Grand Committee
Bereavement Benefits (Remedial) Order 2022
(1 year, 4 months ago)
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Viscount Younger of Leckie
That the Grand Committee do consider the Bereavement Benefits (Remedial) Order 2022.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Viscount Younger of Leckie) (Con)
My Lords, I am pleased to introduce this remedial order, which was laid before the House on 13 October. It will extend the higher rate of bereavement support payment and its predecessor, widowed parent’s allowance, to bereaved cohabitees with dependent children. These benefits can currently be paid only to survivors who were in a legal union—that is, married or in a civil partnership—with the deceased on the day they died.
In the McLaughlin judgment in the Supreme Court, handed down on 30 August 2018, and the Jackson case in the High Court, handed down on 7 February 2020, the legislation on WPA and the higher rate of BSP respectively was declared incompatible with Article 14 of the European Convention on Human Rights. This article requires all rights and freedoms set out in the Act to be protected and applied without discrimination. In both cases, the courts found that, by restricting eligibility to those in a legal union, current legislation discriminates between children on the grounds of the legal status of their parents’ relationship.
This order provides a remedy for both Great Britain and Northern Ireland. It does so by amending the Social Security Contributions and Benefits Act 1992, the Social Security Contributions and Benefits (Northern Ireland) Act 1992, and the Pensions Act 2014. I am satisfied that the provisions of the order are compatible with the European Convention on Human Rights. The Joint Committee on Human Rights has reported on this draft order and recommended its approval.
I will put this draft remedial order into some context. It was in 1925 that financial assistance following a bereavement, in the form of national insurance pensions for widows, was first introduced. This was open to all widows whose husbands fulfilled the contribution conditions, paid at a flat rate with additional allowances for children. This reflected the widely held expectation at that time that a woman would not return to work after marriage.
Further reforms culminated in the introduction of three new bereavement benefits: widowed parent’s allowance, bereavement allowance and the bereavement payment, all in 2001. WPA replaced widowed mother’s allowance, and extended support to both widows and widowers with dependent children. Like its predecessor, it was intended to provide ongoing financial support following the death of a spouse or, from 2005, a civil partner.
The bereavement payment was a one-off payment for surviving spouses, both with and without dependent children. Bereavement allowance was a short-term payment for widows and widowers aged 45 or over with no dependent children. It was not possible to get both widowed parent’s allowance and bereavement allowance.
It became evident that this system of bereavement benefits, based on outdated assumptions, was complex to understand and administer, and could be unfair to claimants. With universal credit’s introduction—a benefit designed to help with ongoing living costs—there was a need to look again at the whole package of bereavement benefits, but especially widowed parent’s allowance, which could be paid for the same purpose. So we modernised bereavement support by introducing a new benefit, the bereavement support payment, from 6 April 2017, to help with the more immediate costs of bereavement and to allow for a period of adjustment.
Although we do not specify what these costs are, it is our intention that they should be those associated with the bereavement. Each family will have different priorities. For some, it could be funeral costs or dealing with debts left by the deceased. For others, it may include budgeting adjustments following a loss of income or additional travel simply to meet family members.
BSP consists of an initial lump sum followed by 18 monthly instalments, and a higher rate is paid for those with dependent children to recognise that families with children may need extra help. Unlike its predecessors, it is tax-free and disregarded for the purpose of income-related benefits, thereby helping those on the lowest incomes most.
Bereavement benefits have only ever been payable to those who were in a legal union with their deceased partner. They are contributory benefits, with eligibility linked to the national insurance contributions of the deceased partner. Such inheritable benefits, derived from another person’s national insurance contributions, have historically been based on the concept of a legal union.
I will now move forward and outline what this draft order covers. Eligibility for WPA and the higher rate of BSP will be extended to surviving partners with dependent children who were living with their deceased partner as if they were married or in a civil partnership on the date of death. This includes partners who are or were pregnant on the date of their partner’s death, and there will be no qualifying period of cohabitation. This change will benefit thousands of families with dependent children.
This draft order applies to those who would have been entitled to either of these benefits on, or from, 30 August 2018. This was the date on which the Supreme Court, in the McLaughlin case, ruled existing WPA legislation incompatible with the European Convention on Human Rights and, effectively, the date on which the incompatibility was accepted as final. The Committee will know that it is exceptional to make social security change retrospectively; we consider this a logical and fair start date.
For BSP, where the death occurred before this order becomes law and the claim is received within 12 months of that date, claimants will get the full amount due to them. If the claim is received later, the claimant will get up to three backdated monthly payments, plus any remaining monthly payments due. The claim must be made within 21 months of the order coming into force for any BSP to be payable.
Where a claimant’s partner died before 30 August 2018, we will make a part payment and no initial lump sum will be payable. Where the death occurred after this order comes into force, BSP will be paid subject to the usual claim time limits: 12 months for the initial lump sum and three months for each instalment.
Claimants will be eligible for WPA where their partner died before 6 April 2017 and they continued to meet the entitlement conditions on 30 August 2018. They too must claim within 12 months of the date the order comes into force. They may also be entitled to ongoing payments if they continue to meet the WPA eligibility criteria at the point of claim.
Extending these benefits to cohabiting partners means that there may be cases where more than one person claims for the same death. This could apply in cases of polyamory or people dividing their time between two households, or where there is a separated spouse who no longer lived with the deceased. As noble Lords can appreciate, this is a complex area and my officials have been working hard to develop an approach that balances protecting taxpayers’ money and the contributory principle, while ensuring that any approach reflects people’s real-life circumstances.
In these cases, this order proposes that we pay just once per death, prioritising who was living with the claimant on the date of death. Where there are claims from different addresses, entitlement would be established as part of the normal decision-making and appeals processes.
In very rare cases, more than one potential claimant may have been living with the deceased on the date of death. Here, entitlement will be decided according to a hierarchy, intended to reflect the most established relationship as this person would usually bear the majority of the bereavement costs. Should this leave more than one potential claimant and become more complex, the Secretary of State would determine who is entitled.
Transitional protection will ensure that those already in receipt of WPA or BSP before the date this order comes into force do not lose their entitlement for the duration of their award. WPA is treated as income for the purpose of income-related benefits, such as universal credit, and is assessed at the point of award.
This order provides for all retrospective WPA payments up to the date of claim to be treated as capital and disregarded for 12 months, or 52 weeks for the purposes of income-related benefits. This ensures that claimants will not lose any existing entitlement to income-related or passported benefits, such as free school meals, as a result of receiving a retrospective award. This order also ensures there is a disregard for the same period for retrospective BSP awards. The usual rules will apply to future BSP and WPA entitlements.
We do not propose any changes for the treatment of income tax; BSP is already tax-free and WPA will be taxed according to the period of entitlement, as per the existing rules. We will communicate to make WPA claimants aware that any payment under this order may incur an income tax liability. The payment of BSP does not affect a person’s tax credit entitlement. WPA will be treated as income for tax credit purposes, as is common practice for social security benefits. It will be assessed in the year of payment rather than entitlement, so no adjustments to past years will be needed.
In accordance with paragraph 3(1) of Schedule 2 to the Human Rights Act 1998, a proposed draft of this order was laid for a 60 sitting-day period on 15 July 2021 to allow for Members of both Houses and other stake- holders, including the JCHR, to make representations. I fully considered all the representations made on the draft proposed order before preparing this draft for affirmative resolution. In doing so, I agreed with the recommendation of the JCHR to amend the order to ensure that pregnant WPA claimants were covered in the same way as those in a legal union. I also agreed with its recommendation to ensure that the implications of the retrospective effect of the order on entitlement to income-related benefits be taken into account. I have also included a number of technical amendments in response to comments made by the JCHR.
Finally, I emphasise how straightforward it will be, as we see it, for people to claim. We already know from our evaluation that claimants have a very positive experience of claiming bereavement support payment, with 97% reporting satisfaction with the process. We have also provided a paper claim form especially for cohabitees, accessible online at GOV.UK or by calling DWP’s bereavement service. For BSP, there will also be the option to claim online.
With that detail behind me, I have pleasure in commending this order to the Committee. I beg to move.
Baroness Hayman (CB)
My Lords, I am grateful for the opportunity to speak today and to the noble Viscount for the clarity with which he introduced this order. As he made clear, there are many complexities around the subject but the reason that I am here today is very simple.
In October 2020, I received an email and I shall read some of it: “Dear Madam, I am writing to you to raise an issue with the Department of Work and Pensions. On 12 September 2020, my partner of 12 years sadly passed away after losing his five-year battle with kidney cancer. He leaves behind me and our six year-old son. When going to apply for a bereavement support payment, I learned I was not entitled to claim this support as my partner and I were not married or in a civil partnership. I am writing to you because I feel this is a very unfair law and needs to be reviewed straight away, especially when we are going through a national pandemic and I find that I am not the partner of a very strong and resilient man any more, and I have been left these difficulties and increased anxiety as I face bringing up a child alone. I am by no means begging but I do think that this is discrimination to couples who love each other and live with each other as man and common-law wife with children, because they haven’t got a piece of paper to say they are together. I hope you can raise this issue.”
Baroness Altmann (Con)
My Lords, I too very much welcome this order. I am most grateful to my noble friend the Minister for his excellent introduction and explanation.
Enabling co-habiting bereaved partners to be treated the same way as those who are legally married in claiming the widowed parent’s allowance or bereavement support payments is something for which I think there is unanimous support. Indeed, I have found it extraordinarily difficult to justify denying these payments to cohabiting couples in the past when, in other tax and benefit calculations, there is no differentiation in this way; often, that can be to their financial detriment. This order is most welcome.
Echoing the words of the noble Baroness, Lady Hayman, I pay tribute to my noble friend Lady Stedman-Scott and welcome my noble friend Lord Younger to his position. I am most grateful to the Low Incomes Tax Reform Group for its briefing and the work it has been doing on this change and want to raise a few issues relating to the potential tax and benefit consequences of surviving partners receiving backdated lump-sum payments pursuant to this order. If the Minister does not have the answers today, I am happy for him to write to me.
The first issue relates specifically to the widowed parent’s allowance, as this benefit is taxable, unlike bereavement support payments. Lump-sum back payments could well give rise to tax demands for the recipients, when they are applied to past tax years for which they were due. In many cases, recipients are unlikely to have a tax adviser to help them look back over past years. They may have spent the money and, as a consequence of this order, face sudden tax demands and penalties for which they are unprepared. The documents accompanying this order state that the DWP will flag cases to HMRC, but how will this work in practice? Could it give rise to a potential problem for the claimants which, after all the years they have been waiting for this money, seems to be something to be avoided—if we can?
Paying the lump sums gross runs the risk of the money being spent. What measures can the Government implement in practice to protect claimants? Could my noble friend tell us, for example, how the DWP might work with the Treasury to jointly identify those who may be affected, perhaps by using national insurance numbers to link up records, and help people to understand how much tax they need to pay? The JCHR recommends that recipients should be clearly reminded, but might my noble friend consider going further and, perhaps, more proactively involving MoneyHelper or some other direct communication that clearly warns that tax may be due on this money, so that it does not come as a surprise?
The second issue relates to recipients of back payments who are on means-tested benefits. I welcome my noble friend’s confirmation that the lump sums resulting from this order will indeed be disregarded, but I hope he can also reassure us on a point that has been raised—it may already have been catered for—about whether, as I hope, there is a sensitive interpretation of the deliberate deprivation of capital rules. People who suddenly have a change in lifestyle because they have received a lump sum that they should have had over a period should not then be considered as deliberately depriving themselves of capital or should not lose out in some other way.
How will backdated lump-sum awards be treated for tax credits? I thought I heard my noble friend say that these are disregarded for universal credit and means-tested benefits, but is that the same for tax credits? I suspect it is not, from listening to my noble friend. It seems wholly unfair for the DWP to treat the payments as capital and disregard the income, other than that relating to the current year, when HMRC treats them as income in that year for the purpose of tax credits.
I know that tax credit legislation is complicated, and it refers to the amount of widowed parent’s allowance being payable. That may be what is driving some of this, but as this relates to past years, it was actually payable previously rather than being—one could argue—payable today. It seems like a grey area. I wonder if the Government might consider building a specific income disregard into regulations if the current position cannot be remedied.
Finally, I echo the comments of the noble Baroness, Lady Hayman, on the importance of reaching out to potential claimants, particularly as there is a time limit, to ensure that people know that they can claim and come forward with their claims. This could be through some national advertising campaign, or maybe the Government already have a database with some indication of cohabiting couples or past claimants who were turned down who can be contacted. Overall, I very much welcome this order and thank my noble friend for his introduction.
Lord Davies of Brixton (Lab)
My Lords, I thank the noble Viscount for his useful introduction and give a more general welcome; I suspect that we will be endlessly discussing a series of regulations over the coming months. I thank the noble Baroness, Lady Hayman, for reminding us that there are people involved here. It is easy when you just have a printed set of regulations to think it is just shuffling paper, but there are real people out there who will benefit from these changes. Clearly, we have to welcome that.
Part of the problem is—I take the points raised by the noble Baroness—the mechanics of how this is operated: not what is set out in the regulations but how it will be applied in practice by the officials involved. It should be done as sensitively and practically as possible. I am particularly interested in taxation and how tax is applied to these payments. This is a particular problem which is going to get bigger, and we will be discussing it again. It is a result of the fact that, for all intents and purposes, state benefits are outside the PAYE system.
The problem is that we know the personal allowance will be frozen for a number of years, at a time when inflation is at high levels. With benefits tied to inflation and a frozen personal allowance, more and more pensioners are going to be dragged into the PAYE system on relatively limited amounts of non-state pension income, which will have to be used to pay the tax, potentially, on their state pension. Many people have state pensions in excess of the personal allowance given their credits under SERPS. I think this is going to be a growing problem. It is one I hope the DWP will be able to discuss with HMRC.
My personal situation is that I suffer from this. I have a pretty good state pension and I have to pay tax on quite a large slice of that income out of other income. I manage it because I have the resources to do so, but people on the margin are going to find it increasingly difficult. The example mentioned is one where the closest co-operation between DWP and HMRC is crucial. Politically, it would be advantageous to get the situation sorted, because it will lead to a lot of concern and debate.
My final point relates to the evidence requirements for cohabitation. Most rules applied in the social security sphere about cohabitation tend to be there to take away benefits rather than grant them. Will the department apply the same rules that it applies when it comes to means-tested benefits about cohabitation, or will there be a separate set of rules? If there is a separate set of rules, is there a possibility that it will work against the individual at both ends? To just put in the Explanatory Memorandum that the evidence requirements will be produced “in due course” rather misses the sharp end of this legislation. How it works in practice will depend on the evidence requirements, and it would be useful if we could be told a bit more about where the evidence requirements will fit as compared with other examples where cohabitation affects benefits of different sorts.
Lord Jones (Lab)
My Lords, I thank the Minister for the context in which he placed the order, which was so persuasively itemised, and the department for the detail given in the Explanatory Memorandum. It is a warm-hearted and welcome measure, and it is good to see the Committee populated by caring colleagues.
In relation to paragraph 7.10 of the Explanatory Memorandum, is it possible to give an estimate of the number of retrospective payments now available to our fellow citizens through the measure? Has work been done on such figures? Is there a global figure? Is there any information on the likely typical average amount of retrospective money that might be paid out? Does the department know that sort of figure for that sort of person? Indeed, are there any statistics that might be given to make this welcome measure easier to assess by number and amount?
Baroness Brinton (LD)
My Lords, I too start by thanking the Minister for his helpful explanation. I apologise for not being able to attend the briefing, but Monday mornings are a problem.
On balance, we on these Benches are as pleased as other speakers that this has now come to fruition. We are grateful for the work that the previous Minister, the noble Baroness, Lady Stedman-Scott, did on this. The example given by the noble Baroness, Lady Hayman, was extremely helpful, and the points raised by the noble Baroness, Lady Altmann, and the noble Lords, Lord Jones and Lord Davies, on some of the other implications, such as tax, are very interesting.
I am sorry that I will now get into some really difficult areas; I hope the Minister will bear with me. I appreciate that I am creating a scenario to which there may not be a speedy response, and I am more than happy to have a written reply. I am particularly interested in paragraphs 7.23 to 7.25 of the Explanatory Memorandum, which set out the determining hierarchy should there appear to be more than one claimant. It is very helpful.
In his introduction, the Minister talked about polyamory, but there are other circumstances as well, such as where people with caring responsibilities live under the same roof, which might include familial members who are not actually spouses but, in the event of the death of the parent—for this purpose I am assuming it is a sole parent who is dying—there are others who will take over responsibility for the children. I know that there has been some concern over multiple claims, and paragraphs 7.23 to 7.25 helpfully set out the priority order.
For me, the issue is much more about the JCHR’s proposal that this benefit should be identified as belonging to children. I am not sure it said it should be paid directly to the children, but because much of it is determined on the age of the children it is clearly designed to support extra costs for somebody with children who has lost a partner. For me, that is important, because I want to raise the issue of kinship carers.
I make a full declaration: I think that my husband and I counted as kinship carers 20 years ago when we became foster parents and then guardians, approved by the family courts, for our best friend. When she died, her children joined us. We had to navigate all the systems in place at that time, which included going to the family court and getting the residency order. That enabled us to claim child benefit for the children. I know that is now means tested, but I am talking about eligibility for child benefit.
The organisation Kinship consistently reports that family members who take on responsibility for children after a partner either has been unable to look after them or has died, as in this circumstance, have ended up having to leave their jobs, not being entitled to benefits and finding every barrier put in their way because they are not typical family carers. Even though they may have had to go through the fostering approval process, as we did, because the courts need to be satisfied that they are capable of looking after and taking responsibility for the children, they are not entitled to foster payments because they are regarded as kinship carers.
The “Emmerdale” actor Jay Kontzle, who was raised by his grandparents after his mother died when he was four, recently said he saw at first hand the way it affected their lives. His grandmother had to stop work and they both had to take on the very difficult task of looking after their orphaned grandchild. It is helpful that he has done that. Kinship surveys have shown that 45% of carers give up jobs and have found repeatedly that they were not eligible for support.
I am remembering my schoolgirl Latin. There is a word, “num”, which notoriously requires a negative answer. I think I expect a negative answer, but there is a real injustice here for this group of kinship carers, whose identification is confirmed by the courts and other benefits but who would not be eligible under these arrangements unless they were living in the same house. How long do they need to live in the house? I wonder whether the Minister can look at this. It may be that this is one of those special cases where there is nobody else who would obviously qualify but where it is needed, for the children and the life changes they will face, for the kinship carers to be considered eligible.
Baroness Sherlock (Lab)
My Lords, I thank the Minister for his introduction to this remedial order and all noble Lords who have spoken. I always think that any debate that starts, “Let me give some context from 1925” is never going to be speedy, but let us work through what we have heard today.
Before I start, I congratulate the noble Baroness, Lady Hayman. It is always lovely to find that somebody who writes to a Member of the House of Lords is listened to, the issue is taken up and something happens. I congratulate her on her perseverance, as well as the former Minister, the noble Baroness, Lady Stedman-Scott, on her willingness to listen.
I would be very interested to hear answers to a number of the questions that have come up. Obviously, I am glad the Government are stepping forward to take the appropriate response to fulfil their legal obligations. We would not want in any way to stand in the way of this, but there are some important questions still to be asked about how it will work in practice, as my noble friend Lord Davies said.
First there is the question of how DWP will make decisions on whether someone was cohabiting with a partner who has died and therefore is eligible for support. As we have heard, DWP has established practices to decide whether someone is cohabiting. Many years ago, I ran a charity working with single parents, and the rumour mill was alive that the “two toothbrushes test” was the one deployed. Whether or not this was ever the case, the assumption is that in plenty of cases there was no formal evidence, such as a shared rent book or shared bills, yet people were held to be cohabiting when in fact they were being given benefits as a single parent.
There is no question that the DWP has ways of determining this. The noble Baroness, Lady Altmann, pointed out that it has always been able to do so. Indeed, ironically, widowed parent’s allowance was not given to someone who was cohabiting, but you lost it if you started cohabiting after you were bereaved. There obviously must have been some means for making this assessment.
My noble friend Lord Davies asked a really good question: will the criteria be the same for this as for other tests that are applied? If the Government could explain that, it would be really helpful. I would be very interested in the answer to the question raised by the noble Baroness, Lady Brinton, about the hierarchy and the breadth to which that is accepted.
The next thing I found myself wrestling with is the fact that WPA is an “overlapping benefit”, in the jargon, so presumably there will be some people who claimed another contributory benefit because, at the time, they were deemed not to be eligible for widowed parent’s allowance, yet they should have been and had they been entitled to WPA they might have been better off. Can the Minister tell us whether the previous benefit payment is off-set against the backdated WPA where this happens? If so, over what period are the payments?
As we have heard, the order has retrospective effect to the date of the McLaughlin judgment in 2018. My noble friend Lord Jones asked some very good questions about how many people will be affected and the global sum involved. To take that on a stage, can the Minister tell us the most that any one person could be due in backdated benefits? I want to know because of the point raised by the noble Baroness, Lady Altmann: if the sum is large enough for someone on modest means, they might want to husband it quite carefully, but if that is the case, they might have some left over when they go into the next financial year because it has been disregarded for only 12 months. If so, they could find themselves penalised and given less in means-tested benefits in the following year because they had this capital sum available. Will they be told that? How will they be warned that this could happen? The other side of the coin—the point made by the noble Baroness, Lady Altmann—is: if they decide to spend it all in the first 12 months, is there any danger that it then gets treated as notional capital because the rules on deprivation of capital hove into view? If the Minister could reassure us, that would be helpful.
The next question is on tax credits. I confess that I am quite confused on this. I was trying to listen to what the Minister said, but I did not quite catch it. Tax credits do not treat capital in the way universal credit does, so I am still not clear as to how any backdated lump-sum payment for WPA will be treated for those on tax credits. I think I heard the Minister say that a backdated payment will be assessed in the year of payment, not the year of entitlement. Can he confirm that? Could he possibly confirm to me now, before I carry on asking questions, whether that lump sum is treated as capital or as income for tax credit purposes? Maybe he could nod if it is capital or if it is income—I am trying to avoid having to intervene to ask the question again when he responds. If it is treated as capital and it is all treated in the year of payment, then it is disregarded and we do not have a problem; if it is treated as income, we do. In which case, can he explain what happens? What is it set against? Is it just the tax credit entitlement in year? Is there any effect from previous years? If this is the case, I assume there is no question of going back and reopening finalised previous tax credit awards. Is there any implication for previous years’ tax credit awards that are not yet “finalised”, in the jargon? Could that happen in any way?
Finally on this point, there is the question of the benefit cap. WPA and BSP both count towards the benefit cap, so it is obviously possible to imagine that a lump sum might take somebody over the benefit cap threshold when an annual entitlement would not have. Will this be affected by the benefit cap, or will the cap be applied retrospectively to previous years by attributing the relevant WPA to each year? What will happen there?
On the money front, there is the question of taxation. As we have heard, BSP is not taxable but WPA is, and in the year of entitlement rather than the year of payment. Therefore, if a lump sum is paid for backdated entitlement, tax is likely to be due on that. Like others, I read the very interesting briefing from the Low Incomes Tax Reform Group. It pointed out that the plan seems to be to pay lump sums gross rather than net of tax, so the obligation then rests on the claimant to pay the backdated tax. I think I heard the Minister say that the Government will flag these cases up to HMRC so that it knows to make an assessment for tax, and I think he said they will flag it up to the claimant so that they know the tax will be payable. Could he clarify that last point in particular? Will they be told what is payable and which tax year it applies to? Many of those people will not have an accountant or any way of understanding this, but they need to know how much of this lump sum to keep to give to the taxman down the line, rather than spending it and then finding themselves even worse off.
Viscount Younger of Leckie (Con)
My Lords, I start by thanking the Committee for its overall support for and approval of this order. I wholly appreciate that I am very much the messenger here as I am new to the role. For once, having spent 12 years in the Lords, having dealt with some challenging legislation and issues and having said myself that something will be brought forward “in due course” or shortly, I am the messenger for the great work that my predecessor, my noble friend Lady Stedman-Scott, has done and brought to fruition. I am delighted that we have come to this point, with this order bringing cohabitees into this area; as I say, I pay tribute to my predecessor for that.
A vast number of questions were asked. Many of them were very technical so, again, I feel that I have been thrown in the deep end. All the questions were fair; I will do my best to answer them. I know that I will not be able to answer all of them; certainly, I can already feel quite a detailed letter coming the way of noble Lords to be sure that I answer all their questions. When bringing in a new order of this nature, such questions are obviously natural. I am particularly aware of the question asked by the noble Baroness, Lady Brinton; I will come to it towards the end of my speech. I am not sure how much I can help her, but she referred to an interesting case.
Let me start with the noble Baroness, Lady Hayman. First, I thank her for her points. Secondly, I thank her for the letter she mentioned; as I moved into this role and took over from my predecessor, I picked up a letter, and there is a letter answering some of the noble Baroness’s question on its way to her. Her first point was very fair. She asked why this order has taken so long. My answer is that remedial orders can take longer than many other orders because they involve extensive consultation and, of course, parliamentary scrutiny. Also, in the introduction of the pandemic, we needed to divert departmental resources.
That said, the main reason was the delay resulting from the McLaughlin judgment in 2018; it made sense to wait for the conclusion of the Jackson case in 2020 before deciding how to proceed. Let me be the first to say that I appreciate that there was a pretty long gap between laying periods, but it is by no means unusual. I would also say that it was too long; I know that from the different cases that have been raised.
Additionally, officials have had to work through a number of complex policy, drafting and implementation issues, including those raised by the Joint Committee on Human Rights, which have required careful consideration. It is also vital that we get this right—I would say that, wouldn’t I, but I mean it. Throughout the process, the remedial order has remained a priority for this department and will continue to do so. Bearing in mind the number of questions that have been raised, I know there is quite a bit of work to do to see this through. I hope that provides some reassurance.
The question of raising awareness was raised by a number of noble Lords, starting notably with the noble Baroness, Lady Hayman, and continuing with the noble Baroness, Lady Sherlock. We are taking a range of steps to raise awareness of the remedial order, including updating GOV.UK and using existing DWP channels to communicate about this change. We are also working closely with external organisations to ensure that people have what they need to make an informed decision about making a claim.
To go a little further on this and answer a question raised by the noble Baronesses, Lady Hayman and Lady Sherlock, we want to ensure that people have what they need to make an informed decision about making a claim, but we will not be contacting previous claimants directly. We do not routinely keep details of people who had originally claimed and been refused benefit on the basis of being in a cohabiting relationship. However, my officials will develop an effective communication strategy that reaches out to as wide an audience as possible. That may not entirely satisfy the noble Baronesses who raised this question, but we were prepared for it and this is where we stand on that issue.
There is more, because how DWP staff reach out is also important. These changes will be delivered by the DWP’s existing bereavement services team, and officials have already been developing guidance, training and other products to ensure operational readiness on the go-live date. I am sure that there is more that can be done, but I hope that helps to begin with.
My noble friend Lady Altmann and the noble Lord, Lord Davies of Brixton, asked how payments of WPA are usually treated for tax and benefit purposes. As I think I said in my opening remarks, but to clarify, WPA is taken into account as income when assessing entitlement to other means-tested benefits, so is also taxable. I can and will write, because there is further detail that I can give the noble Baronesses on the lump sums, which they raised specifically.
The question of tax credits and how they will be treated was raised, again, by my noble friend Lady Altmann and by the noble Baroness, Lady Sherlock. Payment of BSP does not affect a person’s tax credit entitlement. To be clear, WPA will be treated as income for tax credit purposes, as is common practice for social security benefits. It will be assessed in the year of payment rather than in the year of entitlement, so no adjustments to past years will be needed.
However, I know that the noble Baroness, Lady Sherlock, raised a point about back payments. I do not have an answer to that, so I will write to her and copy in all Members of this Committee to answer that question.
My noble friend Lady Altmann asked about claimants’ use of their retrospective payments and whether, as I mentioned in my opening speech, it is viewed as deprivation of capital. We have a duty to ensure that means-tested benefits are paid to those who most need them, while also ensuring fairness to the taxpayer. The deprivation of capital rules are intended to apply to those who act with the intention to access or get more benefit. Therefore, provided any capital is spent reasonably, and not with the purpose of accessing or getting more benefit, claimants should not be treated as having notional capital. To define that, notional capital is taken into account in the same way as normal capital, where claimants get a retrospective lump sum. That was a bit of a convoluted response, but I hope that the department’s consideration of this was helpful.
A broader question from my noble friend Lady Altmann was on how payments of BSP are usually treated for tax and benefit purposes. She may know this, but the lump-sum element of BSP has a grace period, as it is intended to meet immediate needs—I think I alluded to this in my opening remarks—and is disregarded as capital for a full 12 months of universal credit. Additionally, the smaller monthly instalments of BSP are not taken into account as income for the full duration of the benefit award. This is more generous than the previous bereavement benefits, which were taken into account for income-related benefits. Unlike the previous benefits, BSP is not taxed.
The noble Lord, Lord Davies of Brixton, raised some further points about tax. Perhaps I might give an overarching response. BSP is tax free, as mentioned, while only WPA is taxed and is a legacy benefit; it can be paid only for deaths before April 2017. BSP and WPA are available only to working-age people, which I think the noble Lord will probably know.
Questions were raised about the ease of navigation. I hope that I can be helpful on that to the noble Baroness, Lady Sherlock, and the noble Lord, Lord Davies. This is an important point, as the operation of it is essential. I am happy to say that we already know that the process for claiming BSP is quick and clearly explained. I mentioned that the satisfaction level is very high at 97%. I am sure there is more that we can do but I am aware of some of the concerns raised about this. We are alive to this, as it is very important that people are not put off by not being able to operate the system properly.
My noble friend Lady Altmann and the noble Lord, Lord Davies, also asked about awareness of the changes. This perhaps goes a bit further than I went earlier. I already mentioned updating GOV.UK; I may also have mentioned that we are working closely with external organisations to ensure that people have what they need to make an informed decision about making a claim. I am pleased to say that for those previously refused entitlement, either by the Secretary of State or the tribunal, it will be open to them to make a new claim for benefit. The remedial order deliberately extends the time period for making such claims; this should ensure that all who qualify can access support, irrespective of whether they have claimed before. I think I pointed out, as far as I could, what we are doing to make people who had claimed unsuccessfully before aware that they could claim again.
The noble Lord, Lord Davies, and the noble Baroness, Lady Sherlock, raised a very important point on the evidence of cohabitation. They asked what evidence people will need to provide. The Committee will know that the onus will be on the claimant to prove cohabitation. We intend to use existing DWP IT systems to verify information provided by the claimant as part of their claim. If the information provided cannot be confirmed, the claimant will be required to provide two forms of documentary evidence. We will accept evidence in line with that currently accepted by DWP as proof of address. Where claimants are unable to provide documents, we will take a customer declaration over the phone. This approach follows the existing evidencing strategy for married couples and those in a civil partnership. We believe that this is a pragmatic and compassionate approach which minimises the impact on the claimant, is deliverable and protects against the risk of fraud. I would say also that, as this is new and coming in, we will obviously monitor it carefully, but that is where we stand at present.
The noble Lord, Lord Jones, asked an interesting question about the statistics on future retrospective payments and the average amounts. Unfortunately, as he might probably guess, I am unable to give the figures to him. They are not yet in the public domain but, of course, I am happy to write—but not quite sure when I can write—to him with the figures. It may be that somebody behind me can say it might be soon. The point is that his question is very much noted; I think it was echoed by the noble Baroness, Lady Sherlock.
Baroness Sherlock (Lab)
I am grateful to the Minister and thank him for the answers he has been able to give. He was unable to answer questions from my noble friend and me about the treatment of the lump sums, which are extremely important. They are at the heart of the way this order will be operationalised. Given that, according to the order, it takes affect the day after it is made, can the Minister undertake to write as quickly as possible?
Viscount Younger of Leckie (Con)
The noble Baroness raises a very fair point. I will speak to the team and see what we can do to write a letter quickly covering all the points, not just that particular point.
Transport (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2023
(1 year, 4 months ago)
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Lord Offord of Garvel
That the Grand Committee do consider the Transport (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2023.
The Parliamentary Under-Secretary of State, Scotland Office (Lord Offord of Garvel) (Con)
I am grateful for the opportunity to debate this order, which was laid on 22 November 2022. It is a result of collaborative working between the two Governments in Scotland. It is made under Section 104 of the Scotland Act 1998, which allows for necessary legislative amendments in consequence of an Act of the Scottish Parliament. Scotland Act orders are a demonstration of devolution in action. I am pleased to say that, although this is my first order, the Scotland Office has taken through over 250 orders since devolution began 25 years ago.
In this case, the order contains amendments to Section 26(1) of the Transport Act 1985 as a consequence of the Transport (Scotland) Act 2019, which I shall refer to as the 2019 Act. This provides new powers to the traffic commissioner to impose public service vehicle licence conditions on operators who fail to discharge obligations imposed on operators under the 2019 Act and the order. The 2019 Act is also a multitopic piece of legislation, designed to deliver a more responsive and sustainable transport system for everyone in Scotland. The 2019 Act makes provision in a range of areas, such as pavement parking, roadworks, workplace parking licensing, smart ticketing, low emission zones, and bus services—the latter three of which are the genesis of this order. It also empowers local authorities and establishes consistent standards in a range of areas to tackle current and future challenges regarding transport in Scotland.
I will now explain the effect the order will have and the provision it will make. It will permit the DVLA and the Joint Air Quality Unit to share vehicle information to relevant Scottish bodies to enable the operation and enforcement of the low emission zones.
The order will make provision updating the enforcement regime for the competition test under Section 37 of the Transport (Scotland) Act 2001, so that it applies to a Scottish local transport authority’s functions relating to bus service improvement partnerships, which will replace the quality partnership model introduced in the 2001 Act. This amended enforcement regime will also apply to the making and varying of ticketing schemes made under the 2001 Act after the amended regime comes into force. The order will also make equivalent provision to that made under part 2 of Schedule 10 to the Transport Act 2000, to apply a bespoke set of rules to certain agreements, decisions and practices made pursuant to bus service improvement partnerships, in place of the Chapter I prohibition under the Competition Act 1998.
Further, the order will make provision to ensure that the rights and protections afforded by the Transfer of Undertakings (Protection of Employment) Regulations —TUPE—will apply to employees who are affected when local services franchising is introduced in an area of Scotland. This includes provision allowing local transport authorities to request certain employee information from bus operators. In connection with that, the order will ensure that pension protection will apply to circumstances that are to be treated as “relevant transfer” for the purposes of TUPE, when local services franchising is introduced in an area of Scotland.
Although certain transport matters are devolved to Scotland, I am pleased to support the important legislation through this Scotland Act order on behalf of the UK Government. I beg to move.
Lord Bruce of Bennachie (LD)
My Lords, I am grateful to the Minister for that introduction. I have one or two questions. The order specifically focuses on low emission zones and integrated ticketing, including linking between railways and ferries, about which there is something of an issue in Scotland at the moment.
The reason why we require this is not entirely clear to me. What are the competition issues that require a UK agreement? I am not complaining about it; I want clarification. To put it the other way round: to what extent might there be a diversion within Scotland? Does that require UK Government consent or is it entirely a matter within the devolved responsibility?
To go to the specifics, low emission zones create some degree of controversy, not only in Scotland but elsewhere. I notice from looking at my local press that quite a few people are unhappy about them in Aberdeen and Glasgow. That is not a reason for not doing them; it is probably desirable to do so, but changes such as that mean that traffic going past certain businesses may change to their detriment. Do these issues have to be taken into account or are they just an unfortunate consequence?
On integrated ticketing, ScotRail and most of the ferries are wholly owned by the Scottish Government, although there are private operators, so what is the competition impact of that? Is it on other private operators —alternative forms of transport—which would seem valid to me? From looking at the various briefs, the established practice is clearly that each region and local authority in England has its own rules about this, and it seems that we are just applying the same rules in Scotland. Is that to have consistency across the piece so that, wherever they are in the UK, people can appreciate that the principles behind these will broadly be the same?
I concur with what the Minister said at the beginning. As a strong supporter of devolution—indeed, I would call myself a passionate home ruler—but not of separatism, it is good to see proper working between the two Governments; it is desirable. It would just be good if the Scottish Government could acknowledge that it happens a little more openly and be a bit more constructive about it, because to my mind that is how it should work.
Obviously, reassurance on TUPE—it is about workers’ rights, I guess, and is absolutely a UK matter—is welcome. I happen to be a member of the Common Frameworks Scrutiny Committee. We have been going through all these issues; indeed, the noble Lord opposite has also gone through that process, which has been slow and cumbersome and is a long way short of being complete. We are finding that there should not be difference for difference’s sake. It is good to have standard and agreed practices but divergence should also be allowed to apply. I want some assurance that, in passing this order, we are neither imposing conditions unnecessarily nor preventing diversion where it is necessary. On the basis that the Minister has said that it has been agreed between the two Governments, I assume that there are no outstanding issues of that sort.
Lord Jones (Lab)
My Lords, I thank the Minister for his remarks, which were lucid and forthright. Is it the case that the DVLA referred to in paragraph 7.2 of the Explanatory Memorandum is the DVLA at Morriston in Swansea? That is a huge, valued employer in Wales with a marvellous workforce. One does not want a Scottish competitor, if I may say so. It must be securely located in the Principality. Similarly, where is the Joint Air Quality Unit located? Is it a UK unit? Lastly—I want to be brief in this cool Moses Room—there is a reference in paragraph 12.1 of the Explanatory Memorandum to a “Justice Impact Test”. Can the Minister elaborate on what that process is?
Lord Tunnicliffe (Lab)
My Lords, I thank the Minister for introducing this order; I think he said that it is the first order he has introduced so I welcome him to this process. Having been involved in the process of statutory instruments for a decade, there are various responses to being here with this massive attendance, which is not untypical.
This is a devolution order. I have so far managed to avoid any such orders, so I will tread with care. It seems to me that the general philosophy, if the two sides have agreed this, is that the preponderant input is from the Scottish Government and that this order merely enables and completes it. It then seems that the order has three areas. One covers low-emission zones; here, it is clear that this is what Scotland wants to do in terms of such zones. There is also a section on bus services, ticketing and so on and a section on pay conditions and pension protection. My first question is this: why now? It seems that the essence of the order is to make the Transport (Scotland) Act 2019 work. That must have been sorted out three and a half years ago, so I am not clear on how it has worked in the meantime and why this was not done earlier.
The low-emission part is straightforward, as far as I can see, as is the employment part; they are perfectly sensible. The area where I had some trouble understanding was on the role of the CMA. The essence is in Article 21(1), on page 9 of the order, which says:
“A qualifying agreement to which this Chapter applies is exempt if— (a) it contributes to the attainment of one or more of the bus improvement objectives”.
That seems to be not exactly in conflict with but tested against paragraphs (1)(b) and (1)(c), which state that such an agreement is exempt if
“it does not impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives”—
I always love these double negatives—and
“it does not afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the services in question.”
Lord Offord of Garvel (Con)
I thank noble Lords very much for those succinct questions. I turn first to the noble Lord, Lord Bruce, and the operation of the low-emission zones. These are appearing in all parts of the UK. They tend to be devolved to local authorities, which are in a position to make up their own minds how they operate. We have them going in London and Oxford; in Scotland, Glasgow is now in its pilot. They are very much a devolved matter to allow the local authority to decide how to operate them in its own area. In fact, this whole order simply implements the devolved settlement.
The noble Lord, Lord Tunnicliffe, asked why it has taken so long, with the 2019 Act now coming here in 2023. I guess it is not the first time that legislation in Scotland has taken a while to come through the system. There is nothing particularly controversial in this; I assume it is just how the wheels have turned. This is very much to allow the Scottish Government to proceed with their traffic Bill, and we are working in co-operation with the Scottish Government. Low-emission zones will therefore be run by the local authorities.
The specific question about the ferries is a good one. The briefing I have here is very much in relation to the buses, because there will be some changes to the bussing arrangements. It is a change from the established system of quality partnerships to a new partnership basis, where the local authority will have a different arrangement with franchise operators. The noble Lord, Lord Bruce, is absolutely right to say that there is very little competition on the ferries, with Western Ferries perhaps being one of the few cases where there is. If the noble Lord does not mind, I will follow up specifically on that because the buses point is well covered but the ferries point is not covered quite so well.
On the other questions that arose, the DVLA remains in Swansea and remains a UK institution. All this does is to allow the transfer of information effectively from the DVLA to the Scottish authorities, so that will remain in place. Similarly, the Joint Air Quality Unit shall remain. The whole point of devolution is to allow the UK institutions to remain in place and the Scottish Government to interact with them.
In terms of the justice impact, there is always an impact assessment done on legislation. That is done by the Scottish Government on their legislation; we do not do a further impact assessment. The Scottish Government have done their impact assessment on this Act and they consider it to be positive for the community and the people of Scotland.
There is a similar issue around the role of the CMA and the Competition Act. We are not changing anything to do with UK law around the Competition Act. It remains absolutely as it was before; all we are doing is making a provision for bespoke competition regimes to apply, and it is part of the devolution settlement that that is the case. This is very much Scotland being allowed to run its own transport system and to make its own decisions locally, but by referencing UK institutions when required.
Lord Tunnicliffe (Lab)
Can I help the Minister by defining my question more precisely? In that paragraph there is a balance between two concepts: one is better buses and the other is preserving competition. Somebody has to decide which of those arguments works. I would have thought that could result in the CMA coming into conflict with the Scottish Government or the Scottish local authority that wants to introduce a much better bus service, or have I totally misread that?
Lord Offord of Garvel (Con)
The local rules for competition will be set by the Scottish Government within the Scottish jurisdiction. The whole point of this is to allow them to do that; they will set their own rules, hence the reason for changing the arrangements around buses. Under this order, the Scottish Government are able to implement the Act that allows them to change the competition rules for themselves, within their country. That is fully devolved to the Scottish Government.
Lord Tunnicliffe (Lab)
Would the Minister be kind enough to review that answer and, if he is not entirely happy with it, write to me?
Lord Offord of Garvel (Con)
I would be very happy to clarify that point. We have covered the matters raised, so I will finish by reflecting and agreeing with the noble Lord, Lord Bruce, on how the majority of business done between the two Governments is done by officials, behind the scenes, reasonably competently. We work very hard to do that through the interministerial groups that we now have with the Scottish Government. We have a very difficult situation in the other place today—the first time a Section 35 order has ever been implemented—but, on the whole, we work together closely. On that basis, I beg to move.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
We do not have a Minister—the noble Baroness, Lady Goldie, is not here—so I propose to adjourn Grand Committee for 10 minutes. If the Minister is not here, the Whip or someone else from the Government will take the next instrument. Grand Committee is now adjourned until 5.18 pm, when it will recommence.
Pensions Appeal Tribunals (Late Appeal) (Amendment) Regulations 2022
(1 year, 4 months ago)
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Baroness Goldie
That the Grand Committee do consider the Pensions Appeal Tribunals (Late Appeal) (Amendment) Regulations 2022.
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
I proffer my apologies to the chairman and the Committee. I am terribly sorry that my late arrival meant the adjournment of the Committee. We thought the Transport (Scotland) Act order would be a much meatier affair than it apparently turned out to be.
My Lords, we enter the somewhat technical world of the MoD Armed Forces compensation schemes, but we do so for an important and necessary reason: because the statutory instrument before us will change the rules allowing late appeals against decisions under the various Armed Forces compensation schemes in Scotland and Northern Ireland. The purpose of these changes is to align the rules for Scotland and Northern Ireland with the current rules in England and Wales.
The schemes provide compensation to persons who have sustained illness, injury or death wholly or partly as a result of service in the regular or reserve Armed Forces. Claims made under the rules of the various schemes are decided by the Secretary of State for Defence, and claimants who do not agree with the decision have a right of appeal against most substantive decisions. Before 2008, all such appeals were made to the Pensions Appeal Tribunal, which operated across the whole United Kingdom under the provisions of the Pensions Appeal Tribunals Act 1943.
Following the 2008 courts and tribunal reforms in England and Wales, a War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal was created in England and Wales with its own rules, made under an Act that extended to England and Wales only. The Pensions Appeal Tribunals in Scotland and Northern Ireland continued to exist under the provisions of the original 1943 Act.
As I have said, claimants who disagree with certain decisions by the Secretary of State may appeal those decisions; they have 12 months in which to make that appeal. There is also provision for what is known as a “late appeal”. This is an appeal that is made more than 12 months after the original decision but within 24 months, because no appeal is ever possible after two years. As a result of the 2008 reforms in England and Wales, a late appeal is accepted by the First-tier Tribunal unless the Secretary of State objects. If the Secretary of State does object, the tribunal has the power to consider the matter and admit the appeal if it is fair and just to do so. However, the provisions of the 1943 Act still apply to those tribunals in Scotland and Northern Ireland. Until recently, these provisions did not allow tribunals in those jurisdictions to treat late appeals with such flexibility, as they could do so only in specific circumstances set out in regulations.
The Lord Chancellor established a War Pensions and Armed Forces Compensation Advisory Steering Group to pursue consistency in the procedure for appeals across the United Kingdom. It concluded that existing late appeal processes may possibly disadvantage appellants in Scotland and Northern Ireland. The request to make these amendments came from the presidents of tribunals in Scotland and Northern Ireland. The devolved Administrations have been consulted on, and have approved, the draft regulations.
In 2021, amendments to the 1943 Act were made. They allow us to align the rules under which late appeals are accepted in Scotland and Northern Ireland with the current rules in England and Wales. These draft regulations seek to amend the 2001 regulations to remove this anomaly and align the rules on late appeals across the whole of the United Kingdom. I beg to move.
Lord Jones (Lab)
My Lords, I thank the Minister for her incisive and always-informed remarks.
At paragraph 7.3 of the Explanatory Memorandum, the word “consistent” is used. A consistent approach is to be welcomed. However, can the Minister tell us about the ASG—that is, the advisory steering group? Who heads it? It looks very formal. It is advisory but shall its members be paid? Do we know what amount the group’s members receive? Are there any names of which the Committee might be informed? We need information regarding the names concerning the representative ex-service and service communities. One does not want the high and mighty of law and government ministries leaning heavily on the humbler members of the ASG. If the MoD is involved, rank will be a consideration. The judiciary also carries weight. On membership, does everyone have an equal voice?
At paragraph 7.2, we learn of appeals. Might the Minister flesh this point out by instancing an appeal case? What might it entail?
On paragraph 7.4, how many appeals were heard in 2021 and, if it is possible for the Minister to say, 2022? Again, I thank the Minister for her remarks.
Baroness Smith of Newnham (LD)
My Lords, often in your Lordships’ House—and I mean your Lordships’ House, not Grand Committee, as I have not forgotten where I am—we spend a lot of time looking at primary legislation and saying that we need better scrutiny, that we should not have Henry VIII clauses, that we do not want framework legislation and that we need to be able to scrutinise statutory instruments very closely. The assumption is that the Government, on occasion, are perhaps trying to pull the wool over our eyes.
We do not get framework legislation with lots of Henry VIII clauses from the MoD, but we do from other ministries, so we will perhaps exonerate the MoD from this. Here we have a statutory instrument that looks so straightforward that one almost wonders why it needs to be here, other than that we had agreed in the Armed Forces Act 2021 that we should scrutinise such a statutory instrument. In asking whether this should be considered debated and approved, it is a straightforward statutory instrument, as it is only right that service personnel and veterans who are seeking to appeal, whether they are from Scotland, Wales or Northern Ireland, are treated in the same way. The basic principle seems straightforward: everyone in the four nations of the United Kingdom should be treated the same.
I have a similar question to one from the noble Lord, Lord Jones, about the number of appeals we are thinking about—not necessarily in 2021 or 2022. Are we talking about very large numbers or is this seem primarily as a tidying-up exercise? It would be useful to know that and have a sense, looking back 15 years from 2008 to 2023, of whether many people have been done a disservice because they were in Scotland and Northern Ireland and were not able to appeal between months 13 and 24, whereas they would have been able to in England or Wales.
I like the idea of the Lord Chancellor’s steering group but agree that it would be interesting to know more about its basis and whether it is intended as a long-term body.
I have a final question. We have occasionally had other tidying-up amendments. Is the Minister sanguine about the fact that other tidying-up legislation might need to be brought forward if there are other disparities that could be doing a disservice to service personnel or veterans from one part of the United Kingdom compared to those from other parts?
Lord Tunnicliffe (Lab)
My Lords, I thank the Minister for introducing this instrument. It seems simply to bring appeals in Scotland and Northern Ireland into line with those in the rest of the United Kingdom, which is a good thing. I am curious, because this anomaly presumably sprang up in 2008, which was 15 years ago, about why it has taken so long to alight upon it and address it. That is the first of my two questions.
Secondly, the hierarchy for whether an appeal is allowed involves a step at which the Secretary of State may choose not to allow it. Does the Secretary of State have to respect any criteria in making this decision or is it absolutely at his discretion? I cannot see any guidance on the criteria in the instrument, but there may be a general criterion. I recall some discussion of this in the past and the requirement of Secretaries of State to behave reasonably, but I cannot see any criteria. Clearly, the stopgap—the thing that makes this reasonable —is that the tribunal may override the Secretary of State in the interests of justice, so it is not that important a point, but I am curious.
Just to make sure I have not got this completely wrong, would the Minister confirm that this measure is favourable for appellants in Scotland and Northern Ireland?
Baroness Goldie (Con)
My Lords, predictably, although this may be a somewhat technical and relatively short debate, your Lordships have advanced questions, some of which I may not be able to answer; I may have to offer to write.
I will deal first with the points raised by the noble Lord, Lord Jones. I do not have before me specific information about the compensation advisory steering group—members, who leads it, whether they are paid or whether there are ex-service representatives—but I can undertake to find out that detail. I am just glancing at my officials and, reassuringly, their faces are as blank as mine. If the noble Lord will be patient with me, we shall find out that information and I shall write to him.
Lord Jones (Lab)
I am grateful for the Minister’s remarks. I admire the way she does her business. I simply want to say that I rise often in this Committee as a point of principle, rather than to ask questions that may or may not be answered by the given Minister. Having been a Minister in three Administrations in another place, one’s sympathy is always with a Minister seeking to answer.
The main thing that comes to my mind is that so often in this Committee there are orders and regulations that really should be on the Floor of the House. Important regulations and orders are often so badly attended. They can go through without any consideration as to how they affect the citizenry. I thank the Minister.
Baroness Goldie (Con)
I applaud the noble Lord’s persistence and tenacity, because that is entirely reflective of what good scrutiny should be. I came here thinking I had everything I needed, but the noble Lord has disproved my theory. The noble Baroness, Lady Smith, asked similar questions so I undertake to include all noble Lords in my response.
The noble Lord, Lord Jones, also asked whether I had an example of a case of the type of appeal. I do not, but I presume that could be obtained without too much difficulty. I undertake to investigate that.
On the numbers of appeals, I offer a little more in the way of a glimmer of hope. I have been given information that in 2021 in Scotland, 11 late appeals were received. These would have been received under the less favourable regime that this statutory instrument is seeking to correct. Of these 11 late appeals, nine were admitted and two were refused. I think the two were refused because the upper limit of two years had been extinguished, so I think we can accept that that was a bona fide and understandable reason for declining to meet the appeal. In 2022, nine late appeals were received in Scotland. Seven were admitted and two were refused. In one appeal the upper limit of two years had been extinguished. The other appeal was refused because not only was it late but it had already been adjudicated at a previous tribunal hearing. I think that reassures your Lordships that there is a process that has been robust.
In Northern Ireland in 2021, two late appeals were received and both were admitted. In 2022, two late appeals were received; two were admitted and none was refused. I hope that reassures your Lordships that there has been a working system and that the intrinsic components of the system are operating. But as I said from my speaking notes, there was a sense that this may lead to some disadvantage for appellants in Scotland and Northern Ireland, hence the desire, recognised by your Lordships, to achieve pan-UK consistency on the issue.
I think it was the noble Baroness, Lady Smith, who asked about other people who may have been disserved by the previous arrangement, and that was echoed by the noble Lord, Lord Tunnicliffe. All I can say is that I do not know, but these figures, which are from the previous regime, suggest to me that a very fair regard has been had to the appeals. I do not see evidence of any manifest unfairness or unreasonable determination of the appeal.
The noble Baroness, Lady Smith, said that we are doing a bit of tidying up. That is correct. Does more legislation need to be brought forward to address any other outstanding issues? I am not aware of it. As the noble Baroness herself observed, delegated legislation for the Ministry of Defence is relatively unusual and fairly sparse. As I think your Lordships will understand, this is intrinsically a very technical issue, and it was the tribunal presidents who pushed to make the change because they had both the experience and the technical knowledge, and I think they realised that there was a better way of dealing with this. The acquiescence of the devolved Administrations endorses that approach. I am not aware of any accumulation of material that needs to be addressed.
The noble Lord, Lord Tunnicliffe, asked about the length of time to address this. I do not have a specific answer; from the circumstances I can infer only that when the changes were made in England and Wales, nobody thought at the English and Welsh end that anything needed to be done in Northern Ireland and Scotland. Interestingly, it is pretty clear that nobody at the Scottish and Northern Ireland end thought that anything needed to be done. It has been a classic example of the system working and keeping going, and only on further consideration by the presidents of the tribunals in Scotland and Northern Ireland was there a realisation: “Wait a minute, this is maybe not the best we can do for these two countries, and we ought to change it”.
The noble Lord, Lord Tunnicliffe, asked about the criteria that the Secretary of State has to observe when determining an application. He will be aware that the role of a Minister of the Crown in determining these matters is quasi-judicial, and I imagine that the Secretary of State is encompassed by legal advice to make sure that they are not in danger of doing anything that would be patently unfair or unjust to the applicant. There will no doubt be advice, based on the circumstances of the applicant, as to whether a case is deserving and should be granted. Of course, the safeguard is that if the applicant is dissatisfied with the Secretary of State’s determination, there is now this more flexible method of appeal available to the applicant.
The final question from the noble Lord, Lord Tunnicliffe, was basically: is this change more favourable to appellants? The answer is yes. As I said and the noble Baroness, Lady Smith, identified, it is just possible that there may have been appeals determined in Scotland and Northern Ireland under the old, more rigid rules, which had been abandoned by England and Wales, and that under those more rigid rules something was deemed not grantable on appeal, but I do not know. I think it would be an impossible question to answer, but it is obvious from the numbers I have cited that we are dealing with a fairly small cohort of cases here.
With the exception of the compensation advisory steering group, on which I will write to all three noble Lords who contributed to the debate, I hope I have managed to answer all the questions. I commend this instrument to the Committee.
Energy Bill Relief Scheme Pass-through Requirement (Heat Suppliers) (Amendment) Regulations 2022
(1 year, 4 months ago)
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Lord Callanan
That the Grand Committee do consider the Energy Bill Relief Scheme Pass-through Requirement (Heat Suppliers) (Amendment) Regulations 2022.
Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, these regulations were laid before the House on 6 December 2022. We have already passed legislation concerning the energy bill relief scheme pass-through requirement for heat suppliers, which ensures that benefits from the energy bill relief scheme, known as the EBRS, are passed through to end consumers on heat networks. This legislation also provides for a route to resolve disputes between consumers and heat networks on these pass-through requirements.
This statutory instrument amends the pass-through regulations, introducing a requirement on heat suppliers to send a simple notification to provide information to the Secretary of State by 6 January 2023. This information, which includes heat suppliers’ names, business addresses and contact details, will be shared with the energy ombudsman and the Consumer Council for Northern Ireland to support their handling of domestic and micro-business consumer complaints. This information will also be shared with the Office for Product Safety & Standards—the OPSS—for enforcement purposes.
The SI strengthens the OPSS’s powers of enforcement, enabling it to request information from suspected heat suppliers to determine whether they fall within the scope of the regulations. The OPSS may also impose existing civil sanctions, including a monetary penalty on heat suppliers who fail to comply with the requirements to notify, join the redress scheme or provide information. The monetary penalty has been modified, providing for a maximum of £5,000 to provide an effective deterrent for non-compliance.
The SI also amends the existing regulations to reduce the administrative burden on heat network companies, removing the requirement for heat suppliers to provide information about the calculation of the benefit when they first notify end-users about the scheme, while retaining the requirement to provide these calculations in the next bill.
The EBRS and the corresponding pass-through regulations have been introduced as a critical component of support for consumers on heat networks and complement other support that the Government are providing with energy and the cost of living. We expect that the notification requirements will facilitate the consumer complaints handling process and that the strengthened enforcement powers will result in a higher number of heat suppliers passing on the EBRS discount to their customers. I commend the regulations to the Committee.
Lord Teverson (LD)
My Lords, I thank the Minister for going through this piece of secondary legislation, which concerns what is clearly an important subject: making sure that the money that is in effect discounted from bills gets through to the final consumer.
It is probably unfair to say this but, having read through this instrument, I would be amazed if the dispute process is ever used or anybody ever gets round to being able to take advantage of it. To be honest, a maximum fine of £5,000 hardly seems a great deterrent to anybody, but there we are; I suspect it will be not a great deal of money in terms of the P&L account of any of these providers, so I am rather surprised that it has been pegged at that amount.
The thing I am really interested in is that, as I read it, a core part of this piece of legislation is finding out the contact details of heat suppliers. If we do not know that information, how do we get in touch with the suppliers to find it out? I do not understand that. Given the fact that this measure was supposed to have happened by 6 January, as this is all in retrospect, clearly this has happened; I am just interested to understand from the Minister whether the Government have had good responses and replies from everybody. How do they know that everybody has replied? I would be interested to understand that.
The only other area I want to probe—the Minister will forgive me, as I should clearly know this—is the Office for Product Safety & Standards, because I had never heard of it before. I am sure it is a well-known organisation in certain parts of the sector, but I am interested in briefly understanding to whom it reports, its status and whether it is tooled up to do this work effectively. However, I thank the Minister, as this is clearly important secondary legislation and I support making the scheme effective.
Lord Bassam of Brighton (Lab)
My Lords, I do not have a great deal to add and obviously we do not oppose these regulations, but it seems that they have come forward urgently because the department appeared to forget, when making the original regulations, that—as the noble Lord, Lord Teverson, said—there is no complete register of heat suppliers in place that would enable the original legislation to be properly carried out. The original legislation went through without a word about why the department did not know who the energy suppliers were and how that made the legislation somewhat redundant and difficult to implement.
It seems that we have in front of us a rapid and somewhat scrambled fix to try to rectify that original problem. No doubt the Minister will tell me that I am wrong, but it seems to exist because the department forgot that a rather central part of the method of getting money to customers is through heat suppliers, which should be known to the department to make them pass the money through. Why is the scheme so last-minute and retrospective? Should it not have been up and running and operating earlier so that customers could benefit?
The Explanatory Memorandum for this SI says that this must happen in order to get money to customers over the winter period, so my question to the Minister is: how has this happened? Why have the regulations been introduced suddenly, and why now when this should have been done earlier? How much time has been lost in getting money to customers as a result of the scheme being incomplete when it was introduced? Finally, have customers lost out or been disadvantaged in any way? That is probably the key point, because people are getting much higher bills than they would have expected a year or 18 months ago. Judging from my experience, although I am not struggling to pay, people are being shocked and taken aback.
I looked at the Explanatory Memorandum and it seemed there were one or two errors. The instrument makes corrections to definitions of “end-user”, “intermediary” and “scheme benefit”. That seems glaring. The Explanatory Memorandum says that suppliers need
“more time to provide their customers with detailed calculations”.
I would have thought that that problem could have been anticipated and dealt with earlier. That is a concern. I also spotted, in the “policy background” section that
“The heat network sector is not currently comprehensively regulated and there exists no complete record of heat suppliers.”
This is quite revealing. I appreciate that the instrument attempts to address this, but it is something of a gap to have left in the first instance. Although I was sort of impressed by the consultation exercise, a workshop with 120 heat suppliers in October hardly seems a complete consultation to my way of thinking. In its section on impact, the Explanatory Memorandum also refers to “light-touch notification”, so that heat suppliers
“in effect are given an extension on the deadline for making the much more comprehensive notification under the”
billing regulations.
I may have misunderstood this, but I do not think I have. By my way of reading it, it is not an entirely happy story. I look forward to hearing the Minister’s explanation of why and how this came about.
Lord Callanan (Con)
I thank both noble Lords for their valuable contributions to this brief debate. The Government have put in place robust measures to support consumers in response to the energy crisis. For heat network consumers these measures include the EBRS—energy bill relief scheme—or alternative funding for those without a domestic electricity meter, and the energy price guarantee for electricity. These schemes are up and running, shielding heat network consumers and countless others from excessive energy bill increases this winter.
The measures in today’s SI continue this work by strengthening the legal framework for ensuring that cost reductions from the EBRS received by heat networks are passed on to heat network consumers, leading to immediate short-term benefits to consumers over this winter. This SI results from wide-ranging engagement with industry, including trade associations, heat suppliers and consumer groups in the sector, and ensures an approach which works for both consumers and businesses. The changes are based on practicalities, meaning consumers will be informed of key information without placing an undue burden on heat suppliers.
Turning to the specific points raised by the noble Lords, I start with the noble Lord, Lord Teverson, who asked the obvious question: great minds think alike, as it is the same one I asked when I was introduced to this statutory instrument. How do we know that we have received a good response, as the deadline has already passed, and that everyone has replied? The figures are that, as of last week, we have received notifications from over 2,800 heat suppliers. Previous data obtained from notifications collected under the Heat Network (Metering and Billing) Regulations indicated that there were approximately 2,600 heat suppliers in 2018. We therefore judge that heat supplier engagement with the EBRS pass-through notification form has been good.
Of course there are some enormous heat networks, which everybody knows about, but also some quite small heat networks. Many developers just develop a block of flats, install a heat network and then subcontract out its management to a secondary company—some with great success and others with not such great success. Many people do not realise that they are on a heat network until they have already moved into the property, because it has elements of monopoly about it. If the noble Lord had been present in the debates on the Energy Bill, he could have discussed the fact that we are introducing powers to regulate heat networks, which will be given to Ofgem. We have been having debates separately with the noble Lord, Lord Teverson, and others on that but at the moment the sector is essentially unregulated, which has caused problems in some areas. There are some very bad examples of networks, which we will attempt to rectify.
The noble Lord, Lord Teverson, also asked about the role of the OPSS in ensuring enforcement, which was similarly raised by the noble Lord, Lord Bassam. The OPSS already had a role to receive notifications from heat suppliers and is therefore a natural fit. Notifying is actually a simple process, which should take about five minutes to complete. We would press any heat network suppliers which have not already notified—from the figures, we think that the vast majority have—to do so as soon as possible to ensure the avoidance of enforcement action. Again, all the big ones were known anyway and have complied. It is possible that there might be an odd mansion block or small block of flats somewhere, or some remote properties, that have not yet notified but we think the vast majority have.
If the supplier has not submitted its notification by 6 January or within 30 days of beginning operations, or for any new heat suppliers that began operating after 7 December last year, the OPSS may issue a notice of intent which makes clear the required actions and gives the business the opportunity to become compliant with the regulations. Should the heat supplier then continue to fail to do so, the OPSS may issue a notice of compliance, which sets a final deadline for the supplier to submit its notification after which point, if it is still non-compliant, it may be issued with the penalty fines that I referred to earlier. If the heat supplier does not engage with the ombudsman, or the Consumer Council in Northern Ireland, customers can recover the benefit that they are owed as a civil debt.
In response to the questions asked by the noble Lord, Lord Bassam, about why we are having the debate only after the notification window has closed, these regulations came into effect the day after they were made, on 7 December. This debate has no real bearing on the notification window but is to give time for parliamentary scrutiny and to ensure that this affirmative SI, as it was, does not now fall. We thought the “made affirmative” procedure was appropriate, given the time-sensitive nature of this work. Customers need support as quickly as possible, so ensuring prompt EBRS pass-through is important to provide that support. That underlines the rationale of running the notification window from the earliest possible date after the regulations were made.
The noble Lord, Lord Bassam, also asked a very reasonable question about why we are amending relatively new SIs. The answer is that following the initial regulations, which were made very rapidly given the urgent nature of the problem, we have taken on board feedback from the sector to ensure that this final approach now works for both businesses and customers.
The noble Lord also asked why the definitions of intermediaries have been amended. The amendments distinguish obligations that do not apply to an intermediary who is also an end-user. That could be a landlord, for example. The requirement to join the redress scheme will not apply unless the intermediary is provided with a scheme benefit by way of a discount or reduction under the Energy Bill Relief Scheme Regulations, nor will it apply to a person who supplies heating to the final customer unless that person is provided with a scheme benefit by way of a pass-through under these regulations. A landlord provided with a pass-through amount under the pass-through regulations, which it in turn must pass on to its tenants, will not be required to join the redress scheme unless that landlord also supplies heating through a district or communal heat network. Similarly, an intermediary who is also an end- user will not be required to notify an authorised person of their name, business address and contact details.
The noble Lord also asked why heat network suppliers are being given an extension on the requirement to complete their heat network metering and billing notifications. The answer is that these regulations will introduce minimal costs on heat networks. The information required is information that heat suppliers will already have access to, and we are not requiring heat suppliers to provide information beyond that which they already provide to government under the Heat Network (Metering and Billing) Regulations. We consider that the benefit of heat network consumers receiving lower heat prices resulting from the EBRS pass-through will significantly outweigh these relatively minor administrative costs to heat suppliers. By completing the notification requirement under these regulations, a heat supplier gains an extension in complying with the Heat Network (Metering and Billing) Regulations until 31 March 2023, so this further reduces the burden on the business over what, I think we agree, will be a challenging winter period.
I hope I have successfully answered the questions from both noble Lords, and therefore I commend these regulations to the Committee.
Lord Teverson (LD)
Can I just follow up on a couple of things? Given that this is an unregulated sector and one in which there are issues, as the Minister said, will the OPSS undertake some sort of random survey of end-user customers to make sure that this is getting through to them, so that there is some form of check? I would be interested to understand whether the Minister or his department has any estimate of the proportion of final consumers who have now received payment.
Lord Callanan (Con)
Consumers would not receive payment as such; they would just receive the appropriate discount off the bill presented by the heat network. I am sure the OPSS will want to monitor the market. I think it will primarily be driven by complaints from customers. I assure the noble Lord that, based on my postbag, customers are very willing to complain, both to their Member of Parliament and directly. Because the OPSS is responsible for the original billing regulations, it is best placed to carry out this work and I am sure it will conduct the appropriate market monitoring.
Immigration (Leave to Enter and Remain) (Amendment) Order 2023
(1 year, 4 months ago)
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Lord Murray of Blidworth
That the Grand Committee do consider the Immigration (Leave to Enter and Remain) (Amendment) Order 2023.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, the order, laid before the House on 7 December 2022, is required to enact one very minor change to the legislation which sets out the form and manner by which leave to enter the United Kingdom is granted and refused. It will amend the eligibility criteria for people seeking to enter the United Kingdom via an automated e-passport gate, or e-gate, so that eligible, accompanied children as young as 10 may do so. The lower age limit in the present instrument is 12.
This statutory change is needed to enable a limited trial to take place in the February half term, which will examine whether the lower age limit for entry via an e-gate should be 10 years, rather than 12, moving forward. We hope that this will have the effect of accelerating the passage through the airport of families with children aged 10 and 11. In order to carry out the limited exercise—the pilot—it is necessary in law to first pass this order.
The proposed proof of concept exercise will take place, as I said, in the February half term. It will be limited to three airports: Stansted, Heathrow terminal 5 and Gatwick’s north terminal. Once completed, the Home Office will make an assessment of whether the lower age limit of 10 should be more widely adopted.
The Government’s ambition for our future border involves making maximum use of automation. The majority of passengers will routinely cross the UK border using automation as their only point of contact. Indeed, this ambition was set out in last year’s New Plan for Immigration strategy, in which the proposed proof of concept involving younger passengers was made public. Increasing, in a controlled manner, the number of passengers eligible to use an e-gate is a logical next step.
Noble Lords will be aware that some form of automation is already used by large numbers of people passing through the UK border. Indeed, there has been significant widening of the pool of nationals eligible for e-gate entry in recent years. The e-gates started in 2008 and there has been progressive expansion. A previous amendment to the 2000 order in May 2019 extended e-gate eligibility to visitors from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States of America.
The continued use of e-gates should be seen in the context of the development of our new global border and immigration system, which makes better use of data, biometrics, analytics and automation to improve security and fluidity across the UK border. The use of e-gates is an important part of that approach, as they provide a safe, secure and efficient means of processing arriving passengers, allowing our highly trained Border Force officers to focus their efforts on those who seek to abuse or exploit the system and those who are vulnerable, as well as wider border threats.
For eligible families with young children, there are obvious advantages to being able to enter via an e-gate, in that they may enter the UK swiftly and effectively without having to queue to be seen by a Border Force officer. We believe that this in turn benefits others by minimising queuing times and bottlenecks at busy UK ports, especially at peak times of the year, such as half term or the summer school holiday season.
There are a number of important questions that must be answered before a permanent lowering of the lower age limit. These include whether children aged 10 and 11 have the cognitive ability to use the technology efficiently and, indeed, whether the technology is able to process such young passengers. It is because of these and other considerations that we must first conduct this short trial, which will be closely monitored by officials and have its results rigorously analysed.
Needless to say, the Home Office takes most seriously its statutory duty to safeguard and promote the welfare of children. We will use the live trial to consider whether there may be any unintended consequences for the welfare of younger passengers, such as anxiety if they become temporarily separated from their parents. To be clear, there will be no decision to extend e-gate eligibility to younger passengers if we consider that doing so would expose them to any safeguarding risks that cannot be mitigated.
Although this amendment enables us in law to allow eligible passengers younger than 12 to use an e-gate, it does not confer a right on those passengers to do so. It does not mean that passengers aged 10 and 11 must be able to use an e-gate at any UK port with that facility. Eligibility will be limited to accompanied 10 and 11 year-olds of eligible nationality at the three participating ports, and only for a 14-day trial period. At other ports, the lower age limit will remain where it is currently set: at 12 years of age.
This order enacts the most modest changes to its parent legislation but allows for a significant next step to be taken in developing a secure and smooth border that demonstrates to the rest of the world that the UK is open for business. I commend it to the Committee.
Lord German (LD)
My Lords, I recognise that this is a very small change to the legislation but I am of course tempted to stray into other immigration and right-to-remain areas. However, temptation is not necessarily the best way of approaching this order so I will stick to the instrument before us.
The first thing I want to say is that I have just returned from a parliamentary delegation. My delay was such that I was not able to find any transport whatever from Heathrow Airport; I would have had to sleep on the floor had I not been able to take a taxi. The reason for that was the snaking queues. If you extend the eligibility, which is a reasonable thing to do, you must have a sufficiency of e-gates. Clearly, there are insufficient numbers at Heathrow. This happened late at night but it could have been early in the morning, or whenever; I have experienced the queue being quite extensive probably three or four times in the past five months. Extending the queue by giving more people this opportunity does not solve the real problem, which lies in an insufficiency of e-gates.
There are a number of related questions about children. I have observed them queueing with their families to get through on a separate basis. I have also observed people who are elderly or need support being helped by a family member to make sure that they put their passport in the slot and withdraw it in the right way. It is not easy to do that. The main support that was given was having an official standing by who could tell people exactly what to do. I wonder whether there are sufficient staff to handle an increased number, given the difficulties already being experienced.
It is likely that, when people put their hand on their passport and put it on to the reader, it will not work the first time. I have never had a reader work with mine the first time—well, perhaps once. It has always been after two, sometimes three, attempts. That is nothing to do with me because my hand is in the same place and it is the same passport. I have never understood why it fails each time then, on a subsequent occasion, putting it through works. That may be the technology; it has worked on the first occasion in other countries but not here in the UK. I have no idea why that is.
The efficiency of the e-gate system needs to be improved as well. I observed in front of me, having had plenty of time to watch as the queues lengthened, how many people had to go through more than one attempt to get the gate to open. It needs to be improved in efficiency. I would like to understand, if the Minister can tell us, whether gate efficiency can be improved and what the problems are in the second, perhaps third, attempt to get them to work.
The other problem that this test check of an age group will come against is when families have one child of 10 and an eight or seven year-old. They are not going to separate; they are going to take them together. You have to have a family in which there is a 10 year-old and any other children have to be older than 10. While it will be an experiment, I have no idea—perhaps the Minister can tell us—of the number of families coming through with only children aged 10 or older with them and who will be able to take advantage of this.
The other question I have is about the height of individuals. Anybody who has taken any children to a theme park will know that they have measures of height by which you can take part in certain rides. When you come to the positioning of a child against it, is there a height problem for younger children who are perhaps small in stature and will have to put their hand almost as high as their head to get their passport in? Will the machinery accept that? I hope all of this has been thought out. If it has not, it will probably become clear when the experiment takes place.
My final point concerns what you might call an ESTA approach in USA terms—that is, where you have to complete a document in advance to visit. Will the system already have the ability to understand such a certificate when the UK introduces them? Will it already be built into the software? I think it applies to every country—apart from the UK and Ireland, obviously—that currently has the ability to use these e-gates. As I understand it, there will be a requirement—the Minister can confirm this—to fill in an ESTA-type document that deals with your entry. Will the software in the e-gate system accept that, so that the people going through will already have had that check, or will anybody with one of these certificates have to be peeled off and sent to another means of manual checking?
There is automation, obviously. Anything that can be done to speed up the system of getting people through into the United Kingdom properly and swiftly will be welcome. The only question is whether these will all be tested in the experiment that is about to be undertaken. Could the Minister address those specific issues—height, the ESTA-type certificates, the shortage of gates and whether there will be sufficient assistance—in replying to this debate? Otherwise, I am satisfied that this is a reasonable thing to do.
Lord Coaker (Lab)
My Lords, I thank the Minister for his helpful introduction to this order. Like the noble Lord, Lord German, I think there are a number of questions of detail that we need to ask and put on the record to ensure that, when the order goes forward, we are all clear about what it means and how the pilot will operate. Although it is a small change to the rules, it is a significant and important one. The pilot, if agreed, will require very careful monitoring.
At the heart of this is safeguarding children. That is everything, particularly when we are talking of very young children at the age of 10. Children aged 12 are obviously young, but we are entering the realms of quite young children who will be able to pass through e-gates at borders, so I was pleased that the Minister talked about the pilot testing whether that age is appropriate.
Lord Murray of Blidworth (Con)
I thank both noble Lords for their helpful contributions. I will certainly seek to address all the questions asked.
I will deal first with the points raised by the noble Lord, Lord German. By way of context—this also answers a couple of the points from the noble Lord, Lord Coaker—the pilot is for two weeks, or 14 days, during the half term and on those three specific sites. During the operation of the pilot, staff from the relevant team will be supervising so any problems will be swiftly rectified. As I am sure noble Lords are aware, the e-gates are clear glass, so the separation of people from one another is always limited to that clear glass and can be rectified very swiftly if necessary.
It is anticipated—I say this as the father of 10 year- old twins—that the average 10 year-old will have very little difficulty operating the e-gates, given their technical proficiency in many other things. Indeed, they may be better than some older age cohorts at successfully operating the e-gates. It is a usual experience that most families will put the children through the e-gate first and supervise the placement of the passport. It will be interesting to see the extent to which that happens during the pilot. That certainly seems to be the logical way to approach it.
At the relevant part of Heathrow where the pilot is taking place, there are 25 e-gates. It is felt that this is sufficient. Because it is happening during the half-term period, statistics suggest that there will be a lot of 10 and 11 year-old traffic, so it is a good way to test the system.
I was asked by both noble Lords why and how the age of 10 was selected. It was selected both on a cognitive basis, as we think 10 year-olds can operate it—that is certainly my personal experience—and because, from a height perspective, the technology will fit. We have used ONS height statistics, and we think that will work, but clearly it is something we want to test during the pilot. That is why we chose 10 rather than nine or 11. It has also been the international experience; in other countries 10 is the age and it seems fairly successful.
I will turn to one or two of the other points made by the noble Lord, Lord German. On the question about support, the hosts—the airport staff managing the queues—direct people and support them through the e-gates. They are contracted airport employees. They have been worked with in preparation for this pilot to ensure that they are going to provide sufficient support during the pilot and beyond. We will of course, as I have said, ensure increased support during the pilot.
Regarding what we are calling electronic travel authorisations—this is our version of the ESTA—when they are introduced the e-gates will be able to confirm the types of permission held before they allow somebody to enter the UK. I suspect that is the answer the noble Lord anticipated. I have already made the point that the ONS statistics suggest that most 10 year-olds are tall enough to operate the machine.
I turn to the questions posed by the noble Lord, Lord Coaker. At the moment it is anticipated that most children using the e-gates will be accompanied, mostly by their families. On the question about school trips, clearly it would be appropriate for a small school trip but maybe not for one with a large number, which would probably go to the primary control point. Again, we will test that through the pilot.
The next question was on how the airports were chosen. They were chosen with some care because, statistically, those three airports have been ones where there has been quite a number of children of those ages in the February half term. Those airports were selected because it will be a real-world test of the system.
Regarding Northern Ireland, we do not believe there are any ramifications in relation to the common travel area particularly. Obviously Irish citizens, as with British citizens, do not require leave to enter but can use the gates to go through the airport. It will be the case that 10 year-old Irish children can use the gates, just as 10 year-old British children can.
On the level of readiness, they have been working towards this pilot since October. It is the department’s view that the training is ready, and we are aiming for this February half-term period. If there is any intervening event, the department is obviously prepared to postpone the pilot if needed.
As to the question of rolling out nationally, the position is that this change does change the regulations. If the pilot is successful and the decision is taken to roll it out nationally, there will be no need for a further regulatory change, but we will obviously keep the House up to date in the event of that decision being made.
Turning to eligible nationalities, I appreciate that it is not clear, because it is just an amending instrument, but in the parent order, the Immigration (Leave to Enter and Remain) Order 2000, SI 2000/1161, the reference in Article 8B is to the schedule to the order. It is not terribly long, so I will read it out. It says that they consist of the EU nations, Australia, the United States of America, Canada, New Zealand, South Korea, Japan and Singapore. Clearly, over time, one anticipates that this will grow.
Lord German (LD)
Does that include EFTA—Norway, Liechtenstein, Switzerland and Iceland?
Lord Murray of Blidworth (Con)
Yes, I should have made that clear. Indeed, it is the wider EEA, not just the EU, so it includes all the EFTA countries. I thank the noble Lord; that is an important clarification.
As for safeguarding, we are satisfied that the safe- guarding risk is appropriately handled during the pilot and measures will be in place to ensure that there is no safeguarding risk arising as a result of the change. Obviously, we will consider that and whether there have been any implications or learning points arising while we are considering the results of the pilot.
With that, I think I have addressed all the issues which arose, and I ask the Committee to approve the instrument.