“the UK has been viewed as a particularly favourable destination for Russian oligarchs and their money. It is widely recognised that the key to London’s appeal was the … UK’s investor visa scheme … The UK welcomed Russian money, and few questions—if any—were asked about the provenance of this considerable wealth … What is now clear is that it … offered ideal mechanisms by which illicit finance could be recycled through what has been referred to as the London ‘laundromat’. The money was also invested in extending patronage and building influence across a wide sphere of the British establishment … there are a lot of Russians with very close links to Putin who are well integrated into the UK business and social scene … This level of integration … means that any measures now being taken by the Government are not preventative but rather constitute damage limitation … It is not just the oligarchs either: the arrival of Russian money resulted in a growth industry of enablers—individuals and organisations who manage and lobby for the Russian elite in the UK. Lawyers, accountants, estate agents and PR professionals … To a certain extent, this cannot be untangled and the priority now must be to mitigate the risk”.
After warning about the extent of illicit Russian financial activity in the UK, including extensive donations to political parties, the report states in paragraph 56:
“One key measure would be an overhaul of the Tier 1 (Investor) visa programme—there needs to be a more robust approach to the approval process for these visas.”
So far, the Government’s published response to the ISC report makes no reference to this recommendation. If this has been true for Russians, it has also been true for Kazakhs, Azeris, Malaysians and Chinese. The Government recently made a great fuss about a British citizen with close links to the Chinese state and the funds she had donated to a Labour MP. It is surprising that they have so far made much less fuss about our resident Russian-linked community.
Baroness Lister of Burtersett (Lab)
My Lords, the noble Lord makes a very strong case, but I rise to strongly support Amendment 174, to which I have added my name. I am grateful to my friend Professor Fiona Williams, an important researcher on this issue, and Kalayaan, to whom I pay tribute for all their work on behalf of migrant domestic workers and for their briefings.
As we have already heard, it is clear that the 2016 reforms are not working. Rather than listening to overseas domestic workers and reinstating the original ODW visa, the 2016 changes ignore the need for workers to be able to exercise their rights before exploitation escalates. Support organisations such as Kalayaan and Voice of Domestic Workers report the bind in which the current situation leaves many such workers. Do they risk leaving before abuse escalates? If this abuse does not equate to trafficking, they could be left destitute, without a reasonable prospect of finding work and without access to public funds or legal aid to challenge mistreatment. The desperate need to remit money to one’s family and pay off debts means that workers may not feel able to risk leaving exploitative labour situations.
Professor Williams argues that key to understanding the problems faced has been the shift from placing ODW protection within an employment and immigration rights frame to a trafficking frame. The problem with the latter is that it puts the onus on the worker to prove that they have been trafficked when their exploitation may come from daily infringements of what should be their rights as workers. It leaves them more vulnerable to these infringements, not less.
Kalayaan has given me a recent case study that exemplifies the problem. I will go into some detail because it makes the case rather well. Jenny—not her real name—is from the Philippines. She comes from a poor family but, having won a scholarship to train as a teacher, she was unable to finish her training for various reasons. She later married and gave birth to a daughter who caught an aggressive form of pneumonia, which needed specialist costly private treatment. Jenny and her husband had to borrow money to pay for it. Their joint income could not cover the loan repayments, which prompted Jenny to look for work abroad.
Jenny moved to Lebanon to work as a cleaner. Her employer gave birth to a third child; Jenny was instructed to look after the baby as well as continue her cleaning duties, which was not in her contract. She worked longer hours than expected and was on the go and on call for much of the day. She had wanted to return home at the end of her first contract but was persuaded to stay when the family relocated to London. She was offered shorter working hours and pay at the national minimum wage.
Jenny arrived in the UK last year on a visa. In contravention of UK published policy, she was issued no information on her rights as a worker in the UK, either during the visa application process or on arrival. She worked the same long hours as before and, although she was paid a little more than in Lebanon, her hourly rate was less than half the national minimum wage. Her employer told her that she would be arrested if she left. Nevertheless, she did leave because she was exhausted from her long working hours for pay less than she had been promised.
Jenny approached Kalayaan when her visa had two weeks before it expired, having only just heard of the organisation. Kalayaan explained to her that her visa was non-renewable and that while she had permission to work in the UK, it would only be while her visa remained valid—for the next two weeks—after which she would be subject to the UK’s hostile/compliant environment for migrants. On the basis of Kalayaan’s assessment, it did not consider Jenny to be a victim of trafficking or slavery, so could not refer her to the NRM.
It is worth noting here that even cases that Kalayaan has judged appropriate for NRM referral are frequently turned down on the grounds that, while the working conditions may have breached employment terms, they do not constitute trafficking or slavery. Yet calls for the reinstatement of the original ODW visa are repeatedly met with the response that workers who have suffered abuse can avail themselves of the NRM.
Despite experiencing labour law violations, Jenny’s right to change employer was in practice of no use to her, given that she was not allowed to renew her visa. Had she entered the UK on the original kind of ODW visa, she would have remained visible to the authorities by renewing her visa annually, while contributing in taxes and visa renewal fees. Jenny’s case underlines how unhelpful it is to require maltreated migrant domestic workers to fit themselves into the slavery or trafficking frame, and how their rights would be better protected through the restoration of the original ODW visa.
Professor Williams also argues that the issue should be seen in an international context, where there have been very important advances in employment rights for domestic workers. In particular, ILO Convention 189 on domestic workers has been ratified by 35 countries—but not the UK. Ironically, when the convention was voted on, the UK Government abstained on the grounds that the UK already had a progressive policy—the OWD visa—which they then went on to withdraw. Will the Government therefore now rethink their position and restore the ODW visa without further delay?
Lord Green of Deddington (CB)
My Lords, I support Amendment 183 in the name of the noble Lord, Lord Wallace of Saltaire, which I am cosponsoring along with the noble Baroness, Lady Bennett, and the noble Lord, Lord Rooker. I do not always agree with the Lib Dems, but I think the noble Lord’s arguments were very powerful and need to be listened to. The effect of this route is to sell permanent residence in the UK, and later even citizenship, to anyone who turns up with a couple of million to spare, with no questions asked about where that money came from. It is an extraordinary outcome. I can see why one might have thought this was a good idea initially, but it has turned into a nonsense.
As the Committee may know, this route is for individuals able to make an investment of £2 million. The applicant does not need a job offer or sponsor, and the visa includes all immediate family members. The tier 1 investor visa is initially granted for three years and four months and can then be extended for another two years by providing evidence of an investment of the required amount. The funds must be invested in UK gilts, bonds and equities only—of course, the money can be taken out of those afterwards, so it is a very convenient little entry for your money.
Currently, if you invest—so called—£2 million, you will get your permanent residence in five years; if you have £5 million to spare, it is three years; and if you have £10 million in your pockets, it is two years. The whole thing is just absolutely absurd, frankly. Indeed, between 2008 and 2020 it has led to a total of more than 12,000 such visas being issued. There is not even any economic benefit to the UK in this. According to Sir David Metcalf, a former chair of the Migration Advisory Committee, in 2014,
“the main beneficiaries are the migrants. Investors benefit from, for example, rule of law, property rights and access to efficient markets. Second, at present, the investment is a loan, not a gift.”
A MAC report from 2015 noted that the main proponents of this type of visas are—guess what—law firms, accountants and consultancies that help organise the affairs of such extraordinarily wealthy investors. There are also speculative concerns around whether this investor visa is being used by criminals. In an October 2015 report, Transparency International UK argued that it was highly likely that substantial amounts of corrupt wealth stolen in China and Russia had been laundered into the UK via this visa programme.
It is not clear what will happen to the tier 1 investor visa under the new points-based system—at least, it is not clear to me—but it seems that it will remain in place. I suggest that a thorough review is in order and, meanwhile, the route should be closed, as set out in this amendment.
Lord Faulks (Non-Afl)
My Lords, I am happy to join the noble Lords, Lord Green and Lord Wallace, and others who have brought this amendment. I may not agree with all that the noble Lord, Lord Wallace, says, but I share with him a passion for the rule of law and a real concern for our reputation for protecting the rule of law. It is a real irony that our reputation for protecting the rule of law is one of the things that attracts people who have very little regard for the rule of law themselves and come from countries which ignore it almost altogether. I am afraid that this Government and their predecessor have a very inadequate record in responding to the threat of corruption of all sorts, and of course I support the proposals in this amendment.
In 2016, the then Prime Minister, David Cameron made a seminal speech about the importance of stamping out corruption. The Minister will remember the Criminal Finances Act 2017 and what a nuisance I was during its passage. I found it inadequate in a number of respects, including unexplained wealth orders, which I did not consider were nearly tough enough. I also put down amendments to try to persuade the Government to establish a register of overseas entities’ property, in order to try to reveal a great deal more about who actually owns vast parts of London. The noble Baroness was emollient and responded that as soon as parliamentary time allowed, there would be an appropriate response. I was slightly reassured by that. I continued to harry the Government. I asked the noble Lord, Lord Young, when he was a Minister, about the progress of matters. He was reassuring—none more reassuring than he—and said good progress was being made.
Lord Berkeley of Knighton (CB)
My Lords, it is a pleasure and privilege to make this trio of noble Lords—of naughty boys—into a quartet led by the noble Lord, Lord Wallace, because I strongly support all the points that have been made. On this occasion, I am talking not about people with millions of pounds, but about domestic workers, mentioned in the amendment from the noble Baroness, Lady Hamwee. Here, there is another financial imperative for the Treasury, because I have long thought that we force people into the black economy because they simply cannot find a legal way to stay here.
I suggest to the Minister that this amendment would at least help a lot of people to come out into the open and pay taxes. If they could extend legal visas, those people would not go into the black economy and extend that uncontrolled area of work.
Lord Kerr of Kinlochard (CB)
I support all three amendments in this group and particularly that of the noble Lord, Lord Wallace, for two reasons. First, it gives me a rare and particular pleasure to say that I strongly support an amendment in the name of the noble Lord, Lord Green of Deddington, among others. His dedication has been remarkable throughout these debates, and this is the first time I have agreed with what he has said.
Secondly, there is just one element missing from the powerful case for this amendment made by the noble Lord, Lord Wallace. It is partly filled by the remarkable speech made by the noble Lord, Lord Faulks, and it is about reputation. The noble Lord said that we have become a laughing stock worldwide but, in America and large parts of continental Europe, it is worse than that. People are not laughing; they think it is beyond a joke. I strongly recommend this amendment to the Minister.
Earl Attlee (Con)
My Lord, I strongly support the basic thrust of Amendment 183 in the name of the noble Lord, Lord Wallace of Saltaire. I do so having regard to the negative effects of the system of tier 1 visas, both in our own country and overseas. The first undesirable effect of this dirty money is on the economy of London; in particular, the cost of housing being pushed up to unaffordable levels by foreign so-called businessmen seeking secure investments, as explained by the noble Lord, Lord Wallace. My noble friend Lord Faulks identified a lack of progress by the Government in this area.
I accept that there may be some business opportunities in meeting the demand and providing both professional and artisan services to tier 1 investors. Personally, I would not want to earn my living from dirty money, in effect stolen from people of overseas countries. The noble Lord, Lord Wallace, explained this with his usual skill. Not only do some of these tier 1 investors illegally suck money and assets out of their own country to enjoy in ours but they take full advantage of our well-developed system of justice and the rule of law—JROL. This means that they can keep their assets secure and also enjoy a reliable means of passing them on to their offspring. Of course, they have no incentive to seek to implement any decent form of JROL in their own country because it is not in their interests to do so. The lack of JROL and the negative effects of corruption mean that countries such as Russia, and many developing countries, will never be able to achieve their full economic potential.
For instance, defence equipment apart, I cannot think of any manufactured product that comes from Russia. No wonder it has an economy the size of Italy’s, despite its natural wealth, larger, if declining, population, and vast space. It is not for us to interfere with the internal arrangements of other sovereign states, but if we denied oligarchs, the super-rich and despots of countries without JROL the safety and advantages of a safe landing and base in UK and other similar countries, they might be more inclined to seek to put their own countries in order. This would have enormous economic benefits and other benefits for the people of those countries.
I turn to the problem of Ukraine. It is clear that any invasion by Russia will result in severe sanctions against Putin’s regime, including Russian tier 1 investors in the UK who are judged to be close to Putin. I am confident that the Government are planning such potential sanctions as we speak, although the likely targets will already have taken precautionary action. However, if our worst fears are realised, we should go much further and hit all Russian tier 1 investors, whether they are President Putin’s friend or foe. That way, they might be more inclined to get off their posteriors and put pressure on Putin and maybe even think about improving JROL and press freedom in Russia. Furthermore, this course of action would not adversely affect the inhabitants of Russia.
We cannot continue to allow filthy, dirty money to come into the UK via the tier 1 investor visa route, because it pollutes our economy, damages the economies of other countries, and seriously erodes our soft power position.
Lord Rosser (Lab)
Amendment 174 would return rights to people in the UK who are on the overseas domestic workers visa—primarily, the right to change their employer and renew their visa for a period of not less than 12 months. The then coalition Government changed the visa regime in April 2012, so that workers and their immigration status are tied to their original employer, and their visa cannot be renewed past six months. That has caused real concern that the working people involved are tied into situations of abuse and slavery. The cross-party Joint Committee on the Draft Modern Slavery Bill, as it then was, said that the changes to the regime had
“unintentionally strengthened the hand of the slave master against the victim of slavery.”
It concluded:
“Tying migrant domestic workers to their employer institutionalises their abuse; it is slavery, and is therefore incongruous with our aim to act decisively to protect the victims of modern slavery.”
In 2015, the independent Ewins review called for all overseas domestic workers to be given the right to change employer and apply for further leave to remain in the UK for up to 30 months. It found that the terms of the domestic worker visa were
“incompatible with the … protection of overseas domestic workers’ fundamental rights while in the UK”.
Unfortunately, the Government disagreed with the recommendation; instead, they made more limited changes to the Immigration Rules, with the effect that all domestic workers can change employer during their six-month visa, but only those who are found to be victims of trafficking or modern slavery can change employer and apply to stay for longer in the UK. The problems with this limited approach were set out in the Ewins report: they failed to provide an immediate escape route out of abuse; the six-month limit makes it difficult for people to find other employment; and the national referral mechanism requirement means that a person must have taken the step to report, and met an evidential burden to prove, that they are victim of slavery, which, frankly, many are too frightened to do. We certainly support the thrust of Amendment 174.
Amendment 181 would exempt international volunteers from paying the immigration health surcharge, and I await the Government’s response with interest. I would like to know what consideration the Government have given to extending the exemption, and have the Government met charities which have raised concerns about its effect on volunteering in particular sectors, especially social care?
Amendment 183, about which most has been said—with some feeling and fervour—would require the Government to suspend the tier 1 investor visa route, known as “golden visas”, until the review into those visas has been made public. In its 2020 Russia report, the Intelligence and Security Committee recommended that a key measure for
“disrupting the threat posed by illicit Russian financial activity”
is an
“overhaul of the Tier 1 (Investor) visa programme—there needs to be a more robust approach”.
In March 2018, the Government announced a review of golden visas issued between 2008 and 2015. This followed revelations that the Home Office and banks had made next to no diligence checks in that period. According to a freedom of information request in June 2021, the Home Office is reviewing 6,312 golden visas, half of all such visas ever issued, for a range of possible national security threats. Almost four years since the Government announced the review, and as has been said more than once this evening, the findings have not yet been reported.
Many of those who received visas during this period will have been eligible to apply for British citizenship over the past seven years, and it is surely essential that there is full transparency about the findings of the review, including: a detailed breakdown of how many visas have been revoked; how many cases have been referred to law enforcement; and how many applications for renewal or citizenship have been denied.
In the Commons last month, Stephen Kinnock MP asked the following question:
“Six months ago, the Government said that they were finalising their report into how more than 700 Russian millionaires were fast-tracked for British residency via their so-called golden visa scheme. Can the Foreign Secretary tell the House when that long-overdue report will be published?”
The Foreign Secretary’s reply was:
“We are reviewing the tier 1 visas that were granted before 5 April. I am sure the Home Secretary will have more to say about that in due course.”—[Official Report, Commons, 31/1/22; col. 60.]
Therefore, I ask the Minister, speaking on behalf of the Government: does the Home Secretary have “more to say” about this tonight? We are all waiting to hear why it has taken so long to produce this report. In the absence of a credible explanation, one can conclude only that there are some embarrassing reasons that have led the Government to delay producing this report.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I thought it might be helpful to slightly unpick the two types of workers—the difference between domestic workers in households and those who work for UK-based diplomats. Obviously they are different groups with different needs, the latter being served by the temporary worker international agreement route, which permits dependants. This is not the only aspect of our domestic immigration system that already provides what the amendment proposes. Both groups of workers are free to change employers; in fact, our existing arrangements already go further than the amendment proposes, and I will outline why.
We do not expect domestic workers to register with the Home Office because we want a worker to be able to leave as soon as their mind is made up to do so, so we must avoid anything that may act as a barrier to exercising that right. Imposing an extra condition now risks undermining changes that have been made for the better. We have already made provisions under which both groups of domestic worker can obtain a two-year extension of stay if they are found to be a victim of modern slavery. I think these arrangements strike the right balance, ensuring that those who find themselves in an abusive employment situation are able to escape it by, first, finding alternative employment and, secondly, encouraging them to report that abuse through the appropriate mechanism.
On the point made by the noble Baroness, Lady Lister, on overseas domestic workers who are not slavery victims, very similar to the case that she has pointed out, but are actually exploited, the Immigration Rules are deliberately designed to prevent the importation of exploitive practices—for example, they set out that they should be paid the national minimum wage. I hope that helps on her point. I appreciate that the case she outlined seemingly falls between the cracks, but the Immigration Rules are very clear on that.
Baroness Lister of Burtersett (Lab)
The fact is that I do not think it is an unusual case; I asked Kalayaan for a recent case study and that is what it came up with. The Immigration Rules are not working in that respect. We have overseas domestic workers who are being exploited but, even when they are referred to the NRM, are told that it is not slavery or trafficking. Would the Minister be willing to look at that again? There is a problem, as she put it, of some people falling through the cracks.
Baroness Williams of Trafford (Con)
I am not going to look at it again but I will perhaps explore it further and see why what is happening is happening. That is probably fair enough.
Lord Green of Deddington (CB)
Is the Minister aware that, in some countries, applicants choose those families that come to London regularly in the summer, with a view to leaving them after a month or two and settling, legally or otherwise, in the UK? The system needs to be fairly tight to avoid trouble on that front.
Baroness Williams of Trafford (Con)
Between what the noble Lord has just outlined and what the noble Baroness, Lady Lister, has just said, that probably explains both ends of the system in different ways.
On visa extensions, although I fully support the noble Baroness’s determination to improve protections for migrant domestic workers, rewinding the clock and reinstating the features of a route that were deliberately removed almost a decade ago is not the answer—probably, in part, for some of the reasons that the noble Lord, Lord Green of Deddington, outlines.
The overseas domestic worker visa caters specifically for groups of visitors who by definition stay for short periods. That visa allows private domestic staff to accompany their employer where that employer enters the UK as a visitor and where they intend to leave together. Approximately 20,000 visas are issued every year on that basis, and the vast majority leave well within the validity of their visa.
The amendment seeks to reintroduce features of the route which were removed for good reason. We must not forget that abuse existed before 2012 and be mindful that allowing overseas domestic workers to stay could inadvertently create a fresh cohort of recruits for traffickers. We must avoid a route that could be used by criminals to entice victims to come to the UK.
Noble Lords have referred to the report, commissioned by the Government, by James Ewins QC, which, crucially, did not establish a direct link between the length of stay and the likelihood of exploitation. Years later, this picture remains. There is no greater risk if a domestic worker is here for two weeks or 12 months, so increasing the length of time that they can stay will not afford them greater protection from being exploited.
I think that the noble Baroness and I share the same objective of the delivery of a safe and appropriate system for a very vulnerable category of workers. However, for all the reasons that I have given, we do not agree on the means of achieving it.
I am aware of comparisons that have been made between those employed in the healthcare sector who are exempt from the health charge and those who come to the UK as volunteers. However, there are very clear and important distinctions between workers and volunteers on the charity worker visa. The route should not be used to fill gaps in the labour market, even on a temporary basis. To answer the question asked by the noble Lord, Lord Rosser, yes, we have been engaging with charities. The Government think that appropriate immigration concessions are already in place, which support volunteers on this route. The charity worker visa offers a low fee, compared to other work routes, and sponsors pay a lower licence fee, in recognition of their charitable status. While the charity worker route is the main route for volunteers, it is not the only way in which volunteers can be recruited to support the work of charities.
I note the concern of the noble Lord, Lord German, that the immigration health charge might deter volunteers from coming to the UK. Published figures indicate that, for the years immediately preceding the pandemic—clearly the years after that are very unusual—the number of charity visas granted remained broadly consistent. This indicates that volunteers are not being deterred by having to pay the health charge.
The NHS must continue to be properly funded and the immigration health charge plays an important role in that. It has generated almost £2 billion for the NHS since its inception, and it 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. Those who pay the charge can, from their point of arrival in the UK, use the NHS in broadly the same way as a permanent resident, without having to make any prior tax or national insurance contributions. For those reasons, I hope that the noble Lord, Lord German, will not press his amendment.
On Amendment 183, I hear noble Lords loud and clear. I recall the debate that my noble friend Lord Faulks and I had during the Criminal Finances Bill. I also completely acknowledge the point about those relying on funds that have been illegitimately acquired. It is because of those concerns that we have committed to a review of visas issued under the route between 2008 and 2015. We are finalising the review, if noble Lords can be patient, and we will publish it in due course—I knew there would be a sigh from behind me and in front of me when I said that.
Lord Rosser (Lab)
Four years is quite a long time to produce a report. Why has it taken four years to date and why are the Government still in a position where they cannot really give any proper indication of when it will be produced? “In due course” is the cop-out expression for a Government who do not really know.
Baroness Williams of Trafford (Con)
My Lords, I will have to think of a new phrase: perhaps “shortly”.
Baroness Williams of Trafford (Con)
I say to noble Lords that I share their concerns. I will also be writing to the Committee before Report on this very matter. Since 2015, we have excluded investment in government bonds and strengthened the rules to ensure that investments are made in active and trading UK companies. Applicants must also demonstrate that they have a wealth of at least £2 million for at least two years, up from 90 days, or provide evidence of the source of those funds. We require banks to explicitly state in a letter to the Home Office that they have completed all requisite customer due diligence and know your customer checks prior to opening the applicant’s account, and we have increasing evidential requirements where migrants have invested their qualifying funds through a chain of intermediary companies so that the Home Office can better assess the ultimate destination of qualifying investment.
Lord Wallace of Saltaire (LD)
My Lords, I hope the Home Office has consulted the FCDO on this issue. The Minister will be aware of the report from the Center for American Progress in Washington which argues—and this is the conventional wisdom in Washington as far as I can see—that we are the weak link in the West’s relations with Russia, and the reason why we are the weak link is because of this large colony in London with such close links to Putin.
Baroness Williams of Trafford (Con)
My Lords, I acknowledge all the points that the noble Lord has made and agree that there is more to be done here. I do not think anyone could deny that. The Criminal Finances Act was a start and there is more to be done in this space, most definitely, but I think I will leave it there. I hope, with what I have said, that the noble Baroness will be happy to withdraw her amendment.
Baroness Hamwee (LD)
My Lords, my noble friends both made very powerful cases. I hope that my noble friend Lord Wallace will forgive me if I make only one comment on his amendment, in fact in response to what the Minister said about banks checking up: I wonder whether the banks check up on the holders of golden visas as often as they check up on noble Lords who are PEPs.
With regard to my amendment, like the noble Baroness, Lady Lister, I ask why we would have been asked to propose this amendment if there were no problem. I regarded the registration with the Home Office as a sort of olive branch, something that might make the Government feel a little more comfortable. The Immigration Rules are not working because there is not the distinction to which she and I have referred.
The noble Lord, Lord Berkeley of Knighton—how is “Berkeley” pronounced? I should know from hearing him on the radio—referred to the financial aspect of this and forcing people into the black economy. It is wider in respect of people who are here irregularly, of course, because it is hugely important. But it is exactly the same as the point made by the Minister that if the situation were changed it would provide a group of people who would be—I wrote it down—a cohort for traffickers, but that is exactly what the danger is now. I am puzzled and disappointed but clearly we are not going to make progress today, so I beg leave to withdraw the amendment.
“(c) the individual is travelling to Northern Ireland on a local journey from the Republic of Ireland.” Member’s explanatory statement
Under this amendment, persons who are neither British nor Irish would nevertheless be able to make local journeys from the Republic of Ireland to Northern Ireland without the need for an Electronic Travel Authorisation.
Baroness Ritchie of Downpatrick (Lab)
My Lords, the amendment is in my name and those of the noble Baroness, Lady Suttie, and my noble friend Lord Coaker. Its purpose is to ensure that persons who are neither Irish nor British would nevertheless be able to make local journeys from the Republic of Ireland to Northern Ireland without the need for an electronic travel authorisation. Clause 71 amends the Immigration Act 1971 to introduce electronic travel authorisations. It provides for a pre-entry clearance system which requires anyone who does not need a visa, entry clearance or other specified immigration status to obtain authorisation before travelling to the UK. This includes journeys within the common travel area; indeed, the clause has been expressly formulated to ensure that CTA journeys are captured.
This system does not apply to British or Irish citizens or those who have already been granted leave to enter or remain in the UK. The system will impact mainly non-visa nationals, including EU nationals, who can presently enter the UK visa-free for set periods. Almost all such persons are presently automatically considered to have deemed leave to enter the UK when crossing into Northern Ireland on the land border. It is believed that new subsection (4) in Clause 71 has been drafted intentionally to ensure that persons who are travelling within the CTA and consequently would not need leave to enter the UK will still require an ETA.
In preparing for this amendment today, I spoke to both the Human Rights Commission and the Equality Commission based in Belfast, which have commitments under Article 2 of the Ireland/Northern Ireland protocol in all these matters. I spoke also to the Committee on the Administration of Justice, and my noble friend Lord Coaker and I spoke to representatives of the Irish Government based in the Irish embassy, who are deeply concerned about the impact of Clause 71 on tourism, not only in the Republic of Ireland but in Northern Ireland —for those people who come in to have a holiday via Shannon and Dublin airports and then move northwards.
It appears that the UK Government intend the scheme to apply on the land border and, so far, are dismissive of concerns raised. This looks very much like it is in breach of Article 2 of the Ireland/Northern Ireland protocol, which deals with specific rights of individuals. The clause shows a total lack of understanding of the border, which has many crossings. The noble Lord, Lord Patten of Barnes, who served in Northern Ireland as a former Minister and was chair of the Patten commission on policing, will be well aware of the geography not only of Northern Ireland but of the border area. I am sure that he would very clearly see the issues involved.
The situation for some time has been that almost all EU, EEA and non-EEA citizens who are non-visa nationals present in the Republic of Ireland can cross the land border freely on local journeys into Northern Ireland without any requirement for prior immigration permission. In some ways, the Bill conflates modern slavery issues with immigration, as well as with the necessities of an economy and tourism.
It has been the case for some time that citizens who are non-visa nationals present in the Republic of Ireland can cross the land border freely on local journeys into Northern Ireland, without any requirement for prior immigration permission. For EU-EEA citizens since Brexit, as was already the case with other non-visa nationals, permission in such circumstances is restricted to entry as a visitor and certain activities, such as work, are restricted when entering the UK this way. However, this system has allowed non-visa nationals resident in border areas in the Republic of Ireland to enter Northern Ireland freely for a range of activities, even visiting family members or for work purposes. I am aware of people who do that; they contribute to the economy in the Republic but have family in the north, and vice versa.
Under this new proposal, non-visa nationals resident in the Republic of Ireland will be required to apply in advance and pay for an ETA before crossing the border into Northern Ireland. It is clear that this will have a detrimental impact on non-visa nationals who need to enter Northern Ireland for activities such as visiting family, accessing childcare, carrying out permitted work engagements and accessing services and goods. This system will also impact the ability of members of the migrant community to take part freely in cross-border projects and programmes. I am sure the noble Viscount, Lord Brookeborough, living in County Fermanagh, will be well aware of these issues for people who are resident or working in Counties Monaghan, Cavan and Donegal.
Concerns have also been raised about the impact of the ETA system on business, health and tourism, plus recreational issues, as it would require non-visa nationals in the Republic of Ireland to obtain an ETA before a visit to Northern Ireland, a fact that has been recognised and raised directly with the Home Office by the Irish Government. This would have an impact on tourism in Northern Ireland, as many people travel via Dublin and Shannon airports and head northwards. Therefore, the Government’s ETA proposal will impact detrimentally on tourism and economic opportunities in Northern Ireland. It will act as a disincentive to people from North America coming northwards to visit the Mourne Mountains in my own area and the Giant’s Causeway in north Antrim, which are both geographical icons. My noble friend Lord Coaker will be aware of this from his time as shadow Secretary of State, when I travelled with him round the constituency of South Down.
In the context of an invisible land border that British and Irish citizens can freely cross, it is eminently foreseeable that many other persons who have hitherto been able similarly to cross the border without any prior permission will be largely unaware of the ETA requirement. There are legal impacts to this. I am a member of the protocol sub-committee in your Lordships’ House. We wrote to the noble Baroness, Lady Williams of Trafford, with a series of questions on 14 January. To my knowledge, we have not yet received an answer. We asked whether she would specify
“who will be required to have a valid ETA, and any exceptions to this; the form or manner in which an application for an ETA may be made, granted or refused; any conditions that must be met before an ETA application can be granted; the grounds on which an ETA application must or may be refused; the validity of an ETA (length of time and/or number of journeys); and the form, manner, or grounds for varying or cancelling an ETA”.
I hope the Minister answering this debate will be able to provide the Committee with some answers this evening and will exhort his colleague, the noble Baroness, Lady Williams, to reply to the chair of the protocol sub-committee. I ask again: can the Minister confirm whether holders of a frontier worker permit will be exempt from the requirement for a valid ETA? Will there be any other exemptions or special arrangements for people crossing the land border frequently from the Republic of Ireland?
It would be preferable if ETA requirements did not exist or were not applied when travelling from the Republic of Ireland to Northern Ireland. I understand that much discussion has taken place. I exhort the Minister to give such commitments here this evening. If he cannot, can he give a commitment that the Government are prepared to come back with an amendment on Report to deal with this matter and cancel ETA in such circumstances, because it is utterly crazy? Can the Minister specify what the results of those discussions have been? If the Government do not wish to adopt my amendment, will they bring forward an amendment on Report to deal with these issues?
I also agree with Amendment 175ZA in the name of the noble Baroness, Lady Hamwee. Although it is very much an exploratory amendment, it is a very important one that is allied to mine. I agree too with the amendment in the name of my noble friend Lady Chakrabarti, which I have also signed. It deals with the birthright commitment under the Belfast/Good Friday agreement and the onus on the Government to report on progress in giving effect to the nationality provisions of that agreement. We should always remember that the Belfast/Good Friday agreement states that people can identify themselves as
“and be accepted as Irish or British, or both, as they may so choose.”
For my part, I hold an Irish passport. I am Irish and I declare myself to be Irish, although I live in the UK—which I freely recognise.
I look forward to the Minister’s response. I thank noble Lords who will speak in support of these amendments, and I hope that the Minister brings us some positive news tonight, or that he indicates what the Government might do on Report.
Baroness Suttie (LD)
My Lords, I will speak in favour of Amendment 175 tabled by the noble Baroness, Lady Ritchie of Downpatrick, to which I have added my name. I also support Amendment 175ZA, in the names of my noble friends Lord Paddick and Lady Hamwee, and Amendment 186, tabled by the noble Baroness, Lady Chakrabarti.
I will be brief because I fully support and agree with the very powerful points made by the noble Baroness, Lady Ritchie. As it stands, the Bill does not give proper consideration to the economic and legal implications for the island of Ireland. Amendment 175 would amend the Bill so that all local journeys from the Republic of Ireland to Northern Ireland, including for people who are neither British nor Irish, could continue to be made without the need for electronic travel authorisation.
I will highlight three areas of concern about the proposals as they stand and would very much appreciate a response from the Minister. The first is the question of legal uncertainty. If the Home Office remains committed, as I sincerely hope it is, to no checks on the land border on the island of Ireland, how will it enforce this new measure in practice? As the noble Baroness, Lady Ritchie, has said, thousands of crossings are carried out each day by non-British and non-Irish residents in the Republic of Ireland who need to cross the border for work, leisure, family or educational purposes. There is currently no requirement or expectation that people carry passports if they live or work in the border areas. Given the very particular circumstances of the border areas in Ireland, I would be grateful if the Minister could explain how these measures will be enforced in practice.
The second area of concern is how these measures will sit with the existing commitments on the common travel area, as set out in the Northern Ireland protocol. The protocol sets out quite clearly that, irrespective of nationality, the rights and privileges contained within the common travel area will continue
“with respect to free movement to, from and within Ireland for Union citizens and their family members”.
Can the Minister confirm that this will continue to be the case?
Viscount Brookeborough (CB)
My Lords, I support the amendment moved by the noble Baroness, Lady Ritchie. I had not necessarily thought about saying anything, but she mentioned me in her speech. First, I declare an interest in that we are involved in tourism at home. Secondly, my brother is chairman of Tourism Ireland, a cross-border body that survives on funds from both the United Kingdom and Ireland to market the island of Ireland. Therefore, this particular regulation would make a complete fool of the whole practical implementation of it.
People ought to understand what the border really is—or, in fact, what it is not. We have come through all the Troubles. Before them, we had a border and we had to have certain papers to cross it. Then we all joined the European Union and that side was taken out of it. But then we had the Troubles so, in effect, the border was reinstated, albeit for a different reason. We do not have those border checks now; there is no border under the Good Friday agreement and everything since, including the protocol. That is the way it should be. Whether the noble Baroness and I are supporters of the protocol is neither here nor there; it is about the practical problems raised by this.
Whether tourists from another country cross the border, and who polices this, is of course an issue. In fact, they will not know whether they are crossing it, so it becomes rather ridiculous—on the whole, they do not have a clue. During the Troubles, there was a time when even our own British people—soldiers and police—did not know whether they were crossing it, so they used to draw yellow lines on it so that they knew when they were. A certain part of the population moved the yellow lines, so they still did not know where they were and then there were diplomatic incidents.
I live in County Fermanagh, which is one-third of the border in Northern Ireland. The border does not just affect it in terms of regulations—people cross it not just from day to day but time and time again in one direction or another to do very simple things. I know that you can use euros here if you are pushed, but every shop and business there uses euros and pounds. Therefore, half the time, no one has a clue whether they are in the north or the south, even when they walk into a shop. All the people working there, and of course the ones who are straightforward British or Irish, are not covered by this.
However, a wealth of people who are not British or Irish live and work within a few miles of the border and they do not think twice about it. If you cannot get a plumber very locally—we might get one from further afield anyway—you just ring up the nearest person. We are five miles from the border and he could well be from either side of it, and he might not be an Irish or British citizen.
I entirely support this amendment. I know that what I have said is not technical and I can only be very grateful to the noble Baroness, as we all can, for going into it in such detail because there is very little for us to say, except for the Government to sort it out.
Baroness Hamwee (LD)
My Lords, I support the amendment moved by the noble Baroness, Lady Ritchie, and spoken to by other noble Lords. I was grateful, too, to have been briefed by the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission. I did not need to be convinced of the importance of local journeys for work, education, health services, shopping, frontier workers and so on. I was lucky enough to be a member of the EU Select Committee of the House during the transition period, when we heard direct from people living and working in Northern Ireland about the concerns which the amendments in this group address.
I want to speak particularly to Amendment 175ZA. The points raised in it apply more widely than to the Northern Ireland/Republic of Ireland border. I certainly do not want to suggest that there is greater concern about criminals in the Republic than at other borders. I am not quite sure why these proposals come to be in the same group but I understand why there is a concern to get through the remaining amendments. The point is relevant to the border and there is a practical problem, as the noble Viscount just said.
My noble friend Lord Paddick is concerned about checks on the criminal record of an individual, now that we are no longer a member of the EU or have access to SIS II or ECRIS. We have to fall back on the Interpol database, which requires specific uploading of information and is not integrated with our police national computer or with member states’ national systems.
The report of the EU Security and Justice sub-committee on post-Brexit arrangements in that area is due to be debated on 25 February. I know that the Minister will deal with the points in the report then. I was going to say that I was sorry to see she does not get that Friday off, but it is never off for a Minister, is it? The points in it are relevant to Northern Ireland.
My noble friend Lord Oates has Amendment 180, which is not in this group, on physical proof of status. This amendment relates to the points that I know he will make and asks the very pertinent question: what happens when the digital system malfunctions? I am normally a glass-half-full person but that is pertinent to everyone, especially at this land border.
I noted, and think it deserves to be mentioned here, that the Constitution Committee of your Lordships’ House has reported in the following terms:
“The House may question why the detail of the Electronic Travel Authorisation scheme introduced under clause 71 is not set out in the Bill.”
It is because the scheme has not been worked up—at any rate not to completion, as I understand it. The report continues:
“If it is appropriate to make such provision in immigration rules, the House may expect it to be subject to a form of affirmative procedure, at least for the establishment of the scheme.”
The committee is saying much more delicately what I said the other day: we should not be expected to deal with criminal offences, as it was that day, arising from the scheme when we do not know what the scheme is. That also applies here.
Baroness Neville-Rolfe (Con)
My Lords, I thank the noble Baronesses, Lady Ritchie of Downpatrick and Lady Suttie, for raising this issue, and I think some very good questions have been asked. I have a different question. In the absence of an electronic travel authorisation, are there problems in enforcing immigration, asylum or indeed criminal law? Can we be reassured that there would not be an incentive for people who want to come to the UK to come in large numbers through the Republic of Ireland? That would be my one concern in trying to address the very real issues across the border that have been identified, and which you see in other countries where you have borders—especially where there has been a practice of having no border.
Baroness Ludford (LD)
My Lords, I will very briefly give support from these Benches to all three of these amendments. They all demonstrate the practical consequences of Brexit. I declare a bit of an interest on Amendment 175—not that I am neither British nor Irish but that I am both British and Irish. In fact, I have been Irish from birth without for a long time realising it, but I have now just got my passport, so I am a dual national.
But it makes no sense—and the noble Viscount, Lord Brookeborough, gave very graphic examples of how silly it is to try to stop people crossing the border. It is not just about tourism; it is about work and business. Surely it is not in the spirit of the good relationship that we have with the Republic of Ireland, or of the Belfast agreement, or of everything that we want to work, Brexit or no Brexit—or despite Brexit. We want to have very good relations on the island of Ireland. I am not sure how it would actually work, but trying to stop people would be a nuisance, to put it at its mildest, and harmful from every direction.
On the point about the ETA system having to rely on the clunky Interpol system, my noble friend reminded me that we are going to be debating the report from the noble Lord, Lord Ricketts, in a couple of weeks. We do not have access to SEIS or ECRIS, or other EU instruments, and this is not good for operating an ETA system. So it would be very good to hear from the Minister whether he has anything positive to say about how to remedy the practical consequences, to use a neutral word, of Brexit, both for internal travel on the island of Ireland and for how the ETA system can work optimally.
Lord Moylan (Con)
Perhaps I, too, should declare that I am both British and Irish since birth. I understand the difficulties locally that potentially arise and have been so well illustrated by the noble Viscount, Lord Brookeborough, but I wanted to ask the Minister whether he could put this in the context of the common travel area. Does it really exist in practice as a reciprocal arrangement? I specifically ask because I have never been able to land at Shannon Airport, even on a direct flight from Heathrow, without standing in a queue and presenting a passport—yet when I return and land at Heathrow, I walk straight through and am guided past the passport gates. To what extent is this common travel area being operated by the Irish Republic on a genuinely reciprocal basis? Could it not in a sense be tied up with this issue?
Lord Coaker (Lab)
I will add my voice of support to my noble friend Lady Ritchie. It is good to have the perspective that she brings to this Committee. Our institutional memory in Parliament, in this place and the other place, with respect to Ireland is not as great as it was. It is a perspective that needs to be brought here more often, so this is an important little debate. I think the noble Viscount, Lord Brookeborough, will agree.
I say to the Minister that, whatever the rights and wrongs of all this—and I agree with what my noble friend said—it plays into the narrative that the Government do not have a grip with respect to Ireland. The consequences of that, as the noble Baroness, Lady Suttie, pointed out, are absolutely and potentially really difficult. Even if people are non-British or non-Irish, if they have to have an ETA to cross the border, how on earth is that going to work? Practically, at the end of the day, if it is worth having, somebody will have to check it. I know that it does not apply to British and Irish citizens, but suppose, as a British man, I have an American wife or a French girlfriend; we go to Northern Ireland and somebody checks it—with the history of the police and security forces checking documents. The Government have to wake up to this. Unless the Minister can get up and say, “We’re going to sort this and this is what’s going to happen”, it will drift on and on and the consequences will be potentially really difficult.
It is no wonder that the Irish Government and various organisations across the whole of the UK and Ireland are saying that the Government need to get a grip on this. It is ludicrous. I gave an example. The noble Viscount, Lord Brookeborough, will know far better than me. What about somebody who for years has lived a mile across the border, has a mixed marriage in terms of nationality—somebody who is a British or Irish citizen married to an American—and wants to go shopping or to a hotel four miles down the road that happens to be in Northern Ireland? Do they need an ETA?
This is one of those things about which people outside Parliament say, “Do you know what you are doing?” Frankly, this is something that is so serious, and all the time we are looking at it we are trying to resolve it. It is difficult. It raises issues that you do not appreciate. If only you understood how difficult it is. Well, I do understand how difficult it might be, and I also understand this: the border, for reasons that we all know, whether it is drawn in Ireland or down the Irish Sea, has consequences that are enormous for the people of Ireland and for people here.
The Government have to sort this out in a way that commands respect and agreement from all communities. The amendment that my noble friend Lady Ritchie has brought before us is important, but I implore the Government: whatever the rights and wrongs of getting into Shannon Airport, whoever is right about whether it is seen as a back-door way of getting into the UK, et cetera—and I should say that the Irish Government have visa requirements as well, which will influence how people come in, so that may be one of the answers —it just has to be resolved. There has to be more than a ministerial, “We understand the importance of this and the difficulties, and that it needs to be sorted out”. The frank reality is that the time for sorting it out was yesterday, not today or tomorrow. It is about time that the Government got a grip of this, otherwise there will be very serious consequences further down the road.
Lord Sharpe of Epsom (Con)
My Lords, I thank noble Lords very much for participating in this short but powerful debate. I thank the noble Baroness, Lady Ritchie of Downpatrick, and second the point of view of the noble Lord, Lord Coaker, that you bring—I said “you” again; I am very sorry—an interesting and unusual perspective to this debate. I thank her for that. In answer to the noble Baroness’s question about the letter to my noble friend Lady Williams of Trafford, the noble Baroness will have a reply in a week that will outline the details she asked for.
The Government are clear: there will continue to be no routine immigration controls on journeys to the UK from within the common travel area, and none whatever on the land border between Ireland and Northern Ireland. That will remain the position when the ETA scheme is introduced.
It may be helpful if I explain that all individuals, other than British and Irish citizens, arriving in the UK, including those crossing the land border into Northern Ireland, already need to enter in line with the UK’s immigration framework. I think this goes some way to answering the point raised by the noble Lord, Lord Coaker, about the hypothetical American wife or French girlfriend. I think it also deals with the point made by my noble friend, Lady Neville-Rolfe. For example, visa nationals are required to obtain a visa for the UK when travelling via Ireland, otherwise they are entering illegally. We are therefore applying the same principle to individuals requiring an ETA who enter the UK via Ireland without one.
The noble Baroness, Lady Ritchie, referenced Article 2 of the protocol. The Government consider that the ETA scheme is compliant, and they will continue to consider their obligations under the protocol with regard to this. I want to reassure the noble Baroness that the process for obtaining an ETA will be quick and light touch. I am told that it will be not dissimilar to acquiring an American ESTA, which I am sure many noble Lords are familiar with. As many people will know, that is very straightforward and easy. Once granted, an ETA will be valid for multiple journeys over an extended period, minimising the burden on those making frequent trips, including those across the Northern Ireland border. I perhaps should have said that I have had considerable experience of crossing that border on numerous occasions.
In terms of the specific questions on the CTA, as far as I am aware, it has nothing to do with Brexit. It predates Brexit does it not? It goes back to 1923 and partition I think, from my dim and distant memory. I am sure I will be corrected if I am wrong. All CTA members are firmly committed to protecting the common travel area. I will reiterate this point: even with the introduction of ETAs, there will be no routine immigration controls on arrivals to the UK from elsewhere in the common travel area—only intelligence-led controls with no immigration controls whatever on the Ireland/Northern Ireland land border. Given the tone of the debate, I hope noble Lords will allow me to keep reiterating that point.
Baroness Ritchie of Downpatrick (Lab)
I thank the Minister for giving way. Could he outline to the Committee how these ETAs will operate. Where will the work be carried out? How will people complete the necessary requirements and what will be the cost? These are the issues that the people are asking. They do not want ETAs to be a disincentive to tourism, the local economy or business generally.
Lord Sharpe of Epsom (Con)
I thank the noble Baroness for that intervention. I am going to come on to a number of those points subsequently. In terms of cost, I am told it will be competitive with international norms. I have just referred to the ESTA programme in the States. I looked that up this morning in anticipation of this, and it is currently $14, so it is not overwhelming. In terms of the enforcement, which I think is at the heart of the matter, I will come to that in a second if I may.
There will be no controls whatever on the Northern Ireland land border. Individuals will be able to continue to pass through border control at first point of entry to the common travel area. As is currently the case, individuals arriving in the UK, including those crossing the land border into Northern Ireland, will need to continue to enter in line with the UK’s immigration framework. Obviously, that includes the ETA.
Many noble Lords, including the noble Viscount, Lord Brookeborough, have asked about the impact on tourism. The Government acknowledge that a clear communication strategy is obviously going to be key to tackling any misunderstanding about the requirements to travel to Northern Ireland. We are planning to work across government, utilising internal and external stakeholders and a variety of communication channels to ensure that the ETA requirement is communicated very clearly.
Viscount Brookeborough (CB)
Can I just make one point? Northern Ireland is the size of Yorkshire. What the Minister is really stating is that somebody who goes on holiday to Yorkshire must not go to a neighbouring county for any reason without complying with this regulation. I am terribly sorry, but this is complete and utter rubbish. It is nonsensical and it is not going to work. What do people do if they go touring in Yorkshire? They tour outside it. If tourists go to Ireland, why should they not simply tour Ireland? No amount of communication will do—I am very sorry—and there is nobody to police it. What the Government are talking about is simply unworkable and disastrous.
Lord Sharpe of Epsom (Con)
I thank the noble Viscount—sort of. There will be no hard border. As I said, there is not going to be a hard border in Northern Ireland, and within the CTA there is effectively no change.
In answer to the point made by the noble Baroness, Lady Suttie, about enforcement, which was brought up subsequently as well, I have said it three or four times now: there will be no routine border controls on journeys from within the common travel area, which goes some way to answering the Yorkshire example. There will be none at all on the land border between Ireland and Northern Ireland. Everyone entering the UK, regardless of where they enter from—again, as I have said—is required to meet the UK’s immigration framework. In answer to “What’s the point of having it, then?”, anyone entering the UK without an ETA, or any form of immigration permission where required, will be entering illegally and may be subject to enforcement if encountered during intelligence-led operational activity.
Lord Coaker (Lab)
I say gently to the Minister that he has to be really careful with language on things such as conforming to immigration policy and the UK border. The historic context of some of the language that he used means that he has to be really careful when talking about moving across borders or even saying that there will not be a border control but talking about complying with UK immigration policies.
Lord Sharpe of Epsom (Con)
I completely understand the point that the noble Lord, Lord Coaker, is making. I promise him that I am sticking very closely to the script. I am well aware of that.
I think I have dealt with most of the questions, albeit probably not to noble Lords’ satisfaction. What I cannot do, I am afraid, is commit to coming back on Report with anything, but obviously I am going to reflect very carefully on the tone of this debate—to go to the point made by the noble Lord, Lord Coaker—and take that back to the department.
Turning to Amendment 175ZA, I assure the House that the Government will conduct robust identity and suitability checks before granting an ETA. We will use the information supplied in the ETA application form to check against our watchlist system. However, as I am sure the noble Lord and the noble Baroness will understand, I cannot go into details of the exact checks that applicants will undergo or how those checks will be conducted, as to do so could undermine our ability to secure the UK border. Such a detailed commentary could provide those people whom we want to prevent from travelling to the UK sufficient information to attempt to circumvent our controls, undermining the very objective of the ETA scheme and the wider universal permission-to-travel requirement to enhance the security of our border.
The noble Baroness, Lady Hamwee, asked about what has happened since we left the European Union and lost access to the European Criminal Records Information System and the Schengen Information System. The UK participated only in the law enforcement aspects of SIS II, meaning that we could not, and did not, use SIS II information for immigration purposes. Therefore, having returned to the Interpol channels, we are now routinely exchanging information with EU member states on persons of interest, including missing and wanted individuals, and on lost and stolen documents. Moreover, through the EU-UK Trade and Cooperation Agreement, we continue to share criminal records with the EU for law enforcement purposes, including to assist criminal proceedings and for public protection. This is almost identical to the arrangement that we had under ECRIS as an EU member state.
I assure noble Lords that the confirmation of an individual’s status prior to travel will be a matter for the Home Office and their carrier. The onus will not be on the individual to produce evidence of their status to a carrier; instead, carriers will be expected to check and confirm with the Home Office that an individual has an appropriate permission before they bring them to the UK. It is our long-term ambition for all carriers operating scheduled services across all modes—air, rail and maritime—to use interactive advance passenger information, or iAPI, systems to provide passenger information to the Home Office in advance of travel. In return, passengers will receive confirmation of permission to travel prior to boarding.
iAPI is already a well-established mechanism used around the world, particularly by other countries that already operate travel authorisation schemes. None the less, the Home Office will undertake rigorous systems testing to ensure that our messaging to carriers works before the scheme goes live. We expect the likelihood of a technical malfunction occurring to be negligible.
In the unlikely event that a technical malfunction does occur—
Baroness Neville-Rolfe (Con)
I wanted to ask my noble friend about what happens when there is a technical malfunction, but I think he was going to answer that question. Having been caught out when the ESTA system went down when I was trying to go to California, I ended up missing my flight and having to go via Seattle, which took another eight or nine hours. It is important to have strong technical systems if you are going to rely on them, but it may be that there is a waiver or some arrangement that can be introduced.
Lord Sharpe of Epsom (Con)
I completely agree with my noble friend: obviously it is important to have well-established protocols in place if such a thing happens. I can assure noble Lords that the Home Office will ensure that passengers are not disproportionately impacted or prevented travelling to the UK. As is already set out in Clause 72, we will not penalise carriers where, due to a Home Office systems outage, it is not possible for them to establish an individual’s status.
On Amendment 186, the Government are steadfastly committed to the Belfast agreement and the two distinct birthright provisions in it: the right to identify and be accepted as British, Irish or both; and the right to hold British and Irish citizenship. In recognising the birthright of the people of Northern Ireland in respect of identity and confirming their birthright in respect of citizenship, the Belfast agreement is clear in guaranteeing that these rights already exist. It expressly and clearly said how and where the law should be changed in many areas but it made no such stipulation on this particular matter of identity.
This amendment would require the Home Secretary to propose stipulating a particular view of identity in law. Doing so would risk impinging on the freedom of the people of Northern Ireland to choose what their identity means to them. It would also amount to treating an integral part of the United Kingdom differently. The Government cannot accept such a proposition; nor can they accept an amendment that is contrary to the intention of the Belfast agreement.
I am aware that some of these answers have not satisfied noble Lords. As I said, I will reflect the tone of this debate back to the Home Office very carefully. I am also aware that I have not answered my noble friend Lord Moylan’s question about reciprocity; I am sure that he will forgive me for not even attempting to do so.
I invite the noble Lords not to press their amendments.
Baroness Ritchie of Downpatrick (Lab)
I thank all noble Lords who have contributed to this debate from across the Committee. I say to the Minister that I happen to agree with the noble Viscount, Lord Brookeborough: the proposal in Clause 72 is a nonsense and will be unworkable, not because people will not want it work but because it will be dysfunctional both physically and operationally. It will act as a disincentive to tourism and business, as well as to societal arrangements because many non-Irish and non-British people who live in the Republic of Ireland have family in Northern Ireland. There will be preventions there.
I urge the Minister to reflect on all the contributions that have been made today in his discussions with the Home Office. Again, I suggest that we will probably come back on Report with a further amendment on this issue because we do not want impediments placed in the way of our tourism industry, our economy, our business and the normal day-to-day travel of people who live on both sides of the land border, which is largely invisible as it stands. Noble Lords who have travelled a lot will know exactly what we are talking about.
For those reasons, I rather reluctantly beg leave to withdraw my amendment but reserve the right to bring it back on Report.
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, the short point that my noble friend Lord Paddick wanted to make, as he generally does, in leaving out Clause 74(3) is that, again, this seems to conflate immigration and terrorism. It extends powers to question people about involvement in terrorism at the border and applies the powers to people being detained under a provision of the immigration Acts, and so on. The objection runs like a thread through the Bill, to so many points. Immigration and terrorism are not the same. Not all terrorists are immigrants. Terrorists who have succeeded in the UK have been British, and if the Government allow, in legislation, the bias implied by the conflation of these two, no wonder others display the same bias. I beg to move.
Lord Rosser (Lab)
This clause would extend the use of Schedule 7 to the Terrorism Act to people who have been detained under the immigration Acts and transported outside of a port or border area. Schedule 7 can be an important tool in the prevention of terrorism, but it has had a chequered past at times. It has been improved in recent years by the work of independent reviewers of terrorism legislation, two of whom we are now fortunate to have as Members of this House.
I have three or four questions for the Government on the provisions of Clause 74. Have the Government consulted on the extension of the power? Has the change been requested and, if so, by whom or by what body? Can the Minister give more detail on the scale of the problem this is designed to address? How many individuals are officers unable to stop and question under the current arrangements? How was the period of five days arrived at? For those who travel through conventional routes, does not the power have to be used pretty much immediately, in which case five days is a considerable extension? Finally, the powers apply provided an officer “believes” that the person arrived at sea, was apprehended within 24 hours of arrival, and it has been no more than five days since they were apprehended. What will that “belief” that the officer is required to have be based on? It would be helpful if the Government could give some responses to those questions.
Lord Sharpe of Epsom (Con)
I thank both Members of the Committee for their remarks. Schedule 7 examinations have been instrumental in securing evidence to convict terrorists, yielding intelligence to detect terrorist threats and supporting the disruption or deterrence of terrorist activity. Currently, officers may exercise Schedule 7 powers only when an individual is located within a port or border area as defined in the Act. Clause 74 will provide an added layer of protection to the existing processes in place for dealing with those who arrive irregularly by sea in the UK. I think that goes some way to answering the question of the noble Lord, Lord Rosser—they are arriving irregularly outside of ports. The Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, has stated:
“In principle, people arriving irregularly in the United Kingdom should be liable to counter-terrorism examination as much as those arriving at sea ports and airports.”
This clause ensures that, for those arriving irregularly by sea, such as via illegal channel crossings, this will continue be the case.
There are several reasons why those who engage in illegal channel crossings can be moved to a different location from their place of arrival very quickly after arriving. They can range from weight of numbers to the need to move the vulnerable or those in need of medical attention to more appropriate facilities. It is impractical and inhumane to keep large groups of people port side in order to give counterterrorism police an appropriate opportunity to exercise their current powers under Schedule 7.
I reassure noble Lords who tabled the amendment that this is by no means an attempt to treat all migrants arriving in this manner as terrorists, or to stop and examine large numbers of people away from ports and borders. Schedule 7 is not designed and cannot be used as a universal screening mechanism, and Clause 74 has been deliberately drawn to provide an appropriate time window for counterterrorism police to exercise their powers under Schedule 7.
To remove the effect of Clause 74 would impact our ability to determine whether those who are entering the UK in this way are involved in terrorism, impacting our national security. It would continue a scenario where those who arrive in the UK by conventional means are subject to powers to determine involvement in terrorist activity, whereas those who have arrived irregularly by sea, and about whom we have very little documented information, may not be.
I cannot answer precisely who has been consulted on this, other than the Independent Reviewer of Terrorism Legislation, and obviously the counterterrorism police will have a keen interest in how this debate develops. To answer on the numbers, this concerns those arriving irregularly by sea, outside established ports, under the existing rules. I could not tell you how many there are. The other questions impinge on operational matters, on which I am not qualified to comment. I therefore ask the noble Baroness to withdraw the amendment.
Baroness Hamwee (LD)
My Lords, the Minister said there is a deliberate time limit to these powers. I may be reading this wrong, but they apply to
“the period of 5 days beginning with the day after the day on which the person was apprehended”.
It is not five days from entry or arrival. I am not sure whether that would alter those points that the Minister suggested we take into account. But, since we are not even half way through the groups of amendments, I had better just beg leave to withdraw the amendment.
Baroness Hamwee (LD)
My Lords, the noble Baroness, Lady McIntosh, has her name to the opposition to Clause 76 standing part of the Bill. I am happy to pick this up briefly, as she has had to leave.
Clause 76 gives the tribunals a charging power in respect of wasted resources. I do not know whether it is aimed at lefty, liberal lawyers, a group to which I would be proud to belong, although I do not think I quite qualify—lefty maybe, liberal certainly, but I am an ex-lawyer.
I am trying to read my notes, but I cannot understand what I wrote last night.
Baroness Chakrabarti (Lab)
Perhaps while the noble Baroness looks at her handwriting, as a lefty, liberal lawyer, I say briefly to the Minister that the immigration and asylum system is the most unlevel playing field in our legal system. Tribunals were set up, as the Minister will remember, with the aim of people being able to represent themselves, not as places for expensive lawyers.