Grand Committee
(2 years, 9 months ago)
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Building Safety Bill
Monday 28th February 2022
(2 years, 9 months ago)
Grand CommitteeRead Full debate Building Safety Act 2022 View all Building Safety Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 98-IV Fourth marshalled list for Grand Committee - (28 Feb 2022)
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
My Lords, welcome to the Grand Committee on the Building Safety Bill. I remind Members that they 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, or earlier if that is convenient for the Committee.
Amendment 45
“Appointment of third parties
(1) This section applies where—(a) a RTM company within the meaning of section 113, Commonhold and Leasehold Reform Act 2002,(b) a body corporate of whatever description where the majority of the shares are held by leaseholders of dwellings, or(c) a body corporate of whatever description which is limited by guarantee and the members of that company are also leaseholders of dwellings,is either the accountable person or principal accountable person.(2) Where this section applies, notwithstanding any provisions of the Memorandum or Articles of Association or any rule of law to the contrary, the company may appoint a third party to discharge all the functions of the accountable person or the principal accountable person who will assume all duties, powers, liabilities and penalties under this Act in place of the company, and this Act is to have effect as though references to the accountable person or principal accountable person were references to the third party appointed under this section.(3) If such a person is appointed then the company is empowered to re-charge and apportion the costs charged by such a person as if they were a service charge under the leases of the dwellings.(4) Such charges will, for all purposes, be deemed to be service charges within the meaning of section 18 of the Landlord and Tenant Act 1985, save that the provisions of sections 20 and 20ZA of the Landlord and Tenant Act 1985 do not apply.(5) The Secretary of State may by regulations impose conditions which must be satisfied before an appointment can be made under subsection (2).(6) Without prejudice to the generality of subsection (5), those regulations may include—(a) provision for a minimum level of professional qualification to be held by the third party,(b) provision for minimum levels of professional indemnity provision.”Member’s explanatory statement
This provision would enable leaseholder-owned or controlled companies to appoint an external professional to discharge the functions of the Accountable Person or Principal Accountable Person and for the costs of the same to be recoverable (and regulated) as if they were a service charge under the lease.
Lord Best (CB)
My Lords, this group should not detain us too long, for three reasons. First, the group has only one amendment, this one. Secondly, the issue here is not of the same complexity or magnitude as the all-important matters that the Committee discussed last Thursday. Thirdly, I think that the Minister will not take too long to accept it. Amendment 45, in my name and the name of the noble Baroness, Lady Neville-Rolfe, concerns the impact of the Bill on the management of leasehold property, in particular the management by the leaseholders who live there.
The amendment has the backing of leaseholders and of bodies representing those managing leasehold flats, the Institute of Residential Property Managers and the Association of Residential Managing Agents. I declare an interest as chair of the Government’s regulation of property agents—RoPA—working group, whose 2019 report provides insights into the arrangements for managing blocks of residential apartments. Amendment 45 seeks to prevent the Bill from creating a major problem where residents of blocks of flats have responsibility themselves for the collective management of their homes. It covers the residents management companies, where the developer has handed over ongoing management to the leaseholders, and the right to manage companies, where residents have exercised their right to take control under the Commonhold and Leasehold Reform Act 2002, on which, incidentally, I gave my maiden speech 20 years ago.
These resident-controlled companies will have a board of unpaid volunteer directors. The directors will sometimes decide to employ managing agents to carry out the usual management and maintenance tasks, but the legal responsibilities for their company’s actions will remain with the directors. The Bill as it stands places a new layer of responsibility on these resident directors: they must, together, assume the role of the accountable person or principal accountable person responsible for building safety. This makes each individual director personally liable if things go wrong. They may engage expert help, but they cannot shed their accountable person status and the full liability remains with them.
The directors will now have to identify safety hazards, decide on the remedies and procure the necessary works. There are plenty of opportunities for mistakes and the new building safety regulator could discipline them, fire them or fine them, ruining their personal reputations. Fellow residents could sue them for mismanagement or misjudgment. Indeed, under Clause 131, if residents do not feel that the residents management company has done enough to recover money from third parties, they can take them to court.
The entirely predictable but unintended consequence of placing this serious new burden on resident directors is surely that no one will volunteer for the role. Already it is often a hard job to recruit and retain willing volunteers, who must not only give up their time but risk falling out with neighbours when taking decisions that cannot please everyone. It is commonplace for directors looking for a new volunteer to be economical with the truth: “It won’t be very time-consuming or onerous”, they say. How much more difficult will the recruitment of new and the retention of existing directors become if this Bill adds considerably to the obligations placed on anyone who dares to volunteer?
Amendment 45 seeks to resolve the problem. It has two parts. First, it would allow the residents management companies and right to manage company directors, if they wish, to pass on the functions and liabilities of the accountable person or principal accountable person to an external, competent, qualified third party with proper professional indemnity insurance, which the directors could never obtain. Secondly, it would enable the directors to pass on the costs of so doing to the residents via the service charges. With this amendment in place, a significant barrier to leaseholders managing their own affairs will be avoided.
Successive Governments have consistently encouraged residents to assume mutual responsibility for managing their blocks of flats. Indeed, moves are in the pipeline to relaunch the so far unsuccessful commonhold arrangements, whereby the occupiers own the freehold as well as handling the management. So I am sure that there is no intention to impose a huge disincentive for leaseholders to participate in residents management companies and right to manage companies. By enabling the duties imposed by this Bill to be transferred from the volunteer residents to professional experts, a potential exodus of volunteers can be avoided and the encouragement for more resident control can be sustained. I hope, therefore, that the amendment is helpful in correcting an unintended oversight and that it will appeal to the Minister. I look forward to the contribution of the noble Baroness, Lady Neville-Rolfe, and I beg to move.
Baroness Neville-Rolfe (Con)
I support the noble Lord in his Amendment 45. He has described the issue very well—and given his huge contribution to the House, I shall look up his maiden speech.
I worry that unless we can find a way out for leaseholders who are also owners, no leaseholder in their right mind would contribute to the management of a building jointly owned by leaseholders. This has been a direction of travel in recent years, which I support. I believe it to be particularly valuable for smaller housing developments, of which we need more. As my noble friend Lord Young of Cookham said in Committee on 24 February, successive Governments have encouraged leaseholders to buy their freeholds. Indeed, he himself played an important part in that process. As I understand it, the leaseholders who have enfranchised and bought their freeholds are excluded from support under the Bill. That seems very unfair.
I know from direct experience in my own family that it is already very difficult to secure volunteers to run leaseholder-owned buildings, given the onerous duties involved and the time requirement. The Bill, with its additional duties and tensions, will, I fear, make it impossible. Here we have yet another perverse effect. I agree with the noble Lord, Lord Best, that a solution must be found by Report, either by accepting his amendment or, if need be, in some other way. This is an unintended consequence that nobody wants.
Baroness Pinnock (LD)
My Lords, this is such an eminently sensible amendment, in the names of the noble Lord, Lord Best, and the noble Baroness, Lady Neville-Rolfe, that I think that the Minister will struggle to counter the arguments that have been made. What we are asking in this amendment is to avoid a situation involving resident management groups, or leaseholder-controlled companies, where the stringent expectations required to fulfil the duties under the Bill are put on the volunteers.
I already have concerns about the accountable person and how that role will fit in with those of the managing agent and building safety manager. We are beginning to create a fairly bureaucratic approach to safeguarding leaseholders and tenants, which has the risk of not fulfilling the simplicity and clarity that the Hackitt report required of new building safety measures.
I just think that the arguments cannot be countered. I look forward to what the Minister has to say, but this is such an eminently sensible proposal that I hope that the Government will find ways of bringing forward their own amendment on Report to fulfil the aims of this amendment.
Lord Khan of Burnley (Lab)
My Lords, I rise briefly to speak to Amendment 45, in the name of the noble Lord, Lord Best, and well supported by the noble Baroness, Lady Neville-Rolfe. I reiterate that this amendment is about looking at leaseholder-owned or leaseholder-controlled companies appointing an external professional to discharge the functions of the accountable person or principal accountable person. The amendment also talks about costs and maybe looking at service charges.
I want to ask this of the Minister. On these Benches we have a big concern about the actual level of service charges at the moment. These charges are already quite high and they are passed on to leaseholders and tenants. Have the Government looked at the aspect of service-charge pricing and whether leaseholders will be able to bear the cost of having this expertise, as detailed in the amendment? We absolutely recognise the importance of the amendment and we are supportive of it. We are equally concerned about using service charges in order to fund these kinds of important, necessary steps. The impact on leaseholders and tenants is a big concern.
On what was discussed previously in Committee, I will add something in relation to professional expertise and skills, and having the opportunity to pass on these responsibilities to somebody who can take care of this important role, focusing on the function of the accountable person or principal accountable person. I will not talk about this at length, but it calls for a debate about the current situation and whether the Government are fulfilling the needs of leaseholders and tenants. I will finish by saying that there is a big concern about service charges overall, about pricing and about how this will have an impact subsequently on leaseholders.
Baroness Scott of Bybrook (Con)
My Lords, first, I will answer the noble Lord, Lord Khan. He brings up an important issue and I heard his concerns on the level of service charges to leaseholders. I do not think that that is particularly relevant to this amendment, but I hear his concerns and I will take them back to the department and we will get a letter to him saying what we are doing about that.
I am sorry, but I am going to disappoint the noble Lord, Lord Best, on this amendment—but perhaps not as much as I could have done. I thank him and my noble friend Lady Neville-Rolfe for raising this important matter. The Bill provides that an accountable person is the entity responsible for the repair of the exterior, structure and common parts of a building. This may well include leaseholders who have set up resident-led organisations exercising their statutory right to take control of their building away from the freeholder. These statutory rights are very important. They act as a device to ensure that the imbalance of power between freehold and leasehold tenure is redressed and that leaseholders are empowered to make decisions about the safety management of their buildings. With this empowerment come responsibilities and accountability. The amendment would allow such resident-led organisations to appoint a third party to be responsible for their building’s safety management, passing culpability to that third party if anything went wrong.
Baroness Neville-Rolfe (Con)
A meeting would certainly be helpful. We also need to see this famous guidance. We know from other experience on buildings that there is an assumption that everything will be fine and dandy, but this is a very serious problem. We will lose those volunteers who are running buildings right across the country while waiting for Godot and a bit of guidance. If we are able to see the guidance and see that it works, we will be very happy. If it does not work, there will be time to do something. I am sorry to raise this point, but it is a practical matter for lots of people across the country, some of them in very inexpensive flats that they cannot even sell.
Baroness Scott of Bybrook (Con)
We absolutely understand the issue We are working on it. As I said, if we have a meeting, maybe we would have some ideas. I do not know about guidance yet, but we will make sure that we can have that discussion. I hope that we will get something better in place before Report.
Lord Best (CB)
Those final comments were the ones that I hoped to hear: that, with a bit of discussion, we may be able to find a way around this. The test for me is a real one. My son in a block of flats says, “Dad, should I think about being one of these directors?” My answer at the moment is, “Steer well clear. It is not a good idea to volunteer for this at the moment.” I look forward to those discussions and hope that we can come to an agreement. I beg leave to withdraw the amendment.
Baroness Fox of Buckley (Non-Afl)
My Lords, this series of stand part amendments relates to Clauses 80 to 84 and would delete the building safety manager from the Bill. This is my first attempt at tabling amendments so I am nervous about the procedural aspects, but I hope to explain why I have come in on, as it were, this issue in particular. How I came about it is telling in relation to some general concerns that I have about the Bill, specifically Part 4.
Like some of us here, I came to this whole issue based on being a leaseholder and being part of a group of noble Lords who were horrified at the awful impending tragedy of leaseholders being forced to pay crippling remediation costs on the back of the response to the Grenfell tragedy. Many of those egregious injustices are now being addressed—some of them in this Committee.
However, in my speech at Second Reading, I raised a different set of concerns about adopting a zero-risk approach, including that risk aversion is in danger of creating zealotry beyond the bounds of what is reasonable, practical or desirable. If the Bill’s aim becomes to eliminate all risks, that itself has its own risks and creates a new set of victims. For example, if safety is turned into panic, it can lead to an ever-spiralling demand for safety outside the bounds of common sense. This could dangerously destroy confidence in both the construction sector and the high-rise housing market, and could create new layers of bureaucracy that hinder rather than help.
Rather to my surprise, my speech at Second Reading led to a group of leaseholders contacting me to say that they shared some of my concerns. Campaigners from the Tower Hamlets Justice for Leaseholders group and Friends in High Places explained that they understood because they felt that, as Covid has proved, it can be difficult in situations involving safety to agree that less should be done—but sometimes less should be done. This proposal for building safety managers for every block is just one of the concerns that the group has about some of the Bill’s unintended consequences. As the campaigners say, it imposes costly layers of bureaucracy on them while giving sweeping powers to managing agents and freeholders and inflicting yet more pain on leaseholders, with provisions such as building safety managers threatening to turn this into what they call “another EWS1 fiasco”.
All the provisions in Part 4 seem to assume that the problem of residential fire safety is a lack of appropriate people and processes checking for fire risks in every possible instance. However, perhaps the real problem is the competence of the people who are already in place and the enforcement of rules and regulations that already exist, rather than making up lots more or creating new roles. As the leaseholder group notes, writing into law that every building will have to appoint a building safety manager is a duplication of the role of the existing managing agents and building managers, and proceeds from the false assumption that these housing blocks are “like barrels of oil needing almost daily surveillance and supervision to ensure that they don’t burst into flames at any moment.”
The truth is that fires are relatively rare, but they cannot be prevented altogether. The priority of this Bill should be to build in adequate safety systems and then maintain those properly so that residents can evacuate as quickly and easily as possible should fire occur. Instead, these clauses create an unnecessary duplicate role that will—guess what?—yet once more, financially cripple leaseholders.
The Government themselves estimate that the cost of a building safety manager will be £60,000 a year per block. For Lucy, in a block of 33 flats, this will add £1,818 to her annual service charge. For Ruth, in a block of 19 flats, the building safety manager costs would add £3,157 a year to her service charges. It is not clear, either, whether that £60,000 estimate that was on the Government’s website has factored in employers’ national insurance and pension, plus the 20% VAT that an employing company would have to add to the charge. That would bring the cost to £85,000, in which case Lucy’s annual service charges would rise by £2,575 and Ruth’s by £4,473.
It is not clear exactly whether that £60,000 figure still stands, because the fact sheet explaining the building safety manager’s average pay of £60,000 a year was rather quietly removed from the Government’s own website after 5 pm last Wednesday. Luckily, the leaseholders have screenshots, which I have here if anybody would like to look at them. I am hoping that this is a positive sign that the Government are going to scrap the policy—delete the policy just like the web page—or at least water it down by turning it into a function that can be met by existing managing agents and property managers, and not treating it as a separate job.
With the words of the Secretary of State, Michael Gove, ringing in our ears, he has warned that
“too many buildings are declared unsafe”,
and that many of the problems associated with the cladding scandal have been caused not by unsafe buildings but over-zealous inspectors and nefarious players
“seeking to profit from the current crisis”.
We should have those words in the back of our minds when we ask key questions.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
My Lords, I think we are all reassembled. We were listening to the noble Baroness, Lady Fox of Buckley.
Baroness Fox of Buckley (Non-Afl)
I know that noble Lords have been waiting with bated breath.
The key question is why building safety managers are needed at all, when the vast majority of leasehold developments have managing agents in place and leaseholders have to pay a management fee for their services. Surely splitting the function would risk disputes between property managers and building safety managers about what is and is not a safety issue and who is in control when remediation works have a safety element. These buildings, which people live in, already have fire risk assessments carried out by specialist firms—even if one problem is that they are not shared with leaseholders, which can mean that defects can be kept hidden and necessary repairs delayed. But still, what will the building safety manager actually do?
To find out—I do not know whether the Minister has seen this—I watched a recording of a closed-door meeting of sector professionals trying to pin down the role. It was full of flip charts, pie charts and Venn diagrams, and I was utterly confused by the end. It seemed to me to be a jack of all trades and master of none, but it needed the authority of a professional expert. It was reminiscent of a scene from David Brent’s “The Office”.
These are compulsory jobs but they are not mandated to a minimum standard. Qualifications for the role have not been established, no training programmes are in place and, as I say, even the professionals themselves do not seem to know what that training would consist of. If this post is made mandatory, as proposed by these clauses, the qualified few will surely be able to write their own salary cheques. No wonder that leaseholder campaigning groups are talking about “jobs for the boys”. Even if that is a bit cynical, we must ask who will judge their performance or hold them to account. Leaseholders—who will pay for them and who are best placed to judge those overseeing the block they live in, due to day-to-day interactions—now say that, as always, they will have no say at all.
Safer homes will come not from employing someone to march around a block of flats, trying to find issues to justify their existence and quite a hefty salary. This is a version of the waking watch debacle, replacing hi-vis jacket patrols walking around buildings looking for sparks with a suited and booted manager with an iPad finding risks, faults and unnecessary fire safety work. If they do not find any problems, what is the point of their job?
I finish with that question. What is the point of the job? I hope the Minister agrees that there is no point.
Lord Thurlow (CB)
I support the very interesting comments of the noble Baroness, Lady Fox—most interestingly, it is immensely refreshing to listen to an amendment that is driven not only by cost savings for leaseholders but by common sense. In many cases, the sub-contracting of services on multi-let buildings is appointed through external managing agents, who apply a levy; they will charge, let us say, 10% on the fee for the work being done. In the £60,000 example, another £6,000 goes on to the tenants’ bills at the end of the year.
I simply support this proposal. It will be a difficult one for the Minister, but common sense is short in the Bill because of the layers of bureaucracy. This will save money for tenants.
Baroness Pinnock (LD)
My Lords, I am very grateful to the noble Baroness, Lady Fox, for raising this issue about the necessity for a building safety manager in every block—this is of course in relation only to higher-risk buildings. However, residents in higher-risk blocks will have a managing agent, to whom they pay a fee—a service charge—who appoints an accountable person, for whom there will be an additional cost, and possibly a principal accountable person, if that is necessary. On top of that, each block will have to have a building safety manager. As the noble Baroness, Lady Fox, pointed out, adding on those roles considerably adds to the costs for each of the leaseholders; their service charge will rise considerably as a consequence.
I too have had discussions with some of the cladding campaign groups about the potential £60,000 role and the costs which will pass inevitably to them. They are very anxious that their lease will suddenly become unaffordable due to the piling on of costs from these roles.
The further issue in my mind is, as I think the noble Baroness, Lady Fox, said, that there is a duplication of roles. Equally, when there is a confusion about roles—each block might have three people who potentially have conflicting roles—building safety risks will fall between the three. I can find nothing in the Bill that says how each will be accountable. In the end, we come back to this: quis custodiet ipsos custodes—to whom are they accountable?
The Explanatory Notes gives us this as an example:
“The Building Safety Manager may be carrying out day to day functions, as set out in the agreement with the Principal Accountable Person, to assist the Accountable Persons in discharging their statutory obligations. However, the Building Safety Manager could choose to resign of its own volition, and conversely the Principal Accountable Person may find that the service provided by the Building Safety Manager is below standard and choose to dismiss that person. In both circumstances the Principal Accountable Person would need to replace the Building Safety Manager as soon as reasonably practicable.”
I hope everybody understood that. That is my argument: it becomes confused.
One of the issues with building safety and fire safety is that it needs clarity and simplicity. This is not clear and simple. I believe I raised at Second Reading the issue of too many rules causing confusion. When nobody really knows who will do what, it is always a recipe for a potential disaster.
Those are the two points: costs and duplication leading to confusion. The question is this: to whom are they finally accountable—the accountable person or the managing agent? It is not very clear.
The other point is about the competencies—a horrible word—of potential building safety managers. I could not find anywhere in any of the clauses which set out what those should be. The Bill talks about standards but it does not say what they will be. What should be expected of these folk?
Baroness Neville-Rolfe (Con)
I hope that the noble Lord, Lord Khan of Burnley, will not mind if I ask for clarification on a related point. First, I will say how much I agreed with the speech of the noble Baroness, Lady Fox, on the worry one might have about a shortage of experts for this purpose, leading to an escalation of costs that will end up with the ultimate consumer: the leaseholder. Clearly, given the history, we do not want confusion in the Bill.
My question is about how the safety manager will operate in practice. How often will he or she be expected to visit the building? Obviously, I know a lot more about shops, and in shops the safety manager is often a treasured member of staff who may not be an expert in safety but is an expert in making sure that other members of the team behave appropriately. You do not need much expertise on safety if you have a very good system—one that includes sprinklers, for example, which will work well because all you have to do is make sure that the sprinklers and the water that supplies them are checked from time to time. My question, which it would be good to have clarified, is: what is the vision of what this person is going to do, and will they be doing it once every five years, once a day, or whatever? That will affect both the cost and the risk that there will not be enough people to do the important job of ensuring that we have safe buildings. Even in high-rise buildings, there will still be quite a bit of demand.
Baroness Hayman of Ullock (Lab)
My Lords, I want to say how much we agree with what the noble Baroness, Lady Fox, said about the importance of having adequate safety measures. That has to run through everything we discuss in connection with the Bill. The noble Baroness also raised the important issue of cost. My noble friend Lord Khan talked about high service charges, and the Minister said she would write about that. This debate has put a focus on ever-increasing service costs, and the fact that in many cases they are starting to become unreasonable. It is very difficult when they go up by 190%, as they have in some areas.
The noble Baroness, Lady Neville-Rolfe, asked one of the key questions that I was going to ask, about the operation of the managers. What exactly are they going to do, and how are they going to do it? Will they be paid, and if so, how much? There is not a lot of detail in the Bill. This comes back to the point made by the noble Baroness, Lady Pinnock, about accountability, and whether there will be confusion over the role. It is important that we all understand exactly what building safety managers are expected to do, how they will do it and how they will be rewarded for their work. Without that clarification, there are bound to be concerns that the cost of their work will be passed on through increased service charges, or possibly increased rent. None of that is clear. We would like more clarification about the role and the expectations.
Baroness Scott of Bybrook (Con)
My Lords, I start by going back to where the Bill came from, the tragedy of Grenfell Tower. The point of the Bill is to ensure the safety of residents, particularly, in this case, in high-risk buildings, and the building safety manager is the day-to-day eyes and ears. I do not know whether people realise, but I did two or three years’ work after the tragedy in Kensington and Chelsea. Before I did that, I spent a lot of time in high-rise buildings, not in London but elsewhere in the country, and it was quite interesting, on a day-to-day basis, when I went round with fire brigades and dealt with issues such as safety doors. People took them off and put B&Q doors on. Those things cannot be done every five years, or every year; they need somebody going in and out of that building, checking up.
There will be stairwells with stuff stuck in them that is stopping people going up and down. There will be holes between the sealed containment of flat against flat. All those sorts of things need somebody who is not at arm’s-length but is working day to day. Yes, they will need new competences, but those competences are out there, I would argue, within the community already, and we will have to work on those competences. As for cost, obviously, that depends on the building. Some of these managers will be able to do multiple buildings if it is felt, by their accountable person, that they will be able to do a good job on that. One building is not the same size or requires the same amount of work as another building.
I shall now go through the amendments of the noble Baroness, Lady Fox, and I thank noble Lords for their contributions. The crux of Clause 80 is the duty to appoint a building safety manager. The creation of the building safety manager role was recommended made by Dame Judith Hackitt in the independent review to ensure, I say again, that the day-to-day management of buildings is undertaken by suitably competent people. That is what she said and that is what we are delivering in the Bill. Clause 80 establishes the role and creates a duty for principal accountable persons to appoint a building safety manager and provide them with support and assistance to manage building safety risks, except where they have the capability to meet the duties without needing such support. So there will be times when principal accountable persons have the time and the competences to do it without appointing somebody else. The skills, knowledge and experience offered by building safety managers will help drive up safety standards and, we believe, deliver positive outcomes for residents.
While the building safety manager will hold responsibility for certain tasks, to be agreed in their contract, accountability for meeting the duties set out by the Bill cannot be transferred by accountable persons to the building safety manager or anybody else. I think that answers the question of the noble Baroness, Lady Pinnock, about who is ultimately responsible. Whether the building safety manager is an organisation or an individual, they must possess the necessary competence to deliver the role. If an organisation is appointed, it must have a nominated individual named and in place to oversee delivery, providing reassurance to residents that their safety is being maintained. The noble Baroness, Lady Pinnock, brought up the competence issue. Work is ongoing with the British Standards Institute to establish a competency framework for the role, which will be supported by further guidance.
Moving on, Clause 81 deals with the appointment of the building safety manager where there is more than one accountable person for the building. Despite the often complex ownership structures of many high-rise residential buildings, we are committed to delivering a system that ensures a whole-building approach. This was a central tenet of the findings and recommendations of the independent review.
Where there are multiple accountable persons, the principal accountable person will be responsible for appointing the building safety manager. The building safety manager should play a key role in delivering a whole-building approach, drawing on the duty placed on all accountable persons to co-ordinate and co-operate with each other.
Before the appointment is made, the principal accountable person must consult on the proposed terms and costs with their fellow accountable persons. We expect agreements to be reached so that the scope of the building safety manager’s functions and the method of delivery of the whole-building approach are agreed by all. If an agreement cannot be reached, we are providing a process for resolution through applications to the First-tier Tribunal. This approach protects the rights of accountable persons and holds them to account for ensuring residents’ safety.
Clause 82 ensures that building safety managers hold their position through the contractual arrangements agreed with the principal accountable person. If either party wishes to end the contract, they may do so by giving notice to the other party in writing. When the contract ends, a new building safety manager must be appointed by the principal accountable person as soon as is reasonably possible. If a building is not being managed appropriately and is placed into special measures, which is the last resort for taking control of buildings with significant failings, the building safety manager’s contract will end.
I mentioned earlier that there is an exception to the principal accountable person’s duty to appoint a building safety manager. Dame Judith’s review was right to point out that many building owners already operate and successfully manage their buildings through competent in-house teams. Where the principal accountable person’s existing management arrangements deliver safe outcomes for residents and this can be demonstrated to the building safety regulator, their mode of delivery will not need to change. The competency requirements for qualifying for this exception are of course the same as those expected of any other building safety manager.
This approach is likely to be favoured by organisations such as housing associations or local authorities, which potentially have many buildings that fall under the scope of the new regime. Residents of these buildings will rightly expect to be able to identify individuals who play an important role in maintaining their safety, and the clause requires the identification of the individual responsible for overseeing delivery. This person will not be expected to carry out every task alone, but they will be required to provide oversight such that a holistic and systemic approach to managing safety is achieved.
The exception to the duty to appoint a building safety manager also applies where there are two or more accountable persons for the building. The competency requirements remain consistent. As in the case where they would appoint a building safety manager, the principal accountable person must, as I said, consult their fellow accountable persons and seek to reach agreement on the proposed arrangements. We expect the consultation process to follow the same route as already explained for appointing a building safety manager where there are two or more accountable persons.
Safety has to be our main priority and the building safety manager plays an important role in delivering this. The Government will reflect further on all the points raised today. However, at this point we maintain that Clauses 80, 81, 82, 83 and 84 should stand part of the Bill.
Baroness Pinnock (LD)
I thank the Minister for responding. I wonder whether she could explain something. I am still confused about what appear to be the conflicting roles of the accountable person and the building safety manager. I am looking at page 106 of the Explanatory Notes, where the accountable person is defined. It states:
“The Independent Review”—
the Hackitt report—
“identified that there should be a clear dutyholder during occupation who will have statutory obligations”—
this is the definition of “accountable person”—
“to maintain the fire and structural safety of the building.”
So we already have somebody who is being appointed to have those responsibilities. That is why I cannot see why there has to be a further role to undertake those duties. The duties are very important, but why should there be two people?
Baroness Fox of Buckley (Non-Afl)
Perhaps I should combine my question so that the Minister will not have to stand up twice. Saying that safety comes first and calling somebody a building safety manager does not mean that a building safety manager is going to make a building any safer. I do not think that it is entirely fair to suggest that those of us who are querying some of these things do not care about safety. We would not be sitting in this Committee, I assume, if we did not.
I want it clarified because I liked the Minister’s points about a common-sense approach to safety day by day and about eyes and ears. That all sounds sensible and in some ways I understand that point, but I am confused because it is not clear how many days someone will be there being the eyes and ears. The Minister read out that the competent person will have skills, knowledge and experience, but skills, knowledge and experience of what? It is still not clear. The idea of a volunteer, as described by the noble Baroness, Lady Neville-Rolfe, keeping an eye on things—items being broken or the fire door being replaced by B&Q—is slightly different from how it was discussed by the professionals when they were talking about what kind of person would be a building safety manager. They kept saying that they must be competent and experienced with some skills in fire engineering and personnel management because they will have to go around to tell people off. I think that in the end this is a job creation scheme that will not add to the safety of the building, as do many leaseholders, and they are on the receiving end of it.
Baroness Scott of Bybrook (Con)
I find it quite simple really, but then I am a simple person. The accountable officer is the accountable officer responsible for that building or many other buildings in the case of organisations that might have more than one building. They then ask a building safety manager to be there on a much more daily basis and to report back to them on issues within the building that might reflect on its fire or structural safety. Therefore, the skills, knowledge and experience required by such an officer are experience of fire and structural safety in high-rise buildings. We cannot expect the top level to be there day in, day out going around those buildings. How much will be required by each building will depend on that building, I suggest.
Lord Blencathra
Lord Blencathra (Con)
My Lords, I declare my interest as a leaseholder in a block of flats near here that has some remedial work not currently covered by the latest government proposals. I rise to move Amendment 46. In the customary spirit of this Committee, let us begin with my favourite building quote, which I learned in school and then used inappropriately all the time, as one does. Horace boasted that his Odes would be remembered like this; I commend the quote to my noble friend the Minister, since this is how this Bill will be remembered if he accepts the amendments of my noble friend Lord Young of Cookham, the noble Earl, Lord Lytton, and my humble self. Horace wrote:
“exegi monumentum aere perennius
regalique situ pyramidum altius,
quod non imber edax, non Aquilo inpotens
possit diruere”,
or
“I have built a monument more lasting than bronze,
higher than the Pyramids’ regal structures,
that no consuming rain, nor wild north wind
can destroy”.
That is the legacy my noble friend can have with this Bill, if he does the right thing. Let us crack on with proper work now.
Amendments 46 to 55 relate to Clauses 93 to 99. Of course, we have the excellent proposed new clause set out in Amendment 50A, which was tabled by the right reverend Prelate the Bishop of St Albans and which has also been signed by my noble friend Lord Young of Cookham and me. I look forward to hearing their speeches on it and will not trespass there except to say that the right reverend Prelate’s amendment may be a lot better than mine. I was moved to table my amendments in this group because, when I read Clauses 93 to 99, I was struck by how weighted against leaseholders they were. Since then, we have had the amendments tabled by the noble Baroness, Lady Fox of Buckley, which seem to come from the same assumption that the odds are stacked against residents. I look forward to hearing what she has to say on this as well.
In Clause 97, there seems to be an assumption that leaseholders are going to smash up and remove safety equipment from our buildings. Why in the name of God would we do that? Where has this crazy notion come from? We all paid good money for our properties. We bought them and it is in our vested interest to maintain and add value to them. Why on earth would we, in a million years, want to diminish that? It just does not make sense. Perhaps at Report noble Lords might be tempted to move that these clauses do not stand part of the Bill. Under them, we can be served contravention notices, access to our flats can be demanded and the accountable person can be given rights to take us to court, yet there is not a single balancing right for leaseholders to take action against the accountable person, who is more likely to be at fault, if our experience of managing agents is anything to go by.
Amendment 46 says that the accountable person can draw up the strategy “after consulting the residents”. Do we not believe in prior consultation before foisting a strategy on the people who have to comply with it? If a Minister did this, he would be up for judicial review for not doing proper consultation first. Amendment 46A says that, where there is a residents association, the accountable person must draw up the strategy in conjunction with its members and it must be agreed by them. Quite simply, they have the right to be involved and their buy-in is essential if the leaseholders are to happily sign up to the strategy.
Getting that buy-in is vital because we all know that the accountable person, who is likely to be the managing agent, will gold-plate every aspect of this strategy to increase the value of the landlord’s holdings. This morning, just for fun, I checked the price of a 6-kilogram standard dry powder fire extinguisher—a simple bit of safety equipment we would all expect to see. The most expensive came in at £171.75, while the cheapest was £31. They had exactly the same contents, were the same weight, had the same ingredients and would have the same firefighting ability, but we all know which one the landlord, freeholder and managing agent would buy and charge us for the privilege. It would be the gold-plated one—literally, in this case, I think. If accountable persons have a free hand to draw up these strategies, I am afraid that leaseholders will get ripped off.
Amendment 47 deletes Clause 93(5), which proposes that Clause 93(4)(a) does not apply where the accountable person is not aware of the resident or has taken reasonable steps to be aware of the residents. That is not good enough, in my opinion. This cop-out provision is not acceptable; managing agents or accountable persons could devise a strategy and claim that they could not find the residents to whom it applies and therefore could not consult them. “Accountable” means being accountable, knowing your residents and tracking them down, with no excuses—it is as simple as that.
Amendment 48 adds additional potential powers for the Secretary of State to make regulations. Again, I am not suggesting that he has to make them or building into the law that this has to happen, but this would give him a permissive power to act if he found a problem. It allows him to make further provision about the content of an engagement strategy and the way it is issued. That is small beer and pretty innocuous stuff which I am sure my noble friend can accept. I will be disappointed if he says he cannot.
Amendment 49 attempts to apply the same sanctions that are imposed on residents in Clauses 97 and 98. Clause 94 permits residents to request information from an accountable person but there is no sanction whatever if the accountable person fails or refuses to provide it. That is simply wrong; it is not a quid pro quo because, the other way round, residents are compelled to co-operate with the accountable person. I believe that the resident has as much right to demand compliance as the accountable person, who can demand compliance from residents and issue contravention notices under Clause 98.
Clause 95 states that the accountable person must set up a complaints procedure, but there is no sanction if he fails to do so. My Amendment 50 would give the Secretary of State an additional regulation-making power to create penalties for the failure of a principal accountable person to create such a complaints procedure. Again, I am not saying that the Secretary of State must do it and I am not setting out the penalties; I am just asking the Secretary of State to take the power of a regulation in case they need to use it in future because an accountable person has failed to set up a complaints procedure.
My Amendment 51 seeks to widen the potential definition of “relevant safety item”. At the moment, it is tied to “common parts” as defined in Section 69. That may or may not be good enough—I am not expert enough to know—but my amendment would change it to anything that may be defined in regulations. This would give more flexibility because, of course, regulations can be changed at any time, at the stroke of a ministerial pen, whereas an amendment to Section 69 would require primary legislation.
My Amendments 52 to 55 seek to delete “county court” and substitute it with “regulator”. I accept that the regulator may not be the right person but I think that it is heavy-handed to give the accountable person the right to go to the county court and threaten leaseholders that way. If we have a new regulator and First-tier Tribunals and an ombudsman, why drag the county court into it? Surely one of those bodies could be designated as the person to whom the accountable person goes to demand action from residents. I get the feeling that these clauses were designed to scare residents with the threat of court—for example, the accountable person saying, “Do this or we’ll take you to the county court”. That is heavy-handed; I believe that the regulator, the ombudsman or someone else should have that power instead.
My Amendment 85 would introduce a new clause to provide that, if a person with an interest in a property conducts a survey on it, they must share that information with everyone else who also has an interest in the property. Again, it is a power for the Secretary of State to introduce regulations if he is so minded; he is not forced to do so. My reasoning behind this is that we will get some landlords, freeholders and managing agents undertaking surveys of safety risks then saddling leaseholders with huge remedial costs while not sharing the safety report. Leaseholders would have to do their own at extra cost; that may not happen. There can be no justification for a safety survey undertaken by anyone in the building not being shared with everyone else in the property.
Finally, Amendment 87 would permit the Secretary of State, if he were so minded, to introduce regulations to permit the regulator, ombudsman or anyone else designated by the Secretary of State
“to act on behalf of a leaseholder or group of leaseholders in taking action against a developer, contractor, landlord or freeholder in relation to complaints about fire hazard remediation.”
We all know that a leaseholder challenging managing agents, freeholders and landlords is a real David and Goliath battle. In this case, David would not have a sling, or even a single pebble to fire at them. Leaseholders need a champion to fight their corner. My proposed new clause would permit the Government to appoint a champion and recover the costs so that the taxpayer does not have to pay a penny.
As I said, surely my noble friend the Minister cannot reject all these amendments as not technically correct or necessary because almost all of them would simply grant the Secretary of State permissive regulatory powers. He would not have to implement a single one of them but I would grant him the powers to make regulations if, at some time in the future, some of these problems arose and the Government had to act. Let us build a permissive regulation-making power into the Bill now so that the Secretary of State can use it in future if need be. I beg to move.
The Lord Bishop of St Albans
My Lords, I rise to speak to Amendment 50A in my name and those of the noble Lords, Lord Blencathra and Lord Young of Cookham. Let me say how much I support the sentiments and intentions of the noble Lord, Lord Blencathra, who has done us a real service.
I, too, do not want to die over the details of this amendment. I hope that this will stimulate a really vigorous debate so that we can all work together on how we get these sorts of commitments in the Bill. I and others on my Benches want to work with the Government and others to achieve this. If someone else can turn up with much better solutions, that is great.
Throughout the cladding and fire safety crisis, we have heard many stories of landlords imposing outrageous and sometimes astronomical building safety charges on leaseholders and tenants. Often this has been done by managing agents acting on behalf of the freeholder. Leaseholders and tenants have reported a complete lack of accountability and transparency throughout this process and have been unable to challenge or even scrutinise the charges imposed on them.
Of course, this is only one aspect of the fire safety crisis, but one that has been somewhat overlooked when the primary focus has rightly been on ensuring a fair remediation settlement. However, the fire safety crisis has exposed the utterly powerless position that many leaseholders find themselves in, sometimes subject to the whims of freeholders with very few avenues of recourse, unless they raise considerable amounts of money and try to challenge things in the courts, which is very often way beyond the financial ability of many leaseholders, even if they wish to do it.
Amendment 50A would strengthen the right of leaseholders and tenants to consult with, and scrutinise decisions made by, the landlord on matters relating to building safety and would require the landlord to set up a recognised tenants’ association for the purpose of consultation.
The leasehold system in tall buildings has been placed under serious stress in the post-Grenfell years. Future home owners may have looked at the existing crisis and been turned off the prospect of owning a leasehold property. Others, facing far fewer choices, have simply—fatefully—walked into purchasing a leaseholder property unaware of the realities of the leasehold system, only to be later consumed with regret and extortionate charges. We need to make the leasehold system fairer and more attractive, not just for those who are thinking about buying a leasehold now, but for those existing leaseholders who feel powerless in the face of their managing agent and freeholder.
Ideally, leaseholder associations would also be able to scrutinise and consult on insurance commissions, along with other service charges not related to building safety. The amendment would begin to reorientate the relationship between the freeholder and leaseholder, which, as it currently stands, is skewed too far in favour of the freeholder. This is not an anti-freeholder amendment. Many freeholders will manage their property in a responsible manner. There are, however, just too many instances—and quite high-profile ones—of freeholders acting in an appalling manner. For example, the Yianis Group, the freeholder of the West India Quay development, spent over £74,000 in a legal action to block the residents from forming a recognised residents’ association. This was after leaseholders issued proceedings against the freeholder over expensive energy bills—something not covered by this amendment, of course, but worth mentioning—in which they were vindicated after the court revealed that they had been overcharged by 26% on their utility bills.
This is the same freeholder which, when challenged by the residents at a different development at Canary Riverside, lost a ruling brought forward by the residents and was forced to replace the managing agent. The court ruled that the freeholder failed to maintain the estate and did not adequately prove expenses and service charges. As the Times reported, it even charged a 100% mark-up on repairs to leaky windows to a repair company. At the time of reporting, the freeholder then attempted to chip away at the court-imposed manager’s power, costing the leaseholders £1 million in legal fees over 22 proceedings. The freeholder’s intentions here speak for themselves.
Stronger provisions than those listed in Amendment 50A would be welcome, as these powers would relate only to building safety matters. However, the amendment would go some way to breaking the power of any unscrupulous freeholders who view their leaseholders as cash cows. The amendment is not for those honest, conscientious freeholders who retain good relations with their leaseholders and managing agents, but for those such as the Yianis Group, in respect of whom one leaseholder said they were made to feel at the mercy of their landlord.
I hope the Minister will look seriously at measures to strengthen leaseholder representation when dealing with freeholders. The scope of the Bill limits what we can do at the moment, but a verbal assurance that the Government are committed to reforming this imbalance of power would be most welcome.
In the meantime, I hope that the Government will consider these proposals carefully—limited though they may be—as a stopgap to help end some of the egregious abuses that leaseholders and tenants may face from their freeholder. I hope that this will be a contribution. I look forward to hearing what the Minister says in his summing up.
Baroness Fox of Buckley (Non-Afl)
My Lords, I shall speak to Amendments 52A to 52C, 54A, 54B, 55B and 55C, which relate to Clauses 97 to 99. I also support the amendments in the name of the noble Lord, Lord Blencathra, and his comments, as well as those of the right reverend Prelate the Bishop of St Albans. It is in that spirit that I make these observations.
One issue that the building safety and cladding crisis has shone a light on is just how iniquitous residential leasehold tenure really is. The system of leasehold may dress itself up as home ownership. When I bought my flat 25 years ago, which was the first time I had ever bought anything or got a mortgage, I thought of myself, very proudly, as a home owner—it was part of my growing up—but I now think that it was a bit of a mis-sell, as I am nothing of the sort. As Rabina Khan, a Liberal Democrat councillor in Tower Hamlets, puts it—she has been very insightful on all these issues—in effect:
“Leaseholders are tenants when it comes to rights, but owners when it comes to paying any bills. Yet they have no control over the contractor, costs or scope of any works. They must pay up pretty much whatever is demanded by the freeholder landlord and their agent.”
Under Part 4 of the Bill and the clauses that I am referring to, building owners are given sweeping new rights in relation to entry to and surveillance of leaseholders’ homes in the name of safety and fire prevention, even being able to force entry if the leaseholder does not admit entry to their own homes by a set time. Leaseholders who I have spoken to are concerned that these Part 4 provisions could be used to threaten and harass leaseholders, are overly intrusive without affecting fire safety in any real way, and, more broadly, feed into a dangerous atmosphere —which we are familiar with from the Covid period and lockdowns—of dispensing with civil liberties and privacy too easily under the auspices of safety.
My amendments to Clauses 97 to 99 come as package. They seek to tighten up the drafting to ensure proportionate actions that do not leave leaseholders open to either false accusations or blame for safety issues, so that it does not become yet another vehicle for forcing leaseholders to pay ever more money, and they would respect the rights of leaseholders as home owners.
Clause 97 places a duty on every occupant of a high-risk building not to interfere with safety features. The focus here is making it clear that residents have a duty not to affect the safety of the building. My amendment to Clause 97 makes it clear that this duty is breached only where there is material interference. This change would, for example, avoid someone being found in breach of the duty if they accidentally broke the glass in a dry-riser door or accidentally broke a hinge on a fire door because the current drafting would treat them not as accidents but as breaches of duty in the same way as someone deliberately disabling a fire alarm.
Clause 98 allows an accountable person to send a notice, possibly demanding money, if the accountable person knows or, importantly, just suspects that there has been a breach of this new residents’ duty. Again, this section has no materiality threshold, so it can be triggered by any breach that the accountable person feels like enforcing. As it stands, it is far too subjective. It is blatantly open to malicious misuse or just a promiscuous and ever-growing risk-averse blame culture targeting leaseholders as culprits. The amendment I have put forward tightens the clause up to focus on material breaches that the accountable person can evidence—a key point.
Clause 99 is on the power of entry. The current drafting allows the accountable person to demand access for any reason, including mere suspicion of a breach of duty. This demand for access can be given with as little as 48 hours’ notice. If access is not given in that timeframe, the accountable person can then obtain a court order, possibly without a notice to the person affected. This makes what should be a last resort possibly a new normal, and, I argue, a new draconian normal.
The amendment I have proposed to Clause 99 would require that the new building safety regulator issues a code of practice on how exactly this power is to be used after consulting a tenants panel. That is not a perfect solution, but at least the onus would be on the accountable person to comply with the code of practice when making requests for access to people’s homes.
As has already been mentioned by a number of speakers, I am not trying to paint a picture of dastardly freeholders, building owners or managing agents gleefully harassing leaseholders or threatening to kick their doors down, but for me one of the inevitable consequences of a disproportionate zero-risk attitude to building safety with an ever-growing proliferation of demands and duties placed on the accountable person, requiring that they check, check and check again, means that we end up where the Secretary of State, Michael Gove. warns us not to end up. In another context he has warned of the dangerous overzealousness of inspections, unnecessary surveys and precautionary, just-in-case assessments.
All this fuels the notion that not only is every flat a fire hazard but that every owner of a flat is a fire hazard too. As soon as safety measures become a disproportionate fear, they can lead to perverse outcomes. In June 2020, before the Public Bill Committee, L&Q, one of the biggest social landlords, responsible for 95,000 homes, including leaseholders and shared ownership properties, complained about the difficulties of accessing the front doors of leaseholders, implying that leaseholders who refuse to go along with its neverending fire safety upgrades might be putting lives at risk. Its spokesperson said:
“With tenants, we might be able to go to court and get injunctions and get injunctions to gain access to a home, but with leases, that challenge becomes even more difficult.”
That was said as a matter of regret.
This attitude means that these provisions presume that leaseholders cannot be trusted. I think they imply a certain contempt that treats leaseholders as ignorant or stupid or both, as though, if left alone, away from the wise and sensible landlord or his or her appointed overseer, they might set up a barbeque in the living room, rewire their own flats even though they are not electricians, be like children irresponsibly playing with matches or wilfully destroy safety equipment, as the noble Lord, Lord Blencathra, mentioned.
The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)
My Lords, I can see that my noble friend is about to rise, but there is a crescendo in this group of amendments and I realise that it is very important to hold in reserve the speeches from my noble friend Lord Young—as well as the crescendo of the amendments to be introduced by the noble Lord, Lord Stunell, and by my noble friend Lady Neville-Rolfe. This is a veritable feast of amendments, so I will introduce the government amendments at this point, if I may, before I summarise the group.
As this is a feast of amendments, I have looked up my old grace, which I used to say when I was 18, 19, 20 years of age. It is very long—I hope I will not get it wrong, as I know the right reverend Prelate will know if I do. It goes as follows:
“Oculi omnium in te sperant Domine:
Et tu das escam illis in tempore.
Aperis tu manum tuam,
Et imples omne animal benedictione.
Benedic, Domine, nos et dona tua …
et concede, ut illis salubriter nutriti
tibi debitum obsequium praestare valeamus,
per Christum Dominum nostrum.”
That is roughly right. It is what we used to say before we could eat. This is a feast, and I appreciate that every amendment is laid with the interests of improving this Bill. If we cannot accept them, I want to say that I appreciate the intentions behind every one of them. I will summarise our position at the end.
I have tried to summarise each group in three words. This is the “residents and redress” group, and I have always been clear that residents should be at the heart of the new regime. Today’s debate demonstrates the continued importance of that commitment. I am pleased to start by speaking to a group of amendments that is focused on ensuring that residents and others have more access to redress.
Amendments 76 and 77 create a new power for the High Court to impose building liability orders in appropriate cases. These orders will allow civil claims to be made against the associated companies of a company involved in the development or refurbishment of a building in certain circumstances, including when the original company no longer exists. In this House and in the other place, we have discussed the lack of ongoing liability that large developers have due to their use of special purpose vehicles. These amendments directly address this issue and support the changes we have proposed to the Defective Premises Act. They rebalance the level of exposure that small and medium-sized businesses in the construction industry currently have compared with the larger players—and, most importantly, they unlock potential funding for those who have remediated or who need to remediate, if they bring a successful claim. I consider that these orders will be an important tool in holding “polluters” to account and making them pay for their past misdeeds—so I hope that noble Lords will join me in supporting these amendments.
Moving on, I have also tabled a series of amendments that will help to make sure that construction product companies pay to put right building safety issues that they have contributed to causing. I do not intend to move these amendments today but have laid them to invite the scrutiny of noble Lords. I will listen carefully to the debate and bring these measures back at a future stage. Briefly, they target construction product manufacturers and ensure that they take responsibility for their part in the creation of building safety defects. The new clauses in Amendments 107 to 109 and 144 introduce two new causes of action against construction product manufacturers. There are currently almost no routes which allow leaseholders to hold construction product manufacturers accountable for their role in the creation of serious building safety defects. The Government are clear that those who have been responsible and continue to be responsible for building safety defects have a responsibility to put them right.
These causes of action will enable claims to be brought against construction product manufacturers and sellers for their role in the creation of building safety defects. They will apply if a product has been mis-sold or is found to be inherently defective, or if there has been a breach of construction product regulations. If this contributes to or causes a dwelling to become “unfit for habitation”, a civil claim will be able to be brought through the courts under these causes of action.
The cause of action relating to cladding products in Amendment 107 will be subject to a 30-year retrospective limitation period. The broader cause of action relating to all construction products in Amendment 108 will be subject to a 15-year prospective limitation period. These limitation periods reflect the changes we are making to the limitation period under Section 1 of the Defective Premises Act. These causes of action will ensure that construction product manufacturers can be held responsible for the costs of rectifying their mistakes.
Amendments 110, 113, 114, 141 and 145 will create a power to make regulations to require construction products manufacturers and their authorised representatives, importers and distributors to contribute towards the cost of remediation works where they have caused or contributed to dwellings being unfit for habitation. Amendment 110 will enable the Secretary of State to serve a costs contribution notice on companies that have been successfully prosecuted under construction products regulations, where the relevant product has contributed to identified dwellings being unfit for habitation.
Amendment 114 introduces a new schedule that will give the Secretary of State the power to appoint an independent person to inspect buildings where the relevant product has been used. This assessment will consider whether the conditions for serving a costs contribution notice are met, and the remediation works required. Amendment 114 will enable the Secretary of State to make regulations setting out a process for establishing costs that a company should be required to pay, which will take account of its ability to pay, and to whom payment should be made. This amendment will also enable the Secretary of State to require a company to contribute towards the cost of building assessments carried out as part of this process. Setting out this scheme in secondary legislation will enable the necessary interaction between costs contribution notices and construction products regulations, including those that will be made using the powers in this Bill.
I will listen carefully to the remainder of the debate today, as I have to every speech given so far introducing various amendments, and I look forward to hearing from noble Lords. As I said earlier, I will be moving only Amendments 76 and 77 today. I will carefully consider what I have heard in relation to the other amendments, and I will bring these measures back at a future stage.
Lord Young of Cookham (Con)
My Lords, the instructions on the sheet of paper in front of me are not “crescendo” but “diminuendo”—some gentle accompaniment on the bass to the forte soprano that we heard from the noble Baroness, Lady Fox. But seriously, I want to add a brief footnote to the excellent speeches made by the noble Baroness, my noble friend and the right reverend Prelate.
I make the point that they all underline the need for the next stage of leasehold reform which the Government have promised, which does away with this feudal system of leasehold which exists nowhere else in the world. Once we have done that, all these problems that we have been talking about this afternoon will disappear: there will be an identity of interest between the freeholder and the leaseholder because they will be the same person. At some point, perhaps the Minister can shed some light on the next stage, confirming that that is indeed the Government’s objective and that they want to move in that direction as fast as possible.
I add a brief footnote to the excellent speech the right reverend Prelate made on Amendment 50A. In particular, I draw attention to the radical proposal in subsection (3)(a) of the new clause proposed in his amendment, which places an obligation on the landlord for
“where there is no recognised tenants’ association in existence before the coming into force of this section, creating a recognised tenants’ association and consulting with it about building safety”.
Because of the Long Title of the Bill, the right reverend Prelate had to confine it to building safety. However, it is a radical proposal. It places the obligation for establishing a tenants’ association not on the tenants, which is the position at the moment, but on the landlord, evening up the terms of trade. As I said, it is a very radical proposal indeed. An indifferent landlord does not want a residents’ association or a tenants’ association with whom he has a statutory obligation to consult, although I happen to believe that it is in his best interests to have such a dialogue. So the terms of trade are dramatically altered by the right reverend Prelate’s amendment.
In an earlier incarnation, I recall helping establish an organisation called Tpas—the Tenant Participation Advisory Service—I see the noble Lord, Lord Best, nodding sagely; he has a similar vintage to myself when it comes to housing legislation. That was focused primarily on tenants of social landlords, but I believe it has subsequently expanded into the private sector. It would be very well placed to advise landlords and tenants on how to set about establishing such an association, were the right reverend Prelate’s amendment to be accepted.
Finally, on this group of amendments, I reread chapter 4 of the Hackitt report last night, entitled “Residents’ voice”, and it has a whole series of recommendations about enfranchising the resident and the tenant in exactly the way that we have underlined. So, as I said at the beginning, I add a small a complement on the double bass to the excellent speeches that have been made on this group of amendments—or perhaps I am a tenor.
The Earl of Lytton (CB)
My Lords, I will try to be brief here. This is an extremely valuable group of amendments, and I entirely relate to the point made by the noble Baroness, Lady Fox, and the noble Lord, Lord Blencathra.
I will comment on something that the noble Lord, Lord Young of Cookham, said. He introduced the question of, if I paraphrase him right, the undesirability of the long-term continuation of conventional long leasehold, and I understand that. For some years I chaired the Leasehold Advisory Service when it was first set up, which was in response to a ministerial commitment that it should be put in place and that there should be advice to leaseholders.
Baroness Neville-Rolfe (Con)
The noble Earl, Lord Lytton, is a great expert on landlord/tenant matters. I agree with him that changes to the leasehold system are not for this Bill; indeed, I do not think that my noble friend Lord Young was suggesting that they should be in it. We have quite enough to do in this Bill. I am grateful to my noble friend the Minister for his description of the new clauses and his willingness to listen, as I think that the new clauses may need some more work.
Like the right reverend Prelate the Bishop of St Albans, I am passionate about consultation, as my record elsewhere shows. Obviously, I am very concerned about bad practice. However, we cannot have a system where an unco-operative resident or two could prevent appropriate safety arrangements being agreed—that is a concern of mine—or encourage the use of too many expensive lawyers, with the cost ending up with the leaseholder.
We also need to think about the enforced requirements for a residents association, as suggested by my noble friend Lord Young in one of the amendments. It may be worth considering in high-risk cases, but it could complicate matters needlessly in some areas.
I shall speak to my Amendment 147 in this group. It would delay the commencement—that is, the coming into force—of the new provisions on the remediation of certain defects and building liability orders until an impact assessment has been published. Noble Lords will know of my passion for impact assessments; I thank my noble friend the Minister for the original assessment on the Bill. I emphasise, with my experience as a civil servant, a business executive and a Minister, that this is not simply a bureaucratic exercise. The discipline of drafting forces the executive authorities to reflect more deeply on the consequences, including the second, third and even fourth-order effects. It encourages good administration and identifies perverse effects and problems. All this matters more—not less—when the measures are ones of great complexity, especially if they are being rushed through.
I have reflected on this further in the light of our important debate on Amendment 24 in Committee last Thursday, 24 February. I have reread it carefully in Hansard, and I thank the noble Baroness, Lady Pinnock, for mentioning that an impact assessment, as well as an Explanatory Memorandum, before Report would be helpful to our debate. As she said,
“blocking developers, even when they have planning consent … is a really radical proposal”,—[Official Report, 24/2/22; col. GC 184.]
and we need to know how it might work and have an impact assessment. We need to understand all those who would or could be affected, including cladding suppliers and manufacturers, architects and surveyors—and, indeed, the planning and building control authorities, which may need to change their practices.
I was struck by the complexity of what is proposed, and the certainty that there will be hidden and unnoticed effects. The right reverend Prelate the Bishop of St Albans, in an excellent speech, was right to point out that any levy paid would inevitably be passed on to consumers and tenants in large part. He was also right to remind us of the chronic shortage of supply of homes in the UK. Indeed, in our report Meeting Housing Demand, the Built Environment Committee found a shortage of homes of all tenures, including social housing. We need to ensure that that does not go backwards, and that the whole building industry, already short of skills and resources, is not needlessly diverted—while, of course, doing the right thing on safety. A decent home is so important to all and we now need to cater for yet more arrivals as a result of the desperate situation in Ukraine.
I was therefore disappointed by the approach of my noble friend Lord Blencathra, who until recently chaired—very well, if I may say so—the Delegated Powers Committee. I believe it is irresponsible to give yet wider powers for bringing in and punishing, or penalising—effectively fining—new groups, when we have not thought through how they might be involved during our scrutiny of the Bill. I am afraid I have the same hesitation about engagement with residents, which is the subject of today’s group of amendments, which include a widening of powers. I regret to say that I think those amendments go too far.
More importantly, all this discussion has reinforced my view of the need for my amendment. I hope the Government will consider it carefully, as it might go some way to assuaging the fears that there may be about the proposals before us, and any decision by the House to widen their application. Wide powers are being taken in the Bill, which will set a precedent for the future. I would like to support the Government in finding a way through, but I would also like to understand the impact.
Baroness Pinnock (LD)
My Lords, this group covers three big issues—residents’ engagement strategy, access to properties, and the third part, relating to government amendments, some of which have not been moved today, on construction products and liabilities. My noble friend Lord Stunell will wind up this debate, using his expert knowledge of many of these issues, so I shall restrict my comments to the amendments about residents’ engagement, access and a little bit about construction products.
I completely agree that there has to be a residents’ engagement strategy. One of the learning points from the terrible Grenfell Tower fire was that residents wanted a voice and tried to make their voice heard, but it was not listened to. Their voice may have been heard, but it was certainly not listened to—and it was certainly not acted on.
As the noble Lord, Lord Young of Cookham, has pointed out, there is a big part of the Hackitt report which references the importance of the residents’ voice, and of listening to and acting on what they say. They are the folk who live there. They are the people who daily see what goes on. Their voice must be heard so, whatever else we do, I hope that we will strengthen those clauses about resident engagement. Picking up on the point made by the right reverend Prelate the Bishop of St Albans, we need residents’ associations to do that. We cannot force them to exist, but we can put the onus on the freeholder or the accountable person to ensure that there is some method for the residents’ voice to be heard.
Lord Stunell (LD)
My Lords, I am pleased to contribute to this debate. We certainly have many important issues bound up in one group. I will focus particularly on government Amendments 76 and 107 and my Amendment 107A. I will use this as an opportunity to open up more widely some of the issues that have already been raised in the debate so far, particularly by my noble friend Lady Pinnock and the noble Baroness, Lady Neville-Rolfe—who I suppose I can call a noble friend on the other side—who is the chair of the Built Environment Select Committee on which we both serve. I thank her in particular for her Amendment 147. There was no agreement, discussion or co-ordination between us, but I hope that she will think that my Amendment 107A and my words in support of it strengthen the case for the Minister agreeing to her amendment.
I am not going to get into the Latin stuff. My top result was 26% and I was referred back to the previous set. Incidentally, the Latin teacher at the time was a Conservative alderman—but I have not held that against him too much since.
On a serious note, this group brings into focus the really big picture on this. It is a set of proposals from the Government that, taken overall, completely tears up the normal rulebook about what Governments do to private sectors. The Bill gives a power to deliberately stop a business from functioning, and that is pretty rare. Sometimes legislation prevents businesses from functioning, but it is usually an accidental by-product of something else. This is, quite clearly, the power to stop a business from functioning if it fails to behave in a certain way.
That is robust and unprecedented and, given the scale and depth of the problem, it is certainly proportionate and necessary for building work in the future. It is also certainly right for products that go into buildings in the future to be treated in the same way. They must be safe and there must be compellingly strong reasons for those who make and install them to do so correctly, in the knowledge that they may face draconian penalties if they do not.
Even for that forward-looking case, Amendment 147 from the noble Baroness, Lady Neville-Rolfe, is certainly right: there must be an impact assessment published before any regulations are tabled for the implementation of that regime. Certainly, we on this side strongly support robust action being taken, but we also want to understand the consequences of doing it, and we want an opportunity for your Lordships to see that the consequences have been examined properly and to judge proposals in the light of that.
My Amendment 107A looks forward but looks backward to the last 30 years as well. It is a probing amendment—or, I might say, a “tip of the iceberg” amendment. It is about product liability rather than construction liability. I also think that everything I say in aid of my amendment applies just as much to construction liability as it does to product liability.
In a previous life, I spent part of my 20 years in the construction industry inspecting work prior to handover to assess whether it had been completed to specification. Most building contracts then had—and still have—a defects liability period, which means that six months after the handover somebody walks around for a second time to see whether any outstanding defects have been remedied properly so that the final moneys can be released. During my time, I did some of both those kinds of inspections, in each case on behalf of the client.
My job when I made those inspections was therefore to reveal and not to conceal. I see that the noble Earl, Lord Lytton, is nodding his head; he has the same experience. That was back in the 1970s and 1980s, and I would say that anyone who believes that standards back then were higher than they are now is mistaken. Actually, they were no higher in the 1870s or 1880s either, despite what the Minister told us in our first sitting. You only have to remember what slum clearance was all about to realise that poor building standards have always been with us.
In my professional experience, disputes were common and hugely pivoted around various benchmarks when the inspections took place. Was something done exactly as designed or not? Was it in strict compliance with the regulations or not? Was it better or worse than industry standard practice? And, as the noble Earl, Lord Lytton, said a moment ago, had they made reasonable endeavours or not?
I never let through anything that was not fit for habitation, as referenced in Amendment 107, nor a building safety risk, as set out in subsection (4) of Amendment 66 in the next group. However, there was always a lot of scope for argument over definitions, which is highly relevant to this legislation. I once attended a fire door test that was put in place because I had objected to a fire door which blew to bits in a wind. That is when I learned two important things, one of which is that to pass a one-hour fire door test a fire door has to resist fire for only 40 minutes. The one hour is when the frame drops out. The second lesson was never to go to a fire test in your best suit.
Baroness Neville-Rolfe (Con)
Does the noble Lord think this construction product schedule includes such things as wood? The thing about fire safety is that it is not just to do with whether it is a plastic tile of some sort but with where construction products are used. In a case that I am aware of, there is an argument that things made of wood—as they have been for a thousand years—are not safe and should be replaced by something else. I am not quite clear how the construction products link into that. This may be a question for the Minister, but I ask the noble Lord, Lord Stunell, because he has obviously been studying this.
Lord Stunell (LD)
The noble Baroness is certainly right that there are materials that have been used in one way, safely and successfully, for thousands of years, and others that are intrinsically safe, such as bricks—presuming they are made of clay rather than straw. I will not try to give the full range, because I think the Committee would get bored quite quickly and my pool of knowledge is quite shallow, but she has raised an important point: it is not just about having a product but about what you do with it. I am sure the High Court would want to put both components together before issuing any building liability orders, which seem to be the nuclear weapon that the Government believe they have in their hands.
Lord Khan of Burnley (Lab)
My Lords, I will speak to a number of amendments in this group. It has been a fascinating and exhaustive debate, even though there has been a mix of amendments.
I will start with Amendments 46 to 48, which are technical amendments in the name of the noble Lord, Lord Blencathra, who simplified and explained them in a very eloquent and clear manner—even using Latin at the start of his introduction. I hope the Minister got the gist of that message in Latin; I cannot repeat it, but I think it purported to say that, if he listens to the message and applies it, he will leave a wonderful legacy through this Bill.
At the heart of the argument from the noble Lord, Lord Blencathra, was consultation. Many noble Lords in this Committee have, at different stages of our lives, undertaken consultation; its value is essential to what we are doing today. I am really concerned that, if there is a lack of consultation or an element of tokenism—if we do not get residents, tenants’ groups and leaseholders on board—it could lead to what we often refer to as post hoc rationalisation of predetermined decisions. We need to take people with us on that journey, as I have said previously, and ensure that they feel as close as possible to the decision-making we are undertaking in this Committee and in subsequent debates in this Bill’s journey.
Amendment 49 in the name of the noble Lord, Lord Blencathra, makes provision regarding the contravention of requests for further information. Similarly, Amendment 50 would allow regulations to make provision for penalties where a principal accountable person fails to set up a proper complaints procedure or fails to do so in reasonable time.
The noble Lord referenced Clauses 93 to 99, which are seen as unfavourable for leaseholders and residents. The noble Baroness, Lady Fox—who has, by the way, introduced amendments for the first time; I congratulate her on completing that process successfully—raised concerns about Clauses 97 and 99. She said that last resort access should not be the new normal and that we must be careful about entrance on minor issues in particular.
Lord Khan of Burnley (Lab)
Sometimes they are wise men and women. I hope that the Minister can take forward their wise suggestions on this group of amendments in particular.
We welcome many of the government amendments, tabled in good spirit to make sure that life gets better for residents of buildings across the country and that they are free from unsafe situations. Government Amendment 141 makes provision for regulations under the new clause relating to costs contribution notices to be subject to the draft affirmative procedure. I want to ask the Minister about the power given to government to make new legislation. What scrutiny will these new powers be subject to?
The noble Lord, Lord Young of Cookham, and the noble Earl, Lord Lytton, talked about the important issue of long leases. It is a fascinating debate, but perhaps it is not for now, because this Bill is about building safety. When the noble Lord, Lord Young, was a Minister in 1984, I was five—in fact, I was a safety hazard in my parents’ building at the time. His point about the future of long leases is important, and I am sure it will be discussed and debated in a future Bill. I also appreciate the experience brought by the noble Earl in discussing his points.
The noble Lord, Lord Stunell, made an interesting and very important point about product safety. It is difficult to digest. Even the Construction Products Association is confused about this area. There is a lack of clarity which I hope the Minister and the Government will address.
Finally, I will single out Amendment 147, in the name of the noble Baroness, Lady Neville-Rolfe, which looks at publishing assessments of the impacts on businesses, in particular, of remediation changes. It is an important amendment because there is a shortage of homes and we want to make sure that we look at how this impacts on everybody in the whole chain and that we do not move to a situation where we are building fewer homes. That is an important point, but today has to be about impact assessments on citizens of this country and every person living in an unsafe building.
The Minister in debate on a previous day mentioned that this is a landmark Bill and an opportunity. Unfortunately, at this moment it is not being taken forward with the really strong, meaningful, well-intentioned and well-purposed amendments that have been presented, so I hope that the Government will reflect, listen and make that impact.
Lord Thurlow (CB)
Before the Minister stands up, perhaps I can make two points. This is a large group of quite diverse amendments. My concern is over the accountable person role. Judging by the discussion today—I will not go through the list of different contributions—I think it is going to be a very difficult job indeed. That person is going to need help in creating a co-operative working relationship with tenant groups, and the situation could be exacerbated by bad and difficult freeholders or managing agents, often in league, and if the accountable person finds himself or herself in their pocket it will not be made any easier.
I do not overlook difficult leaseholders. There are some tenants who will not let anybody into their building. That is also a problem to be dealt with, but I have two suggestions. The accountable person should be prepared to prove reasonableness in all their behaviours and should also be prepared to prove value for money. An autocratic manager refusing to engage with a leaseholder makes life even more difficult. In the second case, concerning value for money, whether it is the fire extinguisher example given by the noble Lord, Lord Blencathra, or some captive insurance company or an arrangement with a very high commission-bearing insurer offering kickbacks to freeholders, that would be avoided.
Lord Greenhalgh (Con)
My Lords, I rise to say how amazed I am by how young the noble Lord, Lord Khan, is. I thought I was a whippersnapper as someone in my mid-50s, but the noble Lord must have been born in—what, the late 1970s?
Lord Greenhalgh (Con)
My maths is not that bad, but that is impressive.
I will start with the noble Lord, Lord Stunell, who focused on the government amendments. It is fair to say—he will know this as someone who played my role in the coalition Government—that we cannot possibly move amendments without considering A1P1 rights and the impact of the amendments. We would never get them through the legal system. Obviously, we are tabling the amendments but not moving them, but we have done all the checks, as you would expect, and taken legal opinion and so forth to make sure that they are all workable, and indeed lawful. Otherwise, we would just not be allowed to do it.
I also say that there has been considerable engagement with the organisations that the noble Lord mentioned, but we need to continue that engagement and that is something we can do. I reassure him that we have had representations from Build UK, the Association for Project Safety and the Construction Products Association, but we should continue to engage. My view is that there is never too much engagement with these organisations. However, I also said to him, and I put this now into Hansard—it was raised in a previous debate by the noble Baroness, Lady Hayman—that if you breach building regulations implemented in 1984 by the then young whippersnapper, my noble friend Lord Young, it is a criminal act.
The noble Lord will also know that if you commit a crime in this country, there is no statute of limitations for most crimes. In this case, we are saying that we have seen appalling practices over the previous 30 years, and there should not be a statute of limitations period that does not allow us to rectify that. That is why we are looking backwards 30 years and forwards 15 years. Of course, we have taken considerable legal advice about taking that position, but it is to ensure that there is no legal reason why someone who has broken building regulations is not open to face redress. I accept all the points he makes around the practicalities of doing that, but there should not be a small, narrow limitations period when we tackle this historically difficult problem that has crept up on us over not one decade, but three decades.
I turn to the noble Baroness, Lady Pinnock, who wanted to understand how we are regulating construction products. It is not straightforward, but it is pretty straightforward, so I will not take too long over this. We have created a national regulator. In the same way as we have a building safety regulator in shadow form until the Bill gets Royal Assent, the Bill will put into statute a national regulator for construction products in the Office for Product Safety and Standards. The CEO is a phenomenal chap called Graham Russell. He is there and it has already started to flex its muscles with a prohibition notice to Kingspan. This Bill formalises the national regulator for construction products and there are at the same time local regulators of products, as the noble Baroness will know, with her local government background within trading standards, that provide that local role. It is the national and local regulation of construction products that provides the regulatory environment for construction products.
The noble Baroness also raised construction products testing. This is something that the inquiry showed as an area of concern. The Building Research Establishment was a nationalised entity that it was privatised in the 1980s, I think—my noble friend Lord Young will know the exact date, I do not—but we also have the British Board of Agrément, which has always been in the private sector. Neither of those have come out as great, robust testing houses, which is why my predecessor as Secretary of State asked for a construction products testing review. I believe that report is nearly finalised. I will ask for a copy. There will be recommendations on how we improve the robustness of construction products testing. I hope that addresses the questions raised by the noble Baroness, Lady Pinnock.
One of the three wise men, the noble Earl, Lord Lytton, raised a very important point, but it is fair to say that, when we are talking about construction product manufacturers, we are talking not about all construction product manufacturers but about those that contributed to this crisis. Three of them have been raised, front and centre, as being responsible for the Grenfell Tower tragedy: Celotex, Arconic and Kingspan. These were all products that should never, frankly, have been able to have been put in that position. We can argue about why, but you cannot put flammable material that spreads like petrol up the side of a building and say that that adequately resists the spread of fire, which is what the regulations stated in Approved Document B. You cannot put flammable insulation behind it, et cetera. There are a number of product companies that contributed to this. Whether they were installed incorrectly or not is irrelevant: these products should never have been put on our buildings. We can look at the responsibility for that, but the responsibility also lies with the manufacturer, in large part, and in those cases, the polluter must pay. However, it is not all construction product manufacturers by any means, and I make that point absolutely clear.
Secondly, the way in which those products are installed is a matter for the construction company. The construction company, not the manufacturer, is responsible for following the instructions and installing the product correctly. We can see examples of perfectly good cladding systems that are installed incorrectly. In such cases, that falls on the developer in the first instance, or on whoever the developer got to install the system. We must be absolutely clear about that. If we start creating confusion around it, we avoid accountability and we do not move forward. It is pretty clear in my mind where culpability falls. I hope that that addresses some of the concerns raised by the noble Earl, Lord Lytton. This has been a fantastic debate. I have enjoyed every second of every minute of every hour. We have had one hour and 40 minutes on this group, and it has been absolutely tremendous. Thank you all for your contributions.
Lord Greenhalgh (Con)
My Lords, I was caught mid-sentence so I will go back to the beginning of that particular sentence. The noble Baroness suggests that we require detailed requirements on contravention notices to ensure the proper use of these powers, but that is better suited to regulations. Indeed, the balance between what is reasonable to expect of an accountable person, the urgency of building safety risks and protecting residents from potential misuse of powers is crucial. That is why we believe that this detail should be set out in regulations, developed in consultation with residents and accountable persons and subject to public consultation.
Amendment 52B would allow residents a reasonable time to remedy any alleged contravention before an application to the court; indeed, the Bill provides that the accountable person must specify the steps that the resident should take and a reasonable time for taking them. The court is very unlikely to issue an order before that time has expired.
Amendment 55C would require the building safety regulator to consult on and issue a statutory code of practice regarding powers of entry. Subsequently, Amendments 53B, 53C, 53D, 54B, 55A and 55B would require the accountable person to comply with a statutory code of practice and ensure that the right of entry into homes applies only in urgent cases or emergencies. In respect of Amendments 52A and 54A, the Government are closely listening to these points; however, the noble Baroness’s intention is already being achieved, as the resident would be notified of the application from the accountable person as part of the court process.
I would like to reassure the noble Baroness that there are already safeguards against misuse in this Bill. Under Clause 86, we will prescribe principles under which the accountable person must operate. These have been published in draft and include the requirement to consider the impacts on residents within the building.
In addition, the clause provides that accountable persons have a right of entry to a resident’s home with an order awarded by the court. The courts will apply established principles when considering any such application for entry and will grant access only when they consider it just to do so. This provides an effective safeguard against misuse. As noted in response to the points raised by my noble friend Lord Blencathra, we would expect the accountable person to seek to resolve issues directly with residents in the first instance to gain entry where it is needed.
The building safety regulator will issue guidance to accountable persons, which will set out the expectations for their system for handling residents’ duties and enforcing them. It is important to note that these powers are necessary for the accountable person to be able to discharge the legal duties we are placing on them. Although their use covers emergency cases, access may be needed where a resident refuses to allow the accountable person to discharge their duties. Indeed, the provision is designed for the discharge of day-to-day duties and not for emergency situations, which would require calling the emergency services.
As such, we must again strike a balance between protecting residents and affording the accountable person the tools needed to keep their building and residents safe. We believe that this balance is correctly achieved in the Bill. I understand the noble Baroness’s intentions with these amendments but, for the reasons I have given, I ask her not to press them.
I now turn to Amendment 107A in the name of the noble Lord, Lord Stunell, which seeks to probe whether the retrospective liability provisions in Amendment 107 apply only to higher-risk buildings. I reiterate the points I made earlier when outlining the intent of the Government’s amendments. This course of action will apply to all dwellings and all buildings containing dwellings. The Government’s position is that the ability to recover cost contributions from product manufacturers should not be restricted to those who live in multi-occupied high-rise buildings. While it is true to say that the amount of cladding on lower-rise buildings is likely to be lower, we do not think it appropriate to exclude these just because the building is not as tall. The crucial factor must be the safety risk.
We are not restricting this course of action to buildings over 18 metres because we intend to enable all individuals who have suffered a loss as a result of a dwelling being made unfit for habitation due to the mis-selling of a product, a product being inherently defective or a breach of existing building regulations to seek cost contributions for the losses they have incurred. This course of action protects leaseholders and home owners by ensuring that all construction product manufacturers are held liable for their part in the creation of building safety defects. The broad application of this course of action to include all dwellings reinforces this principle and delivers a proportionate approach. The scope of this course of action to apply to all dwellings will mirror the Defective Premises Act.
Finally, I turn to my noble friend Lady Neville-Rolfe’s Amendment 147. I assure her that the Government have considered the impact on business of the measures I tabled on 14 February. We are clear that the principle of protecting leaseholders is paramount. It is fundamentally unfair that innocent leaseholders should be landed with bills that they cannot afford to fix problems that they did not cause. These amendments will right this wrong, and the Government consider it critical that the provisions take effect as soon as possible. I must therefore ask my noble friend to withdraw her amendment.
Baroness Neville-Rolfe (Con)
Are the Government planning to produce an impact assessment on the new measures? My amendment was drafted the way it was on the advice of the Bill clerks, but obviously my main concern is to understand the detail of this promising package.
Lord Greenhalgh (Con)
I am sorry; with the sheer length of the debate, we are now approaching the two-hour mark, so I hope that my noble friend will forgive me if I did not address that specific point. However, I did address the point that the Valentine’s Day amendments, tabled on 14 February, were made in haste. The work around impact assessment was therefore not carried out at that time, but obviously we intend to update our impact assessment to reflect all the amendments that the Government have brought forward; that is the good practice my noble friend seeks, I think.
I thank noble Lords for this debate, which has been an important and necessary part of the scrutiny of this legislation. I hope that, with the reassurances given, noble Lords will be happy to withdraw or not press their amendments. This has been a feast of a debate so let us conclude it with the two words that we used to say in our formal hall: benedicto benedicatur.
Lord Blencathra (Con)
My Lords, we have spent two hours on this group of amendments. It is probably the second-most important group in the Bill, after the one we dealt with last week. There were more than 45 amendments down, so I make no apology that we have spent considerable time discussing them.
Lord Young of Cookham
“(1A) Such a charge is for all purposes to be treated as a service charge within the meaning of section 18 of the Landlord and Tenant Act 1985.”Member’s explanatory statement
This amendment, along with others to Schedule 8, preserves the existing Building Safety Charge but treats it as a service charge due under the lease to be demanded and regulated in the same manner as existing service charges. This is to ensure that there are not two parallel sets of demands, accounts etc, one for the normal service charge and one for the building safety charge.
Lord Young of Cookham (Con)
My Lords, I recognise that the government amendments in this group may be of greater significance than mine. I think it would be in the interests of the Committee if I sat down and allowed the Minister to explain them, and perhaps responded later. I beg to move.
Lord Greenhalgh (Con)
My Lords, I rise to introduce the government amendments in this group. This is an important group—equally as important as the previous group—and is about leaseholder protections.
We have been clear that it is fundamentally unfair that innocent leaseholders, most of whom have worked hard and made sacrifices to get a foot on the property ladder, should be landed with bills they cannot afford for problems they did not cause. That is why I have laid a series of amendments to the Bill to right this wrong. I want to outline these important government amendments and highlight how they will provide much-needed protections to leaseholders from exorbitant costs for remediation of their buildings.
These leaseholder protection provisions will make landlords liable, partially or in full, for the costs of remediating historical building safety defects. Amendments 62 to 64 and Amendment 66 are definition clauses setting out the types of defects, buildings and leases that are in scope of the protections. The new clauses state that leaseholders living in their own home or subletting in a building over 11 metres will be entitled to protections from unjust and unaffordable remediation costs. It will not apply to buildings that have exercised the right to collective enfranchisement or are on commonhold land, as in those buildings the leaseholders together effectively are the freeholders.
Amendment 68 would insert a new schedule into the Bill before Schedule 9, which sets out the circumstances in which service charges relating to historical building safety issues cannot be passed on to leaseholders, and the circumstances where service charges can be passed on to leaseholders are limited. Paragraph 2 of the new schedule provides that, where the landlord is responsible or has links with the developer that is responsible for the defect, they will be required to pay in full for the historical building safety issues. This will ensure that, as far as possible, those who are responsible for creating the defects take on the burden of costs and remove all liabilities for the historical defects from innocent leaseholders.
A definition of an “associated person”, for the purpose of determining which building owners have links to the developers of the building, is set out in Amendment 67. Similarly, where building owners are not linked to the developer but can afford to pay, they will be required to put the money up to do so and pay in full. We intend to table further amendments to provide details of the affordability test on Report. I welcome any suggestions from noble Lords on how this could work.
Paragraphs 5 to 7 of the new schedule provide that, where building owners are not linked to the developer and are not able to afford the remediation, some costs can be passed on to leaseholders. This will be subject in most cases to caps of £10,000, or £15,000 for leases in Greater London. These caps will limit how much leaseholders can be asked to pay for non-cladding costs, after—I repeat, after—building owners and landlords have exhausted all other cost recovery options, such as litigation under the Defective Premises Act or the new construction products causes of action we have just debated.
The amendments also provide that any costs paid out by leaseholders over the past five years will count towards the cap, meaning some leaseholders will pay nothing more. They also provide that cladding costs cannot be passed on at all. Paragraph 6 sets out caps to be applied to very high-value properties. It provides that, for properties with a value of over £1 million but under £2 million, the maximum permitted charge is £50,000 and, for properties with a value of over £2 million, the permitted maximum is £100,000.
Building owners and landlords must comply with the law as set out by Parliament. However, there may be some who attempt to avoid their liabilities. These landlords may be associated with a company with substantial assets. Given the extent of the building safety crisis, it is morally right that these associated companies are asked to shoulder their fair share of the costs. Amendment 69 would give the First-tier Tribunal powers to make a remediation order on the application of an interested person, meaning the regulator, local authority, fire and rescue authority or another person specified in regulations by the Secretary of State. A remediation order will require a landlord to remedy defects in their building, as specified in the order.
Amendment 70 would give the First-tier Tribunal powers to make a remediation contribution order on the application of an interested person if it considers it just and equitable to do so. For the purposes of Amendment 70, interested persons include the new regulator, the local authority and the fire and rescue service, as well as leaseholders and other persons who have a legal or equitable interest in the building. A remediation contribution order will require an associated company to make specified payments, at a specified time or event, to the landlord to remedy relevant fire safety defects in the building.
Where a company needs to be wound up, our provisions enable the liquidator to apply to the court to access the assets of associated companies to contribute to the remediation of building safety defects. All too often, companies let subsidiaries go into liquidation to cut their losses. It is morally wrong that they can just fold a company up and leave leaseholders in unsafe buildings with outstanding building safety defects and the corresponding liabilities. The court’s decision will be based on whether it is just and equitable to do so—in other words, whether it is right for that associated company to help to meet the building safety remediation liability of the failing landlord.
Some unscrupulous companies may try and wind up subsidiaries before these provisions come into force, which is why we have included provisions to enable liquidators to pursue associated companies of those landlords who are currently going through insolvency proceedings. It is unfair that innocent leaseholders have had to pay for remediation of building safety defects while those who caused the fire safety issues are able to exploit company law to escape liabilities that are morally theirs. I ask your Lordships to support this significant and important set of amendments.
Lord Young of Cookham (Con)
My Lords, I am grateful to my noble friend. It was bit like listening to one of the advertisements on the radio when, right at the end, all the terms and conditions are read out very quickly and one has to listen to them very carefully. I welcome the assurances that my noble friend gave right at the beginning; I will come back in a moment to some of the things he said.
In the meantime, I will speak to Amendment 56 in my name and also to Amendment 131 in the name of two of the three wise men. This group of amendments focuses on Schedule 8 to the Bill, which defines building safety charges. It takes up no less than 12 and a half pages of rules and regulations. My Amendments 58 and 60 would eliminate eight of them, but any benefit so gained would be wiped out by the 13 government amendments tabled since the Bill left the other place.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
There is a Division in the House. We will have up to 10 minutes to cast our votes but, if noble Lords return earlier, we will proceed because we are taking quite a long time this afternoon.
Lord Young of Cookham (Con)
I was explaining to the Committee that an existing service charge has a line headed “Health and safety”. Under Schedule 8, that line will have to be removed and relocated under the new building safety charge—or it will appear again under the building service charge with an appropriate credit because you have already paid it in your safety charge. Crucially, leaseholders will have to bear the costs of running, in effect, another set of service charges. The noble Baroness, Lady Fox, touched on some of these issues in an earlier debate.
I have read Schedule 8 and the Explanatory Memorandum. While, as far as I can see, it does not expressly forbid the incorporation of the building safety charge with the normal service charge, the whole structure of Schedule 8 certainly gives that impression, because the Secretary of State is able to apply different dates for the building safety charge and the service charge; and he can specify different deadlines for paying the two charges and for landlords to respond to requests from leaseholders. The whole impression given by these pages is of unnecessary, bureaucratic parallel invoicing processes, with all the business of reconciling accounts and all the costs to be borne by the leaseholders. I hope that the Minister will be able to assure me that this is not the intention and that it will be possible to incorporate the building safety charge into the service charge—and that the necessary amendments will be made if that is not the case.
On a related point, if you develop a building safety charge that is separate from the service charge, the entire body of case law that we have that relates to the service charge will not apply to the new building safety charge and we will have to start from scratch. So I very much hope that we can streamline the whole process and, with all the transparency that is necessary, incorporate the building safety charge into the existing service charge.
My other amendment is Amendment 131, which is very much a probing one. It is a continuing injustice that leaseholders are paying the costs of others’ mistakes. Some leaseholders have paid the full cost of remediating their buildings. For example, at Skyline in Manchester, they have had to pay the whole amount and have had to borrow substantial sums for remediation. Others continue to pay for waking watches and increased insurance costs. Ideally, there should be some means of compensating these leaseholders, who are, in the words of the Secretary of State, “innocent”. But I recognise the problems of retrospection, even though there are precedents.
This amendment requires the Secretary of State to commence a public inquiry to inquire into the costs of remediation and mitigating measures incurred by leaseholders after 10 January 2022 that are not otherwise recoverable through the Bill. The date of 10 January has been chosen because it is the date of the announcement in the other place about statutory protection for leaseholders.
The proposed inquiry’s aim would be to come up with methods of compensating affected leaseholders for the sums they paid after that date—which, as I said, are not covered by the Bill. Perhaps my noble friend can shed some light on exactly what protection is intended. There may be measures to stop freeholders pressing ahead now, before the Bill comes into effect, and passing costs on to leaseholders who would otherwise be protected. There are certainly leaseholders who think they have statutory protection now—but what about invoices received but not paid for work that is in progress? What about service charges payable when the next quarter begins on 1 April, possibly before the Bill has become an Act? There is a grey area here, on which some light should be shone, and I hope that in his reply my noble friend will be able to shed some illumination.
Lord Naseby (Con)
My Lords, I shall speak to my Amendment 65, which would modify the major statement in government Amendment 64. I was greatly encouraged when my noble friend the Minister sent the letter on 14 February. I thought, “Ah, here’s a good letter”, because it says clearly:
“The key principles that I outlined were a more proportionate approach to building safety risk”,
and
“the need to protect leaseholders”.
That is in the first paragraph. The second paragraph even starts:
“I committed to protect leaseholders”.
So I thought, “Oh, good, we’ve got there now”. But then, of course, I looked at the letter in more detail—and what is proposed in new subsection (2)(d) proposed by government Amendment 64 will have a major adverse effect on buy to let.
I remind my noble friend, who has been in housing for many years, as I have—I first got elected to the London Borough of Islington in 1968—that it was in 1993, under the Major Government, that the whole concept of buy to let was produced. That was at a time when, as all of us who were involved in housing would have known, there was a terrible situation for private tenants. They were basically exploited. We remember Rachman, De Lusignan and the others at that time. Here, it was not launched with trumpets or anything; nevertheless, it started in 1993 and it built up, because it offered good-quality housing for people to rent in the private sector. We now have a situation today, which I find really amazing, having done a bit of donkey work on this, where there are more than 2 million buy-to-let properties that are mortgaged and successful.
I will not take much of the Committee’s time, but I will just highlight that over the past 25 years, landlords have made a tangible improvement to the whole rented sector, so now we have a situation where millions of tenants today are proud of their home, although they have it on a buy-to-let basis. That is all fine and dandy, except that when you look at what is actually proposed at the moment, the net result is that, basically, buy-to-let landlords, or some of them, will not qualify for the remit of the cladding scheme that was announced in January. If they rent out no more than one flat in a block, they are okay, but if they have any more, they are in trouble. I have had strong representations, of course, from the National Residential Landlords Association, which states:
“We still fail to see why the Government is making it so difficult for buy-to-let landlords who are leaseholders to access the same level of support as all other types of leaseholders.”
The reality is, if you are a buy-to-let landlord renting out however many flats, or an owner-occupier leaseholder, you have been treated unfairly by the developers that installed dangerous cladding on blocks of flats. What Her Majesty’s Government are doing, as matters stand in Amendment 64, is introducing a very dangerous principle, basically stating that there are worthy and unworthy victims of the cladding crisis. I ask my noble friend to reflect that the Government should make it clear that any and all leaseholders should be treated the same. That is why I have tabled this amendment. I have not sought any publicity on this at all, but people have read the Bill, thankfully, and I have just brought a small sample of the huge number of emails I have received. Each is an indication of a case. The first is from a retired solicitor—so this is a perfect gentleman—who had a flat on buy to let. His wife bought one as well, and they now have two flats and are facing a problem. He says it is vital that all leaseholders are treated equally, and I do not think I can disagree with that.
Another one comes from a lady who was affected. She had a one-bedroom flat, which she bought in St Albans when her mother died, and then they bought one more, yet they are caught again. Then there is one from a lady called Katherine Wilde in Croydon. A single-parent family, two sisters, bought a flat jointly, then another flat jointly, then another flat jointly. They are caught. I could go on, although I have not brought many. It is clear. This is from a gentleman called Paul Bullock. It is clear that all these people are victims of this national scandal. As further evidence from the Grenfell inquiry comes to light, it is obvious that many parties have played a role in creating this crisis, the only innocent party being the leaseholders who purchased the flats after being guaranteed that everything was in order, only to find out that this was not true. There are moving words at the end of this email:
“Personally, I am caught up in this mess. I can’t even start to explain the toll of the past two years on my physical and mental health”.
I will not read the rest, but I will say to my noble friend that there is a problem here and I hope that he will have another look at it. I think that when he was introducing the letter of 14 February, he said that some of it had been done in a bit of a rush—so I think there ought to be an opportunity to have another look at this issue.
Lord Blencathra (Con)
My Lords, my Amendment 59 is concerned with the first two lines of paragraph 5 of Schedule 8, which begins:
“Building safety costs may be taken into account in determining the … building safety charge payable by a relevant tenant”.
You can bet your life they will be. Leaseholders know that every other week a notice comes from the managing agents to say that the freeholder or landlord has decided that the corridor lighting needs updating, new lines need to be painted in the car park, the entry phone system needs replacing and so on, ad nauseam. This schedule gives them another excuse for possibly unnecessary, gold-plated, so-called safety improvements and contracts let to their favourite contractors. That is why my amendment seeks to add these words at the end of the sentence I have just quoted:
“only if they are below a maximum as specified in regulations made by the Secretary of State”.
It is another plea for the Government to take a permissive power so that, if it proves to be the case that service or safety charges have been jacked up, they can use a regulation to put a control on it.
These regulations may not be necessary—I hope they are not—but the power should be there just in case it is needed. If your Lordships just google “leasehold scandals”, up will pop names such as McCarthy & Stone and Peverel, now calling itself FirstPort—I can assure your Lordships that Mr Tchenguiz has not made his millions by being nice to leaseholders.
My Amendment 66A adds to the definition of “relevant defect” in new subsection (2) in Amendment 66. At the moment it says:
“‘Relevant defect’ means a defect as regards a building that … arises as a result of anything done (or not done), including anything used (or not used), in connection with relevant works, and … causes a building safety risk.”
I propose to add at the end:
“which may relate to but is not limited to … external cladding … internal walls and the materials contained inside any walls … fire doors … balconies … a lack of sprinklers, fire detection and control systems … inadequate escape routes.”
Quite simply, I believe that builders should pay for all fire safety remedial work and not just external cladding. But I also hope that common sense can prevail and the Government can lay down the law that wooden decking on a steel balcony is not a fire risk, and that potentially flammable materials sandwiched inside non-combustible inner and outer walls do not need to be removed. There are a lot of excessive suggestions on fire risk materials going round at the moment, and that needs to be stamped on.
My Amendment 86 seeks to insert a new clause to prevent managing agents charging excessive amounts for undertaking fire risk assessments or preparing applications for assistance. In particular, I suggest that the regulations may include—again I stress “may”:
“setting limits on the charges managing agents may impose for fire risk assessments … setting limits on the charges managing agents may impose for making applications to the Building Safety Fund or any other source of funding for fire risk remedial works … setting limits on the charges managing agents may impose for inviting tenders for fire risk remedial works … preventing service charges being inflated by fire risk remedial works.”
I suggest that these are all reasonable. My noble friend the Minister knows what managing agents are like. If we are not careful, this Bill will be a licence for them to print money: charging for the work of the accountable person and for drawing up the strategy, coming into all our homes to look for safety dangers, and a host of other things they will be able, quite legitimately, to charge leaseholders for. While they can do so, I suspect that the charges will be excessively high. Thus, the backstop of a regulatory power is essential.
I commend Amendment 131 from my noble friend Lord Young of Cookham. He made a compelling case for a short, sharp inquiry into the charges for fire safety work which leaseholders have had to pay and which are not covered by this Bill. That is eminently sensible stuff.
Lord Leigh of Hurley (Con)
My Lords, with some trepidation after that, I rise to speak to my Amendment 94ZA, as advertised by my noble friend Lord Young of Cookham. I welcome the Government’s clear commitment that no leaseholder in a medium or high-rise building will have to pay to remove dangerous cladding, so I therefore support the significant legislative changes being introduced in this Bill. I am also pleased to see that legislation is coming forward to identify the beneficial owners of freehold and leasehold properties, because without that I am not sure how this Bill would work in its entirety. We need to know who owns property in the UK.
However, there is a small group of leaseholders who have fallen through the Government’s net of protections. They are leaseholders who have already paid for the removal of ACM Grenfell-type cladding from their buildings through an exceptional service charge imposed by their landlords, but whose landlords have unilaterally decided not to pursue available government remediation funding because they have no incentive to do so, given that the leaseholders have already borne all the costs. No encouragement by or pressure from their leaseholders or the Government has resulted in any change in their position, particularly in one specific case of which the Minister is aware.
This was not the intent of the well-meaning government cladding remediation scheme, as it assumed that landlords would behave appropriately. The scheme required applications to be made by landlords. Leaseholders had no right to do so directly, nor could they force landlords to seek funding. As a result, these leaseholders remain without reimbursement for the considerable sums that, in some instances, they have expended on removing dangerous cladding to live safely.
This behaviour has been described in the other place as outrageous; my noble friend the Minister described it as unacceptable in his Written Answer to me on 26 January. However, the Government’s proposed legislation does not expressly address this inequitable situation. My O-level Latin was even worse than that of most Members of the Committee, so to provide some balance I will quote from my coat of arms the Hebrew “Im low achshav aymarthie”, which, as the right reverend Prelate the Bishop of St Albans, who is not in his place, would explain, means “If not now, when?”
Paragraph 8 of new Schedule 9 prohibits a service charge being payable under a qualifying lease in respect of cladding remediation if the tenant was resident at the qualifying time, as we have heard. This does not help resident tenants who have already paid up by way of service charge before the Bill becomes law. My proposed amendment extends paragraph 8 of Schedule 9 to include situations where resident tenants have paid for cladding remediation at any time during the five years before the commencement of the Bill. This will leave the landlord with the choice of applying for available qualifying remediation funding or having to reimburse relevant resident tenants out of their own funds.
I appreciate that this will be relevant in only a small number of situations but that is not a reason not to have legislation. There is a glaring hole in the legislation, and we have the opportunity here to correct it. I can see that some might argue that this is retrospective, but it is not because the amendment covers only situations where the lessees have paid and the freeholders will not act as they should. It is up to the Minister, inspired by the call to arms, to widen this amendment—on Report if not here—to cover future situations where lessees pay for recladding as they are fed up with waiting for landlords, knowing that, if this amendment passes, the freeholders will be forced to apply for reimbursement.
Baroness Pinnock (LD)
My Lords, I will speak to my Amendments 93 and 94. I thank the Minister for explaining the many amendments relating to the costs of remediating cladding and other fire safety and building defects, including who will pay and how.
However, my amendments are to his Amendment 92 and are about my favourite issue, which is that leaseholders should not pay a penny. It is not their fault. The Government and everybody else accept that, and therefore, they should not pay anything. The easiest way of ensuring this is to amend the government amendment to change the maximum amount—that is, the cap—to £15,000 or £10,000, be it in London or outside London, to a peppercorn; in other words, to zero, zilch, nothing. This would achieve the aim I started with two years ago.
There are reasons for this. The Minister may not want to do it, but I certainly do. He said, “Of course”, so I assume he will now accept my amendment. However, if it helps the Minister, I am willing to exclude paragraphs 6(4) and 6(5) of the new schedule proposed by Amendment 92. They relate to properties with a value of £1,000,000 or £2,000,000 or more.
I appreciate that the Minister and others in the Government have laboured long and hard to reach a more just outcome for leaseholders. However, as we have heard from the noble Lord, Lord Naseby, the letter we received said that the Secretary of State had stated on behalf of the Government that leaseholders must not be required to pay anything. That is what my amendment would achieve. The building failures were not theirs. As we have all agreed, those who made the failures, who put up flammable cladding and failed to put in firebreaks, are the ones who have to pay.
In his introduction to his amendments, the Minister said that cap will be offset by costs already being paid for waking watch, fire alarms and other such things, which will reduce the final liability. In that case, why on earth are we pursuing it? Let us say that the amount liable is £7,000. If it is paid over a period of five years, that is less than £1,500 a year. What bureaucracy will be set up to collect that? The cost of collecting it will almost certainly outweigh the benefits. So there is a practical reason as well as a reason of justice, and I guess that the Minister will therefore accept my amendment. We will have a whole new bureaucracy for nothing very much. It is not a practical proposal at all, and it is not a just one.
The amendment is straightforward, but there are one or two things I want to ask the Minister to explain and to give some very straightforward answers to some very easy questions. Some things are not clear from all this. There are good intentions in all these clauses to try to solve who pays for remediation, but what happens if nobody pays up? Who takes on the liability? Secondly, if they all go to litigation—which is my guess about what is going to happen, and we heard earlier that there are already moves in that direction—that could take a long time. So what happens then when buildings are not safe? Who will pay for the removal of the cladding and putting right the fire safety defects? Are we expecting leaseholders, shareholders and tenants to remain in those unsafe buildings for all that period of time? So who will pay, and what about the timing? If we do not get the cash, what happens and, with that timing, what happens—peppercorn rents excepted? My noble friend Lord Stunell will wind up for us on these Benches.
The Earl of Lytton (CB)
My Lords, I will try to be brief. I will just pick up on the last point made by the noble Baroness, Lady Pinnock, who has been a doughty campaigner on all this. We have the problem that this Bill creates a bureaucratic and quite complex situation. That can only weigh in favour of those who hold the real money here, which are the developers. We must try to focus on rebalancing that so that the leaseholders are on some sort of even playing field.
I noted very carefully what the noble Lord, Lord Young of Cookham, said on the detail of the accounting process. I very much support what he said. There is an element of discrimination, which was brought out by the noble Lord, Lord Naseby. Why do we discriminate between different categories of person and what does anybody think that will result in in terms of some class action further down the road? This whole thing has to be robust against applications to some international court, to the High Court or for judicial review. There absolutely has to be proof against serial activity. I know into whose hands that will play, and it will not be to the leaseholders’ benefit. There are an awful lot of exclusions here. The noble Lord, Leigh of Hurley, made a potent point about those who have already paid up. What about them? A point has also been made about proportionality and risk.
I will cut my other comments really quite short and just pose a few questions. As I see it—I was in dialogue with the British Property Federation about this—only in the case where you have a non-cladding effect, where the developer does not exist or cannot be found, does that trigger the freeholder responsibility to make a contribution for remediation, and only after the cap liability of the leaseholder. The Minister does not need to reply to me now, but I would like to be absolutely clear that that is the scenario—one of several—that applies here.
Moving on to Amendment 67, I would like to make a comment. As drafted, does the amendment cover limited partnerships? They are not corporate entities and are different from limited liability partnerships, which are covered by the amendment. For instance, the effective owner of Waterside Park, where a lot of issues have arisen, is just such a limited partnership. Is it the Government’s intention that limited partnerships should be included in the definition of “associated persons”? If not, why not? Because that would create a gaping hole.
Baroness Neville-Rolfe (Con)
My Lords, some very good questions have been asked in this debate. I am grateful to the Minister for setting out his proposals. I rise briefly, as it is late, to say that I very much support two practical amendments; as noble Lords know, I am essentially a practical person. They are Amendment 56 in the name of my noble friend Lord Young of Cookham, on aligning building safety charges and service charges, and Amendment 94ZA in the name of my noble friend Lord Leigh, on the dilemma facing leaseholders who have already paid service charges.
Baroness Hayman of Ullock (Lab)
My Lords, I have two amendments in this group. Before I introduce them and talk about the things that we are perhaps not so content with in the group, I just want to say that we recognise that the Government have introduced some very important amendments here. We welcome the work they are trying to do to improve the Bill from its previous incarnation.
The first amendment in my name is Amendment 88. The reason we introduced it is that, looking at all aspects of the crisis that this Bill is trying to address, these Benches are concerned that the Government’s approach does not appear to have a central plan. This amendment was also tabled in the other place by my colleagues, so we are repeating their call for the Government to act across the piece to solve the crisis. We ask that the Minister considers accepting our proposals for a building works agency, which would provide a more hands-on approach.
As we have heard, home owners, many of them first-time buyers, have become trapped in a perfect storm in unsafe buildings because they cannot sell their homes, and are forced to pay thousands in remediation works through no fault of their own. We propose that a team of experts does what the Government have not done so far with this Bill: go from building to building to assess real risk, deciding what needs to be fixed and in what order, using the building safety fund to get those buildings fixed and overseeing the work. Crucially, the Government could then sign off the buildings as safe and sellable, bringing certainty back into the market.
To make it clear, we see the building safety works agency as a separate body to the building safety regulator, with no duplication or crossover; in the debate in the other place, the Minister felt that there was crossover. We see the building safety works agency overseeing the remediation works and the other body regulating. One regulates and one does the work. This would mean that the Government could really take on those who are responsible for creating the crisis and who need to pay. This approach was put in place by a cross-party group of politicians and experts in Victoria, Australia, after there was a serious fire there. That is why we think it would work here: it is not just an idea off the top of our heads but something that has been done and worked before. It would enable the Government really to lead from the front on this matter.
Briefly, my Amendment 125 was tabled before the most recent government amendments. It replicates the McPartland-Smith new Clause 5 from the Commons, amending Part XVI of the Housing Act 1985. Now that the Government have tabled their amendments, it has been superseded, but I will still speak to it to remind the Committee that there have been previous attempts to address the fire safety question during the passage of the Bill. This amendment illustrates that there are different approaches to how the issue can be solved in legislation. It was previously tabled with a range of other amendments addressed to Part 5 of the Bill with the aim of allowing the Government and local authorities to enable grants for remediation work—specifically, by allowing the Government and local authorities to designate dwellings with cladding and fire safety defects as defective.
Having now seen the government amendments, I ask the Minister why the Government could not back the original amendment, which was after all tabled by Conservative Members of Parliament. How did the Government then arrive at the decision to table what they have come up with?
I want now to look at some of the other amendments in the group, and in particular at the implications of government Amendment 92. We do not think that any of the announcements benefit leaseholders who have already paid for remediation work—this has been mentioned by other noble Lords today. The fact that there is no retrospective coverage means that even if the proposed amendments become law and are effectively implemented, many leaseholders will continue to suffer the financial impact of the building safety crisis.
I therefore indicate our strong support for Amendment 131, in the name of the noble Lord, Lord Young of Cookham, which proposes that the Secretary of State set up a statutory public inquiry. It is really important for us to understand exactly what the situation is. Otherwise, there will be no recovery of these costs to leaseholders. Any steps which will lead to full retrospective protection for leaseholders who have already paid remediation costs should be taken seriously by the Government.
If the Government choose to introduce a cap on non-cladding remediation works—the noble Baroness, Lady Pinnock, talked about this extensively in relation to her amendments, and we fully support what she is trying to achieve—it would mean that the maximum amount payable would be a peppercorn amount, which is effectively nothing and is where we need to be. Leaseholders should not be liable to pay for any costs that have resulted from a faulty regulatory system, whether these are related to cladding or non-cladding remediation, or interim safety measures. As the noble Lord, Lord Naseby, said, all leaseholders should be treated exactly the same.
Further, it is unclear who will be liable to pay for remediation costs or the provision of interim safety measures such as waking watch in cases where the £10,000 or £15,000 cap has been met. Many buildings with fire safety issues can be occupied thanks to waking watches and other interim measures. If these are removed, there is a risk that the building receives a prohibition or decant notice and/or a withdrawal of building insurance cover. I hope that the Minister has his thinking cap on, because I have quite a lot of questions and requests for clarification. There have been a great number of amendments to consider and fully understand, so I hope that he will bear with me.
The combined effect of the various amendments is pretty complex. They seem to create what I can describe only as a system of cascading statutory protection, each stage of which is triggered only if the prior one is exhausted. I shall go through my understanding of it. Can the Minister confirm that I am correct or clarify where I have got it wrong? I know that the noble Earl, Lord Lytton, also asked for clarification in a number of areas.
My understanding is that the system would work as follows. First, developers who are still the freeholders of a given building or are linked to it by a subsidiary, as well as cladding manufacturers, are expected to pay first. Secondly, freeholders of buildings who are not the original developers or linked to the original developers are expected to pay second, subject to an affordability test to be set out in the future via regulations. Thirdly, if those freeholders cannot pay, leaseholders will be expected to pay only a capped amount based on Florrie’s law towards non-cladding costs only. Anything they have paid to date counts towards the capped amount. Assuming that I have understood this correctly, I ask the Minister for more clarity on how this cascade system is expected to work in practice and what estimates, if any, the Government have made.
For example, how do the Government expect to define the affordability test at stage 2 of the cascade in regulations, given that this will make a huge difference to the number of cases that then get to stage 3? Why is there no protection for social landlords at stage 2, given the impact on affordable housing supply? What happens if freeholders of buildings who are not the original developers or linked to the original developer cannot pay and the costs exceed the leaseholder cap by a substantial amount? Who makes up the difference? Would it be from the department’s affordable housing budget, for example?
Lord Stunell (LD)
My Lords, first, I am very sorry if taking a long time last time irritated the Minister. It was an important set of amendments and I think these amendments are also important, although I will try not to irritate him. It is a pity that he did not feel able to accept the amendment in the name of the noble Baroness, Lady Neville-Rolfe, about openness and transparency and impact assessments. I remind him that he dealt with my argument by assuring me that I would know that the Government clearly would not have brought forward proposals unless they had been cleared at the highest level and that lawyers had looked at them and he wanted to assure me that they all worked. That sounded to me very much like an impact assessment or, at the very least, an explanatory note, so I am hoping that he can publish the documents that were used inside the department to decide that this is indeed a viable system to place before your Lordships.
With that preliminary, I enthusiastically support my noble friend Lady Pinnock’s Amendments 93 and 94 proposing a peppercorn figure for the cap. The Minister indicated at an earlier stage that the figures in the Bill are, to an extent, arbitrary. A number has been decided, perhaps based on some total amount of money that the Treasury thinks it is prepared to pay which has been divided by an assumed number of residents to produce a cap figure. It may be neat arithmetic for the Treasury, but it is not neat arithmetic for leaseholders facing their payment.
Some very pertinent questions have been asked by the noble Baroness, Lady Hayman, and other participants in this debate. I hope that the Minister will at least be able to commit to writing a letter, having carefully read Hansard, about this group of amendments and the previous group to make sure that he has ticked off all the queries that have been raised. They have all been advanced by noble Lords who very strongly want to see effective legislation but have various levels of severe concern about whether this legislation will be effective. I am sorry that it may be a little painful for him, but we need to understand the correct answers to this and, if not, to try again on Report.
This is a sensational policy development by the Government in interfering with the market. We believe it is justified in principle, but we want to see that it has not just been waived through without serious thought and consideration. It is easy to have popular legislation, although it would be more popular if the cap were a peppercorn, as my noble friend Lady Pinnock has proposed, but that does not mean that it will work. Plenty of popular legislation turned out not to work. The Dangerous Dogs Act occurs to me, and we must not turn this into a dangerous buildings Act full of good intentions but unable to deliver.
In relation to the other amendments, in Amendments 56 and 57, the noble Lord, Lord Young of Cookham, has produced, as he always does, extremely reasonable amendments and it is hard to see how the Minister can dismiss them. When we look at this, and bearing in mind that the Minister said in relation to the whole of this debate that the Government are still in listening and learning mode, it might be important to listen to them and to bring them forward again.
There was a theme too about excluded groups. It starts with a bold statement that no leaseholder will have to pay and then, as the noble Lords, Lord Leigh and Lord Naseby, and others have pointed out, there are little nooks and crannies in this which means that there are groups of leaseholders who will not benefit from the pledge, apart from the fact that there is a cap, which there certainly should not be.
In the debate on the last group, I commented on government amendments in some detail. I am sorry that it was a bit too hard for some people—it was a bit hard for me and I probably got some of it wrong—but I want to pick out from this current group some points that arise from government Amendment 70, which puts in place remediation contribution orders. I have a feeling that when it comes to assessing what the sum should be, the quantum that appears in a remediation order, all the issues I raised on the last group will raise themselves again. I hope the Minister is not persuaded by an argument that says, “The facts will speak for themselves. It is easy with a building, you can just go and look at it and tell whether it is compliant or not, and then you can decide how much it cost, and then they have to pay.” It is all a question of who decided that that would be used, who put it up in that particular way and what kind of regulation was carried out. We are talking about events that may have taken place 20, 25 or 30 years ago; the current opportunities to retrieve that information are very small and the chance of delivering it is very small as well.
The noble Earl, Lord Lytton, raised the point about the interaction of this process with the courts, which will be required to decide what a building safety order and a remediation contribution order should actually be. What should it be when it gets signed off by the courts? They will want to know the answers to this and I think the Minister will have heard that a number of noble Lords have a sneaking feeling that that will prove a very difficult hurdle to get over with the provisions in the form that they are.
Lord Greenhalgh (Con)
My Lords, this has been a fascinating debate, it really has. I shall start with the noble Lord, Lord Stunell, because he served as Minister from 2010 to 2012 and we are graced by his presence. I think that in the coalition he was succeeded by the noble Lord, Lord Foster, from 2012 to 2014, and then there was a chap called Stephen Williams, who never made it to this place. If the noble Lord talks to his colleague Stephen Williams of the Liberal Democrats, who was in the coalition Government, he will know about Florrie’s Law, because that came into existence in 2014. The protection we are talking about today is based on Florrie’s Law that came into effect in public housing. This is about applying that principle of a liability cap across all types of tenure. In fact, I had a meeting in this place with the noble Lord, Lord Pickles, who introduced that amendment in response to a leaseholder who received an enormous bill which was so great that, through the shame of receiving it, she subsequently died. That is why we came up with the cap, as a coalition Government, through Florrie’s Law, and it is that principle we are looking to apply.
I turn to the noble Baroness, Lady Hayman. My admiration for her has increased, with her detailed grip of policy. She read it out with such aplomb, I have to be honest. I think it is important for me to take the high level and I will respond to her in writing, but I want to give her the outline. She is absolutely right in her assessment; what she read out was absolutely correct and the phrases “cascade” and “waterfall” have been applied to the approach we are taking. The waterfall or cascade is in five parts. We start with the developers. Then we move to the freeholders, via an affordability test, and other interim landlords; that is the second wave of the cascade. The third is freehold and interim landlords seeking redress from third parties that have contributed to pollution. The fourth is leaseholders who pay a capped amount—that is for non-cladding costs, to be clear, and is where Florrie’s Law kicks in. Of course, the fifth is freeholders and interim landlords who pay the remainder. That is the cascade approach, but I will write to the noble Baroness, because it was so eloquently put that I believe her questions of me deserve full and detailed answers.
Lord Greenhalgh (Con)
Therefore, the scope of “relevant defect” is sufficiently broad and will take account of many of the defects listed by my noble friend Lord Blencathra.
In relation to cladding, the Government have already put in place separate provisions, whereby leaseholders of properties in buildings over 11 metres will be protected from all costs associated with cladding remediation. I know that my noble friend has raised very real examples of leaseholders with narrow, not broad, shoulders who may have a certain amount of property in their retirement portfolio and have chosen to invest in property as a way of guaranteeing their income in old age. I would like to sit down with my noble friend and policy officials to see that we have got the policy intention right. He raises an important point that, sometimes, there are landlords with pretty narrow shoulders, and I do not think it is the intention of the Secretary of State and the Government to be unduly unfair on those people. We will sit down to understand the concerns. At this stage, there are a number of protections in place, but we recognise where my noble friend is coming from.
I forgot in the desire to get going that I should have declared my residential and commercial property interests as set out in the register. They are all properly laid out.
I also forgot to mention something in response to the noble Baroness, Lady Hayman, who raised the important point about retrospection. I got through the waterfall and the cascade but forgot about retrospection. It has been raised by a number of noble Lords; even the noble Baroness, Lady Pinnock, probably mentioned it as well.
The important thing is that day zero for the building safety reset is 14 February 2022. Once we have got this Bill through, that is the date we will start from. However, retrospection does kick in, in the sense that leaseholders who have spent money to date will not pay more than the cap. We will take into account the money they have already spent. Admittedly, we are not going back to refund those who have already spent money, but there is a cap in terms of liability. I shall also deal with the specific issue raised by my noble friend Lord Leigh of Hurley.
I shall now address the building safety charge amendments tabled by my noble friend Lord Young of Cookham. I shall race through these, because, basically, my noble friend is right to recognise that there may be other ways of skinning a cat, and looking at service charges as opposed to the building safety charge. Let us just see how we evolve that as time goes on—so I shall leave that, if I may. I thank him for raising those points. The Government’s intention was not as it has been painted by some people, but we recognise the points that he has raised.
Turning to Amendment 131, I thank my noble friends for raising this interesting matter, but I am afraid that the Government will not be able to accept the amendment. It would require the Secretary of State to establish a statutory inquiry into costs leaseholders have paid since 10 January 2022 which are not recoverable by those leaseholders. As I have already described, the Government have tabled a series of amendments either to remove or to greatly restrict the costs that the vast majority of leaseholders living in blocks over 11 metres will have to pay. Given these significant protections, the Government do not consider that the costs and bureaucracy involved in setting up another statutory public inquiry would be appropriate or justified. On that basis, I ask my noble friends not to press their amendment.
Turning to Amendment 86, I thank the noble Lord for raising this important matter, but I am afraid that the Government will not be able to accept the amendment. Managing agents play an important role in managing and maintaining buildings on behalf of their clients, and it is fair that they should be paid for the services they provide. I agree with my noble friend that it is important that managing agents do not charge excessive fees for those services, and that such charges must be reasonable. Managing agents also need to be clear about the charges they pass on. This Government strongly believe that service charges should show this. They should be transparent and communicated effectively, and there should be a clear route to challenge or redress if things go wrong.
The law is already clear that service charges must be reasonable and, where costs relate to work or services, the work or services must be of a reasonable standard. Leaseholders may challenge the reasonableness of the service charge through the appropriate tribunal, whether that is the First-tier Tribunal in England, or the leasehold valuation tribunals in Wales.
It is also important to recognise that there may be practical challenges in setting a fee. The cost of carrying out a fire risk assessment specific to the safe occupation of an individual building will range considerably, owing to the significant variations between buildings and their individual risk profiles.
It may have unintended consequences to impose a cap on a charge for work carried out by managing agents solely on fire risk assessments. Capping one cost, without considering whether charges for other activities they carry out should also be capped, might simply allow managing agents to recoup costs from other services they provide. Any such cap would need to ensure that the intended outcomes were achieved.
The Government are already considering in what circumstances fees or charges are justified and whether they should be capped or banned. We established a working group, chaired by the noble Lord, Lord Best, who looked at this alongside the regulation of property agents and reported back to government in 2019. We are currently considering those recommendations.
I thank the noble Baroness, Lady Hayter, for her work in preparing the codes of practice. As the Minister, I can say that we take on board the need to ensure that managing agents are professionalised and properly regulated. The Government will respond on that, and we take it extremely seriously. It is all about getting the right legislative vehicle, with some forward planning. Noble Lords will hear more about that—“in due course” is, I think, the phrase we use.
With regard to legal costs, not all leases allow landlords to recover their legal costs incurred through the service charge. Even where the lease permits this, there are already statutory protections in existence. Where a landlord has incurred, or has intended to incur, legal costs in connection with proceedings before a court or an appropriate tribunal involving a leaseholder, leaseholders can apply under Section 20C of the Landlord and Tenant Act 1985 for some or all of those costs not to be regarded as “relevant costs” in determining the amount of any service charge payable by the leaseholder. I thank the noble Lord for raising this important matter and assure him that the Government are actively considering the issues raised. With that assurance, I ask him to not move his amendment.
Now we turn to the amendment from the noble Baroness, Lady Hayman of Ullock, the Workington Warrior. She highlighted an amendment raised in the other place on the proposed building works agency, which would undertake the work the department is already doing on the auditing and monitoring of buildings over 18 metres with unsafe cladding. This represents poor value for money and would have the effect of increasing costs and burdens. Furthermore, the proposed works agency would oversee an audit of cladding, insulation and other building safety issues in all buildings over two storeys. This would result in hundreds of thousands of buildings being audited and would be very expensive and take numerous years. We do not consider this proportionate and therefore we oppose it.
The Earl of Lytton (CB)
The Minister answered a query I raised in connection with Amendment 72; I apologise for jumping a group. It was to do with commercial developers. I think I used the term “commercial developers”, but I intended to say “developers of commercial property”—that is, as opposed to commercial developers of residential property.
The Earl of Lytton (CB)
I said commercial developers, but I meant to say “developers of commercial property”. However, I will leave that point for the next debate.
Lord Young of Cookham (Con)
My Lords, as the Committee enters its sixth hour of sitting, this is not the time for a comprehensive wind-up. However, I thank all those who have taken part in this debate.
My noble friend Lord Naseby made a valuable point about buy-to-let investors. Over the past 10 or 20 years, buy to let has become an alternative to a conventional pension for many people. I am grateful that my noble friend the Minister said that he is open to discussion on this; we count that as a win.
My noble friend Lord Blencathra had a series of amendments on the theme of protecting leaseholders. I am grateful for them.
My noble friend Lord Leigh of Hurley made a legitimate point about the freeholder who had not claimed the money he could have. I wrote down the solution that my noble friend the Minister arrived at. He said, “We will fix it at the political level.” The mind boggles as to what exactly that involves but I am sure that, with his robust physique and experience of government, he will come up with a satisfactory outcome on that.
The amendment in the name of the noble Baroness, Lady Pinnock, would remove the cap for leaseholders. I have a lot of sympathy with that. New paragraph 2(1), proposed by government Amendment 92, states:
“No service charge is payable under a qualifying lease in respect of a relevant measure relating to a relevant defect if a relevant landlord … is responsible for the relevant defect.”
That is fine, but then there is a whole series of exclusions, of which this is one. I find it difficult to reconcile the cap with the principle that the leaseholder is innocent and should not pay; I think we will have to come to back to that.
The noble Earl, Lord Lytton, made the same point as my noble friend Lord Leigh of Hurley: that the leaseholder should be able to apply. If the leaseholder could have applied in my noble friend’s case, there would not have been a problem and the freeholder would not have been in the loop, as it were.
I am grateful to my noble friend Lady Neville-Rolfe for supporting a number of the amendments. The noble Baroness, Lady Hayman, had her own, thoughtful approach to protecting leaseholders. She referred to the cascade. I hope that her many questions will be answered; perhaps we can all share in the letter that goes round. She also supported the request for an inquiry into compensation, for which I am grateful.
On the waterfall, the Government did not seem to appear in it. I thought that they were right at the end, but they have somehow been left out. I think that the Government are at the end of the waterfall if all else fails; my noble friend the Minister is indicating that this may not be the case, but what are the levy and fund for if not to help where the costs are not otherwise met by the freeholder, the leaseholder or the developer?
The noble Lord, Lord Stunell, asked how the cap was arrived at. It may well have been through a reverse process involving the Treasury.
Finally, my noble friend the Minister said that I thought he was a snake oil salesman. I believe that he believed what he said; my comment was about the pace at which he said it, which was like an advertisement where the terms and conditions are spelled out at an accelerated pace and one does not really have time to hear them. I think my noble friend said that enfranchised leaseholders are now within the scheme; I think he said that because I read his lips. I find that difficult to reconcile with what is in government Amendment 63:
“‘Relevant building’ does not include a self-contained building or self-contained part of a building … in relation to which the right to collective enfranchisement … has been exercised.”
If that should not be there, that is fine, but that is how I read it; I also made that point in an earlier contribution.
Lord Greenhalgh (Con)
We can sort it out. I am told by my lawyer that you are wrong.
Lord Young of Cookham (Con)
If I am wrong, the Bill may be wrong, because I have just read out what is in it, but I think this is something we can sort out at the political level.
I am grateful to all noble Lords who have taken part in this debate. I beg leave to withdraw my amendment.
Lord Greenhalgh
Member’s explanatory statement
This amendment removes the provision providing that Part 4 does not apply in relation to the Palace of Westminster.
Lord Greenhalgh
“Remediation of certain defects
(1) Sections (Meaning of “relevant building”) to (Meeting remediation costs of insolvent landlord) and Schedule (Remediation costs under qualifying leases) make provision in connection with the remediation of relevant defects in relevant buildings.(2) In those sections—(a) sections (Meaning of “relevant building”) to (Associated persons) define “relevant building”, “qualifying lease”, “the qualifying time”, “relevant defect” and “associate”;(b) section (Remediation costs under qualifying leases) and Schedule (Remediation costs under qualifying leases) contain protections for tenants under qualifying leases in respect of costs connected with relevant defects, and impose liabilities on certain landlords;(c) section (Remediation orders) makes provision about remediation orders, under which a landlord in a relevant building is required to remedy certain relevant defects;(d) section (Remediation contribution orders) makes provision about remediation contribution orders, under which an associate of a landlord in a relevant building is required to contribute towards the costs of remedying certain relevant defects;(e) section (Meeting remediation costs of insolvent landlord) makes provision about cases where a company that is a landlord in a relevant building is being wound up, and confers on the court a power to require an associate of the company to contribute to its assets.”Member’s explanatory statement
This new Clause introduces provisions about the remediation of certain defects arising out of works carried out before commencement.
“Meaning of “relevant building”
(1) This section applies for the purposes of sections (Meaning of “qualifying lease”) to (Meeting remediation costs of insolvent landlord) and Schedule (Remediation costs under qualifying leases).(2) “Relevant building” means a self-contained building, or self-contained part of a building, in England that contains at least two dwellings and—(a) is at least 11 metres in height,(b) has at least 5 storeys, or(c) is of a description prescribed by regulations made by the Secretary of State. This is subject to subsection (3).(3) “Relevant building” does not include a self-contained building or self- contained part of a building—(a) in relation to which the right to collective enfranchisement (within the meaning of Chapter 1 of Part 1 of the Leasehold Reform, Housing and Urban Development Act 1993) has been exercised, or(b) which is on commonhold land.(4) For the purposes of this section a building is “self-contained” if it is structurally detached.(5) For the purposes of this section a part of a building is “self-contained” if—(a) the part constitutes a vertical division of the building,(b) the structure of the building is such that the part could be redeveloped independently of the remainder of the building, and(c) the relevant services provided for occupiers of that part—(i) are provided independently of the relevant services provided for occupiers of the remainder of the building, or(ii) could be so provided without involving the carrying out of any works likely to result in a significant interruption in the provision of any such services for occupiers of the remainder of the building.(6) In subsection (5) “relevant services” means services provided by means of pipes, cables or other fixed installations.(7) The Secretary of State may by regulations make provision supplementing this section, including in particular—(a) provision defining “storey” for the purposes of this section;(b) provision about how the height of a building is to be determined for those purposes.”Member’s explanatory statement
This new Clause defines “relevant building” for the purposes of the provisions relating to the remediation of defects arising out of works carried out before commencement.
Lord Greenhalgh
“Meaning of “qualifying lease”
(1) This section applies for the purposes of sections (Remediation costs under qualifying leases) to (Meeting remediation costs of insolvent landlord) and Schedule (Remediation costs under qualifying leases).(2) A lease is a “qualifying lease” if—(a) it is a long lease of a single dwelling in a relevant building,(b) the tenant under the lease is liable to pay a service charge,(c) the lease was granted before 14 February 2022, and(d) at the beginning of 14 February 2022 (“the qualifying time”)—(i) the dwelling was a relevant tenant’s only or principal home,(ii) a relevant tenant did not own any other dwelling in the United Kingdom, or(iii) a relevant tenant owned only one dwelling in the United Kingdom apart from their interest under the lease.(3) Where a dwelling was at the qualifying time let under two or more leases to which subsection (2)(a) and (b) apply, any of those leases which is superior to any of the other leases is not a “qualifying lease”. (4) For the purposes of this section—(a) “long lease” means a lease granted for a term of years certain exceeding 21 years, whether or not it is (or may become) terminable before the end of that term by notice given by or to the tenant or by re-entry, forfeiture or otherwise;(b) a person “owns” a dwelling if the person has a freehold interest in it or is a tenant under a long lease of it;(c) “relevant tenant” means a person who, at the qualifying time, is the tenant, or any of the tenants, under the lease mentioned in subsection (2);(d) “service charge” has the meaning given by section 18 of the Landlord and Tenant Act 1985.”Member’s explanatory statement
This new Clause defines “qualifying lease” for the purposes of the provisions relating to the remediation of defects arising out of works carried out before commencement.
Lord Greenhalgh
“Meaning of “relevant defect”
(1) This section applies for the purposes of sections (Remediation costs under qualifying leases) to (Meeting remediation costs of insolvent landlord) and Schedule (Remediation costs under qualifying leases).(2) “Relevant defect” means a defect as regards a building that—(a) arises as a result of anything done (or not done), including anything used (or not used), in connection with relevant works, and(b) causes a building safety risk.(3) In subsection (2) “relevant works” means works relating to the building (including its initial construction) that were carried out—(a) before completion, if completion occurred in the period of 30 years ending with the coming into force of this section, or(b) by or on behalf of a relevant landlord or management company, after completion and within that period.(4) For the purposes of this section—“building safety risk”, in relation to a building, means a risk to the safety of people in or about the building arising from—(a) the spread of fire, or(b) the collapse of the building or any part of it;“completion” and “management company” are defined by regulations made by the Secretary of State;“relevant landlord” means a landlord under a lease of the building or any part of it.”Member’s explanatory statement
This new Clause defines “relevant defect” for the purposes of the provisions relating to the remediation of defects arising out of works carried out before commencement.
Lord Greenhalgh
“Associated persons
(1) For the purposes of sections (Remediation costs under qualifying leases) to (Meeting remediation costs of insolvent landlord) and Schedule (Remediation costs under qualifying leases), a person (A) is associated with another person (B) in the circumstances mentioned in subsections (2) and (3).(2) If A is an individual, A is associated with any body corporate of which A was a director at any time in the period of 5 years ending at the qualifying time.(3) If A is a body corporate, it is associated with another body corporate (B) if—(a) at any time in the period of 5 years ending at the qualifying time, a person who was a director of A was also a director of B, or(b) at the qualifying time, one of them controlled the other or a third body corporate controlled both of them.Subsections (4) to (6) set out the cases in which a body corporate is regarded as controlling another body corporate.(4) A body corporate (X) controls a company (Y) if X possesses or is entitled to acquire—(a) at least half of the issued share capital of Y,(b) such rights as would entitle X to exercise at least half of the votes exercisable in general meetings of Y,(c) such part of the issued share capital of Y as would entitle X to at least half of the amount distributed, if the whole of the income of Y were in fact distributed among the shareholders, or(d) such rights as would, in the event of the winding up of Y or in any other circumstances, entitle it to receive at least half of the assets of Y which would then be available for distribution among the shareholders.(5) A body corporate (X) controls a limited liability partnership (Y) if X—(a) holds a majority of the voting rights in Y,(b) is a member of Y and has a right to appoint or remove a majority of other members, or(c) is a member of Y and controls alone, or pursuant to an agreement with other members, a majority of the voting rights in Y.(6) A body corporate (X) controls another body corporate (Y) if X has the power, directly or indirectly, to secure that the affairs of Y are conducted in accordance with X’s wishes.(7) In subsection (5) a reference to “voting rights” is to the rights conferred on members in respect of their interest in a limited liability partnership to vote on those matters which are to be decided on by a vote of the members of the limited liability partnership.(8) In determining whether one body corporate (X) controls another, X is treated as possessing—(a) any rights and powers possessed by a person as nominee for it, and(b) any rights and powers possessed by a body corporate which it controls (including rights and powers which such a body corporate would be taken to possess by virtue of this paragraph).”Member’s explanatory statement
This new Clause defines “associated person” for the purposes of the provisions relating to the remediation of defects arising out of works carried out before commencement.
“Remediation costs under qualifying leases
Schedule (Remediation costs under qualifying leases)—(a) provides that certain service charge amounts relating to relevant defects in a relevant building are not payable, and(b) makes provision for the recovery of those amounts from persons who are landlords under leases of the building (or any part of it).”Member’s explanatory statement
This new Clause introduces a new Schedule, containing protections for certain leaseholders and others, relating to certain remediation costs, and imposing corresponding liabilities on certain landlords.
“Remediation orders
(1) The Secretary of State may by regulations make provision for and in connection with remediation orders.(2) A “remediation order” is an order, made by the First-tier Tribunal, requiring a relevant landlord to remedy specified relevant defects in a specified relevant building by a specified time.(3) In this section “relevant landlord”, in relation to a relevant defect in a relevant building, means a landlord under a lease of the building or any part of it who is required, under the lease or by virtue of an enactment, to repair or maintain anything relating to the relevant defect.(4) The following persons may apply for a remediation order—(a) the regulator (as defined by section 2);(b) a local authority (as defined by section 29) for the area in which the relevant building is situated;(c) a fire and rescue authority (as defined by section 29) for the area in which the relevant building is situated;(d) any other person prescribed by the regulations.(5) In this section “specified” means specified in the order.”Member’s explanatory statement
This new Clause confers a power to make provision about remediation orders, which are orders requiring a landlord to remedy relevant defects.
“Remediation contribution orders
(1) The First-tier Tribunal may, on the application of an interested person, make a remediation contribution order in relation to a relevant building if it considers it just and equitable to do so.(2) “Remediation contribution order”, in relation to a relevant building, means an order requiring a specified body corporate to make payments to a specified person, for the purpose of meeting costs incurred or to be incurred in remedying relevant defects (or specified relevant defects) relating to the relevant building.(3) A body corporate may be specified only if it is associated with a landlord under a lease of the relevant building or any part of it.(4) An order may—(a) require the making of payments of a specified amount, or payments of a reasonable amount in respect of the remediation of specified relevant defects (or in respect of specified things done or to be done for the purpose of remedying relevant defects);(b) require a payment to be made at a specified time, or to be made on demand following the occurrence of a specified event.(5) In this section—“associated”: see section (Associated persons);“interested person”, in relation to a relevant building, means— (a) the regulator (as defined by section 2),(b) a local authority (as defined by section 29) for the area in which the relevant building is situated,(c) a fire and rescue authority (as defined by section 29) for the area in which the relevant building is situated, or(d) a person with a legal or equitable interest in the relevant building or any part of it;“relevant building”: see section (Meaning of “relevant building”);“relevant defect”: see section (Meaning of “relevant defect”);“specified” means specified in the order.”Member’s explanatory statement
This new Clause confers power on the First-tier Tribunal to make an order requiring a person associated with certain landlords to contribute towards the costs of remedying certain defects in relevant buildings.
“Meeting remediation costs of insolvent landlord
(1) This section applies if, in the course of the winding up of a company which is a landlord under a lease of a relevant building or any part of it, it appears—(a) that there are relevant defects relating to the building, and(b) that the company is under an obligation (howsoever imposed) to remedy any of the relevant defects or is liable to make a payment relating to any costs incurred or to be incurred in remedying any of the relevant defects.(2) The court may, on the application of the liquidator, by order require a body corporate associated with the company to make such contributions to the company’s assets as the court considers to be just and equitable.(3) An order may be made where proceedings for the winding up of the company were commenced before (as well as after) the coming into force of this section.(4) In this section—“associated”: see section (Associated persons);“the court” means a court having jurisdiction to wind up the company;“relevant building”: see section (Meaning of “relevant building”);“relevant defect”: see section (Meaning of “relevant defect”).”Member’s explanatory statement
This new Clause confers power on a court winding up a company to require a body corporate associated with the company to contribute to the assets of the company.
“Building industry schemes
(1) The Secretary of State may by regulations—(a) establish a scheme, and(b) make provision about the scheme.(2) Regulations that establish a scheme must prescribe the descriptions of persons in the building industry who may be members of the scheme (“eligible persons”).(3) Where a scheme is established, the Secretary of State must set and publish the criteria that an eligible person must meet in order to become, and remain, a member of the scheme (“membership criteria”).(4) Membership criteria may be set for any purpose connected with—(a) securing the safety of people in or about buildings in relation to risks arising from buildings, or(b) improving the standard of buildings. (5) The Secretary of State must ensure that a list of members of a scheme is kept and published (and may publish a list of persons who are eligible persons but are not members of a scheme).”Member’s explanatory statement
This new Clause confers power on the Secretary of State to establish one or more building industry schemes.
“Building industry schemes: supplementary
(1) This section supplements section (Building industry schemes).(2) Regulations may provide that a scheme is to be maintained by—(a) the Secretary of State, or(b) a person designated by the Secretary of State (a “designated person”), acting on behalf of the Secretary of State.(3) Regulations may provide for the charging of fees, in connection with—(a) an application for membership;(b) renewal of membership;(c) a review;(d) any other prescribed matter.(4) The Secretary of State may publish a document setting out the procedure relating to any of the following—(a) applications for membership of a scheme;(b) the periodic renewal of membership;(c) termination of a person’s membership;(d) the review of any decision relating to a person’s membership;(e) the suspension of a person from membership.(5) Membership criteria may be framed by reference to—(a) standards, or a document, from time to time published by any person;(b) the opinion of the Secretary of State, or a designated person, in relation to any matter.(6) Different membership criteria may be set for different purposes.(7) In section (Building industry schemes) and this section—“building” means a building in England;“building industry”: a reference to persons in the building industry is to persons carrying on, for business purposes, activities connected with the design, construction, management or maintenance of buildings, including persons carrying on activities in relation to construction products (within the meaning of paragraph 24 of Schedule 11) in England;“prescribed” means prescribed by the regulations;“regulations” means regulations under section (Building industry schemes);“scheme” means a scheme established under section (Building industry schemes);“standard”(except in subsection (5) of this section) is to be read in accordance with section 29.”Member’s explanatory statement
This new Clause makes supplementary provision about building industry schemes.
“Prohibition on development for prescribed persons
(1) The Secretary of State may by regulations prohibit a person of a prescribed description from carrying out development of land in England (or a prescribed description of such development). (2) A prohibition may be imposed for any purpose connected with—(a) securing the safety of people in or about buildings in relation to risks arising from buildings, or(b) improving the standard of buildings.(3) A prohibition under the regulations applies despite planning permission (or any prescribed description of planning permission) having been granted.(4) The regulations may provide that, in prescribed cases, no prescribed certificate under the 1990 Act may be granted (and any purported grant is of no effect).(5) The regulations may require a person of a prescribed description to give a notification relating to the proposed beginning of development (and may make provision about the content and form of a notification and the way in which it is to be given).(6) The regulations may contain exceptions.(7) The regulations may make provision about enforcement, including in particular provision applying (with or without modifications), in relation to a breach of the regulations, any provision of Part 7 of the 1990 Act (enforcement).(8) For the purposes of this section—(a) “the 1990 Act” means the Town and Country Planning Act 1990;(b) a reference to the “beginning” of development is to be read in accordance with section 56(2) of the 1990 Act;(c) “building” means a building in England;(d) “development” has the meaning given by section 55 of the 1990 Act;(e) “planning permission” has the meaning given by section 336 of the 1990 Act;(f) “prescribed” means prescribed by regulations under this section;(g) “standard” is to be read in accordance with section 29.”Member’s explanatory statement
This new Clause confers power on the Secretary of State to prohibit a prescribed person from carrying out development (or certain development).
“Building control prohibitions
(1) The Secretary of State may by regulations impose a building control prohibition, as regards buildings or proposed buildings, in relation to persons of a prescribed description.(2) A prohibition may be imposed for any purpose connected with—(a) securing the safety of people in or about buildings in relation to risks arising from buildings, or(b) improving the standard of buildings.(3) A “building control prohibition”, in relation to a person, prohibits—(a) the person from applying for building control approval or from depositing plans,(b) the person from giving an initial notice (whether or not jointly with anyone else) or a public body’s notice, public body’s plans certificate or public body’s final certificate,(c) the granting of building control approval to the person,(d) the passing of plans deposited by the person,(e) the acceptance of an initial notice given by the person (whether or not jointly with anyone else) or a public body’s notice, public body’s plans certificate or public body’s final certificate given by the person, (f) the giving of a final certificate in relation to works carried out by the person,(g) the person from giving a prescribed document,(h) the giving of a prescribed document to the person or in respect of works carried out by the person, or(i) the acceptance of any prescribed document given by the person or in respect of works carried out by the person.(4) A building control prohibition applies despite any provision made by or under the Building Act 1984.(5) The regulations may contain exceptions.(6) The regulations may provide that anything done in contravention of the regulations is of no effect.(7) Any reference in this section to a building or proposed building is to a building or proposed building in England.(8) In this section—“building” and “building control approval”, and references to the deposit and passing of plans, are to be read in accordance with Part 1 of the Building Act 1984;“initial notice”, “final certificate”, “public body’s notice”, “public body’s plans certificate” and “public body’s final certificate” have the same meaning as in Part 2 of that Act;“prescribed” means prescribed by regulations under this section;“standard” is to be read in accordance with section 29.”Member’s explanatory statement
This new Clause confers power on the Secretary of State to impose building control prohibitions on prescribed persons.
“Building liability orders
(1) The High Court may make a building liability order if it considers it just and equitable to do so.(2) A “building liability order” is an order providing that any relevant liability (or any relevant liability of a specified description) of a body corporate (“the original body”) relating to a specified building is also—(a) a liability of a specified body corporate, or(b) a joint and several liability of two or more specified bodies corporate.(3) In this section “relevant liability” means a liability (whether arising before or after commencement) that relates to a building in England and is incurred—(a) under the Defective Premises Act 1972 or section 38 of the Building Act 1984, or(b) as a result of a building safety risk.(4) A body corporate may be specified only if it is, or has at any time in the relevant period been, an associate of the original body.(5) A building liability order—(a) may be made in respect of a liability of a body corporate that has been dissolved (including where dissolution occurred before commencement);(b) continues to have effect even if the body corporate is dissolved after the making of the order.(6) In this section—“associate”: see section (Building liability orders: associates);“building safety risk”, in relation to a building, means a risk to the safety of people in or about the building arising from the spread of fire or structural failure;“commencement” means the time this section comes into force;“the relevant period” means the period— (a) beginning with the beginning of the carrying out of the works in relation to which the relevant liability was incurred, and(b) ending with the making of the order;“specified” means specified in the building liability order.”Member’s explanatory statement
This new Clause confers power on the court to make an order under which certain liabilities relating to buildings in England are imposed on a person associated with the person who is primarily liable.
“Building liability orders: associates
(1) For the purposes of section (Building liability orders), a body corporate (A) is associated with another body corporate (B) if—(a) one of them controls the other, or(b) a third body corporate controls both of them.Subsections (2) to (4) set out the cases in which a body corporate is regarded as controlling another body corporate.(2) A body corporate (X) controls a company (Y) if X possesses or is entitled to acquire—(a) at least half of the issued share capital of Y,(b) such rights as would entitle X to exercise at least half of the votes exercisable in general meetings of Y,(c) such part of the issued share capital of Y as would entitle X to at least half of the amount distributed, if the whole of the income of Y were in fact distributed among the shareholders, or(d) such rights as would, in the event of the winding up of Y or in any other circumstances, entitle it to receive at least half of the assets of Y which would then be available for distribution among the shareholders.(3) A body corporate (X) controls a limited liability partnership (Y) if X—(a) holds a majority of the voting rights in Y,(b) is a member of Y and has a right to appoint or remove a majority of other members, or(c) is a member of Y and controls alone, or pursuant to an agreement with other members, a majority of the voting rights in Y.(4) A body corporate (X) controls another body corporate (Y) if X has the power, directly or indirectly, to secure that the affairs of Y are conducted in accordance with X’s wishes.(5) In subsection (3) a reference to “voting rights” is to the rights conferred on members in respect of their interest in a limited liability partnership to vote on those matters which are to be decided on by a vote of the members of the limited liability partnership.(6) In determining under any of subsections (2) to (4) whether one body corporate (X) controls another, X is treated as possessing—(a) any rights and powers possessed by a person as nominee for it, and(b) any rights and powers possessed by a body corporate which it controls (including rights and powers which such a body corporate would be taken to possess by virtue of this paragraph).”Member’s explanatory statement
This new Clause sets out who is an associated person for the purposes of the preceding new Clause.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
The question is that Amendments 79 to 81 be agreed to.
Lord Greenhalgh (Con)
I am sorry. Those amendments are not government amendments. Will they go in Hansard?
The Deputy Chairman of Committees (Baroness Watkins of Tavistock)
Do not worry. They will not because Hansard will cover your back and my back. I have been told that this is the most complicated thing that has been done in Grand Committee for years, so I think we have to accept it if I have made a mistake. I thought they were government amendments.
Lord Greenhalgh
“(c) the relevant Northern Ireland department.”Member’s explanatory statement
This amendment places the Secretary of State under a duty to consult the relevant department in Northern Ireland before making arrangements to establish the new homes ombudsman scheme.
“(5) In this section, “the relevant Northern Ireland department” means—(a) the Northern Ireland department designated for the purposes of this section by the First Minister and deputy First Minister acting jointly, or(b) failing such a designation, the Executive Office in Northern Ireland.”Member’s explanatory statement
This amendment explains which department in Northern Ireland is the relevant Northern Ireland department.
Lord Greenhalgh
“SCHEDULE REMEDIATION COSTS UNDER QUALIFYING LEASESInterpretation
1_ In this Schedule—“associated”: see section (Associated persons);“building safety risk” has the meaning given by section (Meaning of “relevant defect”);“qualifying lease”: see section (Meaning of “qualifying lease”);“the qualifying time” has the same meaning as in section (Meaning of “qualifying lease”); “relevant building”: see section (Meaning of “relevant building”);“relevant defect”: see section (Meaning of “relevant defect”);“relevant measure”, in relation to a relevant defect, means a measure taken—(a) to remedy the relevant defect, or(b) for the purpose of—(i) preventing a relevant risk from materialising, or(ii) reducing the severity of any incident resulting from a relevant risk materialising;“relevant risk” here means a building safety risk that arises as a result of the relevant defect;“service charge” has the meaning given by section 18 of the Landlord and Tenant Act 1985.No service charge payable for defect for which landlord or associate responsible
2_(1) No service charge is payable under a qualifying lease in respect of a relevant measure relating to a relevant defect if a relevant landlord—(a) is responsible for the relevant defect, or(b) is or has at any time been associated with a person responsible for a relevant defect.(2) For the purposes of this paragraph a person is “responsible for” a relevant defect if—(a) in the case of an initial defect, the person was the developer or carried out works relating to the defect;(b) in any other case, the person carried out works relating to the defect.(3) In this paragraph—“developer” means a person who undertakes or commissions the construction or conversion of a building (or part of a building) with a view to granting or disposing of interests in the building or parts of it;“initial defect” means a relevant defect arising in connection with works carried out before completion (within the meaning of section (Meaning of “relevant defect”));“relevant landlord”, in relation to a qualifying lease, means the landlord under the lease or any superior landlord.Paragraph 2: extension of protection to superior leases
3_(1) This paragraph applies if, as a result of paragraph 2, an amount of service charge (an “unrecoverable amount”) that would otherwise be payable under a qualifying lease in respect of a relevant measure is not payable.(2) Any superior lease has effect as if any liability of the tenant under the superior lease to pay an amount in respect of the relevant measure (“the relevant amount”) were a liability to pay an amount equal to—(a) the relevant amount, minus(b) the unrecoverable amount.(3) In this paragraph “superior lease” means any lease which is superior to the qualifying lease.No service charge payable if prescribed conditions are met
4_(1) No service charge is payable under a qualifying lease in respect of a relevant measure relating to any relevant defect if any prescribed conditions, relating to a relevant landlord or the value of the qualifying lease, are met.(2) In this paragraph—“prescribed” means prescribed by regulations made by the Secretary of State;“relevant landlord” has the same meaning as in paragraph 2. Limit on service charge in other cases
5_(1) A service charge which would otherwise be payable under a qualifying lease in respect of a relevant measure relating to any relevant defect is payable only if (and so far as) the sum of—(a) the amount of the service charge, and(b) the total amount of relevant service charges which fell due before the service charge fell due,does not exceed the permitted maximum.(2) In this paragraph “relevant service charge” means a service charge under the lease in respect of a relevant measure relating to any relevant defect that—(a) fell due in the pre-commencement period, or(b) falls due after commencement.(3) In sub-paragraph (2) “the pre-commencement period” means the period—(a) beginning 5 years before commencement or, if later, on the day the relevant person became the tenant under the qualifying lease, and(b) ending with commencement.“The relevant person” means the person who was the tenant under the qualifying lease at commencement.(4) In this paragraph—“commencement” means the time this paragraph comes into force;“the permitted maximum”: see paragraph 6.Paragraph 5: the permitted maximum
6_(1) In paragraph 5 “the permitted maximum”, in relation to a qualifying lease, has the following meaning.(2) The permitted maximum is (subject to sub-paragraphs (3) to (5))—(a) if the premises demised by the qualifying lease are in Greater London, £15,000;(b) otherwise, £10,000.(3) Where the qualifying lease is a shared ownership lease and the tenant’s total share was less than 100% at the qualifying time, the permitted maximum is the tenant’s total share (as at that time) of what would otherwise be the permitted maximum.(4) Where the value of the qualifying lease at the qualifying time is at least £1,000,000 but does not exceed £2,000,000, the permitted maximum is £50,000.(5) Where the value of the qualifying lease at the qualifying time exceeds £2,000,000, the permitted maximum is £100,000.(6) The Secretary of State may by regulations make provision about the determination of the value of a qualifying lease for the purposes of paragraph 4 and this paragraph.(7) In this paragraph “shared ownership lease” and “total share” have the meaning given by section 7 of the Leasehold Reform, Housing and Urban Development Act 1993.Annual limit on service charges
7_(1) The Secretary of State may by regulations make provision limiting the total amount of service charges payable in any period of 12 months under a qualifying lease in respect of relevant measures relating to any relevant defect to one fifth of the permitted maximum.(2) In this paragraph “the permitted maximum” means the permitted maximum as defined by paragraph 6 in relation to the lease.No service charge payable for cladding remediation where tenant was resident
8_(1) No service charge is payable under a qualifying lease in respect of cladding remediation if the condition in section (Meaning of “qualifying lease”)(2)(d)(i) (resident tenant) was met at the qualifying time. (2) In this paragraph “cladding remediation” has the meaning given by regulations made by the Secretary of State.No service charge payable for legal expenses relating to relevant defects
9_(1) No service charge is payable under a qualifying lease in respect of legal expenses relating to the liability (or potential liability) of any person incurred as a result of a relevant defect.(2) In this paragraph “legal expenses” means any costs incurred, or to be incurred, in connection with—(a) obtaining legal advice,(b) any proceedings before a court or tribunal,(c) arbitration, or(d) mediation.Paragraphs 2 to 9: supplementary
10_(1) This paragraph supplements paragraphs 2 to 9 (the “relevant paragraphs”).(2) Where a relevant paragraph provides that no service charge is payable under a lease in respect of a thing—(a) no costs incurred or to be incurred in respect of that thing (or in respect of that thing and anything else)—(i) are to be regarded for the purposes of the relevant provisions as relevant costs to be taken into account in determining the amount of a service charge payable under the lease, or(ii) are to be met from a relevant reserve fund;(b) any amount payable under the lease, or met from a relevant reserve fund, is limited accordingly (and any necessary adjustment must be made by repayment, reduction of subsequent charges or otherwise).(3) In this paragraph—“the relevant provisions” means sections 18 to 30 of the Landlord and Tenant Act 1985 (service charges) and section 42 of the Landlord and Tenant Act 1987 (service charge contributions to be held on trust);“relevant reserve fund” means—(a) a trust fund within the meaning of section 42 of the Landlord and Tenant Act 1987,(b) an express trust of a kind mentioned in subsection (9) of that section, comprising payments made by the tenant under the qualifying lease and others, or(c) any other fund comprising payments made by the tenant under the qualifying lease and others, and held for the purposes of meeting costs incurred or to be incurred in respect of the relevant building in question or any part of it (or in respect of that building or part and anything else).No increase in service charge for other tenants
11_ Where—(a) an amount (“the original amount”) would, apart from this Schedule, be payable by a tenant under a lease of premises in a relevant building, and(b) a greater amount would (apart from this paragraph) be payable under the lease as a result of this Schedule,the lease has effect as if the amount payable were the original amount.Recovery of service charge amounts from landlords
12_(1) The Secretary of State may by regulations make provision for and in connection with the recovery, from a prescribed relevant landlord, of any amount that is not recoverable under a lease as a result of this Schedule.(2) In this paragraph—“prescribed” means prescribed by regulations under this paragraph;“relevant landlord”, in relation to a lease, means the landlord under the lease or any superior landlord. Information
13_(1) The Secretary of State may by regulations make provision requiring a tenant under a qualifying lease to give prescribed information or documents to the landlord under the lease or any superior landlord.(2) The regulations may provide that the information or documents are to be given in a prescribed way.(3) In this paragraph “prescribed” means prescribed by the regulations.Anti-avoidance
14_ A covenant or agreement (whenever made) is void insofar as it purports to exclude or limit any provision made under this Schedule.”Member’s explanatory statement
This new Schedule contains protections for certain leaseholders and others, relating to certain remediation costs, and imposes corresponding liabilities on certain landlords.
Lord Greenhalgh
Member’s explanatory statement
This amendment is to ensure that the new homes ombudsman scheme includes provision about provision of information to the relevant department in Northern Ireland.
“(2) In this paragraph, “the relevant Northern Ireland department” means the Northern Ireland department designated for the purposes of this paragraph by the First Minister and deputy First Minister acting jointly.”Member’s explanatory statement
This amendment explains which department in Northern Ireland is the relevant Northern Ireland department.
Lord Greenhalgh
Member’s explanatory statement
This amendment glosses the meaning of “occupation condition” for homes in Northern Ireland.
Lord Greenhalgh
“(c) in relation to land in Northern Ireland, a legal estate which is—(i) an estate in fee simple absolute in possession,(ii) an estate in fee simple in possession subject to a rent payable under a fee farm grant, or(iii) a term of years absolute granted for a term of more than 21 years from the date of the grant.”Member’s explanatory statement
This amendment provides the meaning of “relevant interest” for land in Northern Ireland.
“(d) in relation to homes in Northern Ireland, the Northern Ireland department designated for the purposes of this section by the First Minister and deputy First Minister acting jointly.”Member’s explanatory statement
This amendment confers power on a Northern Ireland department to make regulations about who is a “developer”.
“(10A) If no Northern Ireland department has been designated for the purposes of this section then, for the purposes of subsection (10), “the relevant national authority” in relation to homes in Northern Ireland is the Executive Office in Northern Ireland.”Member’s explanatory statement
This amendment is to ensure that the Secretary of State, Welsh Ministers and Scottish Ministers will still be able to make regulations for their own jurisdictions even if there is no Northern Ireland department designated for the purposes of making regulations for homes in Northern Ireland.
Lord Greenhalgh
(a) in the case of regulations made by the Secretary of State or the Welsh Ministers, by statutory instrument, and(b) in the case of regulations made by a Northern Ireland department, by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).”Member’s explanatory statement
This amendment provides for procedural matters connected to the power conferred on a Northern Ireland department to make regulations.
“(d) if made by a Northern Ireland department, may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Northern Ireland Assembly.”Member’s explanatory statement
This amendment provides for the parliamentary procedure for regulations made by a Northern Ireland department.
Lord Greenhalgh
“(c) the relevant Northern Ireland department.”Member’s explanatory statement
This amendment places the Secretary of State under a duty to consult the relevant department in Northern Ireland before making regulations about the new homes ombudsman scheme.
“(8) In this section, “the relevant Northern Ireland department” means—(a) the Northern Ireland department designated for the purposes of this section by the First Minister and deputy First Minister acting jointly, or(b) failing such a designation, the Executive Office in Northern Ireland.”Member’s explanatory statement
This amendment explains which department in Northern Ireland is the relevant Northern Ireland department.
Lord Greenhalgh
Member’s explanatory statement
This amendment places the Secretary of State under a duty to consult the relevant department in Northern Ireland about the code of practice.
“(5) In this section, “the relevant Northern Ireland department” means—(a) the Northern Ireland department designated for the purposes of this section by the First Minister and deputy First Minister acting jointly, or(b) failing such a designation, the Executive Office in Northern Ireland.”Member’s explanatory statement
This amendment explains which department in Northern Ireland is the relevant Northern Ireland department.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
I cannot call Amendment 107A, as it is an amendment to Amendment 107.
House of Lords
Refugees and Asylum Seekers
(2 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Chakrabarti
To ask Her Majesty’s Government what regular conversations they have with the Office of the United Nations High Commissioner for Refugees (UNHCR); and how this relationship informs (1) their policy on the interpretation of the Refugee Convention, (2) day to day operational policy for the protection of refugees and asylum seekers, and (3) their legislation.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the Home Office has regular and routine engagement with UNHCR on a number of matters, including through its quality protection partnership and as a standing member of the asylum strategic engagement group and decision-making subgroup. There are also additional ad hoc meetings to discuss individual policies and issues.
Baroness Chakrabarti (Lab)
I am grateful to the Minister for that. She will appreciate that due to tragic events in recent days, our defence of the refugee convention is now totally inseparable from our defence of the Ukrainian people. Can the Minister comment on reports over the weekend that relatives of Ukrainians here in the UK have been denied visas? Can she assure us that the widest group with connections to this country will be welcome here and that no one—no one—will be turned back or criminalised on account of their means of escape?
Baroness Williams of Trafford (Con)
I can absolutely assure the noble Baroness that everything that we do will be aligned with the refugee convention. The Prime Minister and my right honourable friend the Home Secretary have made a number of statements this weekend to that very end: that we will do everything we can to help our friends in Ukraine.
Lord Cormack (Con)
Does my noble friend agree that tweeting should be a breach of the ministerial code?
Lord Paddick (LD)
My Lords, given that the UNHCR has criticised the UK’s response to the humanitarian crisis unfolding in and around Ukraine, why have the Government not allowed visa-free entry of refugees from Ukraine into the UK?
Baroness Williams of Trafford (Con)
As we speak, my right honourable friend the Home Secretary is outlining some of the further things we will be doing to help our colleagues and friends in Ukraine, as has the Prime Minister over the last 24 hours. This Question is about the UNHCR in relation to the refugee convention, and we do not think that anything in what we do breaches the convention.
Lord Hannay of Chiswick (CB)
My Lords, does the Minister not recognise that although it is very welcome that she says that the Government will be sticking by their obligations under the convention, it is not terribly convincing when they are simply marking their own homework? What does she have to say about the extremely detailed and well-argued views put forward by the United Nations High Commissioner for Refugees about the legislation we will be considering later today? Why should we accept her word rather than the UNHCR’s word? Surely, they know about their own convention?
Baroness Williams of Trafford (Con)
It is absolutely for the UNHCR to comment on our interpretation of the refugee convention, but it is for Parliament to determine our interpretation of it.
Lord Hylton (CB)
My Lords, is it not surprising that this Government are trying to legislate to enact their own interpretation of the convention without apparently consulting anyone else in the rest of the world?
Baroness Williams of Trafford (Con)
We do consult our partners, including the UNHCR.
Lord Alton of Liverpool (CB)
My Lords, the noble Baroness will have seen the reports over the weekend that maybe as many as 5 million people will become refugees from Ukraine. The UNHCR has estimated that maybe 1 million will go to Poland alone. She will have seen pictures of three-mile long queues of people trying to get out. I thank her for what she said already about the British Government’s response. Does she not agree that the Home Secretary should now call on all Interior and Home Office Ministers across the whole continent of Europe to come together to speak to one another about how they will deal with this unfolding crisis, which is adding to the more than 82 million people already displaced in the world today?
Baroness Williams of Trafford (Con)
I agree with the noble Lord that the crisis that is unfolding is horrifying in the extreme. Poland has been generous to a fault to its neighbours. We will assist with some of the humanitarian assistance in Poland and other places. Of course countries should come together to decide the best way forward for what is yet another humanitarian crisis.
Baroness Ludford (LD)
My Lords, the EU has said that Ukrainian refugees, who do not need visas to get into the Schengen zone anyway, can stay for three years without having to regularise their situation. I thought that the UK took back control in order to regulate better than the EU. Can the noble Baroness tell me what the UK will do better than the EU for Ukrainian refugees?
Baroness Williams of Trafford (Con)
It is a very peculiar word to use, to do “better”. We all need to do our part. I absolutely hear what the noble Baroness said about what the EU is doing. We will of course play our part.
The Lord Bishop of Durham
Can the noble Baroness offer us any other examples of alternative interpretations of the refugee convention worldwide? If not, on what basis does she believe the Government are entitled to do so in reference to Clause 11 of the Bill we will discuss later?
Baroness Williams of Trafford (Con)
It is up to states to interpret the refugee convention for themselves in line with the Vienna convention, which is a crucial part of it. There are examples across the world of states having interpreted in different ways but, as I said, it always has to be in line with the Vienna convention.
Baroness Jones of Moulsecoomb (GP)
My Lords, we heard from various Cabinet members over the weekend, including the Prime Minister, about the Government’s willingness to help Ukrainian refugees and all that sort of thing, but that is totally not what is happening. How come they can say that, which sounds like a blatant lie, when in fact the Government are doing everything they can to make it harder for refugees, including Ukrainian refugees, to come in?
Baroness Williams of Trafford (Con)
It is not about just willingness to help them; we will help them.
Lord Dholakia (LD)
My Lords, is the Minister able to indicate how many visas or entry clearances have been refused to Ukrainian citizens since the crisis started?
Baroness Williams of Trafford (Con)
The crisis is about 72 hours old, so I cannot say. I really do not know the answer so I will not pretend, but I am sure that, as the hours and days go on, the Government will have in place a system for helping refugees here and, do not forget, back in their home country. Ukrainians want to go back to Ukraine, and the best thing we can do for the whole global effort is to ensure that the war in Ukraine comes to an abrupt end.
Lord Rosser (Lab)
What did the Government mean by the assurance that I believe was given to my noble friend Lady Chakrabarti? The assurance given in relation to Ukraine was that, whatever the Government did, it would be aligned with the refugee convention—I think those were the words. Is that aligned with the refugee convention in the same way the Government think the Nationality and Borders Bill is aligned with the refugee convention?
Baroness Williams of Trafford (Con)
The Nationality and Borders Bill is aligned with the refugee convention.
Lord Laming (CB)
My Lords, amid all the distressing news about what is happening in Ukraine and the movement of people across Europe, can the Government be particularly sympathetic to any children who get separated from their parents? We have seen some awful photographs of children who are really very disturbed and distressed already. Can the Government make sure that they care for children who are separated from their parents?
Baroness Williams of Trafford (Con)
I commend so much what the noble Lord has said. At the heart of any Government with a heart will be those children who are displaced.
Baroness McIntosh of Hudnall (Lab)
My Lords, in an earlier answer the Minister asserted, no doubt rightly, that the Government had consulted with the UNHCR, and by implication with other people, before bringing forward the legislation we are to consider later today. Can she give the House any examples of ways in which the Government’s original intentions for this legislation were changed or modified as a result of those consultations?
Baroness Williams of Trafford (Con)
Obviously, I will not go into the details of individual conversations, but we consulted with the UNHCR, as would be expected. Clearly, we did not come to the same conclusion as the UNHCR.
Baroness Sheehan (LD)
My Lords, the evidence of the horror unfolding in Ukraine on our TV screens over the last several days must surely put to bed once and for all the Government’s grotesque assertion that it is pull factors that attract refugees to seek asylum in Britain or anywhere else. Surely the Minister sees that the Government must do the decent thing and pull the abominable Clause 11 from the Nationality and Borders Bill, because they will be defeated when it comes to a vote in this House.
Baroness Williams of Trafford (Con)
I think we should separate out pull factors from those in war-torn countries who need our humanitarian protection. I do not think we should conflate the two things. These people desperately need our help, and they shall get it.
Crypto Currencies
Lord Young of Cookham
To ask Her Majesty’s Government what assessment they have made of the use of crypto currencies in the United Kingdom.
Baroness Penn (Con)
My Lords, certain crypto assets offering new ways to transact and invest are part of a trend of rapid innovation in financial technology. However, these developments also present new challenges and risks, including risks to consumers and the financial system. In 2018 the Government established a Cryptoassets Taskforce, which is responsible for assessing developments in the crypto asset market. Her Majesty’s Treasury and UK authorities have taken a series of actions to support innovation while mitigating risks to stability, market integrity and consumers.
Lord Young of Cookham (Con)
I am grateful to my noble friend. While blockchain technology has much to commend it, with the UK being a world leader in financial technology, should not cryptocurrencies be subject to the same rules as other currencies? While many law-abiding citizens may have modest holdings of bitcoin, have not cryptocurrencies greatly facilitated the operations of blackmailers, drug dealers, fraudsters, tax evaders and terrorists, with crypto-based crime reaching an estimated $14 billion last year, as against nearly $8 billion the year before? What plans does my noble friend have to tame the beast?
Baroness Penn (Con)
My Lords, we are taking action to manage the most pressing risks from crypto assets. That includes including crypto assets in the most robust standards for money laundering and countering terrorist financing, and moving to regulate crypto asset promotions to ensure that they are held to high standards for fairness, clarity and accuracy.
Lord Browne of Ladyton (Lab)
My Lords, crypto assets are used extensively for money laundering, as the Minister implied and the noble Lord, Lord Young, made clear. Since January 2020, crypto asset businesses in this country have had to comply with money laundering regulations and to be registered with the Financial Conduct Authority. Helpfully, the FCA has a list of approximately 30 businesses that are compliant and registered, but for some bizarre reason it also has a list of 200 or more companies that are non-compliant and not registered. Whatever the original reason for that, it seems to me to be a directory for kleptocrats, drug dealers and criminals to access some business that will not comply with the regulations. What are the Government doing about it, and about these businesses?
Baroness Penn (Con)
My Lords, if I understand the noble Lord correctly, he may be referring to the transition arrangements that were put in place following the inclusion of crypto assets into the anti-money laundering regime. That transition regime is due to expire on 31 March 2022, when all companies will need to be registered.
Lord Lee of Trafford (LD)
My Lords, given the worrying numbers of young people ignorantly speculating in cryptocurrencies, is there not now a compelling case to substantially increase the quality and quantity of financial education in our schools and colleges?
Baroness Penn (Con)
My Lords, financial education is something that the Department for Education looks at and, I believe, is supportive of. The noble Lord is right that more and more people are getting involved in crypto assets. That is why the Government took the decision to bring crypto assets into the financial promotions regime. One of the proposals in there is to limit the amount that any individual can hold in crypto assets.
Baroness Greengross (CB)
My Lords, I declare my interests as set out in the register as co-chair of the All-Party Parliamentary Corporate Responsibility Group, which last week heard evidence that the blockchain technology used to power cryptocurrencies is increasingly being used to ensure both security and transparency in the supply chain. What steps are the Government taking to encourage research and investment in blockchain technology, which would mean that the UK could be a world leader in this area?
Baroness Penn (Con)
The noble Baroness is right that we should not forget the opportunities that the underlying technology for crypto assets present for businesses in the UK. The Government are very focused on that; for example, in financial services, we have announced a financial market infrastructure sandbox to support technological innovation in financial markets using that technology. That is something we want to learn from and build on.
Lord Bethell (Con)
My Lords, the financial sanctions on those supporting Putin may well lead to a flight to crypto among those trying to squirrel away their assets. Can my noble friend the Minister please reassure us that the regulations due shortly that will oversee these sanctions will have in them provisions for crypto?
Baroness Penn (Con)
Crypto assets are classed as funds or economic resources for the purposes of financial sanctions restrictions. Circumvention of financial sanctions by any means, including use of crypto assets, is a criminal offence.
Lord Tunnicliffe (Lab)
My Lords, the FCA advice to customers, last updated on 18 June 2021, says:
“Before you invest in cryptoassets you should be aware of the following … cryptoassets are considered very high risk, speculative investments … if you buy these types of cryptoassets, you are unlikely to have access to the Financial Ombudsman Service (FOS) or the Financial Services Compensation Scheme (FSCS) if something goes wrong … if you invest in cryptoassets, you should be prepared to lose all your money”.
It is quite clear that this whole area of activity has the potential to go wrong. In going wrong, it could be very big—indeed, it could be so big as to impact on financial services in a systemic way. Which Government Minister is responsible for the monitoring and development of crypto assets tracking? What resources does that person have, and when can we expect appropriate reports and legislative proposals?
Baroness Penn (Con)
My Lords, that work would fall to the Cryptoassets Taskforce, which was set up by the Treasury, the Bank of England and the Financial Conduct Authority to look at the regulation of crypto assets as well as, for example, their implications for financial stability. Day to day it is the Economic Secretary to the Treasury who takes responsibility for these areas.
Baroness Kramer (LD)
My Lords, as soon as Russia invaded Ukraine, the Ukrainian Government announced that they could receive donations in bitcoin, Ether and Tether to help with their efforts, and raised over $10 million in the first 24 hours; it is a much larger sum now. So will the Government be slightly careful in what they do around closing down the crypto area? The Government of Ukraine have asked that all major DeFi—decentralised finance—exchanges are blocked to Russian-based transactions; something that is rather easy to evade. Will the Government support those exchanges in trying to put in place those blocks?
Baroness Penn (Con)
My Lords, I will take the noble Baroness’s latter point back to the Treasury. On her first point, she is absolutely right that, while we take steps to regulate the use of these assets, we also need to avoid unintended consequences or the stifling of information.
Baroness Altmann (Con)
My Lords, will my noble friend help the House understand the advantages of cryptocurrencies? I confess that I see plenty of disadvantages; this does not seem to be about investing but pure gambling, and the technology is based on anonymity and untraceability, unlike the banking sector. The environmental damage associated with the so-called mining of bitcoins itself undermines some of our COP 26 objectives. I would very much welcome the understanding that the Government have of why this is in any way positive rather than wholly negative for the economy and society.
Baroness Penn (Con)
It is probably worth trying to distinguish between different forms of crypto assets: unbacked crypto assets such as bitcoin can be highly volatile and speculative, and are therefore being regulated by the Financial Conduct Authority in terms of promotions; stablecoins tied to a reference asset could be used as a widespread means of payment and potentially deliver improvements in cross-border transactions; and the underlying blockchain technology could have a number of benefits, improving the efficiency of the settlement processes and reporting and enabling greater automation. So, it really is a question of a having a slightly more nuanced view of these different assets and regulating them appropriately.
Lord Foulkes of Cumnock (Lab Co-op)
In one part of the United Kingdom, the Scottish National Party cannot make up its mind even on the existing currency and—if it were, unfortunately, to move towards independence—whether to accept the pound, move to the euro or go back to the groat. Is that not an extra reason why we should all be saying to Ms Sturgeon and her mob that they should concentrate on delivering services in the devolved areas and forget about their independence campaign?
Baroness Penn (Con)
My Lords, whenever the noble Lord stands up, I either strongly agree or strongly disagree with him; in this case, I strongly agree.
Public Health: Media Advertising
(2 years, 9 months ago)
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Lord Brooke of Alverthorpe
To ask Her Majesty’s Government what plans they have to assess (1) the impact on public health of advertising in the media, and (2) whether the tax system regarding such advertisements could be restructured to improve both physical and mental health outcomes.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, Her Majesty’s Government do not have plans for a comprehensive assessment of the impact of advertising on public health but are committed to assessing its impact in a proportionate way and in response to emerging evidence. For example, we will use a post-implementation review to assess the impact of forthcoming restrictions to the advertising of less healthy food and drink products on television and online. There are no current plans to review the tax treatment of advertising but the Government keep all taxes under review.
Lord Brooke of Alverthorpe (Lab)
I am disappointed that the Government are not extending the review of the effects of advertising on health over a wider front; I hope that might be reconsidered. It is important that we take from the Chancellor’s move to a variable taxation on alcohol—in which the highest taxes are placed on those drinks with the highest element of alcohol and incentives are offered for lower taxes on those with lower alcohol—that advertising will be looked at in a similar way, particularly where advertising damages people, such as in the case of gambling and so on. Why do such advertisers not pay higher rates of tax than the present standard rate, which applies to all advertising? This is a way in which revenue could be increased and we could also seek to get behavioural change, which would be positive for the country.
Lord Parkinson of Whitley Bay (Con)
On gambling specifically, as the noble Lord will know, we are reviewing the Gambling Act and looking specifically at advertising issues as part of that. More broadly, we recognise that advertising can have an impact on public health, which is why we continue to keep that impact on all aspects of public health under review and will assess any emerging evidence in a proportionate and measured way. That is why, for instance, we are responding to evidence that children’s exposure to less healthy food-and-drink product advertising can affect what and when they eat. DCMS will of course continue to work with other departments, and the regulators as necessary, to keep the impacts of advertising on public health under review.
Baroness Boycott (CB)
My Lords, just 2.5% of all food and soft-drink advertising in the UK is spent on fruit and vegetables. Despite Change4Life and the 5 A Day campaign, obesity rates have risen sharply. Yet the relatively simple and extremely cost-effective act of banning advertising of HFSS food on the London Underground has, according to a report published just 10 days ago by the London School of Hygiene & Tropical Medicine, on 17 February, led to households buying 1,000 calories less a week of HFSS food—6.7% less than would have happened. Will the Government look at expanding schemes of this type and banning adverts for HFSS food? Will they also agree not to water down the excellent proposals in the forthcoming Bill to ban HFSS adverts in prime time on children’s TV?
Lord Parkinson of Whitley Bay (Con)
The Health and Care Bill introduces new UK-wide restrictions for the advertising of less healthy food and drink products, which are due to come into force from 1 January 2023. The noble Baroness referred to the recently published evaluation of the advertising restrictions introduced by Transport for London, which we note were limited to outdoor advertising. We intend to look at and analyse that evaluation in more detail.
Lord Foster of Bath (LD)
My Lords, I declare my interest as chairman of Peers for Gambling Reform. The Minister made reference to gambling just a few seconds ago and will be aware that the gambling industry spends in excess of £1.5 billion a year on advertising and associated marketing. Does he believe that that improves or damages public health?
Lord Parkinson of Whitley Bay (Con)
As the noble Lord will know, I cannot pre-empt our review of the Gambling Act, which is looking at all these issues and taking evidence from many, including Peers for Gambling Reform. It is a thorough and evidence-led look at gambling regulation; advertising is an important part of that, and we will set out our response in a White Paper in due course.
Lord Vaizey of Didcot (Con)
My Lords, the Government remain committed to banning junk-food advertising as part of their drive to introduce more and more regulation. Can my noble friend assure me that he will have a discussion with his colleagues in the health department about the timing of implementing this ban, which is coming in at breakneck speed? It will be very damaging to the public service broadcasters, which of course his department supports very vigorously.
Lord Parkinson of Whitley Bay (Con)
Yes, I will speak to my colleagues in the Department for Health and Social Care, not least as the Bill is still before your Lordships’ House.
Baroness Bull (CB)
My Lords, there is good evidence that advertising that presents idealised and unrealistic bodies can drive negative body image and trigger or exacerbate mental health conditions, including eating disorders. Will the Government support the call for advertisers to be required to make it clear where images are digitally altered for commercial purposes?
Lord Parkinson of Whitley Bay (Con)
My Lords, we are aware of evidence which demonstrates a link between poor body and poor mental health, which can cause people anxiety, depression and many other harms. It is not currently the Government’s intention to legislate on body image in advertising. We want to make sure that any government intervention makes a real and positive difference. We intend to consult on this issue and the harms created by it as part of the online advertising programme, which will allow us further to develop our evidence base on this issue.
Viscount Colville of Culross (CB)
My Lords, the noble Lord, Lord Kamall, wrote to Peers saying that the Government intend to consider platform liability for ad content as part of the online advertising programme, which the Minister has just mentioned, but the consultations will not start until spring. HFSS advertising on television has been under consultation since 2017. Why are the Government only now discussing platform responsibility for this ad content? Surely, they are just kicking this important issue into the long grass.
Lord Parkinson of Whitley Bay (Con)
My Lords, the advertising on television is a matter in the Bill before your Lordships’ House, which introduces a 9 pm watershed for advertising of less healthy food and drink products on TV and on-demand programme services which are under the jurisdiction of the UK and regulated by Ofcom. On advertising in other media, the Government intend to review how online advertising is regulated through the online advertising programme, as I say, but they are happening in different timeframes.
Baroness Merron (Lab)
My Lords, while many adverts for tobacco products are banned in the UK and the EU, such restrictions do not apply in the same way to products containing nicotine. Can the Minister comment on why the McLaren Formula 1 team cars are able to carry the logo of the British American Tobacco Velo product range at the British Grand Prix when similar products cannot be promoted in other host countries, including Austria and France? Does the Minister feel that this is appropriate?
Lord Parkinson of Whitley Bay (Con)
The advertising and promotion of tobacco products was banned through the Tobacco Advertising and Promotion Act 2002. As the noble Baroness rightly alludes to, products and technology have moved on a lot in the intervening 20 years. An independent review into tobacco control, led by Javed Khan, is currently under way. This will help us ensure that future policies will be effective in meeting the Government’s smoke-free ambition.
International Development: Sexual and Reproductive Health
(2 years, 9 months ago)
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Baroness Sugg
To ask Her Majesty’s Government what plans they have to make investment in sexual and reproductive health and rights a priority in their International Development Strategy.
The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)
My Lords, the Government will publish a new international development strategy this spring that will guide our work for the coming decade and beyond. It will align our development work with the aims and objectives of the integrated review and will continue to prioritise women and girls through support to educate girls, empower women and end violence, including by strengthening sexual and reproductive health and rights and working to end female genital mutilation.
Baroness Sugg (Con)
My Lords, UK investment in sexual and reproductive health not only promotes health and well-being across the whole of life but also leads to improvements in education, gender equality, political stability, economic development and, indeed, environmental sustainability, so it is a very worthwhile investment. Sadly, SRHR and family planning programmes are extremely disproportionately impacted by the cuts to UK aid. Can my noble friend the Minister reassure me that we will retake our place as a global leader on this issue, that SRHR will be an explicit priority in the upcoming strategy and that funding will be returned to previous levels of around 4% to 5% of ODA as part of the Foreign Secretary’s commitment to restore funding to women and girls?
Lord Goldsmith of Richmond Park (Con)
I thank the noble Baroness for her campaigning on this issue. Sexual and reproductive health and rights are central to achieving the UK Government’s manifesto commitment to end the preventable deaths of mothers, babies and children by 2030 and our ambitious commitments on girls’ education and Covid recovery. The Foreign Secretary has been clear that we will restore funding to women and girls. The UK plays a vital role in global partnerships and funds to support and strengthen the ability of countries to deliver life-saving maternal reproductive and child health services. We certainly regard ourselves as a world leader in this area and we will continue to be.
Lord Purvis of Tweed (LD)
My Lords, global donor support for reproductive health fell in 2020 by $100 million to the 59 low and middle-income countries. That cut was driven by the UK cuts. The place on earth that is the most unsafe for mothers and babies is South Sudan, which I have asked the Minister about before, where one in 10 babies dies before the age of five, but the Government are discussing a new round of cuts for health support for women and babies in South Sudan. If the Government are proposing to restore funding, why are they proposing to cut further in South Sudan? Will the Minister please intervene to make sure that this does not happen?
Lord Goldsmith of Richmond Park (Con)
My Lords, as I said, the Foreign Secretary has been clear that we are restoring funding to women and girls. I am not able to answer region-specific questions at the moment because that work is being done and until it has been completed and our spending review settlement translates into programmes on the ground, I am afraid I cannot go into the specifics.
Lord Collins of Highbury (Lab)
My Lords, we know that the cuts this year have resulted in 9.5 million fewer women and couples receiving services. The noble Lord keeps repeating the assurances of the Foreign Secretary in terms of devoting resources to women and girls, but how much of that will be devoted to sexual and reproductive health? We want to know the answer.
Lord Goldsmith of Richmond Park (Con)
My Lords, we will know the answer, but we will not know it until the IDS is published and the allocations are made and the programmes are chosen. As a principle, the Foreign Secretary has made clear that we are restoring funding and this House and the other House will be able to hold the Government to account against that promise.
Lord Deben (Con)
My noble friend has said that this is important in order to carry through the Conservative Party manifesto. In that manifesto we committed ourselves to 0.7% for overseas aid. We have cut that, contrary to both morality and our manifesto. When can we expect that to return and us to have the shame removed?
Lord Goldsmith of Richmond Park (Con)
My Lords, I start by saying something I have said many times: no one welcomes the cut from 0.7% to 0.5%. Notwithstanding that cut, we will have spent more than £10 billion on ODA in 2021. We will return to 0.7% as soon as the fiscal situation allows. Based on 2020 OECD data, the UK will be the third largest ODA donor in the G7 as a percentage of GNI. We will spend a greater percentage of our GNI on ODA than the US, Japan, Canada or Italy, and forecasts fortunately suggest that government will be able to return to 0.7% on aid in the final year of this spending review.
Lord Winston (Lab)
My Lords, I wonder whether the Minister fully understands the impact of sexual and reproductive health in many parts of the world. There are large areas of the world where, if a woman is infertile, she does not have a roof over her head or a meal to eat; she has to abandon the family and is left completely without support. That is common and it is not just a matter of children and girls, but the education of a whole population and better infrastructure.
Lord Goldsmith of Richmond Park (Con)
My Lords, we fully understand the importance of this area. That is why the Foreign Secretary has made the commitment that she has, and why it appeared in the manifesto. SRHR means that women and girls can have control over their bodies and if, whether and when to have children, giving them the choice to complete their education and take up better economic opportunities. In turn, the children will likely be healthier and better educated. It is central to the effective delivery of a country’s universal health coverage. Good quality maternal and newborn health services and survival outcomes are often used as a proxy for the strength of an entire health system, so we fully understand the importance of this area.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, we have a virtual contribution from the noble Baroness, Lady Masham of Ilton.
Baroness Masham of Ilton (CB) [V]
My Lords, is the Minister aware that many countries have very inadequately staffed maternity services and pregnant women who have HIV can get stigmatised? Can the global fund help and make the situation better? Can the Minister ask it to do this?
Lord Goldsmith of Richmond Park (Con)
The noble Baroness makes an important point. Every year nearly 300,000 women die from pregnancy-related causes, 2.5 million newborns die in their first month and 2 million babies are stillborn. Most of these deaths are avoidable with access to better health services to help mothers and newborns through pregnancy and delivery. The UK supports maternal and newborn health through global and country programmes, often integrated with wider work to strengthen health systems.
Baroness Armstrong of Hill Top (Lab)
My Lords, last week I met young people who had been working on programmes on reproductive and sexual health with the International Citizen Service and VSO. That programme was pulled by the Government, meaning that hundreds of young people, here and in the developing country working with them, have now lost that opportunity to work on those issues and make a real difference in local communities. Will the Government commit to refunding that programme and making sure that VSO is able to continue the very valuable work it has been doing in this area?
Lord Goldsmith of Richmond Park (Con)
My Lords, funding levels for individual programmes across the FCDO will be confirmed after the departmental planning process taking place over the coming months has concluded. I am afraid that is the only answer I can give, but I will take the noble Baroness’s comments back to the FCDO, where I am absolutely certain they will be met with a nod of agreement.
Lord McDonald of Salford (CB)
My Lords, when I joined the Foreign Office in 1982, I learned that there were only two seasons in government: spring and autumn. The curious thing is that each can last for longer than six months. Once again, the Minister has said that the international development strategy will appear in the spring. Can he at least give us a month?
Lord Goldsmith of Richmond Park (Con)
I will go out on a limb and say that the IDS will be published within what is normally regarded as spring. I am afraid that I cannot give the noble Lord a date.
Baroness Sheehan (LD)
My Lords, improving sexual and reproductive health and rights is among the most cost effective of all development investments and would give personal, social and economic benefits, as well as helping to stabilise population growth and reduce poverty. I ask the Minister the same question as the previous noble Lord: when will the international development strategy be published and the Minister’s promises fulfilled?
Lord Goldsmith of Richmond Park (Con)
I refer the noble Baroness to my previous answer. I very strongly agree with her comments about the importance of family planning for a whole range of issues, including stabilising the populations of relevant countries.
Baroness Jenkin of Kennington (Con)
My Lords, how will the Government harness the expertise of international medical professionals within the SRHR programmes?
Lord Goldsmith of Richmond Park (Con)
Most of our programmes across the FCDO are delivered through trusted partners on the ground. Where we do not have the expertise, we look for it. Health is one of the most obvious areas where that is important.
Ukraine: Visa Restrictions for Refugees
Lord Hunt of Kings Heath
To ask Her Majesty’s Government whether they will remove all visa restrictions for refugees coming from Ukraine.
Lord Sharpe of Epsom (Con)
My Lords, I am sure that the thoughts and prayers of your Lordships’ House are with all those in Ukraine. This Government stand with Ukraine. However, a visa waiver is not the solution to the challenges faced by Ukrainians. Visas are an important security tool. In addition, there are now no direct travel routes from Ukraine to the UK. The safest route for people to leave Ukraine is via neighbouring countries to the west. We have made changes to the immigration system to support both British nationals and their families in Ukraine, and Ukrainians in the UK. My right honourable friend the Home Secretary has announced additional support measures today.
Lord Hunt of Kings Heath (Lab)
My Lords, that is a very disappointing response to the critical position which so many people face in Ukraine. Last week, the Prime Minister said that this country would do what it has always done and receive those who are in fear of persecution. So far, however, all that has been done is to allow immediate family members or fruit pickers to apply for visas. It has been a shameful response.
I believe that the Refugee Council spoke for the British people when it made a plea for the Government to immediately establish safe routes and to work with the EU and others. Will the Government take in those refugees without their having to apply for asylum?
Lord Sharpe of Epsom (Con)
I think it might be helpful to refer to some of the things that my right honourable friend the Home Secretary announced earlier today. She said:
“Ukrainian nationals on an existing points-based system route … can extend their leave in the UK … Ukrainian nationals on an existing visitor visa can exceptionally switch into a points-based system immigration route without having to leave the UK … Ukrainian nationals on an existing visitor visa can apply under the family route for further leave without meeting the immigration status requirement, provided they meet the requirements for leave based on exceptional circumstances … Ukrainian nationals on an existing seasonal worker visa will have their leave in the UK extended to 31 December 2022.”
The noble Lord also referred to some of the measures which have been taken with regard to families. I apologise for the long answer, but I will also say that we have surged staff to visa application centres in neighbouring western countries.
Baroness Meyer (Con)
My Lords, how is it that our Government keep talking about unwavering support for Ukraine, and how it is possible that we pride ourselves on doing more than any other European country? We are doing less to accept those people who are in crisis. Will the Minister do something to help them?
Lord Sharpe of Epsom (Con)
I thank my noble friend for that question. It is important to restate that this Government have done a hell of a lot to support Ukraine.
Lord Sharpe of Epsom (Con)
Objectively, they have. I also think it is important to emphasise again that visas are an important security tool. There are, unfortunately, a small number of people who, due to their connection to Russian intelligence services, for example, may represent a threat to UK national security. Security checks related to the visa application process assist in addressing this threat. I of course accept that there is a humanitarian crisis, but the appropriate route is via the visa application centres in neighbouring countries.
Lord Scriven (LD)
My Lords, the noble Baroness, Lady Williams, said at the Dispatch Box in an answer on the first Oral Question that it is about playing our part. Telling people fleeing Putin’s bombs to apply for a fruit-picker visa is not playing our part. What has stopped the UK Government acting with the same speed and compassion as the 27 EU countries in granting Ukrainians fleeing war asylum for three years without having to apply for a visa?
Lord Sharpe of Epsom (Con)
My Lords, I do not think it is fair to talk about fruit-picker visas. I would also point out that, as I have just said, there are no direct travel routes from Ukraine to the UK at the moment. The safest route for people to leave Ukraine is via neighbouring countries to the west. We have, as I say, searched after visa application centres. Dependents of British nationals resident in Ukraine who need a UK visa can apply through new temporary locations in Lviv or through a visa application centre in nearby countries, including Poland, Moldova, Romania and Hungary. We are setting up a new pop-up visa application centre in Rzeszow in Poland next week.
Lord Singh of Wimbledon (CB)
My Lords, the Bible says that we should be kind to strangers. Would the Minister agree that the policy of the Government in that respect is not in accord with Christian teachings?
Lord Sharpe of Epsom (Con)
I agree that we should be kind to strangers, and I am afraid I do not agree that the Government’s policy is not in accord with Christian teachings.
Lord Porter of Spalding (Con)
My Lords, while my noble friend must surely agree that we may be a world-leader in supplying defensive armaments to the people of Ukraine, and no doubt a world-leader in supplying defence forces to train the defensive forces of Ukraine, he must also agree that we are now not a world-leader in looking after the people of Ukraine. We must allow those people to come here, without the bureaucracy that the visa system would add. These are genuine people, fleeing what is only to be described as terror in their own country. These are not economic migrants, spies or traitors. These are relatives of the people already living in this country, and we should make sure they can get here quickly and uninterrupted.
Lord Sharpe of Epsom (Con)
I thank my noble friend for that question. I have to go back to what I said earlier, I am afraid. We believe that visas are an important security tool. However, there are safe and legal routes for people to apply for visas.
Baroness Chakrabarti (Lab)
My Lords, does the Minister remember that the reason we have a refugee convention in the first place is because we have been here before, with ships of Jewish refugees not being allowed to stop at any safe port? The Minister has said now at least twice that people should go west and claim in the first safe country. The Government repeatedly tell us that that is where they should claim asylum and that is where they should stay. How does that involve us doing our part?
Lord Sharpe of Epsom (Con)
I understand the point about ships, but there are no direct travel routes from Ukraine to this country at the moment. The safest route for people to leave Ukraine is via neighbouring countries to the west.
Baroness Butler-Sloss (CB)
My Lords, might I suggest to the Minister that it is not very difficult to get from Poland or Slovakia to England? Why cannot the Government, if they insist on using visas, set up an entirely separate system wherever anybody is trying to get to this country, so that they can be fast-tracked and not go through the main system?
Lord Sharpe of Epsom (Con)
I do not know how difficult it is at the moment to get from Poland to this country, but I take the noble and learned Baroness’s point. As I have already said, I am afraid the safest route is to apply is via the visa application centres.
The Lord Bishop of Durham
My Lords, I have every sympathy for the Minister trying to defend the indefensible. He has to do that; that is his job. However, what are we going to say to Poland and Moldova and all the other neighbouring countries about how we will take our share of those who will arrive in the first instance into their country but who they cannot support entirely on their own because they will need the support of other countries to the west, including ourselves?
Lord Sharpe of Epsom (Con)
I thank the right reverend Prelate for his sympathy. I do not know, unfortunately, what conversations will be had with those neighbouring countries, but they must, by definition, be ongoing.
Lord Coaker (Lab)
My Lords, I think most people in this country will be baffled by the response of the Minister and upset by the fact that the Government have not got a grip of the refugee crisis that faces Europe. We have been proud of the way our Government have acted to support Ukraine, but hundreds of thousands of people are fleeing across the border and the Minister has simply turned round and said that there is no safe route for them to get here. It is not good enough. Families need a reunification programme, and we should set an example to the rest of Europe—the way we have done with the rest of the Ukraine crisis. It is not good enough. The Government need to get a grip and give us something to be proud of.
Lord Sharpe of Epsom (Con)
I thank the noble Lord for that. On the family side, we are allowing Ukrainian family members, settled persons or British nationals to come to or remain in the UK where they would otherwise not meet the core requirements of the family rules. We will make applications under the family rules fee-free for this cohort. This will mean applicants will be exempt from the immigration health surcharges, as well as visa fees. There will be a pathway to settlement if they are unable to return to Ukraine when their leave expires, and department officials will be reaching out to the Ukrainian diaspora in the UK, seeking their support to house and support Ukrainian family arrivals. This is one of the most generous family reunion offers that we have ever made to any country in the world, demonstrating our firm commitment to the people of Ukraine.
Lord Paddick (LD)
My Lords, the Minister says that visas are an important security tool. Can he say whether, if I was a Ukrainian settled in the UK and I had elderly parents—say, in their 90s—in Ukraine right now, they would have to apply for a visa to come to the UK in the normal way? Yes or no.
Lord Sharpe of Epsom (Con)
It is not a simple yes or no question, as the noble Lord knows. There are safe and legal routes, as I have tried to explain, via the visa application centres and via the family reunion rules that have been announced.
Lord Austin of Dudley (Non-Afl)
My Lords, I have listened carefully to the Minister’s answers, but last night the Prime Minister joined a mass at a Ukrainian church in London and said that thousands of refugees would benefit from the suspension of normal visa rules in the light of the humanitarian crisis developing in Ukraine. How does that square with the answers the Minister has given this afternoon?
Lord Sharpe of Epsom (Con)
I answered partially that question earlier, when I talked about the announcements that my right honourable friend the Home Secretary has made. I will not run through those again, but I think it does square with them. I appreciate the points the noble Lord was making.
Baroness Finlay of Llandaff (CB)
My Lords, the First Minister of Wales has said that Wales should be a country of sanctuary. What discussions are the Government having with Wales to allow Welsh people who can vouch for somebody coming from Ukraine to come in, particularly when those families in Wales are prepared to provide financial support for travelling and so on?
Lord Sharpe of Epsom (Con)
I am afraid I do not know what conversations are being had with the devolved Administrations, but I would imagine they are ongoing in the normal way.
Lord Alton of Liverpool (CB)
My Lords, will the Minister remind the House of the figures that were given to your Lordships during consideration of the Nationality and Borders Bill about the number of people who are currently in our system and whose asylum claims have not yet been settled, and how long it normally takes for a visa to be processed and expedited through our system?
Lord Sharpe of Epsom (Con)
I am afraid I do not have those statistics to hand. I will have to write to the noble Lord.
Baroness Bennett of Manor Castle (GP)
My Lords, I want to follow on from the question of the noble Lord, Lord Paddick, about Ukrainians who are settled here with elderly parents. I think there is a lack of clarity about this. There seems to be some provision if those parents need care, but of course a technical provision of needing care under some kind of medical provision is different from a confused older person who is extremely unsafe and just needs their family. Will people in that situation be allowed to come to the UK and stay in the UK? Will their families be able to go and pick them up from wherever they are in Europe and bring them here safely?
Lord Sharpe of Epsom (Con)
I thank the noble Baroness for that question. I can only refer back to the answer I gave earlier on family concessions. My understanding is that those things will be dealt with under those rules.
Baroness Symons of Vernham Dean (Lab)
My Lords, the Minister will have noted the general dissatisfaction of the House with the answers he has given to all the questions. Some questions he did not know the answer to; to others, he has given very sparse answers. Will he undertake to report back to his colleagues and try to come back next week to give us more satisfactory responses, after the wide range of discomfort and dissatisfaction there has been with his answers today?
Lord Sharpe of Epsom (Con)
I reassure the noble Baroness that I will most certainly be doing that.
Baroness Watkins of Tavistock (CB)
My Lords, can the Minister explain the Government’s stance on preparing accommodation for those whom we will eventually allow to come from Ukraine, after the rather unsatisfactory approach to accommodation for those who have come from Afghanistan?
Lord Sharpe of Epsom (Con)
I cannot answer that at this stage. As I said, we will be reaching out to members of the Ukrainian diaspora to seek their help and support with this, but beyond that, I am afraid that I cannot go.
Baroness McIntosh of Pickering (Con)
Will my noble friend confirm that, under the provisions of the Nationality and Borders Bill before us this afternoon and later this week, the Government will not seek to arrest and prosecute Ukrainian refugees who may happen to arrive on boats from northern France?
Lord Sharpe of Epsom (Con)
The noble Baroness asks me to stray into territory we will be visiting later, and I am afraid I cannot do that.
Lord Purvis of Tweed (LD)
One of the answers the Minister struggled with before was confirming that it is relatively easy to get from Poland to the United Kingdom at the moment. There are more than 670 flights a week from Poland to the UK; a simple check on Skyscanner can confirm that. Will he please confirm one thing: that Ukrainian people fleeing—even to join their family, as my noble friend said—will not be charged £95 and will not have to wait in a long process? Please can he confirm that there will be an expedited process and it will not cost a penny?
Lord Sharpe of Epsom (Con)
The noble Lord has obviously had better access to Google in the past few minutes then I have, so I apologise for being unable to answer the earlier question on flights because I did not know the answer, but I have said that under the family reunion rules, that will be fee-free for this cohort.
Marriage and Civil Partnership (Minimum Age) Bill
Monday 28th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Marriage and Civil Partnership (Minimum Age) Act 2022 View all Marriage and Civil Partnership (Minimum Age) Act 2022 Debates Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 25 February 2022 - (25 Feb 2022)
Pension Schemes (Conversion of Guaranteed Minimum Pensions) Bill
Monday 28th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Pension Schemes (Conversion of Guaranteed Minimum Pensions) Act 2022 View all Pension Schemes (Conversion of Guaranteed Minimum Pensions) Act 2022 Debates Read Hansard Text
Tax Credits, Child Benefit and Guardian’s Allowance Up-rating Regulations 2022
Baroness Penn
That the draft Regulations laid before the House on 17 January be approved.
Considered in Grand Committee on 23 February.
Immigration and Nationality (Fees) (Amendment) Order 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Williams of Trafford
That the draft Order laid before the House on 12 January be approved.
Considered in Grand Committee on 23 February.
Nationality and Borders Bill
Monday 28th 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-R-I(Manuscript) Amendment for Report (Supplementary to the Marshalled List) - (28 Feb 2022)
16:10 - Division on Amendment 1 - Ayes: 237 / Noes: 154 - Amendment 1 agreed.
18:42 - Division on Amendment 20 - Ayes: 209 / Noes: 173 - Amendment 20 agreed.
19:15 - Division on Amendment 24 - Ayes: 218 / Noes: 140 - Amendment 24 agreed.
20:33 - Division on Amendment 28 - Ayes: 204 / Noes: 126 - Amendment 28 agreed.
“Provision for Chagos Islanders to acquire British nationality
(1) Part 2 of the British Nationality Act 1981 (British overseas territories citizenship) is amended as follows.(2) After section 17H (as inserted by section 7), insert—“17I Acquisition by registration: descendants of those born in British Indian Ocean Territory(1) A person is entitled to be registered as a British overseas territories citizen on an application made under this section if they are a direct descendant of a person (“P”) who was a citizen of the United Kingdom and Colonies by virtue of P’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date.(2) An application under this section must be made before the date specified in subsection (3).(3) The specified date means—(a) in the case of a person aged 18 years or over on the date of coming into force of this section, five years after the date of coming into force of this section, or(b) in the case of a person under the age of 18 years on the date of coming into force of this section or born within 4 years of that date, before they reach the age of 23 years.(4) A person who is being registered as a British overseas territories citizen under this section is also entitled to be registered as a British citizen.(5) No charge or fee may be imposed for registration under this section.””Member’s explanatory statement
This amendment would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British overseas territories citizen. They may also register as a British citizen at the same time. Both applications would be free of charge. The application must be submitted within 5 years, or in the case of a minor born before the date of coming into force or born within 4 years of that date, before they reach 23 years old.
Baroness Lister of Burtersett (Lab)
My Lords, in moving Amendment 1, I am grateful to my fellow signatories; to BIOT Citizens and Chagossian Voices for their assistance; to the APPG on the Chagos Islands, of which I am a member; and to all those noble Lords from across the House who supported a similar amendment in Committee. The breadth and strength of that support reflected the recognition that this amendment is about rectifying a long-standing injustice in citizenship law, just as earlier, welcome clauses in the Bill do.
The injustice that Amendment 1 addresses concerns the descendants of Chagossians, who were all evicted from their homeland by the British Government to make way for a US airbase back in the 1960s and early 1970s, and who remain exiled. Those descendants are now denied the right to register as citizens, which they would have had were they still resident in their homeland. The reason they are denied that right is because they are no longer so resident, but that is because they have been exiled from that homeland by the British Government.
The amendment would simply end the “appalling injustice”, as Conservative MP Henry Smith put it. To allay government concerns about the open-ended nature of his Commons amendment, which received considerable support, this one applies a five-year time limit for registration. The consequences of the injustice include broken families, divided communities, insecurity for those living here who are undocumented, hardship and the aggravation of the trauma associated with exile.
To give one example, provided to me by Chagossian Voices, S, born in Mauritius, is the son of a Chagossian who is British by descent and is now in exile in Crawley. S has lived in the UK since the age of eight. When he turned 18, his mother used her meagre savings from her job as a cleaner to apply for his British citizenship; this was rejected, but he was then granted a limited visa, which has now expired. She cannot afford to reapply and fears that her son could be deported at any time. “I am terrified of my family being split up”, she says. This cannot be right.
What this means to Chagossians has been made painfully clear to me in emails I received following Committee, and I think, too, to the Minister, who very kindly met some of us, including Rosie Lebeck of BIOT Citizens last week. In Committee, the Minister expressed her sympathy and empathy, and I believe that she genuinely understands what is at stake here, but that has not yet been translated into the actions needed to remedy this injustice. Instead, she pointed to how some second-generation Chagossians would benefit from the earlier clauses in the Bill, which address discrimination in nationality law. When questioned, neither she nor her officials could say how many that would be—I suspect not many.
The Minister has also spoken about how the Government are looking at what more can be done to help Chagossian families seeking to settle here, but we have been given no details of what that might mean and, in any case, that is to ignore once again the importance of citizenship—a theme running through many of our debates in Committee. She also talked about a willingness to consider how the £40 million fund set up to support Chagossians settled in the UK might be used, but that fund was announced more than five years ago and, to date, I understand that only £800,000 has been spent. Certainly, some of the fund could be used to defray any costs associated with this amendment, but it is no substitute for it.
We come to the nub of the matter. In Committee, the Minister reiterated the Government’s concern that the amendment would be contrary to long-standing government policy and warned that it goes further than the rights available to many other descendants of British nationals settled elsewhere around the world—but how many of those other descendants are settled elsewhere because they have been forcibly exiled by the British Government? None, I would suggest. As a junior Minister in the Commons acknowledged, the Chagossians’ case is unique, yet the Government appear terrified that to concede on this amendment would create a precedent, despite there being no other group in this situation. Why can they not follow the advice of the noble Baroness, Lady Falkner of Margravine? In Committee, the noble Baroness suggested that the Minister needs to make it clear in the response today—it may not be her response; it may be his response—that he or she
“does not intend this Act—a humanitarian Act—to set a precedent”.—[Official Report, 27/1/22; col. 494.]
In conclusion, no one knows for sure how many Chagossians would avail themselves of the right contained in this amendment, but the best estimate, based on a census carried out by BIOT Citizens, is no more than 1,000. That said, this is not a question of numbers but of finally putting right what everyone accepts is an injustice. I hope that we will take the opportunity provided by the Bill to end this injustice. If the Minister does not accept the proposed new clause or offer to come back with an alternative at Third Reading, I shall beg to test the opinion of the House. I beg to move.
Baroness Whitaker (Lab)
My Lords, as vice-chair of the All-Party Group on the Chagos Islands, I will add one brief point to the amendment so persuasively moved by my noble friend. If resettlement had taken place following the High Court ruling of November 2000 that the ordinance banning the Chagossians’ return was unlawful, it would have much reduced the need for an immigration route to the UK. Her Majesty’s Government should lift that ban immediately, in addition to accepting my noble friend’s amendment. The recent Mauritian expedition helpfully showed that there is no reason why the Chagossians should not return to their homeland. Some will probably want to do that rather than come to the UK, which would much diminish the apparent problem that the Government have.
Baroness Butler-Sloss (CB)
My Lords, I sat as a judge in one appeal on the Chagossians and learned about the disgraceful behaviour of successive Governments of all political views—not, I have to say, the Lib Dems because they were not in power, but certainly the Conservatives and Labour have each left the Chagossians to their fate. One appalling thing they did was take an agreement from them whereby they signed away their rights for some paltry sum, such as £1,500. It is time that at least some of these Chagossians got some rights. As the noble Baroness who moved the amendment pointed out, this situation is unique. Therefore, the Government really should be generous and understanding and do something to repair the appalling damage done in the past by this Government, as well as the previous Labour Government.
Baroness Ludford (LD)
My Lords, I recognise that the Bill removes discrimination against those, including some descendants of Chagossians, unable to claim previously through their mothers or unmarried fathers. But with this amendment we are talking about a limited number of people, in the hundreds—maybe 800 to 1,000—who, as descendants of Chagossians evicted from the islands, will still have no rights to British overseas citizenship and, in due course, British citizenship even with Part 1, even though they would have that right if they had not been evicted. In Committee, the Minister’s only answer was that
“offering this right is contrary to long-standing government policy.”—[Official Report, 27/1/22; col. 497.]
That position does not take into account the exceptional nature of what happened to the Chagossians. No other British Overseas Territories citizens suffered this fate. Chucking out colonial subjects in the modern age was also, I hope, contrary to good government policy. If an exception could be made for the Chagossians then, one can be made now.
Baroness Jones of Moulsecoomb (GP)
My Lords, in Committee there seemed to be some representations from noble Lords who did not know about the plight of the Chagos Islanders; they were hearing about it for the first time. There is so much injustice in the world that it is very difficult to keep track of all the consequences of British and American imperialism, but it is one of the beauties of your Lordships’ House that any of us can table amendments that can be debated and discussed. I say a big thank you to the noble Baroness, Lady Lister, for debating this issue and for her powerful speeches on this cause. Having had the issue raised in Committee, and now again on Report, no one can claim ignorance of this real injustice. We have to take action. It is time for the United Kingdom to make reparations for forcing changes on the Chagos Islanders. This amendment is the beginning of that process and the Greens support it completely.
Baroness Altmann (Con)
My Lords, I commend the Government, in that this Bill seeks to remedy some long-standing injustices and discrimination in British nationality law. That is why I am so sad that there has been a refusal so far to accept this amendment. The Chagossians are the only category of British Overseas Territories citizens who were expelled and excluded from the British territory in which they lived by the British Government themselves in modern times. I commend the BIOT Citizens group, the noble Baroness, Lady Lister, and my honourable friend Henry Smith in the other place, who called this an “appalling injustice”. He is right.
As others have said, this is a unique case and it sets no precedent, but unfortunately the Government seem to be relying on the cause of the injustice to refuse to remedy that same injustice. I know my noble friend is sympathetic and has empathy with the situation that these good people find themselves in. In his response, could he explain why the Government are refusing, without simply saying that this sets a precedent? Clearly, it does not. There is no other group in this situation. If there is, could the Government enlighten us as to who that group might be? Knowing that this situation arose as a result of Britain wanting to support the United States in the Cold War, and, at this time, as we face global perils, today would be a timely opportunity to remedy this injustice. It is an enormous injustice in terms of the Chagossians’ lives, but tiny in the scope of this Bill. Action would show that we recognise our responsibilities to people we have wronged in the past.
This amendment is wholly reasonable. The noble Baroness, Lady Lister, has tried again and again to change the wording to include stricter time limits, accommodate the Government’s concern and reach some kind of compromise. So I hope my noble friend will be able either to accept it or commit to coming back with the Government’s own amendment at Third Reading. Otherwise, I shall, in good conscience, vote in favour of this important amendment.
Lord Ramsbotham (CB)
My Lords, I strongly support Amendment 1, to which I have added my name. I declare an interest as a vice-chairman of the Chagos Islands (British Indian Ocean Territory) All-Party Parliamentary Group. How do the Government have the neck to condemn others for far less, while at the same time standing condemned by both the International Criminal Court and the General Committee of the United Nations for refusing to allow the Chagos Islanders and their descendants citizen rights to return to their homeland, despite promises that they would be allowed to do so after 30 years? I remember, as long ago as 2013, reading out a letter from a Pentagon Minister to the then Foreign and Commonwealth Office Minister saying that the Pentagon had no objection to the return of the islanders to Diego Garcia, being used to having indigenous people living alongside island military bases in the Pacific.
Lord Horam (Con)
My Lords, I must correct the noble Baroness, Lady Butler-Sloss, in one regard: the Lib Dems could have done something about this when they were part of the coalition Government. I am not particularly pointing to the Lib Dems: we are all guilty of the shame of what has happened to the Chagos islanders. All three parties, I am afraid, have done nothing to deal with the dreadful situation the Chagos islanders find themselves in as a result of successive Governments of all parties. I hope that my noble friend the Minister—he is having a hard time today, now having to answer this question as well as previous ones, and I really do feel sorry for him—can offer us some hope in this matter today.
My noble friend Lady Williams explained when we discussed this issue previously that the problem is that what we are asking for runs counter to long-standing government policy. However, the truth is that we ourselves created this situation. Surely, long-standing policy should be flexible enough to deal with a problem which we ourselves created. There is no group of people other than the Chagossians in this situation, and that is why we have to be flexible. I know that the noble Baroness, Lady Lister, has looked again at this amendment and drawn it ever more tightly, so that fewer additional problems can arise. I commend her on that effort.
We know from events such as the Windrush scandal that issues such as this are a matter not just of law but of how individual cases are handled in Home Office administration. I do not criticise that administration because I know from my own experience as a Member of Parliament how difficult such cases can be to deal with, and I often sympathise with it regarding the decisions it has to make. However, I would like the Chagossian community to be given some particular form of access to government. Perhaps an officer should be allocated to deal with their problems on a regular basis, so that there is a point of contact in the Home Office whom they can go to as a matter of course. I found during my previous experience as a Member of Parliament that this can make a huge difference to those who often simply want to contact in an easy and friendly way people who understand their problems, having been long versed in them.
I hope that my noble friend the Minister can give us some succour on this administrative issue, as well as on the legal matters. This issue is not going to go away.
Baroness Verma (Con)
My Lords, I declare my interests as set out in the register. This would be absolutely the right thing to do at this time, in order to demonstrate UK leadership. When it comes to long-standing government policy, we are a democracy and we should evolve, and policies should evolve with it. These people deserve our support in being given the right to go back to their homes. If we are to have any standing in the world, let us show that leadership today.
Lord Mackay of Clashfern (Con)
My Lords, this is a unique situation. These islanders were forced out of their homes not because of any objection to them, but to facilitate the development of bases desirable, perhaps, rather than necessary, in war. They have done nothing wrong and would be entitled, were they still there, at this level, to the citizenship which the Act gave them. The only reason they are denied it is that they are not now living where they would be, had they been left at home. That cannot in any way be imputed to their blame or against them in desiring to get what they would have otherwise had.
I want to understand what this long-term government policy is. Is it that people who have been damaged by activities of that kind should not be recompensed, or is it some other policy? Unless and until this extended government policy is explained, it is hard to see what sort of policy worthy of the name could be applied to making a refusal in this situation. It is difficult for those of us who are old enough to carry responsibility for what the Government did, but more difficult still to carry responsibility for what the Government are now apparently refusing to do.
If there is anything wrong with the drafting of the amendment—I am not conscious of it, but it may be pointed out—I see no reason why the Government should not extend this until Third Reading and correct any mistake. As I say, I do not see anything wrong with it, but I am always subject to being corrected and therefore I leave that open for my noble friend the Minister to deal with.
The real essence of it is that these people were put out of their homes for reasons that had nothing to do with any deficiency, damage or ill-considered action on their part. Nobody has suggested that they did anything wrong, and I find it very difficult to see why they should not get the benefit of what they would have had if they had not been wronged.
Lord Cormack (Con)
My Lords, I rise very briefly to say a few words in tribute to one of the most remarkable parliamentarians I have ever known and one of the best friends I have had in my time in Westminster: the late, great Tam Dalyell. He was on to this before anybody. He campaigned publicly and in the House of Commons. If he is looking down on your Lordships’ House as we debate this afternoon, I think he will have a thrill of satisfaction having heard the speeches we have just heard, particularly that of my noble and learned friend Lord Mackay of Clashfern.
It is never too late to put right a wrong. It is never too late to offer justice to those to whom it has been denied. It is incumbent on any Government who value their own self-respect to put right this wrong. I had to hear my noble friend’s other answers from the Bar of the House. I sympathise with him; he has drawn not one but two short straws today, and he is a new Minister, but he will earn enormous credit from your Lordships’ House if he is able to get up and say, “Yes, this is an overwhelming moral argument. Yes, I accept the justice of it. Yes, I will take it away, talk to my ministerial colleagues and come back with something satisfactory”—although, in my view, this is satisfactory—“at Third Reading”. If he does that, I know the noble Baroness who moved the amendment will be satisfied; she is indicating that she will. If he cannot do that, I hope she divides the House and I will be with her.
The Lord Bishop of Durham
My Lords, I hold my hands up: I am one of those who, as the noble Baroness, Lady Jones of Moulsecoomb, mentioned earlier, did not know much about this issue before we started this debate. However, I followed it and pay tribute to the noble Baroness, Lady Lister, for the way in which she has led this. It is quite clear that it is completely unjust and needs to be dealt with. I hope that the Minister has noted that, while in most debates, many of us around this House and the noble Lord, Lord Horam, will not agree, we agree on this one completely—100%. There is no justification for anything other than accepting this amendment.
Lord Paddick (LD)
My Lords, to assist the House to move swiftly on to votes, we on these Benches will try to restrict ourselves to one speaker who will speak for us all, unless we are provoked by subsequent contributions. I say to the noble Lord, Lord Cormack, that it is rather unfair to the Minister—particularly as he is a new Minister—to ask him to deviate from his script. However, we agree with my noble friend Lady Ludford and with all other noble Lords.
Lord Rosser (Lab)
My Lords, my noble friend Lady Lister of Burtersett has set out the background to and purpose of this amendment. As we know, currently only those born on the islands and the first generation born in exile have the right to British Overseas Territories citizenship and, therefore, to British citizenship. As a result, families have been broken up and communities divided. Some members have access to citizenship rights while others do not.
In the Commons, as has already been commented on, the Government accepted, on 4 November last year during the Committee stage of the Bill, that the Chagossians presented a unique case. By Report Stage in the following month, however, the Government seem to have decided that the Chagossians were no longer a unique case, because going down the road proposed,
“would undermine a long-standing principle of British nationality law … under which nationality or entitlement to nationality is not passed on to the second and subsequent generations born and settled outside the UK and its territories”.—[Official Report, Commons, 7/12/21; col. 258.]
The reason that the small number of Chagossians in question do not meet this condition is because they are descended from people who were evicted against their will from a British overseas territory. That is why they are unique, as the Government have already conceded. They did not leave of their own free will to settle elsewhere: they were kicked out—forcibly evicted. There would be no precedent set by agreeing to this amendment. In effect, the Government are using, in support of their case to deny these Chagossians the right to British citizenship, the cause of the very injustice which this amendment seeks to address. We support this amendment, and it would appear that we are far from the only ones in this House to do so.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I also thank the noble Baroness, Lady Lister, for meeting my noble friend Lady Williams last week and for the opportunity to hear further about the issues impacting the Chagossian community. As has been said previously, both in Committee and when my noble friend met the noble Baroness, Lady Lister, last week, and as noted by my noble friend Lady Altmann, the Government empathise and sympathise with the Chagossians about how they were treated in the 1960s and 1970s.
It is, however, important to clarify who this amendment seeks to assist. It is not those Chagossians who were of the generations born on the British Indian Ocean Territory, as they have always been British nationals and have been automatically considered both British Overseas Territories citizens and British citizens since 2002. Similarly, it is not their children, the first generation of Chagossians born outside of British territory, who are also both automatically British Overseas Territories citizens and British citizens. It is also not those in the first generation of Chagossians born outside of British territory, who, as the Chagossian community highlights, have missed out on rights to British nationality due to historical legislative unfairness, and this Bill already seeks to rectify that issue.
This amendment is limited to those in the second and successive generations of Chagossians born outside of British territory who, like all children of British nationals by descent, face a different route to British nationality. For this generation, if they wish to acquire British nationality, it is right that they must establish a close, continuing connection with either the UK or a British overseas territory by lawfully residing and settling there, although I recognise that since the 1970s, it has not been possible to establish such a link to the British Indian Ocean Territory. This must be in line with either the UK’s or an overseas territory’s Immigration Rules. This has also been the case with Hong Kong British Nationals Overseas, who do not have a right of abode in British territory and must complete a period of residence in the UK before acquiring the permanent residence status that is required in order to naturalise as a British citizen.
The points raised by the descendants of Chagossians, who are members of the second generation born outside British territory and who are now seeking to settle in the UK under the Immigration Rules, are often very complex. As the Minister for Safe and Legal Migration has stated in the House of Commons, the Home Office is keen to consider what more we could do to support those families seeking to settle here under the current system.
The Home Office is actively engaging with the Chagossian community to identify practical proposals that would support the second generation born outside British territory in navigating the system. In addition, the Home Office is discussing with the FCDO how the £40 million Chagos support fund, referenced by the noble Baroness, Lady Lister, could be used to deliver further support for Chagossians seeking to settle here under the Immigration Rules. Those discussions are current and ongoing, and I had some this morning.
As the Government have consistently stated, allowing entitlements to—
Baroness Altmann (Con)
I thank my noble friend for giving way. Can I ask him to confirm that, had the grandparents of these individuals not been expelled against their will from their islands, these people would now be entitled to the citizenship we are currently denying them?
Lord Sharpe of Epsom (Con)
I think I have already answered that question. It is to do with the generations born outside British territory, so yes.
As the Government have consistently stated, allowing entitlements to citizenship to be passed on beyond the first generation born outside the British territory, bypassing requirements to reside and settle here by those who do not have a continuing connection with the UK, would unfortunately undermine a key principle in British nationality law that applies to all other descendants of British nationals born abroad.
I recognise that the noble Baroness’s amendment has sought to limit the right to register as a British national to current generations who must apply within a limited timeframe. However, this does not alleviate the Government’s concern that offering this right is contrary to long-standing government policy and goes much further than the rights available to many other descendants of British nationals settled elsewhere around the world today.
I finish by saying that I have listened very carefully to this debate, and I realise I am something of a lone voice.
Baroness Butler-Sloss (CB)
I apologise to the Minister, but could I ask him to deal with this unique position? There is, as far as we know, no other group of people who have been evicted as they have and have not been allowed to go back. They are in a special position, but the noble Lord is not even dealing with that point.
Lord Sharpe of Epsom (Con)
I can only deal with it by extension, which is to say that it would be contrary to long-standing government policy to even deal with it.
I have listened very carefully to this debate. I have taken on board what the right reverend Prelate the Bishop of Durham has said about broad agreement—of course I have, and I will take it back to the Home Office. I will also take my noble friend Lord Horam’s suggestion back to the Home Office about dedicated support within the department, which strikes me as a very sensible suggestion. I am afraid that I am going to earn no credit with my noble friend Lord Cormack, because I invite noble Baroness to withdraw her amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I thank all noble Lords who have spoken. I think it is unusual to have more support from the Government Benches than from any other Benches—and very strong support it has been.
The two interventions really put their finger on how the poor Minister—I am afraid he is making a face—did not address the fact that this is a unique case, as the noble and learned Baroness, Lady Butler-Sloss, said. As the noble Baroness, Lady Altmann, said, if their grandparents had not been forcibly evicted and kept in exile, these people would probably still be living on the Chagos Islands and be entitled to British citizenship. It is citizenship that they want. Certainly, the Chagossians who have been in touch with me are desperate to be seen as citizens; they do not want to come through some intricate way of dealing with the Immigration Rules—that is not what they are seeking.
I am sorry that the Minister has not addressed the key issues here. The noble and learned Baroness, Lady Butler-Sloss, described successive Governments as demonstrating “disgraceful behaviour”. As the noble Lord, Lord Horam, said, we all, in terms of our political parties—not the Green Party, but all the others—have responsibility here. This is our opportunity to put this injustice right. I wish to seek the opinion of the House.
Lord Mackay of Clashfern (Con)
My Lords, the Minister has said that he would take it back. It may well be that if he takes it back—
Baroness Lister of Burtersett (Lab)
The Minister said that he would take it back, but not with a view to bringing it back at Third Reading. Therefore, I must test the opinion of the House.
Lord Russell of Liverpool
“(1A) In section 1 (acquisition by birth or adoption), in subsection (5)—(a) in paragraph (a), for “minor” substitute “person”, and(b) after paragraph (b), for “that minor shall” substitute “that person or minor (as the case may be) shall”.”Member’s explanatory statement
This amendment seeks to bring British nationality law in line with adoption law in England and Wales. In those nations, an adoption order made by a court may be made where a child has reached the age of 18 but is not yet 19. Yet such an adoption order currently only confers British citizenship automatically where the person adopted is under 18 on the day the order is made.
Lord Russell of Liverpool (CB)
My Lords, your Lordships will be delighted to know that I will be extremely brief in moving Amendment 2. I thank the noble Baroness, Lady Hamwee, who moved this amendment in Committee in my absence when I was laid low by some lurgy that has thankfully now gone. I declare that I am a governor of Coram, the children’s charity; this includes the Coram Children’s Legal Centre and CoramBAAF, which has been quite involved in briefing for this amendment. I am pleased to tell the House the good news that, amazingly, we have made some progress between Committee and Report.
The amendment highlights an anomaly in that British nationality law is not in alignment with adoption law in England, Wales and Scotland. A very small number of children have fallen foul of a Catch-22 situation whereby the automatic right to UK nationality has been denied them. This is because, while the adoption proceedings began before their 18th birthday, the adoption was not ratified until after. The noble Baroness, Lady Hamwee, Edward Timpson from the other place, the Immigration Law Practitioners Association, the two parts of Coram that I referred to earlier and I have been working with the Minister and her colleague in another place—Kevin Foster, the Minister with responsibility for this area—and we are pleased to be able to say that we seem to have found a way through this situation. This was outlined in a letter sent to Edward Timpson and me this morning. We look forward to the Minister replying in as much detail as possible when winding up.
The Government are proposing to deal with these cases through using Clause 7 in the Bill, putting in place detailed guidance—I quote from the letter—to
“help caseworkers assess applications fairly and consistently and to provide applicants with guidance when applications are likely to be granted.”
The letter continues:
“We are still in the process of developing guidance but, given that you would understandably want assurances on this, I will place a copy of this letter in the Library of the House confirming this intention.”
I am most grateful to the Minister and his Home Office colleagues for their co-operation and at least their willingness to listen. However, I have some questions arising from the letter, to which I would be grateful for answers, either at the Dispatch Box or, if that is not possible, in writing as soon as possible hereafter.
First, in Clause 7, would adopted children—the examples in subsection (2) do not include adoption—come under
“(a) historical legislative unfairness” or
(b) an act or omission of a public authority, or
(c) exceptional circumstances”?
Would the Government consider putting adopted children over 18 in primary legislation as an exceptional circumstance? This would be more secure than guidance, which could be changed without parliamentary scrutiny.
The letter mentions any delays that were beyond the parent/child’s control. If this means delay of the adoption, it seems to suggest that there is an obligation to adopt before the 18th birthday. This is not in line with current adoption law. The letter says that new guidance will be
“subject to there not being any adverse factors”.
While I understand that this is meant to cover situations where, for example, the individual might have a history of offending, what about a real-life example where the child being adopted has no immigration status? This is in no way, shape or form the child’s fault. Would this be held against them as an adverse factor? Surely not, so clarification on that would be appreciated.
I expect that I am primarily going to leave this debate open to those noble Lords discussing Amendment 21. I hope that the Minister will be able to give as full and comprehensive an answer as possible when he winds up. We shall listen to, and subsequently read, what he says with great care. I beg to move.
Baroness Hamwee (LD)
My Lords, I do not want to take the time of the House other than to say, with thanks for the letter, that I hope the Minister will accept that discretionary registration is qualitatively different from automatic citizenship, which is what we have been seeking, and understand my concern that the letter uses terms such as addressing
“exceptional cases in a flexible and proportionate way”.
This is vaguer than one would wish to see and a situation which I am sure is nobody’s fault but one of those unintended consequences of legislation not aligning.
Lord Paddick (LD)
My Lords, I am glad that the noble Lord, Lord Russell of Liverpool, has reached agreement with the Government. I wish I could say the same.
I will speak to Amendment 21 to Clause 10, which requires the Secretary of State to be satisfied that a child aged between five and 17 cannot reasonably acquire another nationality in order to be registered under the stateless child provisions. The Government allege that parents were deliberately not registering the birth of their children and acquiring citizenship of the parents’ home country to wrongly claim British citizenship, by falsely claiming their children were stateless. We believe this clause should be taken out of the Bill.
In Committee the Minister, the noble Baroness, Lady Williams, provided, at column 548, figures of five cases of this route being used in 2010, which peaked at 1,775 cases in 2018. The Minister concluded “I rest my case”, but this raised further questions: for example, were those 1,775 cases in 2018 the number of stateless children born in the UK who were granted British citizenship in total, legitimately or otherwise, or the number where parents had deliberately chosen not to register their child’s birth to take advantage of the system? The Minister assumed it was the latter but said that she would write, and she did so on Friday.
In Committee, I specifically asked the noble Baroness whether the 1,700 odd cases in 2017 that she referred to were the total number of stateless children granted UK citizenship, or the number of cases of deliberate abuse of the system that Clause 10 purports to tackle. The Minister replied:
“I assume … the latter, but I will write to the noble Lord with the details of the figures I have here”.—[Official Report, 27/1/22; col. 550.]
However, when the Minister wrote, the figures in the letter do not equate to those she gave from the Dispatch Box. Neither is there an answer to the question: of those cases, how many were a deliberate—or even a suspected—case of abuse of the system?
The letter goes on to talk about the sampling of over 200 stateless child applications received between 2015-2021, which on my calculations is about 1% of the applications received. It goes on to say that, in 96% of the sample, the parents were Indian or Sri Lankan and then:
“90% of Indian and Sri Lankan parents had been able to take steps to contact the High Commission to obtain a letter to show their child was in fact not a citizen of that country”
and, in brackets:
“(We do not have data on how many actually attempted to register the birth)”.
In summary, we have numbers in the letter that appear to be at odds with what the Minister said at the Dispatch Box, we have a sample of only 1% of all applications and we do not know how that sample was selected. In the sample, in 90% of cases the relevant high commission confirmed the child was stateless and the Government have no data to show whether parents attempted to register the birth at the time. Despite this, the letter concludes:
“This demonstrates a clear and conscious decision by the parents not to acquire a nationality for their child for at least 5 years”.
That conclusion cannot possibly, in good faith, be drawn from the facts, whichever sets of facts presented by the Government that the House chooses to believe—either the facts the Minister gave from the Dispatch Box or the alternative facts contained in the all-Peers letter.
If the Government cannot now determine how many cases are genuine and how many are the result of attempting to inappropriately acquire British citizenship, on what basis will the Secretary of State exercise her powers under Clause 10 to decide whether the child in question is able to acquire another nationality? Specifically, if, as in 90% of cases in the sample, the relevant high commission confirms the child is stateless, on what basis will the Home Secretary decide not to believe the high commission, decide that the child could acquire the relevant nationality and deny the child British citizenship? What happens to the child denied nationality by the relevant high commission and by the Secretary of State?
If, as the Government suggest, this route is being used inappropriately by parents to acquire British citizenship for themselves, the Government should bring forward legislation to prevent parents acquiring British citizenship through their children by this route, rather than making innocent children, born in the UK, stateless. I was hoping the Minister would write in good time, with a clear and unambiguous answer to the questions I put to her in Committee on 27 January. She did not and she has not.
I am reluctantly left with two options: either the Minister addresses the apparent discrepancies and presents the House with a clear case for Clause 10 now or he agrees to take this away and address our concerns at Third Reading—otherwise I will be forced to conclude that the case is not made for Clause 10 and will divide the House. We cannot leave UK-born children stateless at the whim of the Home Secretary. Clause 10 should be taken out of the Bill.
Lord Rosser (Lab)
My Lords, I will not say anything on the amendment addressed by the noble Lord, Lord Russell of Liverpool, in view of what he has indicated about the progress that has been made between Committee and Report, although of course we will listen very closely to what the Minister has to say and indeed read what is in the Minister’s letter, which I think is what the noble Lord, Lord Russell of Liverpool, referred to.
As has been said, Clause 10 is intended to disentitle stateless children in the UK from their statutory right to British citizenship. Under our international obligations we have safeguards that mean that a child who was born in the UK and has always been stateless can acquire British citizenship after five years of residing here. Through Clause 10 the Government propose to restrict and amend that obligation. Clause 10 requires the Secretary of State to be satisfied a child was unable to acquire another nationality before being permitted to register as a British citizen. That, of course, creates an additional—and one would probably feel unjustified—hurdle to stateless children’s registration as British citizens which could be difficult for a child or those acting on their behalf to prove.
There is also the issue that the uncertainty created by Clause 10 could be highly damaging to a child’s personal development and their feelings of security and belonging, due to this exclusion and potential alienation being inflicted in their formative years. Indeed, the question was asked in Committee: how can this be in the best interests of the child?
The noble Lord, Lord Paddick, made reference to the figures which were given by the Government in their response. He also referred to the question which was asked as to whether the figure of 1,175 was the number of stateless children born in the UK who were granted British citizenship, or whether it was the number of cases where parents deliberately chose not to register their child’s birth in order to take advantage of the system. The noble Lord, Lord Paddick, referred to the letter that was received on behalf of the Government, and to the apparent discrepancies between what was said in Committee and the figures which appear in the letter.
I wait with interest to hear the response of the Government, because we, too, asked the question about what the case for Clause 10 was. I think I am right in saying—I recall it being said—that the Government felt that the figures that they gave at Committee were a fairly conclusive argument in favour of abuse of the system, and therefore that this was the case for Clause 10. On the basis of the letter which has been received, and the comments which have been made by the noble Lord, Lord Paddick, there is some doubt as to whether the case has been made.
The noble Lord has asked a number of questions and asked for a number of assurances. The answers he receives will clearly influence the decision he then makes in respect of Clause 10 standing part, and will influence what we, as the Official Opposition, do if the matter is put to a vote.
Lord Sharpe of Epsom (Con)
I thank noble Lords who have taken part in this debate.
I turn first to Amendment 2. As has been acknowledged, there are differences in adoption law in various parts of the UK. This is why we do not think that amending Section 1(5) of the British Nationality Act 1981 would be the answer. The Adoption and Children Act 2002 applies only to England and Wales, whereas the territorial reach of the British Nationality Act 1981 includes the whole of the UK. This means that this amendment could have different results in a person’s ability to acquire citizenship, according to where they were adopted. For example, Scotland permits adoptions for those over 18, but differs from England and Wales as there is no upper age limit. Northern Ireland does not currently permit adoptions to happen after the age of 18. Therefore, the effect of this amendment would be to create differences across the UK in who can acquire British citizenship. This should not and could not be right.
Within nationality legislation, automatic acquisition of citizenship is generally reserved for minors. Granting automatic citizenship to adults could result in unintended consequences, possibly affecting another nationality which they hold. Where other countries do not allow their nationals to hold dual nationality, there are often exemptions for children which do not apply for adults. We normally offer adults a registration route so that the person can make a conscious choice about becoming British and take into account any potential implications of doing so.
While we do not want to amend Section 1(5) as proposed, we could use Clause 7 of the Nationality and Borders Bill in these cases. Clause 7 creates a route to British citizenship for those who missed out on acquiring it because of historical legislative unfairness, an act or omission of a public body, or exemptional circumstances relating to that individual. The noble Lord, Lord Russell, has noted this, and I will come to his specific questions in a moment. Registration would allow a person to acquire citizenship without causing unintended consequences as a result of the different legislation in devolved regimes and the overarching nationality law framework.
We will set out in guidance how we intend to use the adult discretionary registration provision created by Clause 7. The discretion must be considered on a case-by-case basis, but we can give examples of where it would normally be used. We think it would normally be reasonable to grant citizenship to an applicant where, for example, an application for adoption is made before a child’s 18th birthday but the adoption order is made afterwards for reasons beyond the control of the parent or child, or where the adoptive parent is a British citizen and the child would have become a British citizen under Section 1(5) of the British Nationality Act 1981, if they had been 18 at the time when the adoption order is made.
Lord Russell of Liverpool (CB)
My Lords, I thank the Minister for his response. I will not deal directly with Amendment 21, whose time will come in due course, but will respond on Amendment 2.
I understand that, given the current Government’s slightly prickly relationship with the Government north of Hadrian’s Wall, issues to do with the extent of UK legislative authority, when it comes to possibly clashing with Edinburgh’s idea of what its own jurisdiction should be, are a tricky area. I understand why they do not wish to tread there too much. It is a pity, though, because we are talking about the interests of a small group of children rather than the niceties of bouts between the devolved Administrations and Westminster. I take the point.
I thank the Minister for confirming that Clause 7 will be used and guidance produced. In addition, I understand that Edward Timpson found out that apparently—it was a surprise as much to the Home Office as to anybody else—in its office in Liverpool there is a specialist adoption unit whose remit is to look specifically at adoption issues. Kevin Foster said that the unit will be involved under this guidance and that any of the types of cases we are talking about that are flagged up will be brought to the attention of this adoption unit, which I hope will have enough expertise, experience and specialism to be able to really understand the situation and to avoid any mistakes of the kind we have evidenced in the past happening in future. When the guidance is forthcoming, I would be grateful if that could be made clear.
I am also grateful for the confirmation that a child’s immigration status would not be considered an adverse factor when it comes to considering their case. I thank Edward Timpson very much for all the work he has done and the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, among others, for their support.
I do not know how quickly the draft guidance will be available—does the Minister think it might be available before Third Reading? Clearly, it would be very helpful if it were, and rather unhelpful if not, so could the Minister come back to me as quickly as possible with confirmation on when it will be ready? Will he and the noble Baroness commit to a meeting with those of us most directly concerned, including Edward Timpson, to review this and perhaps help guide the draft guidance in the right direction? That would be much appreciated. If we are unable to resolve this situation satisfactorily before Third Reading, we shall be back, but in the meantime, I beg leave to withdraw the amendment.
“(1A) Schedule 1 also amends the British Nationality Act 1981 to allow the Secretary of State to treat a person who has indefinite leave to enter or remain as meeting certain residence requirements in relation to an application for citizenship under those sections.”Member’s explanatory statement
This amendment is consequential on the amendments to Schedule 1 in the name of Baroness Williams of Trafford.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I will aim to speak to all 11 amendments in my name, given that they touch on the same issue of requirements for citizenship applications. In doing so, I particularly thank the noble Baroness, Lady Ludford, both for raising this issue in previous debates and her willingness to meet me, along with the noble Lord, Lord Paddick, to explain more fully her concerns. The noble Baroness has retabled her previous amendment on this subject, and I will set out how measures that we are proposing will, I hope, address her concerns.
As noble Lords will know, the British Nationality Act 1981 set out the requirements for persons wishing to become British citizens based on a period of residence in the UK, be that through naturalisation under Section 6(1) or Section 6(2), or registration under Section 4(2). All three of those application routes have a number of residential requirements designed to demonstrate sufficient ties to this country. One is commonly referred to as “lawful residence”—essentially requiring that the applicant was not in breach of the immigration laws during the requisite residential period prior to the application.
For the majority of applicants this requirement causes no issues. However, as highlighted previously by the noble Baroness, it can lead to frustration for some people. While not restricted solely to those who hold indefinite leave to remain—also known as settled status—under the EU settlement scheme, this group serves well to highlight the problem. In particular, those individuals who had previously been resident here as students or self-sufficient persons were required to hold comprehensive sickness insurance under the EEA regulations. That they had not done so did not preclude their being granted indefinite leave to remain under the EU settlement scheme.
Many of that group understandably wish to progress to become British citizens. However, because they did not hold comprehensive sickness insurance, they technically were in breach of the immigration laws during their previous residence and fall to be refused in any application to become a British citizen. While the British Nationality Act allows for discretion around the lawful residence assessment, this can be applied only in the special circumstances of a particular case. Inevitably, that creates uncertainty for the applicant and may necessitate additional evidence to be supplied to justify the use of discretion.
The main thrust of these amendments is to resolve that impasse. Although not removing the lawful residence requirement itself, we aim to provide the Secretary of State with a much broader power to not even inquire into lawful residence for those who hold indefinite leave to remain. This is based on the simple fact that, for the vast majority of such individuals, any concerns about their immigration history will have been considered and addressed prior to any grant of indefinite leave. In other words, the immigration system, and reforms made since 1981, already demonstrate fulfilment of that requirement.
The amendments do not create an obligation to follow such an approach, but it is expected that it will be in only an exceptional case that we would not want to do so. An example of that might be where adverse information comes to light after indefinite leave has been granted and serves to cast doubt on the wisdom of that decision, but I stress that that would be an exception. The vast majority of people, to whom this does not apply—certainly those whom the noble Baroness has championed so ably—will be able to benefit from these changes.
Baroness Ludford (LD)
My Lords, I very much thank the Minister, who has taken a very welcome personal interest in this matter, which is very encouraging. The government amendments are interesting and represent some progress, but they are unspecific for EEA citizens, and there is still that discretion, not certainty, that the Secretary of State “may” but not “must” do this.
As I said in Committee, I was grateful for the concession, announced by the Minister and which she has just talked about, to the effect that the Government would
“amend the Immigration Rules … to disapply any requirement for a Lounes dual national”—
this area is littered with technical terminology—
“to have held CSI in order to sponsor applications by relevant family members”
for settlement. I would be very grateful, as we asked in Committee, to know whether there is any further knowledge of what progress there is on that change to the Immigration Rules.
So far, so good—but on the other two arms of my amendment, on registration of children as British citizens and naturalisation as British for an EEA settled person, both without looking at past CSI history, as my amendment asked for, the Minister said in Committee that
“it would not be right to single out EEA nationals”,
and she has repeated that. We are slightly in the same territory as we were on the Chagos amendments, whereby the Government say that they cannot do something specifically for this group. The Minister also said in Committee that
“it would not be right to treat certain nationalities differently”—[Official Report, 1/2/22; col. 794-95]
and she is maintaining this approach.
However, EEA nationals are being treated differently. They have resided previously in this country, often for a long time; a large chunk of an international treaty, the withdrawal agreement, is devoted to them and to their counterparts, British citizens in the EU, and legislation specifically covering them; and there are various arrangements for monitoring and supervising how they are treated. So they are a special case. I would just mention that some children who should have been born British were not, and now have to be registered at a cost of more than £1,000 because of the specifics of the situation of EEA nationals.
After the meeting of the UK-EU joint committee last week—the committee on the withdrawal agreement—Vice-President Šefčovič recalled that
“it was a commitment from both of us that we will do our utmost for the UK nationals in the EU and the EU citizens staying in the UK.”
An EU official was reported as saying that the Commission would consider whether to launch consultations on citizens’ rights, and could ultimately trigger an arbitration process. I am not saying that those remarks were targeted at this specific problem, but that reminds us that there is an oversight mechanism for the fate of EEA citizens.
The CSI issue affects only EEA citizens, nobody else, so removing it entirely from being a virus—I called it “snakes and ladders”—in our immigration regime, would simply bring EEA citizens into line with all other migrants, who do not have a CSI problem. When Prime Minister, Theresa May said:
“The requirement for comprehensive sickness insurance is an EU requirement, and as long as we are members of the EU, it will continue to be there. Once we leave, we can indeed remove it”.—[Official Report, Commons, 26/6/2017; col. 315.]
It is true that the Government removed it for applicants for settled status but, as I hope I have explained through the passage of this Bill, the problem is that it pops up later. You do not get rid of it; that is why I call it a virus. You do not get rid of it—it sort of comes back.
What is not to like about removing red tape? I suggest that while the new government amendments represent some progress—again, I thank the Minister—they still rest on discretion and do not treat EEA citizens on the fair, legally secure basis that I believe they deserve under the withdrawal agreement. I hope that the Government can do more and ward off any possible action from the European Commission and enforce a slightly more secure basis.
If I cannot get what I really want—acceptance of my amendment—I ask the Minister to confirm at least that, when implemented, the guidance will be updated to always state that the Secretary of State will always exercise her discretion in favour of applicants by not inquiring as to whether they had CSI and by treating self-sufficient persons, students and their family members as not having breached immigration laws. That should be in guidance as a firm commitment. Otherwise, I would like to hear the Minister further.
Lord Coaker (Lab)
My Lords, we support much of what the noble Baroness, Lady Ludford, has just said and some of the questions she has put forward. No doubt, the Minister will respond to those questions. It has to be said that the Minister has come forward with some amendments that do improve the situation.
Can I just emphasise the important points the Minister made and clarify, in the light of the questions from the noble Baroness, Lady Ludford, that she said it would apply to all residents, not just EU residents? That is an important point that the noble Baroness, Lady Ludford, made, and the House needs further clarification on what “all”—not to be pedantic—actually means in these circumstances for clarity of legislation.
Having welcomed the step forward the Minister has clearly made, I think that what “exceptional” means is also important—so that the Secretary of State will not use the power to prevent somebody without CSI gaining citizenship other than in exceptional circumstances. The noble Baroness, Lady Ludford, again, is right to ask for greater clarity about how “exceptional circumstances” will be defined and whether there will actually be guidance that any future Home Secretary will have to take into account in determining whether leave to remain should be changed to a full citizenship status in the particular circumstances with which this group of amendments is dealing.
I thank the Minister for coming forward with those amendments and trying to meet many of the concerns that were raised in Committee and before. I look forward, with the noble Baroness, Lady Ludford, I am sure, to the answers to the important questions that have been raised, notwithstanding the amendments before us this afternoon.
Baroness Williams of Trafford (Con)
I thank both noble Lords for the points they have just made. I did refer to guidance in the points I was making in introducing. Yes, the guidance will make things clear.
In terms of “all”, “all” means all nationalities; the provisions will apply to all nationalities. I know the noble Baroness says this is a particular EU problem, but we are trying to make provisions that apply to all countries.
In terms of that point about “may” and “must”, “may” rather than “must” reserves the “may” for the most exceptional cases where it would not be appropriate to take that more generous approach. The provisions will be applicable to the vast majority of applicants, apart from those “may” applicants where a generous approach would not be appropriate—for example, criminality. I hope that explains it to the noble Baroness.
Baroness Ludford (LD)
I do thank the Minister for that reply. I am not absolutely certain. It may just be that I did not follow the detail, but I am not sure I quite heard that the guidance, apart from in the exceptional case of criminality, will say that the Secretary of State will always exercise her discretion in favour of EEA applicants by not inquiring about the CSI record of the people that it affected.
I have some understanding for what she said about people with a criminal record but, that apart, I should like to hear—perhaps I will not get this today—that the guidance will say that, in normal cases, for EEA nationals, there will always be a good outcome in disregarding a CSI gap. I am not sure that I have quite heard that. I do not know whether the Minister wants to clarify that now, or whether I should just accept—
Baroness Williams of Trafford (Con)
I cannot make an absolutist comment, but I was trying to explain to the noble Baroness that anyone in the normal run of things—other than, for example, serious criminality—would be caught by the government amendments.
Baroness Ludford (LD)
I thank the Minister for that further clarification. I think I have got as far as I am going to get—
The Deputy Speaker (Baroness Finlay of Llandaff) (CB)
My Lords, I think I should put the Question.
“(b) in section 41(4), for “that section” substitute “section 41 of the British Nationality Act 1981 (regulations)”.”Member’s explanatory statement
This is a minor clarificatory amendment which is consequential on the amendments to the 2009 Act made by Clause 8(2).
“(1) Section 4 (acquisition by registration: British overseas territories citizens etc) is amended as follows. (2) ”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 16.
“(3) After subsection (4) insert—“(4A) Subsection (4B) applies where, on an application for registration as a British citizen made by a person to whom this section applies, the applicant has indefinite leave to enter or remain in the United Kingdom.(4B) The Secretary of State may for the purposes of subsection (2) treat the applicant as fulfilling the requirement specified in subsection (2)(d), without enquiring into whether or not the applicant was in the United Kingdom in breach of the immigration laws in the period there mentioned.(4C) The reference in subsection (4A) to having indefinite leave to enter or remain is to be construed in accordance with the Immigration Act 1971.””Member’s explanatory statement
This amendment would provide that, for applications for citizenship under section 4 of BNA 1981 where the applicant has indefinite leave, the Secretary of State may without further enquiry treat the applicant as fulfilling the requirement not to have been in the United Kingdom in breach of the immigration laws.
“(ba) after that sub-paragraph insert—“(1A) Sub-paragraph (1B) applies where the applicant has indefinite leave to enter or remain in the United Kingdom.(1B) The Secretary of State may for the purposes of paragraph 1 treat the applicant as fulfilling the requirement specified in paragraph 1(2)(d), without enquiring into whether or not the applicant was in the United Kingdom in breach of the immigration laws in the period there mentioned.(1C) The reference in sub-paragraph (1A) to having indefinite leave to enter or remain is to be construed in accordance with the Immigration Act 1971.”;”Member’s explanatory statement
This amendment would provide that, for applications for citizenship under section 6 of BNA 1981 where the applicant has indefinite leave, the Secretary of State may without further enquiry treat the applicant as fulfilling the requirement not to have been in the United Kingdom in breach of the immigration laws.
“(2A) In paragraph 4, in paragraph (a)—(a) for “the reference” substitute “the references”;(b) for “a reference” substitute “references”.”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 27.
“(za) the existing text becomes sub-paragraph (1);”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 38.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 38.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 38.
“(c) after that sub-paragraph insert—“(2) Sub-paragraph (3) applies where the applicant has indefinite leave to enter or remain in the relevant territory.(3) The Secretary of State may for the purposes of paragraph 5 treat the applicant as fulfilling the requirement specified in paragraph 5(2)(d), without enquiring into whether or not the applicant was in the relevant territory in breach of the immigration laws in the period there mentioned.(4) The reference in sub-paragraph (2) to having indefinite leave to enter or remain is to be construed as a reference to any status formally granted under the immigration laws in force in the relevant territory which is broadly equivalent to the status of having indefinite leave to enter or remain under the Immigration Act 1971.””Member’s explanatory statement
This amendment would provide that, for applications for citizenship under section 18 of BNA 1981 where the applicant has indefinite leave to enter or remain in the relevant territory, the Secretary of State may without further enquiry treat the applicant as fulfilling the requirement not to have been in the relevant territory in breach of the immigration laws.
“(4) In paragraph 8, in paragraph (a)—(a) for “the reference” substitute “the references”;(b) for “a reference” substitute “references”.”Member’s explanatory statement
This amendment is consequential on the other amendment in the name of Baroness Williams of Trafford at page 86, line 38.
Lord Anderson of Ipswich
“SCHEDULE 1A DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHTThis is the Schedule to be inserted after Schedule 4 to the British Nationality Act 1981—“SCHEDULE 4A Section 40(5E)DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHTDeprivation without notice: application to Special Immigration Appeals Commission1_(1) If the Secretary of State proposes to make a conducive grounds deprivation order without notice, the Secretary of State may apply to the Special Immigration Appeals Commission under this paragraph.(2) If the Secretary of State makes a conducive grounds deprivation order without notice, the Secretary of State must apply to the Special Immigration Appeals Commission under this paragraph within the period of seven days beginning with the day on which the order is made (unless an application has already been made under sub-paragraph (1)).(3) The function of the Commission on an application under this paragraph is to determine whether, in respect of each condition in section 40(5A) on which the Secretary of State relies, the Secretary of State’s view is obviously flawed. (4) In determining that question, the Commission must apply the principles that would be applicable on an application for judicial review.(5) If the Commission determines that the Secretary of State’s view is obviously flawed in respect of each condition in section 40(5A) on which the Secretary of State relies—(a) if the order in question has not been made, section 40(5) applies in relation to the order (notwithstanding section 40(5A));(b) if the order has been made, the Secretary of State must, within the period of 14 days beginning with the day on which the Commission made the determination—(i) give late notice in respect of the order,(ii) revoke the order, or(iii) make an application under sub-paragraph (6).(6) The Secretary of State may (at any time) make an application to the Special Immigration Appeals Commission for fresh consideration of a decision the Secretary of State has made under section 40(5A) where—(a) in the opinion of the Secretary of State, circumstances have changed materially since the determination mentioned in sub-paragraph (5), or(b) the Secretary of State wishes to provide further evidence to the Commission.Sub-paragraphs (3) to (5) apply to an application under this sub-paragraph.Deprivation of citizenship without notice: review2_(1) Sub-paragraphs (2) to (5) apply if—(a) the Secretary of State makes a conducive grounds deprivation order without notice, and(b) the Special Immigration Appeals Commission has not made the determination mentioned in paragraph 1(5) (Secretary of State’s decision obviously flawed).(2) The Secretary of State must, at least once in every review period, review the circumstances of the person in respect of whom the order was made (so far as known) and decide whether to give late notice in respect of the order.(3) On such a review, the Secretary of State must decide to give late notice to the person unless it appears to the Secretary of State that any of the conditions in section 40(5A) is met (reading any reference in those provisions to notice under section 40(5) as a reference to late notice).(4) If the Secretary of State decides at any point to give late notice in respect of the order—(a) the Secretary of State must give the notice as soon as reasonably practicable, and(b) once the notice is given, sub-paragraph (2) ceases to apply in relation to the person.(5) If on the expiry of the final review period the Secretary of State has not given, or has not decided to give, late notice in respect of the order, the Secretary of State must make an application to the Special Immigration Appeals Commission within the period of seven days beginning with the day after the final day of that review period.(6) Sub-paragraphs (3) to (6) of paragraph 1 (except sub-paragraph (5)(a)) apply for the purposes of an application under sub-paragraph (5) as they apply for the purposes of an application under that paragraph.(7) For the purposes of this paragraph, each of the following is a “review period”— (a) the period of four months beginning with the day after the day on which the Special Immigration Appeals Commission first determined an application in relation to the order under paragraph 1, and(b) each of the next five successive periods of four months.Interpretation3_(1) In this Schedule, references to making a conducive grounds deprivation order without notice are to making an order under section 40(2) without giving notice under subsection (5) of that section (in reliance on subsection (5A) of that section).(2) In this Schedule, “late notice”, in respect of an order under section 40(5), means written notice to the person in respect of whom the order was made specifying—(a) that the Secretary of State has made the order,(b) the reasons for the order, and(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.””Member’s explanatory statement
This amendment inserts a new Schedule into the British Nationality Act 1981, to make provision for judicial oversight of decisions to deprive a person of their citizenship status without notice on grounds that the deprivation is conducive to the public good.
Lord Anderson of Ipswich (CB)
My Lords, the circumstances in which British citizenship may be removed were keenly debated in Committee. This group concerns a narrower issue: whether it should be possible to remove someone’s citizenship without giving them notice of it at the time and, if so, in what circumstances. Clause 9 struck me as so problematic that, in Committee, I tabled a stand part notice; that is echoed today by Amendment 20 in the name of the noble Baroness, Lady D’Souza. In Committee, I asked the Minister to take Clause 9 away and challenged her, if she could make the case for such an extraordinary power, to come back with a version of it that is far more limited in scope and subject to proper safeguards and accountability.
The Minister responded to that challenge as positively and wholeheartedly as I could have hoped. I pay tribute to her, to her fellow Minister, Tom Pursglove, to the Bill team and to those at the Home Office and in agencies with whom I have discussed these issues—and I pay no less tribute to the NGOs and individuals who have impressed on me the dangers of Clause 9. The result, after what I think I can fairly describe as very considerable movement on the part of the Government, is the first six amendments in this group, together with Amendment 85, which concerns commencement. They have been pulled into proper shape by the Office of the Parliamentary Counsel, and I hoped that they could be tabled last Monday as government amendments, with my support, but an extra day was needed to conclude our discussions, so they appear under my name. I am grateful to the noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady McIntosh of Pickering, for adding their support.
These amendments achieve four important things. The first is a far more restricted range of circumstances in which notice can be withheld. The original Clause 9 would have allowed the Secretary of State to withhold notice whenever that appeared to her to be in the public interest. Amendments 15 and 16 remove the subjective element and provide that notice may be withheld only if the Secretary of State does not have an address for service, or if she reasonably considers it necessary on one of the four exceptional grounds specified in Amendment 16.
Let me illustrate my understanding of how those exceptional grounds could arise in practice. A terrorist may be living in a safe house here, or more likely abroad, without realising that his whereabouts are known to the authorities. To require a notice of citizenship deprivation to be served on him at that address would reveal to him that he is the object of covert surveillance, contrary to the interests of national security: proposed new sub-paragraph (i). The same may be true of a participant in “organised or serious crime”—the phrase being taken from Section 1 of the Serious Crime Act 2015, which defines the remit of the National Crime Agency: proposed new sub-paragraph (ii). If intelligence as to location was supplied by a foreign liaison partner which does not wish its cover to be blown, notification at that address could jeopardise our intelligence relationship with that country: proposed new sub-paragraph (iv). The person in question might be, for example, with a dangerous armed group in a failed state. To require a courier to travel to such places to serve notice, at great personal risk, would be wrong: hence proposed new sub-paragraph (iii).
I do not believe that these grounds will be commonly advanced—it seems that, with a degree of ingenuity, workarounds have been found in the past—but neither, I suggest as a former independent reviewer of terrorism legislation, should they be dismissed as fanciful. It may be relevant that the laws of two of our closest allies are, if anything, more broadly drawn than this amendment. The New Zealand Citizenship Act 1977 allows for notice of deprivation to be dispensed with if it would be for any reason “not practicable” to serve it on the subject. The Australian Act of 2020 allows the Minister to determine that notice should not be given if it could prejudice the security, defence or international relations of Australia or Australian law enforcement operations.
The second feature of these amendments is to introduce powerful safeguards for conducive grounds deprivations that were entirely absent from the original Clause 9. In New Zealand, they have judicial scrutiny of these decisions. In Australia, they have regular ministerial review. Elements of both those safeguards are contained in the new Schedule 4A, which is set out in Amendment 14 and referred to in Amendments 17 and 19.
The judicial safeguard is in paragraph 1 of the schedule. If the Secretary of State wishes to withhold notice, she must apply to a superior court of record—the Special Immigration Appeals Commission—in advance or within seven days. SIAC will examine her reasons and decide, applying judicial review principles, whether her assessment is obviously flawed. That is the same test that is applied to the making of terrorism prevention and investigation orders under the TPIM Act 2011. SIAC will no doubt develop similar rules to deal with it, which might, in an appropriate case, provide for the appointment of a special advocate. If she does not succeed on her first attempt or on a subsequent application, which must be based on material change of circumstances or further evidence, the Secretary of State must either give notice in the normal way or revoke the deprivation order altogether.
The review safeguard is in paragraph 2 of the schedule. The Secretary of State must consider, three times a year for two years, whether the reasons for non-notification remain valid. If, after the sixth review, she still resists notification, she must make a further application to SIAC, which will, once again, give independent scrutiny to her decision.
The twin requirements of judicial approval and regular review will place a significant burden on the Secretary of State in any case where she wishes to exercise this power. I make no apology for that. Under the Immigration Rules, as they stood between 2018 and 2021, it was easy—far too easy—not to give notice but simply to record it on the file. That path was taken in no fewer than 29 of the 45 conducive grounds deprivations, mostly related to national security activity abroad, that were made in 2019, 2020 and 2021. These amendments not only require non-notification to be a last resort on paper; they make it hard work in practice. They should ensure that, in its own interests, the Home Office will take this exceptional course only when there really is no possible alternative.
The third feature of these amendments relates to appeals. Of course, a subject cannot appeal against a notice of deprivation until he has become aware of it. But Amendment 18 provides that time for appeal will begin to run only once notice has been given. It will not, therefore, be necessary to rely on the discretion of the court to extend time for appeal in cases where deprivation has not been notified at the time.
The fourth and final feature is in the proposed new subsections 5(c) and (d) inserted by Amendment 18. Any person whose citizenship was removed without notice must be informed of that fact, with reasons and information about appeal rights, as soon as they make themselves known to the Home Office, whether within the two-year review period or thereafter; for example, this might be by seeking consular assistance or a fresh passport.
Amendment 18 has another significant and, I would suggest, highly beneficial effect. The point has been well made by other noble Lords that upstanding citizens of this country, notably dual citizens, may be anxious about the removal of their citizenship without their knowledge. Amendment 18 provides such people with a means of reassurance. They have only to contact the Home Office to be told whether this has happened or whether, as will almost always be the case, it has not.
In Committee, the noble Lord, Lord Blunkett, challenged the House to
“find a way forward on Report that takes away the genuine fear from millions of people who believe—erroneously, but they believe it—that Clause 9 as drafted and the implementation of further measures will put them and their families at risk”.—[Official Report, 27/1/2022; col. 518.]
These amendments rise to that challenge. They should ensure that non-notification is confined to those rare cases where it is truly necessary, and they are subject to strong safeguards, including regular review, judicial scrutiny and a right to be informed on request.
I come finally to subsections (5) to (7) to Clause 9, which seek to limit the effect of the D4 case by providing that an unlawful failure to notify a pre-commencement deprivation order should not affect the validity of that order. I will listen carefully to my noble friend Lady D’Souza develop her manuscript amendment to remove those clauses, but in the meantime, to assist our deliberations, I ask the Minister to give two assurances relevant to that amendment. First, will she confirm that anyone subject to a pre-commencement deprivation order will be informed of that fact if they contact the Home Office, by analogy with proposed new subsections (5C) and (5D), as inserted by Amendment 17? They would then be in a position to proceed with any substantive appeal. Secondly, will she confirm, by analogy with Amendment 18, that the Home Office will not suggest that any of these people are out of time for appeal as a consequence of the interval between the decision to remove their citizenship and the giving of notice?
If my amendments are accepted, and those assurances given, I believe that we will have played our part as a revising Chamber and achieved a broadly acceptable balance. Opinions on citizenship removal will, of course, continue to differ, but the aggravating factor of removal without notice will be strictly confined and properly safeguarded for the future, as it was not in the Immigration Rules as they stood prior to the D4 judgment of last year, and as it was not under Clause 9 as it was passed by the Commons. I beg to move my amendment and, if necessary, I will test the opinion of the House.
Baroness McIntosh of Pickering (Con)
My Lords, I am very grateful to the Minister for her support in drafting these amendments, and I hope that she will give an assurance that the Government do, indeed, support these amendments. I thank the noble Lord, Lord Anderson of Ipswich, for addressing many of the concerns that I raised in Committee, particularly those expressed to me by the Law Society of Scotland, which was extremely dissatisfied that, in the original Clause 9, the Government had not fully justified the removal of citizenship without notifying the affected person. It asked that this clause be reconsidered, and I am grateful to the noble Lord for doing so.
Equally, in Committee, I raised the concerns expressed to me by the European Network on Statelessness in its briefing. It was very concerned that Clause 9 as drafted would
“have severe impacts on the rule of law and on a person’s fundamental rights”,
and that, as drafted, Clause 9
“disregards many of the UK’s international obligations, including the prohibition of arbitrary deprivation of nationality, the obligation to avoid statelessness, and the right to a fair hearing.”
In its view, the UK Government
“has not provided any justification as to why such a restriction on fundamental rights is needed.”
I pay tribute to the Minister and the noble Lord, Lord Anderson of Ipswich; many of my concerns have been addressed. I support the amendments introduced by the noble Lord, Lord Anderson, and support the reasons that he has given. The restrictive range of circumstances has been greatly reduced in which a citizen’s rights could be taken away. I support the powerful safeguards he set out as to why a citizen could be deprived of their citizenship, the rights of appeal, the provision that a citizen must be informed that their citizenship is going to be removed and the reassurance that he set out that could be given by condition C at that time. I support the amendments.
Lord Macdonald of River Glaven (CB)
My Lords, powers to deprive British citizens of their citizenship have historically been very tightly drawn under UK immigration law for obvious reasons. However, I reminded the Committee that in 2003, 2006, 2014 and 2018, these powers were very considerably expanded, so that now they are exercisable against any British citizen who has dual nationality, where the Secretary of State is satisfied that deprivation is conducive to the public good. The breadth of this power is perhaps best understood by the Supreme Court’s conclusion in the Begum case, that this includes situations where the individual is unaware that they hold dual nationality and even where that individual has little or no connection with their country of second nationality.
I reminded the Committee of the words of the leading immigration law silk, Raza Husain QC, who said:
“This progressive extension over the last two decades has meant that it is no longer necessary to demonstrate that someone is a terrorist or a traitor before stripping them of British citizenship. Individuals may be deprived of citizenship on general public interest grounds of the sort usually invoked to justify deportation, rather than on the basis of their severing the bonds of allegiance that are the hallmark of nationality.”
The drastic nature of this power was well described by the United States chief justice Earl Warren, a Republican, put on the court by President Eisenhower, who said that the loss of nationality amounts to
“the total destruction of the individual’s status in organised society… the expatriate has lost the right to have rights.”
He was channelling Hannah Arendt there.
Deprivation of citizenship is such a drastic and far-reaching power that it must be accompanied by proper procedural safeguards. That much is obvious. This is a power that has been beloved of some of the worst regimes in history. If we are to permit this power to a Secretary of State, it must be accompanied by procedural safeguards. In its original form, Clause 9 went in precisely the opposite direction, removing the most basic safeguard of all—the safeguard of notification —really at the Secretary of State’s whim. That was not good enough and, like my noble friend Lord Anderson, I am grateful to the Government for having listened to the debate in Committee and for having changed course. Again, like him, I am satisfied that serious movement has been made and that some of our most serious concerns about the clause as originally drafted have been responded to appropriately. For that reason, I will be supporting this amendment and am extremely grateful to the noble Lord, Lord Anderson, for moving it.
Baroness D'Souza (CB)
My Lords, the amendments tabled by the noble Lord, Lord Anderson, add hugely important safeguards to Clause 9, but subsections (5) to (7), which are set out on page 12 at lines 13 to 19, would remain in place and appear to make lawful what is clearly unlawful. The secret power to deprive citizenship without notice and/or appeal threatens our cherished British values of fair play and the rule of law. It would also risk unduly affecting ethnic minority communities. Subsections (5) to (7) seek to instruct the courts to treat past unlawful deprivations as if they were lawful, even where the courts have found that these actions failed to comply with statute at the time when they were made.
Parliament, it seems to me, is being asked to condone a disregard for the law by those Ministers who took away British national citizenship when it was illegal to do so. If these provisions remain in the Bill, a series of unlawful deprivation orders made against young women from minority ethnic communities will not be subject to any scrutiny whatever. This cannot be right.
It seems clear from what has been said so far on this clause that the most profound concerns still relate to Clause 9 as a whole and—although the amendment tabled by the noble Lord, Lord Anderson, alters the whole tenor of the Bill and grateful thanks are due to the Minister for enabling this—the concerns remain. These clauses would create a secret power. Clause 9 goes well beyond cases where the Government cannot provide notice. According to the Policy Exchange think tank, at no point in the last century has it been thought that national security called for depriving British citizens of their citizenship without notice. We cannot see the case for this now, at a time when our closest allies, such as the US, are warning that depriving individuals of citizenship is not an effective way to fight terrorism.
The main issue in this group of amendments is whether Clause 9 should remain part of the Bill. My suggestion is that it should be removed to create certainty and clarity. It seems to me that the optimal solution would be to remove this clause altogether, not only because, as it stands, it is contrary to British law and indeed to parts of the UN refugee convention, but because this clause—as well as new subsections (5) to (7) proposed by the amendment in the name of the noble Lord, Lord Anderson—seem to enable further restrictive orders, something that we as a scrutinising Chamber should avoid at all costs. Therefore, while I will of course support the noble Lord’s amendment, I will also seek to move my amendment, which would leave Clause 9 out.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Baroness, Lady D’Souza, and I agree with what she said and that, although the amendments moved by the noble Lord, Lord Anderson, have made Clause 9 less bad, it is still a bad clause that should disappear from the Bill. When introducing this group, the noble Lord, Lord Anderson, said that these amendments were all about Clause 9. I would rather say that my Amendment 22, to which I will speak, was provoked by Clause 9. One thing revealed in public debate—and there has been an enormous amount of public debate around Clause 9—is the fact that so many people had not realised that what the Minister described earlier as the “warm embrace of citizenship” can be taken away, and that there is profound discrimination in the way that this can happen.
The noble Baroness, Lady Chakrabarti, talked in Committee talked about two-tier citizenship; I talk about it as two classes of citizenship. I regret that I was not able to take part in Committee; I thank my noble friend Lady Jones of Moulsecoomb for very ably speaking for me. However, there are about 6 million Britons—I declare an interest as I am among them—who, because of another citizenship or their descent from people who came to Britain and chose to be Britons, have second-class citizenship. It can be taken away by the Government and, as the noble Lord, Lord Macdonald of River Glaven, just outlined very clearly, we have seen a very rapid and considerable escalation of the ways in which that power can be, and has been, applied.
My Amendment 22 makes one exception. If someone attains citizenship by means of fraud or misrepresentation, obviously, the power should remain for that citizenship to be taken away, but if that citizenship has been acquired honestly, my amendment says that it cannot be taken away. I suggest to your Lordships’ House that this is the only way that we can ensure that every British citizen is the same class of citizen and treated in the same way. Given that people who have, or have access to, alternative citizenships come from migrant backgrounds, the discrimination in how this is applied is very obvious. I note from having read the Hansard report of Committee very carefully that the noble Baroness, Lady Mobarik, expressed support for this. I thank the noble Lord, Lord Paddick, for also expressing support in principle for the idea that there should be only one class of citizenship and the Government should not be able to take it away.
I can imagine the response I might hear from the Minister: what about someone who is a security threat? If we have given millions of people British citizenship, we have benefited from the contributions, of all kinds, that they have made to the UK. Should we be able to say, “This person’s a problem so we’re going to get rid of them”, and make them someone else’s problem? If a person is a security threat to the UK, they might well be a security threat to the country that they hold citizenship for and that we send them to. Why should we be able to dump our problems on someone else?
I find myself torn. I aware of the desire in your Lordships’ House to take away some of the worst elements of the Bill, but I also find myself supported by many people in civil society who say that they want to ensure that there is one class of citizenship. I have said to all the relevant authorities that I will reserve the right to call a vote on this, because I find it a matter of principle on which it is very difficult simply to withdraw the amendment. I would really like to hear everyone’s position on this, particularly the Front-Bench speakers—I hope one of the Lords spiritual might contribute—and everyone’s explanation of whether they believe there should be two classes of British citizenship. Having heard that debate, I will make a decision about whether to push Amendment 22 to a vote.
The Lord Bishop of Chelmsford
Thank you. My Lords, I am grateful for the suggestion that the House might like to hear from the Lords spiritual. I support the amendment in the name of the noble Baroness, Lady D’Souza, which proposes that Clause 9 should not stand part of the Bill. We debated this at some length in Committee. It is somewhat disappointing that the Government have not taken the opportunity to reconsider more fully. I will not delay the House by repeating the arguments, but I will briefly speak about trust.
The Government seem genuinely confused by the level of opposition that the clause has triggered, but this should not have been surprising because I am afraid that it is symptomatic of a serious breakdown in trust between the Home Office and society groups, particularly minority ethnic groups, as we have heard. The response to the Windrush Lessons Learned Review promised a new culture in the Home Office—one that was more compassionate, that saw faces behind the cases and would rebuild and enhance
“public trust and confidence in the Home Office”.
The Bill as a whole does not do much to create the impression that this new culture has been embedded. Trust is hard to build and very easy to lose. On the issue of deprivation of citizenship and the treatment of minorities, trust is sufficiently low that any new changes to these powers must surely come with a compelling and overwhelming demonstration of a serious and widespread problem that needs to be solved.
I remain unconvinced that the Government have demonstrated that there is a sufficiently major problem that existing powers do not address. I am quite convinced that the impact this clause will have—indeed, already has had in continuing to undermine trust between the Home Office and civil society—is serious enough that the Bill would be greatly improved by Clause 9 being removed in its entirety. Having said that, I have heard the words of the noble Lord, Lord Anderson. He provided a compelling and informed case for his saving amendments. I will listen with interest to the Minister’s response.
Lord Carlile of Berriew (CB)
My Lords, I apologise to the right reverend Prelate the Bishop of Chelmsford for my lack of control over my new varifocals, and to your Lordships for entering the debate at this late stage. I have been listening to the debate in the context of my concerns about the majority judgments in the D4 case, which has already been mentioned. I read my noble friend Lord Anderson’s amendments and listened with enormous care to his very clear—indeed, brilliant—opening. I support his amendments. My view is that they go further than is absolutely necessary in terms of proportionality between the duties and rights of citizens and the setting of safeguards to ensure that this equation is well balanced. Overbalancing in favour of protections is a good fault in the circumstances, hence my declared support for my noble friend’s amendments.
Baroness Bennett of Manor Castle (GP)
The noble Lord has displayed a very touching faith in the Home Office, which I do not think reflected the view of your Lordships’ House in an earlier debate in terms of how we are approaching Ukrainian refugees. Is he aware of the case of the gentleman known as E3, who was deprived of his British citizenship for many years, was eventually able to appeal that, has never been arrested or charged, and has finally—on 11 February—returned to the UK and is now back with his family after many years of separation.
Lord Carlile of Berriew (CB)
I am not aware of the details of that case, but I would say to the noble Baroness that the architecture that the amendments of the noble Lord, Lord Anderson, set out would protect such a person in a much better way than was the case before.
Baroness Warsi (Con)
My Lords, I start by congratulating the noble Lord, Lord Anderson of Ipswich, on the detailed measures that he has brought forward. I really appreciate the time that he has given to the discussions and debates that he and I, and other Members of this House, have had over the last few weeks and months. I also pay tribute to my noble friend Lady Williams for her work and her calls, and for the way in which she has dealt with this issue, reaching out to try genuinely and sincerely to find a compromise. That is what this is—it is a compromise, and compromise is good, but fairness, justice and equality are better. Therefore, despite the fact that these amendments go some way to making what was really bad legislation slightly less bad, they are simply papering over the cracks.
Once again, we are being asked by the Government to keep incrementally changing this law from the early 1980s—each time it has been changed with one case law or one individual situation—so that more and more people in this country, from a wider and wider scope, with more and more different offences, are now included in a space where their citizenship can be stripped. Therefore, we have an opportunity in this House to, once again, incrementally, make a bad law slightly less bad—or we can take a position and say that the underlying law itself is so bad that we are no longer prepared to keep making these incremental changes.
This takes the bad law a little further. If we go back to what this law actually does, first, it strips citizenship from those who were born and raised here, know nowhere else and whose family have been here for generations, but who are deemed to have—they do not actually have—another citizenship through some tenuous link to a country that their grandfathers or great-grandparents may have come from. Secondly, under this law, in our courts in the United Kingdom we punish two people convicted of the same crime differently based upon their heritage—not on the crime committed, but on their heritage. That is what the underlying law does.
I take issue with the idea that these people are not second-class citizens; they are. Let me give an example. My grandfather came here in the 1950s; my father came in the 1960s. I was born here; I have no other citizenship. My children were born here; they have no other citizenship. My grandchildren have been born here; they have no other citizenship. However, if my grandchildren—we all bring our children up well, not to commit crime, but we can never predict how their lives will turn out—were to commit not just a terrorist offence but a criminal act such as a sexual offence or an offence involving fraud, they could, in court, be punished for the crime but also have their citizenship stripped. That is fact. That makes me a second-class citizen. It makes my children second-class citizens. It makes their children second-class citizens. How far back do we go before we say to people that they are as equal as anyone else in this country?
Today, by supporting the amendment in the name of the noble Baroness, Lady D’Souza, we can say, from this House, that despite all the assurances and the changes, we believe in equality for all in this country. My noble friend mentioned New Zealand and Australia, and I accept that changes have been put in place there; safeguards have been put in place where it is deemed not fit to serve notice. But we also have allies, such as the United States and Canada, who simply do not even have the law—they do not believe that we should be stripping our citizens of their citizenship.
The current law has been used throughout two decades of the war on terror, during the rise of ISIS, and while terrorist fighters from the United Kingdom have been going overseas. Over the years, we have managed to use the law, without this additional incremental change, to ensure that we have stripped people who we consider to be dangerous of their citizenship. We have managed under the current law; this further change is not required.
In conclusion, we may not have taken this moment to put right the wrongs of the past—many noble Lords, including many noble friends from my own Benches, stood up and asked for the original law to be considered. However, the least we can do is to stop a bad law becoming worse. If the noble Baroness, Lady D’Souza, tests the opinion of the House, I urge Members to vote for it because I will be voting for it, too.
Lord Pannick (CB)
My Lords, I shared the concerns expressed by my noble friend Lady D’Souza about Clause 9 as it was originally drafted. However, I am very satisfied with the amendments tabled by my noble friend Lord Anderson, particularly as the exercise of these powers is subject to the control of the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Bennett, that this is not to have trust and faith in the Home Office. Whether or not that is justified, I have trust and faith in the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Warsi, that this is not a compromise or papering over the cracks. Rather, this is a great tribute to the noble Lord, Lord Anderson, and to the work done by the Minister: it is to achieve the protection of both the public interest and the rights of individuals. This is what this House should be aiming to do.
Lord Mackay of Clashfern (Con)
My Lords, I had the honour, with the then Leader of the House, to present to this House the 1981 Bill which became the Act. We certainly understood that it was a very drastic power which enabled citizenship to be taken away. Therefore, it was only right that notice should be required, and provided for, in Section 40(5) of that Act. It included the need to make clear to the person affected that the application was on. It used the last known address as a possibility. However, the more that difficulties arise, the more it is seen that something further is required. Therefore, it is right that Section 40(5) should be amended. I think that the amendments, as now proposed—and subject to the amendments of the noble Lord, Lord Anderson of Ipswich, if, as I hope, the Government will accept them—are an acceptable way of dealing with this very delicate matter.
I agree entirely with what the noble Lord, Lord Pannick, said, that the real and ultimate protection is in the independent judicial review by the special court for that purpose. It is essential that, as this nation is subject to many different ways of being attacked, we should be protected as much as possible. This is a very sensible way to do it, provided that the Government are prepared to accept the proposal of the noble Lord, Lord Anderson of Ipswich.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I spoke in Committee and, obviously, after two and a half hours then and 50 minutes now, one is in danger of ending up with—in that famous phrase of the football manager—a sense of déjà vu all over again. I will try to avoid that and just raise a couple of points.
I listened very carefully to what was said by the noble Baronesses, Lady D’Souza and Lady Bennett, and the right reverend Prelate—and I am not a lawyer. I also listened again to my noble friend Lady Warsi—having heard her passionate speech at the earlier stage—and the noble Baroness, Lady Mobarik. I did not see the provisions of Clause 9 as an attack on people, and particularly not an attack on a particular part of our community. I saw the clause as a defence of the values that tie us all together and the glue that binds our society: the tolerance, freedom of speech and economic opportunity that has brought people to this country over the years, some more recently than others. That has been the essence of the attractions that have brought people here.
However, I was extremely concerned, and pointed out in Committee, that there was a gap in the arguments using the phrase
“conducive to the public good”.
I was worried about that, but I said—and still believe—that there is a need for the Government to protect the citizens of the country and that that is the overriding proposition we need to follow. Do I find the issues of Clause 9 easy? I do not. Do I wish we did not have to have Clause 9? I do so. But there are evil people about and wishing will not make it so. I thought in Committee, and still think now, that the underlying purpose of Clause 9 is right.
I pointed out in my speech then that, without the informed consent of the population of the country, the respect for and the importance of the rule of law become undermined. The travellers on the Clapham omnibus would regard some of the issues that have been raised this afternoon—such as having to send a courier into an extraordinarily dangerous country and put his or her life at risk—as a perverse outcome.
I recognise that there is a gap. I said that I hoped there would be some opportunity for smoothing some of the sharp edges in Clause 9 as originally drafted. As a non-lawyer, it seemed to me that the amendment from the noble Lord, Lord Anderson, answered the points that were made. Can it answer all the points? No, but it answers them effectively. It seems to provide a means to smooth the corners or close the gap—whichever metaphor you wish to use.
I would support the Government, whatever happened, as I think the underlying purpose of Clause 9 outweighs the disadvantages. However, I hope very much that my noble friend will be able to see the advantages of the amendments from the noble Lord, Lord Anderson, and will be able in that way to make the compromise that I think makes the argument unanswerable.
Baroness Mobarik (Con)
My Lords, I speak in support of the amendment from the noble Baroness, Lady D’Souza, to leave Clause 9 out of the Bill. I find it difficult to comprehend that we are even debating something so out of step with our rules of justice and fairness. Depriving someone of their citizenship without even informing them, as would be the case if Clause 9 were to be enacted into law, is in effect an addition to the already punitive measures that have existed since 1918.
As the noble Lord, Lord Macdonald of River Glaven, stated, Clause 9 effectively removes the right of appeal, which has evolved over the decades to become ever more powerful. If the Home Office deems it to be in the public interest or, as is worded,
“conducive to the public good”,
then the long-standing position under the British Nationality Act 1981 that an individual must be notified if they are to be deprived of their nationality is being amended, so that they do not even have to be informed. Currently, citizenship deprivation letters can be delivered to the individual’s last known address, so why are we changing that? Essentially, over this past decade, the Government have failed to provide notice on many occasions, and it appears they are now seeking to declare all unlawful deprivation orders as lawful by making Clause 9 retroactive.
Clause 9(5) purports to make lawful deprivation orders which courts have found unlawful because of failure to give notice. That is making lawful a breach of requirements as laid down by Parliament, after the fact. This completely undermines the rule of law as we understand it. While I support the amendments of the noble Lord, Lord Anderson of Ipswich, which would provide some safeguards on the use of Clause 9, the amendment in the name of the noble Baroness, Lady D’Souza, to remove the retroactive application of Clause 9 in its subsections (5)(6) and (7), should be considered seriously.
Former Prime Minister Sir John Major has warned that we should search our souls before taking this step. Others such as the Institute of Race Relations, the House of Lords Constitution Committee, the think tank Policy Exchange and the former Attorney-General Dominic Grieve, as well as five separate UN bodies, have stated that such deprivation orders made under Clause 9 are likely to be discriminatory and unlawful. I hope that we would give attention to such notable organisations and individuals.
I add that I support in principle the amendment of the noble Baroness, Lady Bennett, to omit subsections (2) and (4) of Section 40 of the British Nationality Act 1981, but understand that it is probably outwith the scope of the Bill. However, we have to address this, because we are in danger of creating a two-tier system of citizenship.
The fact is that Clause 9 has a disproportionate impact on people from ethnic-minority backgrounds. As a person cannot be made stateless according to international conventions, by default it is more likely to affect those who have a connection to the Commonwealth or a country where they are entitled to dual nationality. But it is not even as obvious as that, for some Commonwealth countries allow dual nationality or will accept people if they have a connection through their parents or grandparents, while others do not. Take south Asia, for example: while Bangladesh and Pakistan offer dual nationality to British citizens who have a direct link, India does not, so citizenship deprivation would not impact British citizens of Indian heritage. As I said in Committee, if Clause 9 is enacted into law, we are heading towards a society made up of degrees of citizenship, where some are full citizens while others are half-citizens and others somewhere in between.
Growing up between two distinct cultures, one is acutely aware of certain idiosyncrasies and traits which define each. The core values are, of course, the same, but there are always certain endearing features: the British sense of humour, with its self- deprecation and the ability to laugh with others at one’s own expense is one. The other is this sense of fairness. How often do we hear the phrase “That’s not fair”? Then there are all the variations: “Let’s be fair”, “Fair enough” and “Fair is fair”. Do noble Lords think it fair to have a two-tier system of citizenship? Do we think it is fair to deny someone their citizenship without informing them?
I understand that our intention is to root out ruthless individuals and deny them entry to our country, which is absolutely right. Not one of us would disagree that we must do everything to protect our people, but it begs the question: will it protect our citizens to have ill-intentioned people free to continue to conspire against us elsewhere, rather than having them locked away safely, following the rigours of our excellent courts? It also begs the question: what if there is a mistake, as has already happened in the case pointed out by the noble Baroness, Lady Bennett, of the British Bangladeshi man referred to as E3? He spent five years in Bangladesh trying to get back, having had his citizenship revoked without him even being informed. He eventually got back, as there was no evidence that he had committed any crime or had any intention of doing so—a completely innocent man, wrongfully accused. Was that fair or unfair?
Britain has a proud tradition of justice, equality and fairness. Let us keep it that way.
Baroness Verma (Con)
I was not intending to intervene, but may I ask my noble friend the Minister whether there is any major change to the current law that forces the commentary that my noble friend has just made? I have seen on WhatsApp groups worried people and citizens of this country with a lot of misinformation, and I have gone through the Bill and fact sheets and tried to get my head around what this is about—apart from the fact that we want to make sure that people are aware when their citizenship may be taken away, when they cannot be reached, and that is not based on anything other than their performing a criminal or terrorist act.
May I have some clarification? Sitting here, I have listened very carefully to every contribution made today, and while there are lawyers among us who know the details very well, ordinary citizens out there—people in groups with WhatsApp messages going around—are very frightened. They feel very scared, and they need to know that this is not the case.
Lord Marlesford (Con)
My Lords, I support the amendments from the noble Lord, Lord Anderson. I think that the way this matter has been handled reflects extremely well on the flexibility and the detailed application of the minds of Members of your Lordships’ House in dealing with very great problems, especially when these problems are new and have recently arisen.
I was struck by the words of my noble and learned friend Lord Mackay of Clashfern, when he referred to the fact that when the 2011 Act was passed, he could not have imagined the need for these arrangements. Let us be aware that the thing that is new is the creation of a new political body, which has nothing do with religion, the Islamic State. It claims the ability to grant citizenship and demands loyalty but also—by definition, because it believes in theocracy rather than democracy, and the theocracy itself is an aberration with little to do with the noble aspects of Islam—believes in something that puts its members in permanent enmity with this country. They deny the right of other states to exist, which is why, of course, we should be taking steps to defend the realm against the possibility of such people using citizenship for the destruction of this country.
Lord Paddick (LD)
My Lords, although at first glance it would seem reasonable for the Home Office not to have to give notice to a terrorist overseas that they were being deprived of their British citizenship, it of course means that there is no effective right to appeal, as the subject would be unaware of the decision. We have also seen cases where the Home Office could have given notice, even to the last known address or by email, and chose not to. The increase in the use of this power needs to be reversed.
The amendments proposed by the noble Lord, Lord Anderson of Ipswich, seek to introduce a range of judicial oversights, would remove the subjective element of the decision and tighten the grounds on which a deprivation of citizenship order may be made without notice to the person concerned. Others would strengthen the test for making such a decision; ensure, if the person concerned contacts the Home Office, that he is told what has happened and that he has a right of appeal; and allow the Special Immigration Appeals Tribunal to oversee such decisions. Any time limit on appeal would start when the subject is notified.
I understand that a government Minister would have signed these amendments from the noble Lord, Lord Anderson, had they not been out of time—the deadline for tabling government amendments being several days before that for other amendments. I pay tribute to the noble Lord, Lord Anderson, for the time, effort and ingenuity he has brought to bear in bringing forward such a comprehensive suite of amendments that could arguably halt, if not throw into reverse, the current practice by the Home Office increasingly to use this power to deprive citizenship without notice. We wholeheartedly support these amendments.
However, were the House to divide on taking Clause 9 out of the Bill, we would, along with the right reverend Prelate the Bishop of Chelmsford, support that Division. At the end of the day, the Government should be taking ownership of the actions of British citizens, including terrorists overseas, ensuring, wherever possible, that they are extradited to the UK to stand trial, rather than depriving them of British citizenship, preventing them returning to the UK, and making them some other country’s problem, whether with notice or not. However, while therefore agreeing with much of what the noble Baroness, Lady Bennett of Manor Castle, has said, we are unable to go so far as to support her amendment, as there could be exceptional cases where, as a last resort, citizenship should be removed.
Lord Rosser (Lab)
I think I am right in saying that until the noble Lord, Lord Paddick, spoke, all those speakers who had spoken against Clause 9 were noble Baronesses. I am not sure what the significance of that is, and I do not say that in any wrong way; I think it is a great credit to them. Like the noble Lord, Lord Paddick, I hope they will forgive me for intruding on their space.
Although we appreciate that the amendments tabled by the noble Lord, Lord Anderson of Ipswich, are certainly an improvement on Clause 9—I, too, would like to express my thanks to the noble Lord for all the work I know he has put in—as it stands, we do not feel the case has been made by the Government for why Clause 9, and deprivation of nationality without prior notice to the individual concerned, are actually necessary. That is what we are talking about: not whether nationality should be removed but whether it should be possible for the Secretary of State to remove it without prior notice.
Currently, under the British Nationality Act 1981, an individual must be notified if they are to be deprived of their citizenship. So what is the problem when, for example, the present rules already allow for citizenship deprivation letters to be delivered to an individual’s last known address, or to a parent, or to a parent’s last known address? I say that against the background that the Government have already said there have been no cases where the requirement to give notice has stopped—prior to the recent High Court decision—a deprivation of citizenship order coming into being. It is also against a background where the number of people deprived of their citizenship has risen considerably over the last 12 years—an upward trend with a peak, I think, in 2017.
One thing we can be sure of is that if the Government have the powers under Clause 9, even with the amendments of the noble Lord, Lord Anderson of Ipswich, we will see deprivation of citizenship orders being made without prior notice, because if it is not the Government’s intention to take advantage of the powers to deprive a person of their citizenship without prior notice, why are they seeking them? Against that scenario, we need to be satisfied that there is a real and overriding necessity for this additional power now, when it has not been deemed necessary before, beyond it being perhaps more convenient or helpful on occasions not to have to go through the procedure of giving prior notice to the individual concerned. The lack of a compelling and meaningful government response on that point, and there having been no cases where the requirement to give notice has stopped the deprivation of citizenship order coming into being, is significant.
If a proven national security need does arise for the power not to have to give prior notice of a deprivation of citizenship notice coming into being, the Government can get such necessary legislation through Parliament, as we know, with remarkable speed. In the absence of such a case being made for this power—and the lack of it clearly has not caused a serious difficulty until now—we should be wary of agreeing to Clause 9, even as amended, remaining in the Bill.
I suggest that the situation has not been helped by finding out from information in the Court of Appeal decision that in the D4 case the Home Secretary
“argued that notification had been given to D4 … by simply placing a note on her Home Office file, relying on regulations introduced without parliamentary approval.”
That ought to make us very wary about giving the Secretary of State and the Home Office the additional powers in Clause 9, now that we know how existing statutory powers and requirements on notification have been interpreted and implemented in the D4 case.
The consequences of the clause are likely to be felt most—but certainly not exclusively, as the noble Baroness, Lady Mobarik, said—by those from ethnic minority backgrounds. It is no surprise that it is in this area that the Bill, particularly Clause 9, has caused most concern about how the new powers might be applied and interpreted and what the evidence is that they are needed now and have not been needed before.
It is unlawful to deprive someone of their citizenship and leave them stateless. Even so, the Home Office is still on record that British citizenship
“is a privilege, not a right”.
Yet without citizenship people do not have rights, and we are talking about significant rights. It has been estimated that nearly 6 million people in England and Wales could be affected, and that under this proposal two in five British citizens from an ethnic minority background are eligible to be deprived of their citizenship without being told, since they have, or may have, other citizenships available to them—I think that was the basis of the comment about two classes of citizenship—compared with one in 20 characterised as white. That is a sobering consideration for the Government, or should be, when looking at the merits or demerits of Clause 9, not least in the light of how the Secretary of State and the Home Office in the D4 case interpreted and implemented the requirement to give prior notice under the law as it exists at present. What would be tried if Clause 9, even as amended by the amendments by the noble Lord, Lord Anderson, gave the power not to have to give prior notice?
The right reverend Prelate the Bishop of Chelmsford raised the issue of trust, or rather the lack of it, among society groups. The Government ought to reflect very carefully on that in considering whether Clause 9, even as amended, should remain in the Bill. I have to say that as far as we are concerned the case has not been made for Clause 9, even as amended, to remain in the Bill, and we shall certainly be looking for an opportunity to vote against it.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate, especially the noble Lord, Lord Anderson, who has tabled these amendments; I am very grateful for his expertise in this matter. I also acknowledge Amendment 20, tabled by the noble Baroness, Lady D’Souza, and Amendment 22, tabled by the noble Baroness, Lady Bennett of Manor Castle.
The House will recall that we debated this matter at length in Committee. I say now, as I said then, that inaccurate and irresponsible media reporting continues to fuel fear and concern about how Clause 9 is to operate. I will repeat what I said then, starting with my noble friend Lady Verma: the deprivation power itself is not altered. Clause 9 does not alter the reasons why a person is to be deprived of British citizenship and we are not stripping millions of their citizenship.
To answer the noble Baroness, Lady D’Souza, and others, Clause 9 does not target dual nationals, those from ethnic minorities or particular faiths, or indeed women and girls; there is no secret decision-making, and law-abiding people have nothing to fear from Clause 9. It is simply about the mechanics of how a deprivation decision are conveyed to the individual concerned.
Lord Anderson of Ipswich (CB)
I am grateful to all noble Lords who spoke in this debate on a subject that I suspect none of us found particularly easy. I do not want to pre-empt anything, but it is possible, having heard the debate, that my amendments may not be very controversial. My noble friend Lord Carlile was alone in suggesting that these amendments go too far; he always was a little bit tougher than me. The real question for your Lordships might be whether they go far enough—whether, in short, we stick with my amendments or, as the opposition Front Benches maintain, twist by removing the whole clause.
The manuscript amendment shone a spotlight on subsections (5) to (7), which my amendments do not touch. With great respect to the noble Baroness, Lady D’Souza, it is not right that the effect of those subsections is that pre-commencement deprivation orders would, as she put it, not be subject to scrutiny. Their effect is rather that a pre-commencement deprivation would not be invalid purely because it was served to the file, in accordance with the Immigration Rules then in force.
Subsections (5) to (7) do not prevent a person who becomes aware of the deprivation—as the Minister just confirmed just now, they have only to ask—appealing it on any substantive ground. Indeed, the Minister also just confirmed, in providing the other undertaking that I sought, that the Home Office would not suggest that such appeals were out of time.
As to the suggestion that Clause 9 should be removed in its entirety, when I secured the agreement of the Government to my amendments, noble Lords will understand that it was not with a view to pocketing the gains and then asking for more. Therefore, I cannot in all conscience support that amendment myself, either as a tactical gambit or in the substance. I do, however, support my own amendments and I beg to move.
Lord Anderson of Ipswich
Member’s explanatory statement
This amendment removes the subjective element from the condition in paragraph (a) of new subsection (5A)(notice of deprivation of citizenship not required if Secretary of State does not have the requisite information).
“(b) the Secretary of State reasonably considers it necessary, in the interests of—(i) national security,(ii) the investigation or prosecution of organised or serious crime,(iii) preventing or reducing a risk to the safety of any person, or(iv) the relationship between the United Kingdom and another country,that notice under that subsection should not be given.”Member’s explanatory statement
This amendment limits the grounds on which a deprivation-of-citizenship order may be made without notice to the person concerned, and also strengthens the test, so that one may only be made if the Secretary of State reasonably considers it necessary.
“(5C) Subsection (5D) applies where—(a) the Secretary of State has made an order under subsection (2) and, in reliance on subsection (5A), has not given the notice required by subsection (5), and(b) the person in respect of whom the order was made makes contact with the Secretary of State for the Home Department.(5D) The Secretary of State must, as soon as is reasonably practicable, give the person written notice specifying—(a) that the Secretary of State has made the order,(b) the reasons for the order, and(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.(5E) Schedule 4A makes provision for the Special Immigration Appeals Commission to consider a decision of the Secretary of State not to give notice to a person before depriving them of a citizenship status on the grounds mentioned in subsection (2) (deprivation conducive to the public good).” Member’s explanatory statement
This amendment inserts three new subsections into section 40 of the BNA 1981. The first two provide for late notice to be given to a person who has been deprived of their citizenship without notice if they subsequently make contact with the Home Office. The third introduces the new Schedule 4A to the British Nationality Act 1981, which provides for the Special Immigration Appeals Commission to oversee decisions to deprive a person of their citizenship without notice.
“(b) after subsection (2) insert—“(2A) In the case of an order made as described in subsection (1)(b), for the purposes of any rule or other provision limiting the time within which an appeal under this section may be brought, time does not start to run unless and until the person is given notice of the fact that the order has been made (see section 40(5D) and Schedule 4A).”Member’s explanatory statement
This amendment provides that in a case where a person is deprived of their citizenship without notice, time for bringing an appeal will not start to run unless and until they are subsequently given notice.
“(3A) After Schedule 4 to the 1981 Act insert the Schedule 4A set out in Schedule 1A.”Member’s explanatory statement
This amendment inserts the new Schedule 4A into the British Nationality Act 1981.
Baroness D’Souza
Baroness D’Souza (CB)
My Lords, having listened with great care to a number of Lords speak about Clause 9, I think it is accepted that citizenship of the UK is an enormous privilege, but it is also a right. It seems that, despite the wonderful amendments tabled by the noble Lord, Lord Anderson, there remain sufficient loopholes in Clause 9 for it to become, once on the statute book, a hostage to fortune. In view of that, I would like to test the opinion of the House.
Lord Judge
“Compliance with the Refugee Convention
Nothing in this Part authorises policies or decisions which do not comply with the United Kingdom’s obligations under the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees.”Member’s explanatory statement
This new Clause reflects the Government’s stated intention of compliance with the Refugee Convention and ensures Part 2 provisions are read subject to that international legal obligation.
Lord Judge (CB)
My Lords, the noble Baroness, Lady Chakrabarti, has asked me to open the batting on this amendment. It is a very short, important and simple amendment that addresses an unnecessary problem. The Minister has told us—no doubt on the basis of legal advice—that the Bill in its present form is compliant with the 1951 convention and the 1967 protocol. In being so, the argument is, it will fulfil the Government’s repeated assertions that this is precisely what the Government intend. Indeed, the Minister said so in terms in answer to my request in Committee, and I apologise to her because at that late time of night I had simply missed what she said, or at least I had not fully absorbed it. She said:
“We are absolutely firm … that nothing in the Bill undermines our convention obligations”.—[Official Report, 10/2/22; col. 1985.]
So what is this all about?
I mean no disrespect to the Minister, of course not, but her statement is no more than mere assertion—an assertion of opinion based on what the department’s legal advisers have told and advised her. Some of us—indeed, many of us—share the Government’s apparently absolute commitment to the convention, but we do not think that the Bill does. We believe that the Government are wrong. In our view, provision after provision in Part 2—the debate will happen later on—contravenes the convention. With many others, I shall support the later amendments that seek to achieve compliance, simply because we believe that the provisions are not compliant. Many of us are lawyers too; we have to address convention issues, but many of us are not lawyers and are simply reading what the proposed legislation actually says. We are convinced that, as things stand, the Bill contravenes the convention, and does so repeatedly.
This is not a lawyerly quibble: even as we speak the problems of refugees are being shown to us in Ukraine. Rather than a lawyerly quibble, what worries me is that the debate has gathered echoes of the Christmas pantomime: “Oh yes,” say the Government, “This Bill is compliant with the convention”, and I reply, on behalf of others, “Oh no it isn’t compliant”, and the Government say, “Oh yes it is”, and we say, “Oh no it isn’t”, and so it goes on. But this is not a pantomime; this is lawmaking. I suspect that I am not the only person here who thinks it is a very strange parliamentary debate in which honest views exchanged in this way overlook that this is a deeply sensitive debate about which there has been much human suffering. The level to which it has plunged in relation to the pantomime is really rather serious.
The only place where this “Oh yes it is, oh no it isn’t” exchange can be resolved is in the legislation itself. If it is accepted, this very simple amendment will achieve both the frequently declared intention of the Government and the objective of those of us who believe that the legislation fails to do so. Let me explain this in a few words.
In future cases, the court will be bound by the provisions of the legislation which we have enacted—by its statutory provisions, not by repeated government declarations of their intentions. Even an advocate of the immense standing of the noble Lord, Lord Pannick, who sought to rely, in court, on the repeated assertions of the declared intentions of the Government, was met with: “But that’s not what the legislation says”. Maybe the noble Lord, Lord Pannick, would have an answer to this, but even if he produced one, it would not be very effective.
If we are right—and I believe we—then we have this absurdity whereby the expressed intentions of the Government will be defeated by their own legislation. That is rather stark. If the expressions on behalf of the Government are genuine—and, although she is not here, I do not for one moment doubt the Minister’s personal good faith—we really are in cloud-cuckoo-land. The amendment will avoid that absurdity. There will be no uncertainty or equivocation. Any decision or policy in relation to the provisions of Part 2, whatever form they may eventually take, will be subject to the convention and protocol. This is on the unequivocal basis that it is a primary requirement of the legislation that any decision of the Home Office officials responsible, and any decision of the court considering those decisions under Part 2, must comply with them.
There is nothing new about a provision like this. I am indebted to the noble Lord, Lord Pannick, among others, for drawing my attention to Section 2 of the Asylum and Immigration Appeals Act 1993. We are right here in this very field. Nothing in the Immigration Rules shall lay down any practice which would be contrary to the convention. This is all that we are asking for here. Let us have that principle set out in the Bill in the form of this amendment.
Viscount Hailsham (Con)
My Lords, those who heard the Minister outline the position of the Government earlier today with regard to the plight of Ukrainians must have been dismayed by his response. None the less, I make no personal criticism of him at all.
Some of us have in mind the cavalier attitude of Mr Johnson to treaties that he recently signed, such as the Northern Ireland protocol. When I consider many of the suggestions which come out of the Home Office as to how to deter migrants from coming to this country, I have no confidence that this Government will always comply with the letter—far less the spirit—of the convention. I do not suppose that the new clause proposed by Amendment 24 will be a complete remedy. However, it is a very useful statement of an important principle, and I shall vote for it.
Lord Rosser (Lab)
Not surprisingly, there is nothing I could add to what the noble and learned Lord, Lord Judge, has said. We shall certainly be supporting this amendment if it ends up being put to a vote.
Baroness Hamwee (LD)
My Lords, from these Benches, I told the noble and learned Lord that we will be supporting him. He said that that was the right answer.
Lord Pannick (CB)
My Lords, I signed this amendment for all the reasons that were given by the noble and learned Lord and because it is of vital importance, especially at this time, that the legislature makes it clear that it intends and requires that the Government comply with their international obligations.
The Paliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for proposing the new clause. The noble and learned Lord, Lord Judge, said that it was a short one; I respectfully agree, and hope that I can be brief in response without any discourtesy to the noble and learned Lord or, indeed, the other proposers of the clause. One point in his speech on which I think the whole House agreed was when he reminded us that, whatever the question, the noble Lord, Lord Pannick, will always be able to think of an answer.
Turning to the subject matter of the amendment and the proposed new clause, I first underline what was said by my noble friend Lady Williams of Trafford as to the Government’s commitment to their international legal obligations flowing from the refugee convention. Not only is it our intention to continue to comply with all of the legal obligations under that convention but we consider that this legislation does precisely that.
Our starting point is that the provisions of the Bill are compliant with the refugee convention but, none the less, the new clause is not something that I can support. Let me set out why.
The refugee convention, as I have said before, and effectively by design, leaves certain terms and concepts open to a degree of interpretation. That is an important feature of international instruments such as the refugee convention, allowing it not only to stand the test of time—some might say that it could now usefully be reviewed, but that is a separate point—but, more importantly, to be applied in and across many jurisdictions with differing legal systems. Necessarily, therefore, there is then a need to ascribe meaning to the terms of the convention at a domestic level. That meaning is determined by each signatory to the refugee convention in accordance with the principles of the Vienna convention, taking a good faith interpretation in accordance with the ordinary meaning of the language used in the convention.
Against that background, I suggest that it is absolutely right that Parliament may pass legislation setting out how the UK interprets the refugee convention and the UK’s obligations under it. Having a clear framework of definitions, and setting out unambiguously the key principles, promotes clarity and consistency in how decisions are made; as I have said in previous debates, that is a desirable approach. The mischief that I see in this amendment is that it would risk undermining the clarity and certainty that we are trying to create by effectively giving the courts a chance to look behind the interpretation agreed by Parliament in primary legislation when that interpretation is then applied through policy and subsequent decisions.
On the one hand, we want to give the pen to Parliament, so to speak, to set out a clear understanding and interpretation of the convention; Part 2 of the Bill is very clear as to our intentions in this respect. However, I suggest that this amendment would afford the courts an opportunity to come to a different understanding when looking at the policies and practices which put that system into effect. Of course, I accept that it will be for the courts to interpret the legislation once enacted, and I do not disagree that the courts have a role in overseeing whether policies or decisions comply with the interpretation of the convention as set out in the Bill; that is a given. But it is Parliament’s interpretation that is key here. It is not for the court to set out its own, potentially conflicting interpretation of the refugee convention and the obligations under it.
Therefore, far from creating a certain and consistent approach, this promotes uncertainty with policies and decisions being potentially judged against differing interpretations. If we are content, as I suggest we should be, that Parliament is legislating in compliance with the approach open to all state parties under the Vienna convention—that is, affording a good faith interpretation to the refugee convention—then this clause is not only unnecessary but promotes confusion and uncertainty for all those seeking to apply to, and comply with, the asylum system.
It would also be unusual to put in primary legislation the statement that Parliament, when legislating, is complying with its international obligations. International conventions cover a wide area of legislation, and if we did so here it could create questions as to why we did not do so in other statutes and why other statutes do not provide the same assurances.
The noble and learned Lord, Lord Judge, as alerted by the noble Lord, Lord Pannick, mentioned Section 2 of the Asylum and Immigration Appeals Act 1993. That already sets out the primacy of the refugee convention in domestic law. I will repeat what it says:
“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”
Accordingly, if the aim of this proposed new clause is that the policies implemented under Part 2 of this Bill through the rules or connected guidance are meant to be compatible, and not incompatible, with the refugee convention, as interpreted by Parliament in this Bill, that can already be challenged by way of Section 2 of the 1993 Act. Our policies and decision-making will continue to be made in accordance with the Immigration Rules or published guidance.
What, therefore, would this proposed new clause add? My concern is that it adds a means for the court to question the interpretation given by Parliament to the refugee convention. I suggest respectfully that this would be contrary to a fundamental purpose of this Bill: for Parliament to define the nature of our obligations under the refugee convention while remaining compliant with those obligations. The proposed new clause potentially leaves the nature of obligations and terms under the convention open to the interpretation of the courts, removing the certainty that we are trying to achieve.
To put it in two sentences, if the aim is to make sure that the Immigration Rules and guidance are compliant with the refugee convention, that is already done under the 1993 Act. If the aim is any more than that, I respectfully suggest that it trespasses on a fundamental purpose of this Bill: that Parliament, and not the courts, should interpret how the UK implements the refugee convention. For those reasons, I respectfully invite the noble and learned Lord to withdraw the amendment.
Lord Brown of Eaton-under-Heywood (CB)
Before the noble Lord sits down, do I understand that it is the Minister’s intention that, if this Bill is passed in its present form, in future no court shall look behind its provisions and consider what, under the convention and with the advice of UNHCR, its proper application and interpretation are? Is that the Minister’s intention?
Lord Wolfson of Tredegar (Con)
In so far as the court has been told by Parliament that it can do that in the 1993 Act when it comes to the Immigration Rules, the court can do so. But, with the greatest respect, the courts interpret legislation; they are not there to go behind legislation with an autonomous meaning, so far as the courts are concerned, of what the refugee convention means. What the convention means is a matter for the member states, each interpreting it under the terms of the Vienna convention. With respect, it is not for the courts to second-guess Parliament’s interpretation of the UK’s obligations under the refugee convention.
Lord Judge (CB)
My Lords, faced with the problems to which Part 2 gives rise, we end up, on the basis of the Minister’s response, with the situation in which the court will look at provisions that we say contravene the convention and say, “Ah, Parliament has said that this provision must apply. Although it contravenes the convention, it must still be applied.” The court must do so, notwithstanding that the intention of the Government was that the provision should be compliant.
We are going around in circles. We are back to “Oh, yes, it is” and “Oh, no, it isn’t”, and that is no way for us to be on a measure of such crucial importance to many people suffering from the consequences of persecution, war, famine and so many things that afflict other nations and with which fortunately we are not afflicted. The House really ought to decide this. I ask the House to decide and tell us what its decision is.
Member’s explanatory statement
This amendment ensures equality of treatment by removing the distinction between Group 1 and Group 2 refugees.
Baroness McIntosh of Pickering (Con)
My Lords, when I tabled these amendments, I had sought to seek a greater reassurance from my noble friend the Minister than I achieved in Committee. Obviously, I realise, given the result of the last few votes, it may be that Amendment 28, in the name of the noble Lord, Lord Kerr of Kinlochard, and others, will find greater favour with the House. However, I shall take this opportunity to set out my opposition in principle to what the Government are seeking to do here: it is not just the fact that two groups are being created, but the way in which those two groups will be treated differently.
Perhaps the most offensive provision in Clause 11 is subsection (5). The Explanatory Notes refer to it as
“differential treatment of refugees based on their group. Differences may, for example, apply in terms of the duration of their permission to remain in the UK, the availability of routes to settlement, the ability to have recourse to public funds, and the ability of family members to join them in the UK. There is no obligation for these powers to be exercised and discretion may be applied.”
The greatest difficulty that I have is that it is not clear that there will be discretion or, indeed, how that discretion will be applied.
I hate to say it to my noble friend, but I find it offensive that this differential between groups 1 and 2 has been created. In taking the two groups out and substituting the general term “person”, I draw attention to Amendment 27, which asks for “reasonable discretion” to be exercised. I believe that is the key to all the amendments before us. This comes directly from the advice that I have received from the Law Society of Scotland as to how the provision will apply, if the original clause is left unamended. It says:
“We take the view that how a person enters the UK should not impact on family reunion. Safe and legal routes have been reduced since the UK left the European Union with the removal of the Dublin III Regulation. This provision appears to be actually reducing the prospect of families using one of only the two safe and legal routes the Asylum seeker has i.e., refugee family reunion – the other being UNHCR resettlement. Fewer safe and legal routes are likely to result in more unsafe and perilous journeys.”
Given the new situation arising daily in Ukraine, and the dreadful humanitarian crisis that we see there, I hope that the Government will resist the provisions in the clause and look favourably on my amendments and think again—but I fear that perhaps the House will favour the amendment in the name of the noble Lord, Lord Kerr of Kinlochard. I beg to move.
Lord Kerr of Kinlochard (CB)
My Lords, I welcome the new clause proposed by the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Judge, but we need to do a belt-and-braces job here. I am afraid we have to go back to the issue of compatibility and “Oh yes it is; oh no it isn’t.”
In Clause 11, we are introducing something entirely new. This two-class categorisation of refugees—the real refugees who came direct and the class 2 refugees who did not—is not anywhere in the refugee convention. None of that is in the refugee convention. The Government say that it is all perfectly compatible with the convention and assert that it is our right to interpret the convention in this new way, differently from the way that it has been interpreted up to now by our courts, differently from the way that the UNHCR, the custodian of the convention, interprets it in its authoritative judgment on our Bill, and differently from the way in which 146 signatory states interpret it.
We did the “Oh yes it is; oh no it is not” game at length in Committee and the Government stuck to their view, but I think it is fair to say that the Committee found it rather hard to understand the Government’s view. I wondered whether the Minister perhaps let the cat out of the bag when he told us:
“It may … be”—
to be fair, he did put it tentatively—
“that a convention entered into in 1951 is not absolutely suitable for the world of 2022.”—[Official Report, 8/2/22; col. 1463.]
Tonight, we heard the Minister seeming to hint that it might be time to review the convention as if it was in some way out of date. I could not disagree more.
I refute the Minister’s contention in one word: Ukraine. Life itself—zhizn’ sama, as a Russian would say—refutes the Minister’s contention. In the world of 2022, we see these hundreds of thousands of people—now over 500,000, the UNHCR says—abandoning their homes, trudging the motorways, crowding on to the trains, fleeing the tanks and rockets, and streaming into Poland and Hungary, Slovakia, Moldova and Romania. Are they refugees? Yes, of course they are refugees, just like the Hungarians in 1956 and the Czechs in 1968. Are they entitled to refugee convention rights? Yes, of course they are. But if the Bill, including Clause 11, is enacted or had been enacted, any of them who wanted to come to this country could be only group 2 refugees, without full convention rights, because they had not come directly from Ukraine and could have asked for asylum in Poland or Hungary. That is even though there are no direct flights from Ukraine, and even though we say Ukrainians have to have visas to come here—although we do not issue visas to asylum seekers.
The key point for the House tonight is that there is nothing in the convention or, as I understand it, subject to correction from the legal authorities round me, anywhere in international law requiring an asylum seeker to apply in the first safe country they reach. This, the rationale for Clause 11, is a Home Office invention. The convention sets only one test: not how the refugee got here, but why. What was it that drove him to come here? Was it a well-founded fear of persecution back home? That is the question. But if Clause 11 is approved, that question or test becomes redundant and irrelevant because, no matter what horrors he is fleeing from, if a refugee did not come here directly he could be only a group 2 refugee, subject to the harsher regime, detention and offshore processing set out in all the subsequent clauses that we are also going to have to look at closely, in my view. This just will not do.
My concern is with the refugees but also for the reputational damage we do to ourselves, if we go down this road, and the practical consequences for the refugee convention. Suppose our new invention caught on and other countries started following suit. Well over 20 million refugees are in countries contiguous to their homelands—just across the border—and nearly all these countries are developing countries. Suppose the convention were in future to be interpreted by all and sundry to mean that the exiled Syrians and Iraqis must always stay just across the frontier in Lebanon or Jordan, and that the Afghans must always stay in Pakistan, but the developed world can wash its hands of these problems and leave it to the Jordans and Pakistans, because the refugees could never move on and obtain asylum elsewhere. The only places they could obtain asylum were in the Jordans and the Pakistans.
What would the consequences of that be? They would be disastrous for the first host country; there are 1.5 million people in Lebanon from Iraq and Syria, and more than that from Afghanistan in the camps around Peshawar in Pakistan. We would be saying that Pakistan and Jordan are going to be stuck with that for ever, as far as we are concerned. It would be disastrous for the refugees, too.
If this doctrine caught on—if it were the general reading of international law that first hosts had sole responsibility—anyone seeking to flee persecution would find the gates of freedom clanging shut in their face. If we leave Clause 11 in the Bill, we do not just betray our values and trash our reputation, we could kill the refugee convention, sadly, though we need it in the world of 2022 as much as ever. I propose that Clause 11 be deleted.
Lord Horam (Con)
My Lords, we had a long debate on this subject in Committee, so I shall be brief. We ought to remember throughout what the Bill was originally about. It is fundamentally about stopping, or curbing, the channel migrants. Obviously, we hope to do it in a sensible way. If we could have an agreement with the French, the Belgians or the Dutch to deal with this in a bipartisan way, that would be ideal, but none of us is very optimistic, particularly before a general election in France and so on.
We need other options: a plan B, or maybe a plan C. I agree that some of them stretch the credibility of what any Government would want to do, because the problem of the cross-channel migrants is indeed very difficult to deal with. You have to deal with them separately because, however sympathetic one may be with people in the hands of traffickers coming across the channel for whatever reason, it is a difficult way to come across. It is unsafe, they are clearly behaving illegally—it is against the law to enter this country in that way—and they are doing so in a very public way. Every night on television, you can see people coming across the channel and on to the beaches in Kent and so forth. They add to the number of people the Government have agreed to accept by proper routes—the Chinese from Hong Kong, the Afghans and, now, Ukrainians. Like the noble Lord, Lord Kerr, I hope we will have a generous scheme to allow Ukrainians who wish to come here to do so, just as I hope that Europe will have a generous scheme. I suspect and hope that they will come here only temporarily.
Coming across the channel is an open-ended and uncontrolled method and, if successful, encourages even more to come. Last year, 29,000 came; the prediction is that 60,000 will come this year. That is more money for the traffickers. The traffickers now make more money out of human beings than they do out of drugs, which will increasingly be the case. If we allow that to carry on uncontrolled, it makes it more difficult for local authorities, which have to deal with these people—housing them, making welfare arrangements, schooling their children and dealing with their families.
They add to the problems in the most disadvantaged parts of the country. It is not the leafy areas of Hampstead where these people end up; it is in places such as Blackpool, Stoke-on-Trent, Middlesbrough and Doncaster. I was talking to a red wall MP from the north-west. Blackpool has five of the eight poorest wards in the country; it has real problems. There is fury on the streets of Blackpool at the way they are being dumped on with people such as the migrants who come across the channel. They do not understand why they have to receive them.
The levelling-up agenda, which is central to this Government, is set at nought when that situation is arising in the areas of this country which need to be levelled up. It makes a proper, organised, rational immigration policy more difficult. As my noble friend Lord Hodgson said in a previous debate, informed consent—the consent of the people—is essential for a rational, substantiated and long-term immigration policy. If we do not have a policy that people are comfortable with, in the long run, we will not sustain it.
The Lord Bishop of Durham
My Lords, if the names had not been filled on Amendment 28 then I would have added my name to it. I remind the House of my interests as set out in the register, both in RAMP and Reset.
In Committee I laid out the understanding of the two groupings proposed and argued that almost no one will actually qualify as being in group 1. I had no repudiation offered to that argument. As the noble Lord, Lord Kerr, said, Ukraine is currently illustrating the problem precisely. I was also concerned in the response to the debate in Committee by some of the language of discretion within the two groupings.
We need a simpler, more efficient asylum system, and I continue to be convinced that what is proposed will provide a more complex, slower process. Fundamentally, I am with all those who oppose the two-group system, as it creates a fundamental injustice for fair treatment of all refugees, regardless of how they arrive.
Today, a letter signed by over 1,000 leaders from all the major faith communities of this country was delivered to the Prime Minister. I quote from that letter:
“Dear Prime Minister, As leaders within faith communities across the UK, we are horrified and appalled about the potential repercussions of the Nationality and Borders Bill. We urge you to reconsider the proposals even at this late stage.”
It goes on later to say:
“Currently, Clause 11 sets out the differential treatment of refugees. This separation of refugees into ‘Group 1’ or ‘Group 2’ undermines the longstanding and widely understood expectation that a person’s asylum application is decided on the individual merits of their case and whether they would face serious threats to their life or freedom if they were not to be granted refugee status. The artificial manufacture of a two-tier system creates two different classes of refugees. This would not be based on needs or merits but would depend on the ability of a person to arrive in the UK via a ‘regular’ route of travel. This is a clear breach of the principles of the Refugee Convention, and we have seen no credible evidence that it will stop irregular migration across the English Channel; it is therefore, policy made without a basis in evidence or morality. Criminalizing and punishing vulnerable asylum seekers who have little choice but to arrive in the UK through ‘irregular routes’, when the majority are subsequently able to prove that they have a legitimate basis for their asylum claim, is a disgraceful and dishonourable policy, and should be abandoned.”
The letter says some more about other clauses, but concludes:
“What we need now, is political leadership which acknowledges and allays the concerns of the public while promoting the importance of compassion, human life and dignity. We remain willing to assist in any way we can to this end, and ask that key representatives on this issue from the government would agree to meet with faith representatives to explore what both we, and the government, can do to help address some of the concerns we have raised.”
Just to be clear, Members on these benches who are engaging in the debates during the progress of the Bill made a conscious decision not to sign that letter because of our privilege of being able to speak here. If we were not here, we would have all signed it. It has over 1000 signatures of those from all major faiths. I doubt the Minister is going to agree to withdraw all of Clause 11, but I sincerely hope that she will ask the Prime Minister to respond positively to the letter and recognise that faith leaders representing faith communities across the land should be heeded and not ignored.
If I may add that, on the Australia example, it is not as simple as the noble Lord, Lord Horam, has suggested. There are many in Australia who will tell you that the system is not working and has not stopped the problems; indeed, I think Novak Djokovic might tell you of his own personal experience of how it is not working because of the people he met in the hotel that he was held in, some of whom have been held for a very long time. There is another simple reason it does not work: geography. The United Kingdom is in a very different geographic setting from Australia. I long that we remove Clause 11.
Lord Dubs (Lab)
My Lords, I very much agree with the right reverend Prelate, and I am totally in support of the noble Lord, Lord Kerr, and his amendment.
I agree with the right reverend Prelate: all the evidence we have from Australia is that it is not working. I have talked to people in Australia who say that we should not go down this path because it is not sensible and it does not work.
I shall be extremely brief. The idea that, at this stage, we start renegotiating the 1951 Geneva convention—presumably on the basis of clauses such as Clause 11—is a frightening prospect. This is no time to be tearing up one of the most fundamental human rights documents that we have, which protects vulnerable, innocent victims of war and persecution. This is no time to be saying that we will change that. If the Government are not proposing to do it that way, why have this clause?
It seems to me that there are too many examples—whether it is Afghans who have got to neighbouring countries but cannot get any further, or Ukrainians who have got to neighbouring countries—that give the lie to the idea that, somehow, you can get here by the sort of route that the Home Office approves of. It is complete nonsense. It is not workable and it diminishes this country in the eyes of the world.
Baroness Jones of Moulsecoomb (GP)
I was so annoyed by what the noble Lord, Lord Horam, was saying, because part of it was absolute nonsense. Australia is actually riven with debate on the whole system of asylum that it offers to refugees, and the offshoring is extremely contentious, not to mention inhumane. Plus, of course, what he has described as all the problems that we have with refugees are actually failures of the Government. Why does he not ask his Government to set up safe systems for refugees to arrive in Britain? That is the real problem: we do not have them.
I shall go back to what I want to say: compliance with the refugee convention seems absolutely part of what we should be doing as an honourable country. We should not think in terms of interpreting it in our own way. Just as countries all over Europe are throwing open their doors to Ukrainian refugees and refugees from other countries who have found themselves in Ukraine, we are putting up walls and nailing doors shut, rather than being honourable about the situation. Imagine people from Ukraine being subject to the two-tier refugee system, as the so-called legitimate ways of escaping Putin’s violent invasion are cut off and Ukrainian refugees have to use so-called illegitimate ways of getting to the UK. The Bill harms those refugees.
If people do get here from Ukraine or other countries, are they to be left homeless and begging on the streets because there is no recourse to public funds and they are banned from work? These people are professionals: they are teachers, nurses, skilled engineers and tradespeople with lifetimes of hard work behind them. They are all banned from contributing in this country, and it makes absolutely no economic or social sense. When Ukrainians claim asylum, do we lock up the women and children in detention centres if they are struggling to find the right paperwork?
If this Government were brave, they would go out and celebrate the asylum system and create one that was fit for purpose and champion the UK as a place of refuge. But this Government are not brave: they pander to the far right and use national rhetoric to divide and rule. At this point, the Government ought to reflect on the whole Bill and realise it is not appropriate for the circumstances we are in. It is cruel, it is inhumane, and quite honestly, the invasion of Ukraine should be a turning point for us. The Government should abandon the Bill and perhaps start thinking about a “refugees are welcome” Bill.
Baroness Stowell of Beeston (Con)
My Lords, may I just ask my noble friend a question, based on listening to this debate and looking at Clause 11 as it stands? Subsections (5) and (6) say that the Secretary of State “may” treat group 1 and 2 refugees differently. My interpretation is that this clause is introducing an element of discretion to the Home Secretary to deal with a situation in a way that allows some difference of treatment, should she see fit—not a requirement that she must do so.
On the point the noble Baroness, Lady Jones, just made in response to my noble friend Lord Horam, I say that the Government are not seeking not to comply with the refugee convention, but seeking to allow for some flexibility and discretion to deal with some of the changing situations in this context, which are very different now from when the convention was introduced 50 or so years ago.
Lord Etherton (CB)
My Lords, I entirely endorse and support what the noble Lord, Lord Kerr of Kinlochard, has said. I do not want to develop this as a lawyer, because the issues can be very well understood by anybody with any degree of common sense. The starting point is that the English courts have reached a view about the meaning of “directly” in the convention, and the contrary view that has been rejected by the courts is the one found in Clause 36; and Clause 11 is to be read with Clause 36. I take issue with the proposition that the introduction of “may” in some way or other alleviates this problem. It does not. The Government have adopted a view about the meaning of the convention, and the meaning of “directly” that is critical to the division between groups 1 and 2, which has been rejected. Perhaps more importantly even than the fact that it was rejected expressly by the English courts is that it has not been adopted by the UNCHR either, which has followed the English jurisdiction since the expert round-table conference in Geneva in November 2001, set up specifically to discuss and agree Article 31.
Lord Russell of Liverpool (CB)
My Lords, I was not intending to speak in this debate but, rather like the noble Baroness, Lady Jones, I was prompted to by some of the interventions from behind the Front Bench, so as a non-politician I will speak briefly about the political context used to justify some of this rather egregious legislation.
I have the privilege of being the only non-political member of the UK delegation to the Parliamentary Assembly of the Council of Europe. The Council of Europe is nothing to do with the EU. It is the foremost human rights organisation in our continent, with 47 countries until Friday, when we ejected Russia, so we are now down to 46.
Although I am independent, and I am not a politician, to function there you have to be part of a political grouping, so I sit with what happens to be the political grouping of the Government of the United Kingdom of today: the Conservative Party. The political grouping it is in is called the European Conservatives Group and Democratic Alliance. The group that we—all the Conservative MPs and Peers and I—sit in when we are in Strasbourg contains some of the political parties that the noble Lord, Lord Horam, referred to by name, saying we did not want to go that way.
In Strasbourg, the Conservative Party sits with the AfD, the laughingly named Sweden Democrats, who are effectively neo-fascists, and, from my wife’s native Italy, the Fratelli d’Italia, who are the direct descents of Mussolini, and the Lega Nord, led by the wonderful Mr Salvini, usually seen on the beach. These are not good bedfellows. Some of the comments that I hear from politicians, particularly from another place but also from some members of the Cabinet, are remarkably similar to some of the views I hear in the meeting room in Strasbourg when some of these individuals are speaking—views which most of us would find pretty horrendous but one steels oneself to listen to because, I suspect, they are probably reflecting pretty accurately the views of the people who voted them into office.
I will briefly refer to being in office. My great-grandfather, who was Prime Minister three times, said, “You are not elected into power; you are elected into office. You are elected into office as much to represent those who didn’t vote for you, or who didn’t vote at all, as those who did vote for you”. What we are hearing is a sort of “I’m all right, Jack” view of the world.
My wife’s native country of Italy is a contiguous country, in the way referred to by my noble friend Lord Kerr. Italy’s citizens did not want or vote for a large migration from north Africa to come. They may not like it, but they have accepted it; they really do not have any choice. Part of the reason that they are having a lot of problems and they are quite cross with countries such as ours is that we have completely and utterly refused, as have most other EU countries, to share the burden equally. The noble Lord, Lord Coaker, and I have been to Jordan, another contiguous country. We went to Zaatari, the largest refugee camp for Syrians, in northern Jordan, where some 80,000 men, women and many children are huddled in reasonable conditions, thanks to the UNHCR. In Lebanon and Turkey no citizen voted for this, but that is what they have ended up with. We are a very long way from being contiguous but we are behaving in a way which, frankly, I find shameful.
The great-grandfather I referred to earlier was involved in raising the equivalent of about £34 million in 1939 after the Kristallnacht in Germany, which enabled a great many Kindertransport children to come to this country—that is what the money was used for. He would be ashamed by what is going on in this Chamber tonight.
Lord Green of Deddington (CB)
My Lords, I will just say a word in support of what the noble Lord, Lord Horam, said, about public opinion. We have to be careful here. A substantial slice of public opinion is concerned about the scale and nature of the inflow of people claiming to be refugees, and the shambles in the channel at the moment is no help. We need to bear that in mind in all our discussions. I do not think that the policy itself will work, and I do not think that the division into this or the other class of refugee will help. But let us not, for goodness’ sake, get carried away by our own righteousness and forget that there are a lot of people in this country who are not in situations as comfortable as ours who look to us to make sure that, in so far as there is an input of refugees, they are genuine.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I would not want that to be quite the last word. The speech made by my noble friend Lord Kerr was not merely powerful, it was compelling and irrefutable. As a matter of law, I have spoken on this before in Committee. I am not going to repeat all that, but do we really believe that the inhabitants of Blackpool, Doncaster or the deprived towns spoken of by the noble Lord, Lord Horam, and reflected in the contribution of my noble friend Lord Green, are so much less understanding, less sympathetic or less kind than the Poles, who are welcoming these vast hordes of people? We are not going to be asked to take that sort of number.
It is a dismaying thought that we really believe that our fellow countrymen, at this crisis in world events, would turn their backs, which is, in effect, what is being suggested. Are we really going to condemn, as Clause 11 is designed to do, rafts of asylum seekers—genuine refugees—to the loneliness, isolation, desperation, destitution and failure to be able to bring their families that it is suggested we now must to stop people crossing the channel, or to appease those in our deprived areas who do not want vast numbers of more refugees? I fervently suggest not. I would have hoped that, in this ghastly moment of history, the Minister would say, “This is not a moment to promote a Bill like this. We must withdraw it and think again”. No doubt, that is above his pay grade: indeed, considering that he is unpaid, that is not a very high bar. However, I really urge those responsible for this grotesque piece of legislation not to try to persist in it at this juncture.
Lord Paddick (LD)
My Lords, if those seeking asylum in the UK are genuine seekers of sanctuary from war and persecution, they are entitled to all the rights afforded to refugees under the refugee convention. Even if they are eventually found not to be genuine refugees, they are entitled to have their claim considered and their welfare safeguarded while it is being considered. A number of noble Lords have talked about public opinion. In answer to the noble Lord, Lord Horam, who appears to think that this is all about people crossing the channel, Clause 11 would make Ukrainian refugees who made it to Poland and then flew to the UK second-class refugees. If—I say “if”; I am not saying that this is the case—there is concern in public opinion, it is a concern about immigration, not a concern about refugees.
This is a very generous nation. If you speak to people in the towns and cities that the noble Lord, Lord Horam, has mentioned, the vast majority will say, “Of course we want to help those people fleeing the war in Ukraine”. They are concerned about being overwhelmed by immigrants, but only 6% of immigration in recent years has been by asylum seekers. That is why Clause 11 is not right and not necessary. Once asylum seekers have presented themselves and their claim in the UK, they are entitled to have their claim considered without fear or favour, regardless of where they came from and how they got here. They should not be treated differently on that basis. We should take Clause 11 out of the Bill and, when the noble Lord, Lord Kerr, tests the opinion of the House, we will be voting with him.
Lord Sharpe of Epsom (Con)
With the greatest respect to the noble Lord, under the rules of Report stage, one is allowed to speak only once during the debate.
Lord Rosser (Lab)
My Lords, as has been said, Clause 11 is about differential treatment of recognised refugees. There is the distinction that the noble Lord, Lord Paddick, referred to between refugees and immigration generally. We believe that Clause 11 contravenes the 1951 refugee convention: it sets a dangerous precedent by creating a two-tier system—group 1 refugees and group 2 refugees—and, frankly, it is also inhumane.
Under the Bill, the Home Secretary will be given sweeping powers to decide asylum cases based on how someone arrives in this country and their mode of transport, not on the strength of their claim, contrary to the 1951 refugee convention, of which Britain was a founding member. The different ways those two groups could be treated is not limited in any way by the Bill, although Clause 11 provides examples: those who travel via a third country, who do not have documents or who did not claim asylum immediately will routinely be designated as group 2 refugees.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who spoke to these amendments. At the outset, I will dispel one widespread misapprehension about this clause. Under Clause 11, those who meet the terms of the refugee convention will be granted refugee status. There is no question of this clause making it harder to be a refugee or otherwise enabling the Government to refuse refugee protection to those who need it. That is simply not true. What the clause does is enable the Secretary of State to distinguish between refugees based on whether they came directly and claimed without delay, but anyone considered under this policy will be a refugee.
The status of Clause 11, as a deterrent, is closely tied to secondary movements and the first safe country principle. In Committee it was claimed that, for a number of reasons, the UK must allow people to choose to come here from other safe countries to claim asylum, if they wish. This is not sustainable. It has also been posited that requiring refugees to claim asylum in the first safe country would undermine the global humanitarian and co-operative principles on which the refugee system is founded. I categorically reject this. In fact, it would strengthen them, because more countries would have the capacity for resettlement via safe and legal routes. Quite simply, if spontaneous intake falls, our ability to bring over refugees from regions of origin increases.
I will also reiterate at this stage that the first safe country principle is itself internationally recognised. Not only does it underpin the Common European Asylum System but there is a long-standing safe third country agreement between the USA and Canada which means that, barring certain exceptions, anyone arriving at the Canadian border is ineligible to make a claim. As my noble friend Lord Horam might have mentioned, Norwegian legislation similarly sets out that an application for asylum may be refused where a person has travelled to Norway after having stayed in a place where they did not face persecution. Australia—much mentioned this evening—also has those statutory powers to designate countries as safe, with the effect that anyone from that place will be barred from claiming asylum. In Australia, they have almost entirely stopped small boat crossings.
The evidence on which such policies are based is not only the fact that certain safe countries are clearly more popular than others as a destination for asylum seekers but comes from academic analysis. To be clear, I am going to talk about the reasons for secondary movements from one safe country to another, not why people leave their countries of origin in the first place. The two are clearly not the same. Secondary movements were assessed in a comprehensive analysis by Takle and Seeberg in 2015. An important part of their conclusion was that “future possibilities” play a crucial role in explaining secondary movements:
“For the individual migrant, it makes sense to ask: ‘If I make it through the waiting period and if I gain protection in this country—will I have the means to survive here? Will I be able to work, to find adequate housing, to fulfil my family obligations, to complete my education, to find friends, to belong: will I have a life? If not, where might I be better able to build myself a new life?’”
These are entirely sensible and understandable things to ask oneself. However, every last one of those things can be found in France and other safe countries without the need for a dangerous journey to the UK.
Another study concerning secondary movements of Eritreans between Italy and Norway by Brekke and Brochmann in 2014 noted the following:
“National differences in the quality of the reception system, in welfare policies, and in labour market opportunities motivated the secondary migration of asylum seekers and refugees in Italy.”
They also observed:
“The UK, Norway, and Sweden stood out as attractive destinations for the Eritreans. One informant stated: ‘There you get everything if you are accepted: housing, pocket money, education and work.’”
Again, this is totally understandable. The notion, as I have heard repeated in this House, that people are motivated by singular and discrete “pull factors” unrelated to economic considerations is therefore reductive and misleading. In fact, commonly cited pulls, such as language, family, and diaspora links, are not only intrinsically valuable but instrumentally valuable to improving future possibilities, including work and education. I repeat: France offers perfectly good future possibilities. There is no need to take a dangerous journey across the channel to improve future possibilities. We must do everything within our powers to stop this, including putting Clause 11 into law.
Briefly, the “without delay” element of Clause 11 is intended simply to deter other unwanted behaviours that we see in the asylum system. This includes making late claims without reasonable excuse, often in response to a negative immigration decision to delay removal. This is intended primarily to improve operational efficiency, enabling us to focus resources on those most in need and to carry out quick and cost-effective returns of those who have no right to be in the UK.
Distinguishing between different refugees forms part of the refugee convention itself. For example, the entire structure of entitlement under the refugee convention rests on different levels of attachment, with physical presence and lawful presence distinguished for the purposes of various entitlements. Article 31 does not contain a blanket prohibition on the imposition of penalties on refugees who enter or are present illegally. Article 31 prohibits penalties only in respect of refugees who either are coming directly from a territory where their life or freedom was threatened or present themselves without delay to the authorities, and who show good cause for their illegal entry or presence.
We think that differentiation is not a penalty, taking into account that the convention does not explicitly define “penalty” and the fact that there is no unanimity on the definition of penalty. In any event, the convention does not prohibit differentiation and the clear implication of Article 31 is that states are entitled to impose penalties on refugees who enter their territory illegally when the three conditions are not satisfied. I have already spoken at length about the broad and flexible nature of the powers under Clause 11, which I have consistently argued enable the Secretary of State to exercise sensitive and compassionate discretion in each and every case.
The right reverend Prelate the Bishop of Durham stated that nobody would be in group 1. That is not true. Those who could not be reasonably expected to claim in another safe country may well be in group 1 if, for example, they were trafficked. This goes to my noble friend Lady Stowell’s point: despite a number of misleading media and NGO reports, there is a vanishingly low risk that anyone who has, for example, suffered sexual or gender-based violence, is coming to terms with their sexuality or is the victim of trafficking will face differentiated entitlements.
Our definitions of concepts such as “come directly” and “without delay” are drafted in a manner that is responsive to those who may have legitimate reasons for being unable to comply with the standards set out and, as per my noble friend’s amendments, as drafted already enable us to use reasonable discretion when considering imposition of differentiated entitlements—again, a point that my noble friend Lady Stowell made. Indeed, there is no obligation to impose any particular condition on group 2 refugees. There is ample room for people to show that they could not reasonably have been expected to claim asylum in another safe country or that they could not claim as soon as reasonably practicable.
Group 2 refugees will still be protected and receive relevant entitlements in accordance with the refugee convention so that the object and purpose of the convention are upheld. Accordingly, Clause 11 is considered a good faith, compatible interpretation of the refugee convention.
My noble friend Lady McIntosh of Pickering lamented the diminution of safe and legal routes. We have not diminished such routes; I have set them out and distributed them to noble Lords. Some of those routes are not capped—for example, the BNO and refugee family reunion routes. On that note, my right honourable friend the Home Secretary stated today the ability of Ukrainians to come fee-free via the family reunion route. Potentially 100,000 Ukrainian refugees will come here, and we will be very glad to see them. On the point about visa waivers, I think it is very important that we continue to have the simple security checks that my right honourable friend talks about, because there is evidence that people who would do us harm are masquerading as Ukrainian refugees.
Just to finish, I have a point on Jordan, which I think the noble Lord, Lord Russell of Liverpool, mentioned. The standards of housing, recourse to public funds, education and healthcare in Jordan are not comparable with the UK. I shall say no more about that, but it is a difficult one to compare the UK with Jordan in terms of the infrastructure and facilities for Jordanians.
I think that every concern from noble Lords thus far has been met with a very clear and reassuring answer. This clause strikes a robust balance between firmness and fairness, with a firm policy response to the evidential picture about secondary movements and upholding the first safe country principle, but fair in its acknowledgement that we absolutely must be sensitive to the vulnerabilities of certain asylum seekers. I hope that, on that note, noble Lords do not press their amendments.
Baroness McIntosh of Pickering (Con)
My Lords, obviously I am disappointed that my Amendments 25, 26 and 27 have not found favour with the Minister or the House. My noble and very good friend Lord Horam said that he hoped that France and Belgium would take some of the asylum seekers and refugees back. That would indeed have been the case if we had managed to negotiate that we stayed within the Dublin III convention—so that is another source of disappointment.
My right honourable friend the Prime Minister stated yesterday in a very holy place that the UK would be very generous with Ukrainian refugees, but I regret to say that I do not hear how that is going to be applied in what I heard from the Front Bench this evening. However, I shall not press my amendments, because I believe that Amendment 28 carries more favour, so I beg leave to withdraw.
Lord Kerr of Kinlochard
Lord Kerr of Kinlochard (CB)
My Lords, there are two ways in which to break a treaty, and I think that, looking back on it, I rather preferred the Brandon Lewis way—the straightforward, “Yes, we’re breaking a treaty, in a specific and limited way.” This rather weaselly approach, whereby the Government say, “Oh well, we’re perfectly entitled to interpret the treaty as we choose, and no, as a matter of fact we’re not in breach of it”, seems to me unconvincing and undesirable, and rather bad for our international reputation and for refugees.
I have not heard an answer to the key point, which is that, if I were coming from Ukraine, I could not be a group 1 refugee because I cannot come directly. The clause says that the requirement of being a group 1 refugee is that you have come to the United Kingdom directly from the country or territory where your life or freedom were threatened. So nobody from Ukraine can be entitled to full refugee convention rights in this country, if this becomes the law. I do not think that is right, so I think I have to test the opinion of the House.
Higher Education Reform
(2 years, 9 months ago)
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Baroness Sherlock (Lab)
My Lords, in May 2019, the then Prime Minister, Theresa May, launched the report of the Augar review. That was a long time ago, and it feels like a very long time ago. I wish I could say that the time has been well used, but let us have a look at what has been put out in this report.
First, there are changes to student loans. From the academic year 2023-24, the interest rate on loans will be changed to RPI for everybody, which is interesting, because Ministers keep telling me that RPI is no longer an official statistic because of concerns over its methodology. I can only assume that, somehow, it is not good enough when you are paying money out to benefit recipients but it is fine when you are taking money away from students. If only the noble Lord, Lord Forsyth, were here, I think he would have something to say about that.
Secondly, it reduces the repayment threshold to £25,000 and increases the repayment term to 40 years—much of a working life. For those on the current loan scheme, the repayment threshold will stay at the current level until 2024-25, which, given the current inflation rate, is quite a bit of fiscal drag. The effect of these measures together is highly regressive, hitting the lowest earners the hardest.
Paul Johnson of the IFS said this about it:
“looked at from the point of view of progressivity, redistribution, winners and losers, the reforms look truly horrible. Low-to-middle-earning graduates could be made about £20,000 worse off over their lifetime by the changes; the highest earners could benefit by £25,000.”
The equality analysis published alongside the consultation document said that
“among new borrowers, the largest proportional increases in lifetime repayments will be from lower earners … by 174% for those in the 4th decile”.
Meanwhile,
“the highest lifetime earners among new borrowers will experience large decreases in lifetime repayments (down 26%)”.
Why have the Government chosen to reform the loan system in a way which so profoundly benefits higher earners and hits those on lower incomes?
If noble Lords are wondering what the attraction of this particular approach is, it is perhaps worth mentioning that, thanks to a quirk of government accounting rules, these changes make the public finances look quite a bit better, but only in the short term. The IFS says that it will take about £1 billion off the cost of the student loan scheme, but:
“We expect the budget deficit to fall by about £5 billion in 2023 as a result of the changes, with subsequent hits to the deficit further down the road as new loans accumulate less interest.”
It finishes, drily:
“This will please the Treasury.”
Indeed it will.
However, this will not please many people because the pain does not fall equally in other ways. The equality analysis says that women, disabled people, some ethnic minorities and those from certain regions are likely to face increased lifetime repayments. Men gain and women lose. On average, men will repay around £5,500 less and women will pay £6,600 more. The IFS notes a remarkable comment:
“the taxpayer cost of funding men’s student loans will actually increase as a result of the reform … the saving on women’s student loans alone is greater than the total at £1.6 billion.”
Women students are not only paying for the reduced cost to the Exchequer; they are paying for the men’s changes as well. The Minister will doubtless say that this discrimination is not intentional, it is just that women earn less. But the Government know that women earn less across their lifetime. So, having known that, can the Minister tell the House what consideration was given to the differential impact of these proposals before deciding on them?
The Government are also consulting on other measures, including reintroducing government controls over student numbers. But not just by a global figure; they are consulting on whether to control them by sector, provider, subject, level or even by mode of study. Are the Government planning to do all of them? Might they do them all? Could the Government conceive of a world in which the Secretary of State could decide that physics is in but history is out? Could he close down the music department at Lindchester University completely? Could he decree that all computing is going to be done in FE from now on? This may not be their plan, but there is no way to tell from the documents published what their plan is. So could the Government give the House some hints?
They are also consulting on minimum eligibility requirements, including an option of requiring level 4 or above—that is a grade C in old money—in maths and English at GCSE. I found it quite hard to work out the numbers affected, because the tables in the equality analysis are quite confusing, but the Minister may be able to shed some light on that. I am pretty sure this will have a differential effect with regard to region and disadvantage.
It is not just about access to university; it is about access to the loan book. The Minister can confirm that presumably a student whose parents—or who themselves—could pay fees upfront has no problem, but then what happens to the more than half of pupils eligible for free school meals who will leave education without GCSE maths and English? Can the Minister tell the House what work has been done to look at the effect of such a plan on poorer children and young people from deprived areas?
There is also a proposal to limit funding for foundation years—and yes, once again this has differential effects. The equality analysis says that
“mature students and black, Asian and mixed/other ethnic minority groups … may be at greater risk of reduced access to HE and choice of provision”.
This is all really very disappointing. Augar was launched amid concerns about fairness and affordability for students, but those are clearly not the drivers at the heart of this response. The loan reforms are regressive and will hit lower-earning graduates. Rather than focusing on raising standards in schools and in HE, they risk penalising those who already find it hardest to get on through education.
Meanwhile, there is nothing on living costs for students, nothing to boost efforts on widening participation and nothing on the timing of admissions—except after a very big think they have decided not to do anything at all about post-qualification admissions. The consultation on the lifelong learning entitlement is still really vague. There is quite a lot on the how but not very much on the what, and certainly not on the why.
We have waited a thousand days for a response to Augar. That is roughly the length of an undergraduate degree, I reckon—you could probably do a PhD in that time; it is pretty much three years. After all that time, where is the strategic plan? Where is the vision for a strong, diverse higher education system that could help all of our young people and students to fulfil their potential? This feels like a missed opportunity. I hope the Minister can persuade me otherwise.
Lord Addington (LD)
My Lords, this is a very odd Statement because it suggests one or two nice things but does not really give us much detail. As the noble Baroness has just pointed out, the noble Lord, Lord Forsyth, is missed on this one. His intellectually honest toe-caps have gone into the ribs of many of us here and the Government Front Bench has actually felt them on many an occasion. A student finance system that celebrates going from 23% repayment to maybe half is a weird thing. Why do we still persist with this loan system? It is seen to be financially failing—unless creating a form of junk bond at the end of it is the aim. There will be not quite so much junk; that would seem to be about the essence of it.
If we are looking at how we get further education better into the system by giving better bonuses for lifelong learning—a suggestion of something that might be better in the future—we have to get people to go on the courses. What are we doing about careers guidance that would improve what people know about this? The first thing you will have to do is to train teachers, who are, let us face it, predominantly graduates, and we all know that what we did is right—if you do not come from that group, then you are very much in a minority—as we “stick to nurse”. Where is the training to make sure teachers are giving the right information to people or at least stand half a chance of so doing?
This has not got any easier with the introduction of T-levels and the removal of BTECs, which provided a series of fairly established ways of finding your way into higher education and the level 4 and 5 qualifications which are mentioned. We need some clear guidance to get this through and see how they are going to all tag in together. At the moment, I would say that it is an optimistic mess. We are not quite sure what the Government are expecting. It is going to be better, and it just might be that, after my entire lifetime, in relation to people at levels 4 and 5—I think it is technician-level qualification—we might be starting to address that, but we are doing it in a very chaotic way. The paths into education have fundamentally changed over the last couple of years, and they have changed in an incoherent manner.
To come to the last point, which the noble Baroness also touched on, if we have a special educational needs review taking place, why are we putting in a requirement for English and maths, which are the things that certainly the group I come from—that is, dyslexics—find difficult? It is 10% of the population; stick in dyscalculia, and that is another 3%, and those are conservative figures. Why are we making it so much more difficult for this group to get on to that pathway? When it comes to adult entrants into education, we are getting rid of BTECs, which were the way in, and we are saying that people have to have two A-levels. If you want later entrants—if you want entrants after having done, say, a level 4 course—why are we putting this in? It does not make any sense. Can we have some coherence about this?
Reading this as it stands, the Equality Act might have quite a lot to say about it. I have mentioned only two groups; others are available. Can we get some coherence around this? At the moment, the Government have waved a few ideas at us. The repayment structure may be slightly better for the Treasury, but I do not think it makes much difference to anybody else. Can we please hear what the Government are really about? If they are going to limit the amount of money we waste on the repayment structure, they have set themselves a very unambitious target.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
I thank the noble Baroness and the noble Lord for their remarks and their questions. The noble Baroness rightly focuses on issues of fairness and access to higher education. The Government have tried to balance fairness to students with fairness to the taxpayer. Currently, a great proportion of the subsidy that the taxpayer makes towards higher education is funded by those who did not have the benefits of that higher education themselves. Students going to university have the advantages of their degree throughout their working lives.
Our estimate is that, over the course of their degree, the average graduate will borrow £39,300 from next year. Today, the average graduate would repay £19,500, and under the new proposed system, they would repay £25,300, so there is still a tremendous subsidy for the average graduate. The noble Baroness focuses on those who are more marginalised and are lower-earners, and she will be well aware that below £25,000 there is no repayment at all.
The noble Baroness also talked about the consultation around limitations on student numbers and minimum-entry requirements. This is, as she well understands, very much part of our drive towards having higher-quality courses. The numbers affected by the consultation—and I would stress it is a genuine consultation; we genuinely want to understand how stakeholders feel about this—and affected by proposed GCSE requirements would be less than 1% of students, and around 1% for the suggested entry requirement at A-level.
The noble Lord focuses on the barrier that that may present to those with special educational needs, but I would respectfully suggest it is also a tremendous barrier for everybody not to have English and maths at a basic level, since they are such an important entry requirement for almost every job. There are not many jobs in this country that you can do if you cannot read, write and add up. That is why the Government have extended their support, so that students can retake English and maths for whatever reason that might be.
Lord Addington (LD)
My Lords, will the noble Baroness give way for a moment? If you have got a disability, it means you have trouble doing it. You have legal requirements that say you are not supposed to discriminate and there are other ways around it. For instance, voice operation—which is available as a standard item on every computer for English. If you are not going to bring that into the system—which would have been a perfectly valid answer—why are you excluding them?
Baroness Barran (Con)
There is absolutely no intention to exclude at all. The department is heavily focused on trying to improve outcomes for pupils with special educational needs and the noble Lord will be aware of the enormous range of outcomes depending on which school a child with the same disability or special need goes to. We want to equalise those, so it should make no difference where a child goes to school in terms of their outcomes.
If I may continue, the noble Baroness questioned what we were doing in relation to foundation years. I did not quite follow her argument. We are consulting on reducing the maximum fee and loan limits for foundation years, from the current just over £9,000 to £5,197, and that is to bring it in line to be the same amount as an access to a higher education diploma. We hope it will make those foundation years—which are an important access route for those who may be more disadvantaged to get into higher education or potentially for mature students—more accessible.
Baroness Sherlock (Lab)
The Minister did not follow my argument. Maybe when she reads Hansard, she will see that all I did was to quote from the equality analysis that her own department produced to accompany the proposals, to show that it could have a differential effect on different groups.
Baroness Barran (Con)
Hopefully there will be a less differential effect than there is currently.
Baroness Sherlock (Lab)
No, I am sorry—I do not want to delay the House—but if she could actually read the equality analysis, it said that, as a direct result of the reduction in the foundation years loan, if providers found they could no longer fund and provide those courses at the lower rate, it could reduce access to higher education. It is there in the equality analysis.
Baroness Barran (Con)
I thank the noble Baroness for clarifying that.
Both the noble Baroness and the noble Lord questioned whether there was a strategy and a plan behind this. I am impressed, but not surprised, that the noble Baroness can do a PhD in 1,000 days. I will, if I may, try to set out the wider context a little. Our clear ambition is that students should succeed and achieve their potential. We are doing that in a number of ways. The first is by expanding the choices that we are offering them—for example, by expanding the higher technical qualifications, offering modular learning options and introducing T-levels, as well as the existing qualifications. We are expanding choice.
We are investing very substantially in higher education: £900 million pounds in the next three years, in addition to the £2.8 million that we have announced for further education, and the recent settlement for schools, as well as introducing a specific scholarship option for high-achieving disadvantaged students, so that they too can realise their potential. A great deal of work is going on, led by the Office for Students, on the quality of degrees.
On the noble Baroness’s point on student number caps, these approaches have been used in the past. I think our real aim is to identify those courses with very high drop-out rates or very poor graduate progression outcomes, and make sure that those are limited, but in no way to try to affect the more successful and higher-quality courses.
Our bottom line is that we want to maximise and continue to build on the successes in offering opportunity to students. Students from disadvantaged backgrounds are 82% more likely to go to university today than in 2010. We want to build on that and on the increase in students from black, Asian and minority ethnic communities going to university, in making sure that this country offers opportunity to all.
Baroness Falkner of Margravine (CB)
My Lords, I welcome the lifelong learning and other measures that will improve social mobility, but the higher education sector needs a root-and-branch review of the business model of our universities. Perhaps I need to declare that I have a family member who works in higher education and I have been associated with several universities in the past.
We are in another week when UCU members are on strike because of a broken system, where their pensions and working conditions are under attack, while managers pay themselves such astonishing amounts as to make even the private sector blush. USS administrators are using valuation scenarios so risk-averse as to lack any credibility, and the world-class system that the Government rightly applaud is in real danger of being depleted of future academic talent as rewards fall further behind, and the taxpayer’s interests are ignored under the pretext of university autonomy. When will the Government address these blatant anomalies in a sector that seems to have lost its sense of purpose? I associate myself with the remarks of the Labour Front Bench about vision.
Baroness Barran (Con)
The noble Baroness asks a number of important questions about the funding model for our universities but, as she acknowledged, they are incredibly successful in attracting international students, with over 605,000 of those students coming to our universities. In the other place the other day, my right honourable friend the Secretary of State quoted the figure that of every four international students, two go to the US, one comes to the UK and the rest of the world shares the last one.
We are aiming to build on that success; the investment that we announced along with this package aims to focus on both teaching and facilities to make sure that the highest-quality future-facing education is offered in our universities. My right honourable friend the Minister for Universities and Higher Education has been extremely active in stressing her concerns about how students’ experience has suffered over Covid and the responsibility of universities to respond, get back to face-to-face teaching and meet their needs, but I am happy to pick up in writing some of the wider points that the noble Baroness raised.
Lord Johnson of Marylebone (Con)
My Lords, I strongly support the Government’s student finance reforms, which strengthen what I think is the least bad system of funding higher education, but I have to say that I am puzzled by why the Government appear to be disavowing what in my view has been the standout levelling-up policy of the last decade: the removal of student number controls, which have allowed disadvantaged young people to go to university in far greater numbers—they are 80% more likely to do so in 2021 than they were in 2010. I would be very grateful if the Minister could reassure me that any student number controls will be imposed only in the most egregious cases of poor outcomes identified by the OfS and will not be used as a back-door means of reimposing sweeping caps or quotas on aspiration across the entire system.
Baroness Barran (Con)
I am delighted to reassure my noble friend that we will not be introducing the sweeping caps to which he alludes. As he said, universities have been extremely successful in terms of social mobility. By consulting on student number controls, we are not taking a position on what the correct proportion of people going to university should be, but we want to tilt provision towards the best outcomes for students and, as I said, make sure that our further education system also offers fantastic pathways to success.
Baroness Blackstone (Ind Lab)
My Lords, I admire a great deal of what the Government are trying to do in relation to the future of higher education but I suspect that there is a bit of a muddle going on: the Government’s right hand does not seem to be doing the same as their left; that was just very ably put by the noble Lord, Lord Johnson. I start by asking why it has taken so long—it is two and a half years since the Augar report was published. If the Government are so concerned about having a high-class higher education system, with large numbers of international students, to reach out to the most disadvantaged and to ensure better outcomes, there is some urgency in this. Of course it is complex but perhaps the Minister can say why it has taken so long to reach any kind of conclusions on this report. Moreover, we are going to have a lot more consultation. I am not against consultation, but this one could have started two years ago, in which case we would be rather nearer to getting some kind of conclusion on where we are going next.
I also want to pick up what my noble friend on the Front Bench said about the effects of the proposed changes in student finance. How can the Government justify the much higher repayments that the least well off will pay because of the many years of interest charges—a lower rate of interest than now but, nevertheless, a much longer period for which they will be paying interest—whereas the wealthier students will pay off their loans very quickly and not incur all this interest? Is it not time to introduce a truly progressive graduate tax, rather than the regressive system of repayments being put forward today?
Baroness Barran (Con)
The noble Baroness partly answered her first question herself. She understands it very well. This is hugely complex and sensitive. The issues around repayment rates and the relative burden on the taxpayer versus the student all need careful consideration. Obviously, there are huge financial implications. The noble Baroness will have seen the figures on the projected size of the student loan book in 2043 if we did not do anything about this, which is half a trillion pounds—I was about to say dollars, because “trillion” always sounds like dollars, but it is pounds.
On the consultation, I feel slightly that as a Government we are damned if we do and damned if we do not. If we had not consulted, I am sure we would have been criticised. I know that the noble Baroness was asking about the timing of the consultation; that also had to align with the work done on the policy. We hope that the consultation will help to answer some of the disadvantage questions to which the noble Baroness, Lady Sherlock, on the Front Bench and the noble Baroness, Lady Blackstone, referred. We really do want to understand how those groups that might feel the most difficulty in accessing higher education, particularly this new modular approach that will be offered, will be impacted so that we can structure the policy in a way that makes it most accessible.
The Lord Bishop of Durham
My Lords, I declare my interest as chair of the National Society. I thank the Minister for what is a very significant Statement, with wide-ranging implications for higher and further education, social mobility and the economy, current and potential students, and the future of many communities. A number of the policy ambitions are welcome, such as the higher technical qualifications. My concern, and hence my question, is about the unintended potential consequences of some of the proposals. What steps are the Government taking to ensure that these proposed reforms actively increase opportunities for students from disadvantaged backgrounds who aim at professional careers in our vital public and community services, or in fields such as the creative industries, which seem to fall outside the high-quality and high-cost criteria for intended increases in strategic investment described in the consultation documents?
Baroness Barran (Con)
I may have touched on some of the points that I hope can address the right reverend Prelate’s question. To go back to the consultations, they are explicitly to help us avoid unintended consequences and to get input from as wide a circle of stakeholders as possible. Obviously, we believe, as Philip Augar did in his review, that a modular, lifelong education system with the funding to back it up will be accessible, lead to greater career development over somebody’s lifetime and meet the skills needed in the economy. Specific elements, such as the scholarship I mentioned, can be used not just for higher education but for further education and apprenticeships. Lastly, these changes must also be taken in the context of the major investment in and major reforms we have made to further education and the bringing together of the funding approach between higher technical qualifications at level 4 and 5 and degrees.
Lord Storey (LD)
My Lords, the Minister talks about fairness in access and increasing the options for young people. But we know how the EBacc has reduced the options for young people in our schools, particularly those who want to do a creative subject. By doing that, the pipeline into universities, and indeed FE colleges, has become less, so we are seeing low numbers following creative subjects in higher education. Indeed, in the whole university sector there is only one professor of music. Surely if we want to increase options, we have to ensure that those options are available at our secondary schools.
Baroness Barran (Con)
I am certainly aware from the many schools I visit that some of the best of them offer a great deal of choice, both within and outside their curriculum. I understand and hear the noble Lord’s concerns, but if we look at the success of our creative industries—which are world beating, in that well-known phrase—we see that we are clearly providing our children, through school and through further and higher education, the skills they need to be very successful within them.
Lord Willetts (Con)
My Lords, I am very grateful to the Minister for her Statement and very much agree with the points made by my noble friend Lord Johnson. The changes to the financing of higher education make sense, because the system was always envisaged as one in which the majority of graduates would pay back the cost of their education. An arrangement in which we ended up with more than half of all student loans being written off was not the kind of balanced system originally envisaged.
I ask the Minister to agree that one of the reasons why the English higher education system stands out as one of the better systems in the world is the autonomy enjoyed by universities. We already have a consultation from the OfS on minimum thresholds to measure university performance, we will now have a consultation on number controls and we have another consultation on minimum educational requirements. Does she accept that if all these different, highly intrusive and detailed interventions are piled up on top of each other, the Government will be not boosting the quality of universities but eroding their ability to run their own affairs and therefore threatening the quality of our universities? I invite her to agree that if all those measures are imposed in total on universities, it would be hard to describe our system as one of university autonomy.
Baroness Barran (Con)
I absolutely agree with my noble friend about the importance of autonomy, but I hope he agrees with me that there is also a real responsibility to have transparency and for students to be really clear on the impact of this major decision and financial commitment they are making and what their future career and further education prospects are, based on the choice of course. We are not aiming to restrict university autonomy. We are aiming to improve transparency and, through transparency, to see that autonomy translate into even higher quality than we have today.
Baroness Fox of Buckley (Non-Afl)
My Lords, I welcome HE reform and have no objection to, for example, introducing minimum academic eligibility requirements to go to university, although linking access to student finance seems a cheap avoidance of winning the arguments for the virtues of the academic purpose of university. Is linking the value of a course’s quality to good jobs not a philistine undermining of knowledge for its own sake, turning universities into glorified job training centres? Is there a danger of a technocratic version of social mobility that instrumentalises the purpose of university, confirming that the only way to improve your social standing is to get a degree or go to university—the very opposite of what I assume the Government intend?
Baroness Barran (Con)
I apologise to the House if I was not completely clear in my earlier answer. I hoped and intended to refer to both the quality of jobs and the further education opportunities. Absolutely, our R&D is critical for the future of the country, and the quality of our thinking and debate, which I know the noble Baroness supports profoundly, is also really important. This is not just about jobs. But equally, I was made aware of six computing courses where the dropout rate is over 40%. Is that not something we should look at, compared with other courses where the dropout rate is much lower?
Baroness Morris of Yardley (Lab)
I understand why the Government want to make sure that students have the skills they need to manage the course, but there has been a lot of concern caused by the minimum eligibility requirements. Can the Minister confirm that the important thing is that the students have the skills they need to do the course, not that they have GCSE English or maths at level 4? The two things are not the same.
Secondly, successive policy papers from this Government have undermined the creative sector within universities. They have very much encouraged, and I agree with it, maths, science and engineering. I notice that humanities get a mention in this Statement; that is the first time for a long time. But in this policy document, what is there that will nurture and help to progress the creative industries in our universities, which are very much wanted by the economy and employers?
Baroness Barran (Con)
In relation to the point about skills, on one level, of course, I cannot disagree—I never enjoy disagreeing with the noble Baroness. Of course, people should have the skills they need to access their degree. However, in the majority of cases, if not the vast majority, English and/or maths at GCSE level may well be necessary for the course that they are aiming to do. I stress that this is a consultation; we genuinely have not taken a view on it. There has been a great deal of focus in the media, in the other place and in your Lordships’ House tonight on the GCSE requirement. We will also be consulting on whether one should reintroduce a minimum A-level requirement. But our focus on foundation degrees and on additional opportunities to achieve the levels in English and maths are also part of how we will make sure that this happens.
Baroness Bennett of Manor Castle (GP)
My Lords, on the new lifelong learning entitlement, are the Government not simply loading even more debt on to a generation already carrying an enormous weight of debt, and extending that debt for even longer? It is a great privatisation of the cost of education, which used to be borne by the public purse collectively, by an entire society that benefited from it, and by employers who benefited from those skills. Instead, what we are seeing is an individualisation and a privatisation. For the 40 years when people would expect normally, in many cases, to be settling down, having a family and buying a house, they are going to have this weight of debt settling on their shoulders, and it will be even a higher percentage of this generation.
Baroness Barran (Con)
I absolutely do not recognise the description that the noble Baroness paints of the lifelong learning entitlement. If she does not agree with the Government’s decisions on this, she might want to, if she has not already, look at the Augar report’s recommendations. There is a clear need expressed: 24% of people when surveyed said that they had considered continuing and part-time education. We do not know how many students who go straight from school to university would rather do a more modular approach. Nobody is imposing this on the student body; this is a choice for people to build their careers and their skills, to seize opportunities and to build our economy.
Nationality and Borders Bill
Monday 28th 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-R-I(Manuscript) Amendment for Report (Supplementary to the Marshalled List) - (28 Feb 2022)
22:53 - Division on Amendment 30 - Ayes: 112 / Noes: 89 - Amendment 30 agreed.
The Lord Bishop of Durham
“(4A) In section 16 of the Nationality, Immigration and Asylum Act 2002 (establishment of centres), at end insert—“(4) For the purposes of this Part, references to “persons” does not include—(a) children;(b) women;(c) individuals with a disability; (d) individuals who have been referred to the National Referral Mechanism;(e) individuals who have a received a positive conclusive grounds decision following a referral to the National Referral Mechanism;(f) survivors of torture;(g) individuals who identify as LGBTQ+; and(h) family members of any individuals referenced in this subsection.(5) For the purposes of this section, “family members” includes—(a) dependent children;(b) partners and spouses;(c) in relation to children—(i) their siblings;(ii) any other individual who is the relevant child’s guardian.””Member’s explanatory statement
This amendment is to restrict the use of accommodation centres for accommodating people seeking asylum so that the stated groups and their family members cannot be accommodated in them.
The Lord Bishop of Durham
My Lords, I have tabled Amendment 29, with the noble Baroness, Lady Lister. I declare my interests in relation to RAMP and Reset, as set out in the register.
I have tabled this amendment again because in Committee we did not have as satisfactory a response to our questions as we had hoped on the basic details of what these accommodation centres will look like. We do not know how many or where these will be. We do not know how many people will be accommodated in each one. I am not assured that the previously terrible, and now still wanting, conditions provided at Napier will not be repeated. We are being asked to agree to the use of accommodation centres without any information or reassurances of what they will look like, where they will be, and so on. We can only go on what we see as existing provision on MoD sites. That makes me very concerned—I remind the House that I had the privilege of visiting Napier barracks recently—and gives me strong reason to call for their use to be restricted, so that the vulnerable groups set out in this amendment cannot be accommodated in them. I continue to believe that placing people seeking asylum in housing in communities is much better for everyone.
I therefore ask the Minister for her agreement that we are given opportunities to discuss the design of these centres before the relevant regulations are laid in draft and before contracts are offered. We would like some clarity on when the regulations will be laid, a clear commitment that no unaccompanied children will be placed in such centres, and, although we would prefer no families at all in such centres, if there were to be families with children there, that suitable family accommodation and suitable safety arrangements for them would be provided in them. It is not my intention to press this to a vote. We hope that this debate will give an opportunity for the Minister to place some further reassurances on the record about accommodation.
Baroness Lister of Burtersett (Lab)
My Lords, I am very pleased to support this amendment—
The Deputy Speaker (Lord Russell of Liverpool) (CB)
I assume that the right reverend Prelate is moving the amendment.
Baroness Lister of Burtersett (Lab)
My apologies; it is getting late.
I am very pleased to support this amendment. When we debated it in Committee with regard to children and families, the Minister said that there were no current plans to place them in accommodation centres but that if a child was destitute and there was a place for the night, she could not say that the child would not be so placed. However, she promised to think further on the points made and I hope that she has been able to do so. I have two reflections which build on what the right reverend Prelate has said.
First, the Minister suggested that a child in a family, who was destitute, might have to be placed in a centre, but given that she told us that such centres were only for people who are destitute anyway, I am not sure how much comfort to take from that. Can she elucidate further please? Can she also confirm that it would only be for a night, or possibly two, that a family would be housed in an accommodation centre as an exception, which was what she implied? Can she give us an assurance that no family with children will be placed in a centre for more than the briefest of time in an emergency?
The Minister also reminded us that unaccompanied asylum-seeking children would not be placed in such centres. As the right reverend Prelate said, it would be good to have absolute assurance to that effect. Can she tell us what will be the position of a child who turns 18? Might they be moved into such a centre at that point? It is impossible to consider this group without also taking into account the fears expressed by many organisations that the age assessment clauses, which we will debate later, could mean many more children wrongly being assessed as adults. Therefore, in practice, unaccompanied children might be housed in such accommodation, which clearly the Government rightly consider unsuitable for unaccompanied children. What safeguards can there be against that? In Committee, I also asked the Minister what assurances she could give us that the use of accommodation centres will be accompanied by more robust screening and protection than exists at present, to ensure that those with particular vulnerabilities are not housed in such centres.
However, no such assurances were given, other than the repeated statement that there will be individual assessment before placement in accommodation centres. None the less, it is clear from various sources of evidence that such an assessment does not exist at present nor is it providing effective screening for those with particular vulnerabilities. Indeed, the APPG on Immigration Detention, of which I am a member, has been told that, despite the June 2021 High Court ruling, there does not appear to be any significant improvement in such assessments. Charities report that people with particular vulnerabilities continue to be accommodated in Napier barracks. Therefore, can the Minister tell us what is being done to improve the assessment process?
Finally, as a fellow insomnia sufferer, the Minister said she would take back the point I raised about the impossibility of sleeping in Napier barracks dormitory-style accommodation because of the constant noise at night. I wondered if she had anything to report on that.
Baroness Hamwee (LD)
My Lords, I do not make light of the difficulty of providing accommodation. Batting the blame between central and local government, as is sometimes done, is not going to advance the issue at all. As the right reverend Prelate has said, the debate in Committee focused on Napier. I thought it rather conflated accommodation of asylum seekers on arrival with long-term accommodation. Only a decade ago, my honourable friend Sarah Teather MP—as she was then—achieved very significant change, as a Minister, in both the law on, and the attitudes towards, the care of children with families in detention and subject to removal. More recently, we have had Stephen Shaw’s report on the impact on vulnerable people, and so on.
I accept that the Minister will say that the accommodation in question is reception and not detention. In a way, that is my point. The objective must be to receive people thoughtfully, humanely and in a welcoming and supportive way. Accommodation centres must not feel like detention. There was some discussion in Committee about whether people would be able to leave them—not for specific appointments, but because they felt like going out for a walk. The way that they are designed, organised and staffed is absolutely essential to their good working. The Explanatory Notes refer to “efficiency”. I do not think that this is incompatible with the approach that I have outlined, but they also refer to “compliance” and that worries me more. I wonder why that merits a separate mention.
This amendment demonstrates the concerns of the sector which arise from experience over a long period. I missed signing it by a couple of minutes on the day it was tabled by the right reverend Prelate. However, on behalf of these Benches, we support it.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise very briefly to offer Green support for this amendment and to address one specific point and one specific question. The right reverend Prelate, in introducing this, set out how little we know about what is proposed of these accommodation centres, and how much we know of their horrors. In Committee, the Minister and I discussed a particular horror with which I had personal contact during the Covid pandemic.
I also note that there is a continuing situation where the High Court ruled that people in hotels and other accommodation are entitled to £8 a week to meet some of their basic needs. This includes being able to afford a bus fare to attend an interview, or to buy some basic hygiene products. Looking at the list of people who the right reverend Prelate has included in this amendment, it is worth a question here. Imagine being a parent of a child and not ever being able to buy any sort of treat for your child. If the child really wanted some little piece of food, the parent would not be able to buy it. Instead, they would get only what is provided in the three meals a day in the canteen.
I know that we are still waiting for a description of what these accommodation centres are like. Can the Minister confirm, following the High Court ruling, that there will be at least a very small basic payment for people in the accommodation centres so that they can have some kind of choice and some kind of life?
Lord Rosser (Lab)
My Lords, I will certainly wait with interest to hear the response that the right reverend Prelate the Bishop of Durham gets to this amendment, because, if I understood him correctly, he said that it is the same amendment he tabled before. I understand that he asked for information and assurances about accommodation centres in Committee, and it is because he did not get them either in Committee or since then—he has had nothing in writing; presumably he asked the questions quite clearly in Committee about what he wanted—that he has had to table this amendment today, and will table it again, seeking to exclude vulnerable groups from the accommodation centres.
I hope that in their response the Government will explain why it has been so difficult to give the right reverend Prelate the answers to the questions he raised last time seeking information and assurances in respect of these accommodation centres. I do not understand what the difficulty can be since, presumably, in putting forward that there will be accommodation centres, the Government have some idea of what they will and will not provide and what they will and will not be like, and are in a position to give assurances when they are sought.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank noble Lords who have spoken to this amendment. I just say from the outset that the Bill does not actually create accommodation centres—that was done back in 2005—but when we have more detail on the accommodation centres, I will be very happy to provide it to the right reverend Prelate, including any detail about design.
On the question of how long someone might stay there, the usual time is about six months. I agree with the noble Baroness, Lady Hamwee, that they have to be humane, welcoming environments.
On the question of who we might accommodate in the centres, as I said before, we will accommodate people only after an individual assessment. There are no current plans to use the centres to house families beyond this. The centres will be used to accommodate only those who require support because they would otherwise be destitute, so those who obtain accommodation with friends or family are not affected by the measure. It is to prevent people becoming destitute.
The provision has nothing to do with unaccompanied minors; it is about adults in the asylum system and their dependants who are accommodated by the Home Office under the powers in the Immigration Act. Unaccompanied minors are not accommodated under these powers.
On the point about certain individuals not being suitable for these centres, there are no plans to accommodate in this type of accommodation asylum seekers and failed asylum seekers who are not destitute. As I have said, those who can obtain accommodation with friends and family will be unaffected. Individuals will have opportunities to disclose information as supporting evidence as to why they should not be housed in accommodation centres, and we do not have current plans to use centres to accommodate those with dependent children.
I may have said this before, and the noble Baroness, Lady Lister, has just mentioned it: it is not possible to completely rule out placing those with children in accommodation centres in the future, because if there are no available flats or houses to house them in, it might be a better option for them, depending on their situation, and certainly better than using hotels.
On whether they are detention centres, the answer is no. I do not think the noble Baroness, Lady Hamwee, was asking whether they were detention centres; she was making the point that they are not detention centres, and that is correct: people are free to move about. Individuals applying for support because they are destitute will naturally be expected to live there because they have nowhere else, but, as I have said, they can leave the centres at any time they wish because they have obtained alternative accommodation.
I had just asked a question of the Box about payment, and I am going to double-check whether I have the answer. Here it is: facilities at the accommodation include catering, therefore individuals will not require cash for food during their stay, but cash might be provided for other essential items not provided in kind. I hope that with that, the right reverend Prelate will be happy to withdraw his amendment.
The Lord Bishop of Durham
My Lords, I thank the Minister. I take very seriously the commitment to ongoing conversations, because the important thing is that the sector and people like us can stay engaged in the conversation to ensure this. We will watch as accommodation centres grow in number so that they are places of welcome and so on, but the purpose was to get some more on the record, for which I thank the Minister. I beg leave to withdraw the amendment.
Baroness Stroud
“Changes to the Immigration Act 1971
(1) The Immigration Act 1971 is amended as follows.(2) After section 3(2) (general provisions for regulation and control) insert—“(2A) Regulations under subsection (2) must provide that persons, and adult dependants of persons who are applying for asylum in the United Kingdom are granted permission by the Secretary of State to take up employment if—(a) a decision at first instance has not been taken on the applicant’s asylum application within six months of the date on which the application was made, or(b) a person makes an application or a further application which raises asylum grounds, and a decision on that new application, or a decision on whether to treat such further asylum grounds as a new application, has not been taken within six months of the date on which the further application was made. (2B) For the purposes of subsection (2A), regulations must ensure that permission granted allowing people applying for asylum in the UK, and their adult dependants to take up employment, are on terms no less favourable than the terms granted to a person with recognised refugee status.(2C) This permission is to be valid until the claim is determined and all appeal rights have been exhausted and individuals granted permission to work will be issued with physical proof of the right to work.””
Baroness Stroud (Con)
My Lords, Amendment 30 in my name aims to introduce the right to work for asylum seekers who have been resident in the UK for more than six months. The arguments for the right to work have been well articulated in Committee and earlier, but I will summarise them so that we are clear.
I will begin with the economic arguments. The latest figures show that 125,000 people are waiting for an asylum decision. Every study shows that the net benefit to the state would be tens or hundreds of millions of pounds every year in improved tax-take. The UK economy is recovering after Covid and a lot of jobs have been created, but this has, in turn, created labour shortages. It makes no sense that asylum seekers who can drive HGVs or serve in our NHS are forced to sit around doing nothing for more than a year while they await a decision from the Home Office.
The second argument is one of integration. There is considerable evidence that the right to work has a large, positive impact on the integration of asylum seekers. The Government’s Migration Advisory Committee itself recently underlined that shorter waiting times had a large, positive impact on long-term employment outcomes for asylum seekers. Indeed, discussing refugees’ access to the UK labour market, one leading academic in asylum and refugee policy refers to what she calls the
“inherent contradiction between UK refugee integration strategies that focus on employment, and restrictive government policies that negatively affect access to the labour market.”
There is also the argument of public support for this policy. The policy is overwhelmingly popular with the public: 73% of red wall voters support the right to work, according to recent polling. Business leaders back easing the ban on the right to work, with the Survation poll showing that two-thirds of business leaders back it. It is rare to find a policy that has these three characteristics: economically advantageous, socially advantageous and politically advantageous.
There is one final reason why this is an amendment that the Government should accept. There is also a basic human dignity argument for this policy. We believe that every individual should be able to support themselves and their family. In fact, we would go further and say that, as Conservatives, we believe that every family has a personal responsibility to do so where they can. We have repeatedly, as a party, made the argument that work is the best route out of poverty, so the intention of this amendment is to ensure precisely that. Let people support themselves and create their own pathway from poverty to prosperity while they await a decision. The lack of the right to work makes people vulnerable to exploitation, declining mental health, poverty and modern slavery.
If the human dignity arguments do not convince Ministers, this amendment should also be viewed as purely pragmatic. Reforms to the asylum system proposed through the Nationality and Borders Bill will take time to come fully into effect. In the interim, while asylum cases are being processed, the asylum system continues to be under considerable strain. By offering asylum seekers the right to work, the Government will take pressure off themselves. I anticipate, however, that the Minister and other colleagues might be inclined to dismiss this amendment, using the argument that the right to work could be a so-called pull factor. So, before I finish, I want to address the reasons I believe this is not the case.
First, push factors, such as war and famine, as we are seeing in Ukraine, drive refugee flows far more than pull factors do. Secondly, as I have said before in this House, the real pull factors are our language, our culture, the rule of law, democracy, historical ties through the Commonwealth, family connections and liberty—and we are not about to sacrifice any of these, thank goodness. Thirdly, it is worth noting that the UK is currently an outlier in enforcing a 12-month wait period for work and then placing strong restrictions on which employment can be taken up. No other nation, whether any across Europe, the States, Australia or Canada, has such stringent requirements. It is worth asking why they have not considered the right to work to be a pull factor. Finally, this view is backed up by the experts. The Government’s own Migration Advisory Committee underlined that there is no evidence in academic research that people decide to claim asylum based on these kinds of factors. The Home Office itself commissioned a study that showed little evidence of a link between economic rights and the destination choices of those seeking asylum, and, to my knowledge, it has never produced evidence to the contrary.
All of this is to say that I believe that the Government could quite legitimately, without any nervousness and in line with their own poverty strategy of families working their way out of poverty, adopt this amendment that allows asylum seekers to work after six months of being in the UK. I will be listening carefully to the Minister’s response. I beg to move.
Baroness Lister of Burtersett (Lab)
My Lords, I strongly support Amendment 30. In Committee, the Minister said that the Government’s opposition to the right to work was based less on the pull factor argument than on the impact on the integrity of the labour market. That is just as well. As the noble Baroness said, we have yet to see convincing evidence of the pull factor any better than the selective and somewhat misleading quote from a study that the Minister offered in Committee. She mentioned an impact assessment on that, which I believe is yet to materialise. When can we expect it?
If we consider the numbers involved, it is difficult to see how labour market integrity will be compromised. Indeed, the combination of the effects of the Bill and the welcome promised speeding up of applications, to which Amendment 53 in the name of my noble friend Lord Coaker should add some teeth, should reduce the numbers affected significantly. I imagine that the Migration Advisory Committee will have considered the integrity of the labour market before recommending the right to work after six months and in any occupation. Yet the Minister did not even mention the MAC report raised by a number of noble Lords in Committee.
Neither did she mention the MAC’s argument, and one central to the case I made, concerning the impact of the ban on working on integration, mentioned by the noble Baroness, Lady Stroud, which supposedly remains a government goal. Nor did she acknowledge the statement I read out from MIN Voices, made up of asylum seekers, who said that not being able to work made them feel less than human and corroded their self-respect and dignity—again, echoing what the noble Baroness, Lady Stroud, said. As the chair of Surrey Heath Conservatives pointed out on ConservativeHome —my new favourite reading—this very much chimes with Conservative values, so that in his view the ban is “fundamentally un-Conservative”.
I conclude by repeating the plea of MIN Voices’ plea to
“see us as human beings not a number. Let us build our life and future and not waste our time and skills”.
I should also mention the article by Sarah O’Connor of the Financial Times, who ended her recent analysis of the labour market implications of the ban by saying that
“if people want to work, we should let them”.
Baroness Meacher (CB)
My Lords, I very strongly support this amendment, to which I have added my name.
In Committee, the Minister referred to the integrity of the labour market as a route being one reason to reject this amendment and the noble Baroness, Lady Lister, dealt with that very well, so I will not repeat her comments. The only other real argument against reducing the UK’s exceptional period before asylum seekers can apply for permission to work was, as the noble Baroness, Lady Stroud, said, the so-called pull factor encouraging asylum seekers to come to this country. I want to say a bit more about that because it really is very difficult to take seriously under the circumstances. When Germany allows asylum seekers to work after three months, Italy after two months, Portugal after just one week, can our Government really justify the current one-year ban and argue that if we changed it, there would be this serious pull factor problem?
If the Minister accepts this amendment, we will have the same employment restriction as France, Spain, Denmark, Poland, the Netherlands, Ireland and Greece, and we would remain more restrictive than all other western European countries. Ireland was the only other western European outlier until it recently reduced its nine months restriction down to six months in 2021. This amendment would do no more than Ireland did to bring it into line with the list of countries I have already referred to.
The fact is, the UK has a longer employment restriction for asylum seekers than any other comparable country. I just feel ashamed of us, to be honest—I think it is disgraceful. Moreover, it seems the Government have no grounds to argue that enabling asylum seekers to work will, in fact, act as a pull factor. A recent review of 29 academic papers on this subject found that there was no correlation between the right to work and where people seeking asylum chose to seek protection; the noble Baroness, Lady Stroud, explained that perfectly clearly so, again, I do not need to repeat her words.
The other very important reform in this amendment is to end the iniquitous limitation on asylum seekers, even after the 12-month ban, to jobs on an extremely limited shortage occupation list—I seem to remember one of them was a ballerina or something. How many asylum seekers can really take up ballet? This renders employment impossible for the vast majority of asylum seekers until their application is finally approved.
The assumption behind this amendment is that asylum seekers would, after six months, become automatically eligible for a work permit, enabling them to become self-employed or to take up any job, to pay taxes and national insurance, and so on. It will be very difficult to justify not accepting this amendment.
In summary, I do not accept the arguments put by the Minister in Committee. I just hope that she and her colleagues have reconsidered their position. On 8 December 2021, I understand that the Home Office said in a Written Statement that it had concluded its review of the current policy. This is surely a perfect moment to introduce reform.
The Earl of Dundee (Con)
My Lords, I join my noble friend Lady Stroud and others in strongly supporting this amendment. The proposition is that asylum seekers who have waited six months for an initial decision should be allowed the right to work.
Clearly, and as has already been said, this measure can provide important safeguards. Not being held up from work assists motivation, attitude of mind and mental health, as it also preserves dignity and protects against the danger of modern slavery. Yet it might be alleged, or wrongly assumed, that such benefits to the applicant come at a high price—even at an unacceptable price—to the host country: that the workforce would thereby become top-heavy causing much national resentment and attracting too many to come here from other countries. Yet, on all these three counts, the truth is the complete opposite.
As my noble friend Lady Stroud pointed out, 125,000 people await an asylum decision. With our current labour shortages these numbers, if allowed to work, would considerably boost our economy; that is also well recognised. Far from fear and resentment, there is wide national approval, with over 70% believing that asylum seekers in the system longer than six months should have the right to work.
Baroness Ludford (LD)
My Lords, the arguments have been put very well and very strongly. I am very pleased to co-sign the excellent amendment in the name of the noble Baroness, Lady Stroud. Her speech was really excellent. Others have demolished the pull factor argument and I do not wish to say any more on that.
The noble Baroness, Lady Williams, said in Committee:
“To relax the policy would be totally to undermine everything that the British people voted for in 2019”.—[Official Report, 3/2/22; col. 1062.]
This has really nothing to do with Brexit, but the noble Earl, Lord Dundee, just quoted a statistic of 70% of people supporting asylum seekers being able to work. That is quite similar to a YouGov poll today which says that 77% of the British public support relaxing visa restrictions on Ukrainian refugees, refuting the idea that the public do not appreciate these arguments, whether it is about refugees or, in this case, asylum seekers.
This is not a partisan proposal; it has been said that it is thoroughly Conservative—I would like to say it is thoroughly Liberal Democrat or Labour as well—but it is not of itself party political. To us, its proponents, it is a win-win. It enables asylum seekers to stand on their own two feet, support their families, pay tax—that is the economic side—and to help them integrate. I cannot remember whether I quoted it in Committee, but I saw a statistic that said that if asylum seekers do not get that sort of flying start—and of course those who do not qualify for refugee status will have to be removed in the normal way, whether they have been working or not—it can take 10 years to recover from a period of initial deterioration. People’s mental and physical health, their self-regard and ability to mesh with their community is so damaged by not being able to work in an initial period that it takes a very long time for them to recover, and that harms the host society.
I do not believe that the Government are on the same page as public opinion on this one. It really it not logical. If the Government were able to meet the target, which they are failing at horribly, to make an initial decision within six months, then this proposed new clause would not come into effect, because the right to work comes into effect after six months. There is nothing to fear if the Government actually put their resources into frontloading the system—as so many of us have argued for ad infinitum.
Accepting this amendment is a no-brainer, and the noble Baroness has got a considerable brain, so she is going to find it quite difficult to refute the truly heavy arguments for this amendment.
The Lord Bishop of Chelmsford
My Lords, I give my strong support to Amendment 30 in the name of the noble Baroness, Lady Stroud. She has eloquently made the case for this amendment, so I do not intend to take a great deal of the House’s time, but I wish to add a few brief remarks in support.
At Second Reading, I raised the question of how different our migration policy might be if we stopped looking at asylum seekers as either victims without agency or criminals seeking to exploit us and instead as future citizens and neighbours. In this light, the right to work for asylum seekers who have waited six months or more for a decision represents an excellent opportunity. It would be good for asylum seekers and for the soul of this nation. Such people are often left without agency or dignity. Their identity becomes limited to a sort of victim status. Being unable to work leaves them dependent on the state or at risk of falling in with illegal labour exportation.
Legal employment represents a chance for people to contribute to their own welfare and that of the common good. It is a way for them to bring their skill and efforts to their new communities, to make friends and to integrate. It provides an opportunity for others to meet and understand these newcomers, and to see them as willing contributors rather than chancers or criminals.
Work is not just a means to a wage or an economic benefit to a business and a community—although, as we have heard, it might be all these things—but innately social. It is activity done with and for others. It is a contribution to common life. That is something we should look to foster and encourage, as it is a means of building stronger ties of fellowship, stronger communities and stronger citizens.
This argument has been advanced before in this place and has been rejected. However, with new recommendations from the Migration Advisory Committee and the sense of momentum we can hear in the House this evening, I hope we might be able to make some progress.
Lord Bethell (Con)
My Lords, I support Amendment 30. My noble friend Lady Stroud has put extremely well the reasons why this was never a good policy. On basic Conservative principles—that the route out of poverty and into prosperity is through work—this measure fails dismally. It was never good even when it was first brought in. I concede that maybe the people who brought it in thought it would give them some kind of credibility in the public eye that they were being tough on migration, and that maybe 20 years ago it looked like we faced the end of history. But both those things are no longer true, and if we look just a little down the line to the future they will be emphatically not true. As a number of noble Lords, including the noble Baroness, Lady Lister, pointed out, the public are strongly with us on this. The sight of Ukrainian refugees coming to Britain looking for sanctuary will only increase that.
We have not seen the end of history. I am afraid we are going into a very turbulent period of history where refuge and asylum will be sought by hundreds of thousands of people around the world. We will we face an enormous debt to our neighbours to try to provide them some form of sanctuary. We already have 125,000 people waiting over six months for a determination. What kind of number do we need to get to before we change the system? I hope the Minister will use this opportunity to review a bad policy, to move on and to develop a better policy that is suited to the future.
Baroness Stowell of Beeston (Con)
My Lords, my noble friend Lady Stroud makes some very strong and compelling arguments in favour of her amendment. I certainly take the view that asylum seekers should indeed be allowed to work as soon as possible once a decision has been made about their application. I think the citizens of this country would support that and want that very much. However, a matter that would raise concern for people would be if we introduced a law that allowed asylum seekers to start work before a decision on their appeal—or rather their application for asylum—had been decided.
Rather than support my noble friend’s amendment, I ask my noble friend the Minister what the Home Office is doing to deal with the backlog of applications for asylum currently sat in the system. My noble friend Lady Stroud referred to the number: 125,000. What more resources is the Home Office applying to become much more efficient and effective in processing those applications? To me, that is where we should focus our effort—not on introducing a law that would mean that asylum seekers are automatically allowed to work before a decision has been made on their status in this country.
Lord Marlesford (Con)
My Lords, I strongly support my noble friend Lady Stroud’s amendment for one simple, overriding reason. One of the big problems of handling the big numbers involved—125,000, as we have been told—is morale. One of the crucial elements of morale is hope. If people do not have hope, they really do deteriorate. The loss of hope for a long time is a terrible thing to inflict on anybody.
As to whether their employment can be accommodated, there is one obvious area where there are limitless opportunities to do something that would make people really feel part of the country and would remain for ever: the whole field of conservation. An enormous number of projects could be carried out; they would be exciting to do and very fulfilling. I certainly hope the Government accept my noble friend’s amendment.
Lord Kerr of Kinlochard (CB)
I hope the Government accept the amendment from the noble Baroness, Lady Stroud, which clearly is supported all around the House. I believe it is supported in the higher ranks of the governing party. I quote from no less an expert than Mr Dominic Raab in the Spectator from 2 October:
“If they learn the language and they can work, they integrate much better and they make a positive contribution.”
Correct.
The noble Baroness, Lady Ludford, said it is a win-win. No less an authority than the Adam Smith Institute and Bright Blue said that asylum seekers pay increased tax and national insurance revenue and we pay them a lower asylum support payment, and that it is a win for the Exchequer. These are very Conservative arguments, and they happen to be true. It is a win for them and a win for us. I hope the Government accept the amendment.
Baroness Hollins (CB)
My Lords, I rise to speak to Amendments 30A and 84A, but I also support the amendments from the noble Baroness, Lady Stroud, and I will explain why as I introduce these two amendments.
I first thank representatives from the Royal College of Psychiatrists and the Helen Bamber Foundation for their support of these amendments. The proposed new clause in Amendment 30A would make provision for the Secretary of State to
“commission a review of the processes and services”
that will be in place and their impact on
“the well-being of refugees and asylum seekers.”
We know a great deal more about the long-term impact of trauma on people’s mental and physical health, their memory and their ability to make sense of their experiences, adjust to a new situation, engage productively in work, advocate for themselves and avoid being retraumatised. The very system designed to protect them, whether by poor design or by poor execution, risks worsening the health of refugees and people seeking asylum, and increasing their vulnerability.
With respect to work, there is evidence that people with mental health problems of any sort who are out of work for more than six months have real difficulty getting back into work—ever. This is a really key, important point. Research by the Royal College of Psychiatrists has evidenced that people with significant mental illness, as well as those with evidence of torture or sexual or gender-based violence, are being detained despite their mental health-related vulnerabilities, and that their mental health is deteriorating further in immigration detention. This remains the case, despite the statutory guidance on adults at risk and associated caseworker guidance introduced by the Government in response to the highly critical Shaw report.
The health needs of refugees and those seeking asylum require close multidisciplinary working, continuity of care and a regular review of these processes to ensure that, unlike what happened in Napier barracks, these systems are working in the way intended. I urge the Minister to commit to a review of the processes and services in place with regard to the well-being of refugees and asylum seekers, carried out by a body with the necessary expertise.
Lord Hodgson of Astley Abbotts (Con)
In following my noble friend Lady Stroud, I shall plough a lonely and, I fear, unpopular furrow by suggesting to the Minister that we ought to reject this amendment. I greatly admire my noble friend Lady Stroud for her commitment and the work that she has done in these areas, but I still think that her amendment should be rejected. As my noble friend Lady Stowell pointed out, of course these are asylum seekers whose cases have not been determined. Some of them will be asylum seekers, and some of them will not find their case, and they will become in effect economic migrants. I absolutely accept that the time that it is taking to determine the cases is very long and debilitating to all parties concerned, but I am concerned because, if we allow people to use the asylum route as a means to move forward faster, it is at the expense of those who wish to come here as economic migrants from the beginning.
Secondly, I do not accept the argument that forum shopping—looking around for the best place to make your future—is not a factor. Of course, it is not in every case, but it is a factor. I will not weary the House at 10.20 pm with the list of things, which run from the diasporas to the respect for individuals, the chance to learn English, flexible labour markets, and so on, but they are undoubtedly factors that encourage people to come here.
Nearly every case that I have heard being made now is based on the economy, and the economic prism is undoubtedly an important one, but there are prisms other than that. The impact of each one of us—whether we have just arrived here, seek to come here or have been here for some time—is not just about our economic performance. We make demands on our society of a house, a school, a hospital and a place for our children to play. We have an impact on the green belt, the availability of open space and our future food and water security in an increasingly uncertain world. We expect, overall, that between now and 2040 there will be another 4 million people in this country.
Members of your Lordships’ House have talked about public opinion and where it stands on the issue, but I can tell your Lordships that 71% of people believe that this country is already too crowded and that the Government do not have any plans to deal with the challenges that that causes. If you reset that polling so that it just asks the minority communities, 61% are still equally concerned about the prospects that lie ahead not for us in this House but for our children and grandchildren, if we do not take steps, wherever we reasonably can, to ensure that the growth of population in this country is limited as far as possible. With the best will in the world—I accept the good intentions of my noble friend—her amendment does not tick that box. It encourages the growth of population; it does not discourage it.
Baroness Bennett of Manor Castle (GP)
My Lords, I point out to the noble Lord, Lord Hodgson, that the whole point of the amendment is to ensure that people who may be making demands on houses, schools and hospitals can also build those houses, staff those schools and provide care in those hospitals. Briefly, I want to add “Green” to the list of of parties mentioned by the noble Baroness, Lady Ludford, that support the right to work for asylum seekers. Indeed, I can date that back to at least 2006, when I joined the Green Party. Pretty well the first event I went to was one hearing from refugee women who expressed their desire for the right to work and were very pleased that that was Green Party policy.
I am well aware that the Minister is far more likely to listen to voices behind her—and I urge her to do so—then she is to me, but I point out that the six-month restriction on the right to work was brought in by the Labour Party in 2002 and strengthened in 2005, so the Government would be reversing a Labour policy.
Finally, as I often seek to do in your Lordships’ House, I reflect the voices of the people most affected, who are calling, as the hashtag goes, to “Lift the Ban”. A man called Mahmoud was recorded by Asylum Matters. He said: “It would make our lives meaningful and useful at the same time if we could work.” Please listen to that voice.
The Lord Bishop of Durham
My Lords, I fully support the amendment from the noble Baroness, Lady Stroud, and my noble and right reverend friend behind me here supports it as well. I will speak to the amendment from the noble Lord, Lord Coaker, and the two amendments from the noble Baroness, Lady Hollins, which I fully support.
We may have 125,000 asylum seekers but let me focus on two. This is why I support both amendments. One is an asylum seeker who lives in my area who heard from the Home Office within the first three weeks of arrival then heard nothing for 12 months, in spite of inquiry after inquiry. That is why we need a code of practice. That is why we need better ways of working. It beggars belief what that says to him about how he is seen in our society and by our society. That is, of course, told time and again.
The second case is an Afghan who came out last summer on the planes and whose family is still in hiding in Afghanistan. Last week they were hunted by the Taliban; they escaped. He sent me through last week the letter he had just received from a Home Office official. It is four lines long, giving him the number that he has been allocated, with not one jot of sympathy about what he might be facing.
I accept that the official will not know or be able to verify the story that I have heard but the processes themselves do not treat people as people. They treat them as case numbers. We need the kinds of provisions that the noble Baroness, Lady Hollins, has proposed and we need to deal with these cases much faster. That means we employ more people and we upskill them. That is why I support the amendment from the noble Lord, Lord Coaker. The right to work falls away, as the noble Baroness, Lady Stowell, noted. That is not going to happen in a hurry, so we need the right to work now but we also need the other provisions.
Baroness Hamwee (LD)
My Lords, the argument from the noble Lord, Lord Hodgson, seemed to be addressed more to refugees than asylum seekers and I think that almost everyone who has spoken about the right to work of asylum seekers has urged faster decision- making. I want to speak to the two amendments in the name of the noble Baroness, Lady Hollins, to which I have added my name.
The House has heard many noble Lords stress the importance of a trauma-informed approach and the difficulties of almost every asylum seeker, I would have thought, in telling their story almost as soon as they get here after dreadful experiences. It must be dreadful, even if the journey is quite straightforward, to tell the story coherently and fully. I fear the Home Office has not yet got it.
The Minister wrote to me last week on the interpretation of “without delay” and I thank her for that. She has had an awful lot of letters to write during the course of the Bill. The official who wrote this one said that
“if someone was fearful of acknowledging their homosexuality to the authorities, then it may be reasonably practicable for them to make a claim some time after arrival, as we recognise the extremely difficult process of coming to terms with one’s own sexuality.”
If an asylum seeker has experienced what we know in some countries people experience because of their sexuality, I do not think that “coming to terms with one’s own sexuality” begins to describe it. That is why these amendments are needed.
Lord Green of Deddington (CB)
My Lords, I will very briefly speak to Amendment 30 and say that I very strongly agree with the remarks of the noble Lord, Lord Hodgson, who I thought said some very valuable things.
I would like to say and make it clear that I am actually in favour of asylum. I believe that it is absolutely right in principle but I find in this debate and more generally that there is something of an assumption that all asylum seekers are genuine and, frankly, they are not. Indeed, the very careful process that they go through finds that nearly half of them are not accepted as asylum seekers.
The risk of moving this to 12 months is that some applicants—those who are not genuine, of course—would have an incentive to spin out their cases until they reach the six-month point, which would not be too difficult, and then they are here and that is it.
The noble Baroness, Lady Stowell, hit the nail on the head. First, what we must avoid is the possibility of work before acceptance as a genuine refugee. Secondly, that points to the need to speed up the process, which is what is causing all this difficulty. If we could get the cases resolved in a reasonable time, those who really deserve it would get it—and good on them—and those who do not would be in a queue to be removed.
Lord Coaker (Lab)
It is good to see the Chamber filling up, despite the fact that it is me speaking.
I speak in support of all the amendments in this group. I am interested in supporting the amendment of the noble Baroness, Lady Stroud—I am going to be a Conservative—but I welcome the noble Baroness, Lady Stowell, and the noble Lord, Lord Hodgson, clearly speaking in support of my amendment. It is good to see them supporting a Labour amendment, so it is interesting here.
The really serious point about the amendment was made by the right reverend Prelate the Bishop of Durham. I apologise to the Chamber because I really should have put this down in Committee. It is more of an amendment for Committee than for Report, but it goes to the heart of the problem that we are trying to deal with. I do not agree with the noble Lord, Lord Green, on much, but he often makes the point that, until the administration of the asylum system is sorted out, we are trying to knit fog. That is the basic problem. The Government are chasing this, as the previous Labour Government did, and there is a real problem with respect to it.
The example that the right reverend Prelate gave could have been given by most people in this House. As a Member of Parliament, I could have given example after example of people who have come here and claimed asylum and the system has lost them. Then they reappear a few years later, having been to school. It is unbelievable quite how the system has allowed them to operate and work within it, yet officially they are not supposed to be here; their claim is still supposed to be being sorted out.
My Amendment 53 is simply a way of trying to say that, unless we get a grip on this, in the next year there will be another asylum Bill and in two years there will be another. And then the Labour Government will come in with another asylum Bill. The reality is that, while each and every one of us is motivated by the desire to do the best thing by those fleeing persecution, in the way we have seen with refugees, the system simply cannot find a way of dealing humanely and properly with people who seek asylum in our country. You get euphemisms about accommodation centres, et cetera, and people having to report on a regular basis—all those sorts of things. That is why the business of being able to sort out whether people have a legitimate claim and are accepted by the system as asylum seekers or refugees, or not, is so important. That goes to the heart of it.
I apologise to the Minister because, as I say, this is a debate for Committee rather than for Report. I have no intention of voting on it; I just got frustrated with the fact that each and every one of us was chasing our tail trying to deal with a system which, by the Government’s own admission, is broken. They are trying to fix it but in a way which makes many of us say “We understand there are problems, but the way you are trying to fix it won’t work and we will be left with the same situation”. That is why I support the amendment of the noble Baroness, Lady Stroud. She very articulately and powerfully argued the point as to why it is important to give the right to work to people who are still awaiting their decision after six months.
I agree with the right reverend Prelate the Bishop of Durham: you could say that, if the Government adopted Amendment 53, it would be a real incentive for them to get their act together, so that they did not have the situation where people had the right to work even though their decision had not been made, in the way that the noble Baroness’s amendment would indicate. I think it was the noble Baroness, Lady Meacher, who pointed out that country after country has different arrangements with respect to the right to work and does not have the same problems as we do. I very much support that.
I want to highlight one aspect rather than repeat everything that the noble Baroness, Lady Stroud, has put so ably—and other Members have supported her amendment. My point is this: the Government will oppose this amendment on the basis of the pull factor; they have no evidence for it, but that is exactly what they will do. The last Labour Government did exactly the same thing in 2002 and 2005 because they were persuaded by the argument that there must be a pull factor—there just must be. As the argument went, asylum seekers will come here, they will be able to work, they will tell all their friends and family and they will all pile over here, as it is easy to get in, they will be able to work and do the jobs and they will be well paid, whereas, actually, they will be in the hidden economy and half the time people will not even know that they are working. That will be the argument. They will put it in much better English, much more articulately, much more in civil servant speak—but that is what they mean.
I do not know what the politically correct term is any more, but the Government set up these false windows, where they put up their hands or palms, and say, “This is what we are having to go through: the Government are having to stand up to a middle-class establishment elite”—as represented by your Lordships, including me—“and we are battling through this because, in doing so, we are representing public opinion as evidenced by the fact that we won the 2019 election. Public opinion is on our side, so this is a necessary pain we have to go through.” That may be right on one or two things, but on this it is fundamentally wrong. That is not where the public are on this.
There is only one thing on which I slightly disagree with the noble Baroness, Lady Stroud: I think it is not about integration but, more importantly, about social solidarity. As it has been articulated, it is a belief that when people have been here a certain amount of time, they should work. That is what people think; that is the general view of the public. If the system has not sorted out whether they should be here but they are living in our country and our housing and things are being provided for them, they should work. That is what people think. I do not care whether it is a car mechanic, a brain surgeon, somebody who is out of work, somebody in the north or the west of the country—whoever; that is what they think, and it is what I think.
It is reasonable for people to expect that. People do not say, “I tell you what, they shouldn’t work because there’s a pull factor.” That would be ridiculous—it is just not true—but I do think that people look down their road, or across the road, or in the village next to them, or on the farm or in the supermarket and, when there is a problem, they say, “Why don’t those people who have come from wherever, who are awaiting a decision—why can’t they work? Why can’t they do it?” I have never heard anybody say, “They can’t do it: it’s a pull factor.” It is just nonsense; it beggars belief.
I wanted to highlight that because, for me, it goes to the absolute heart of it. People would expect those people to work. I agree that it is good for asylum seekers themselves and their family to contribute to a country in which they hope to have permanent residency, providing they go through the necessary checks, but the community around them expects that as well; and that social solidarity and human dignity is everything. That is why I support the amendment from the noble Baroness, Lady Stroud. Alongside that, I think that Amendment 53 is important, and the Government will have to get this sorted out. Otherwise, we will be knitting fog again in another year or two.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken to this group of amendments. I am grateful to my noble friend Lady Stroud for bringing Amendment 30. The issue has been much debated and it hinges on two issues really: the integrity of our immigration system and pull factors. I want to correct a figure that has been mooted a couple of times this evening: there are actually 81,000 people awaiting an initial decision, not 125,000, but it is a large number nevertheless.
A more relaxed asylum seeker right to work policy creates a back door into our labour market. We have just set up a world-leading economic migration scheme, which provides ample opportunity for people of varying skill and educational levels to apply to come and work in the UK. In fact, this scheme was a core manifesto commitment; it was not about Brexit. However, we cannot afford to turn around and offer people the opportunity to undercut it through simply lodging an asylum claim. Our policy is a constituent part of a whole; it does not operate in isolation. As my noble friend Lady Stowell said, someone who comes to the UK and is found working illegally can claim asylum as a way to prevent removal and then get the right to work. That does not seem logical to me.
I will repeat that, where reasons for coming to the UK include family or economic considerations, applications should be made via the relevant route: either the points-based immigration system or our various family reunion routes. We know that people want to work in the UK. Why would they not? We have a strong economy and labour market. That is why we cannot discount the risk of even more channel crossings if we relaxed our asylum seeker right-to-work policy. This issue has been debated at length in the past. However, I want to be clear that the motivations for fleeing one’s country of origin—of which noble Lords are well aware—and the motivations for moving from one safe country to another are not the same.
According to a 2009 article by Norwegian academics Jan-Paul Brekke and Monica Aarset, there is a hierarchy of considerations which migrants make when choosing a particular country. The first is, of course, that it is safe. The second—more important even than family networks—is the existence of future opportunities, which include:
“the welfare state, education, the jobs market and good conditions for bringing up children.”
These are things which are shared by all northern European countries, including France. This importance of future opportunities is clear through similar academic literature on secondary movements, in which economic considerations, including the ability to work, are consistently cited as a primary factor in choices about moving from one safe country to another. I am afraid that noble Lords continue to conflate reasons for leaving countries of origin with reasons for making those secondary movements, which is misleading and unhelpful for the purposes of this debate.
Noble Lords will be aware that the French cite the ability to work as a pull for those making channel crossings. Whether that is about the availability of work in the shadow economy or not is actually quite irrelevant. The point that we are being told by senior French Ministers is that these people are motivated to move from one safe country to another because they want to work. This was reiterated in a sobering BBC World Service investigation into the tragedy in the channel last November. Through deep research into the lives and families of the victims, the journalists ultimately found that they were all motivated to come to the UK from France for economic reasons. The solution here is to decide cases more quickly, and that is what we are doing through the wider new plan for immigration. I hope that this has been a good explainer of the background.
My noble friend Lady Stroud said that 71% of people think that the right to work is a good idea if people are waiting for a decision for six months or more. I would counter this with a YouGov poll from October of last year which showed that only 45% thought that the right to work was a good idea. This takes the issue completely out of context and ignores the bigger picture concerns. In light of the fact that 73% of people thought that illegal channel crossings were a serious issue, 50% of people thought that the UK does not have a responsibility to protect people—against 35% who thought that they did. In addition, 65% of people thought that Britain should refuse to accept asylum applications, and 55% thought that the current approach of the Government to small boats was too soft. I say that this Government have a clear mandate to ensure that there is no incentive for people to make secondary movements across the channel where academic evidence suggests that many do it for primarily economic reasons.
The noble Baroness, Lady Lister, and the right reverend Prelate the Bishop of Chelmsford talked about addressing the integration needs of asylum seekers. Of course, that is absolutely true, but not all of those who seek asylum are found to need international protection. As the noble Lord, Lord Green of Deddington, said, 50% of asylum seekers are refused even after appeal, so that spells that out.
Baroness Stroud (Con)
My Lords, I thank everyone who has contributed to this cross-party debate for their insightful and well-argued remarks. The comment of the noble Baroness, Lady Lister, that ConservativeHome is her new favourite reading, was the revelation of the evening. I felt that the remarks of the noble Lord, Lord Coaker, on social solidarity hit the nail on the head.
I heard the Minister’s response. She used the twin argument of the integrity of our Immigration Service and pull factors to dismiss Amendment 30. Across the House, I thought we were able to pretty much rebut the right to work being a pull factor. The integrity of our Immigration Service is questionable too, when other European nations, Canada, Australia and all the other nations mentioned by the noble Baroness, Lady Meacher, can maintain the integrity of their immigration services and not reject the right to work for asylum seekers.
Like all of us across the House, I believe that if we are to become the nation I know we are meant to be, with well-managed borders but a respectful and compassionate asylum system, this amendment can contribute much to creating such an environment. As we have heard in the contributions this evening, the right to work for asylum seekers after six months is a policy that is economically, socially and politically advantageous. It confers dignity on those who have sought safety here and, as we have heard, there is little to no evidence that it creates pull factors. It would also help the Home Office with pressure on its claims system.
I believe that there is support in the House for the amendment and that, even at this hour of the night, it would be appropriate to test the will of the House.