Immigration Detention: Shaw Review

Baroness Lister of Burtersett Excerpts

Tuesday 24th July 2018 Lords Chamber

[Baroness Williams of Trafford]

That sounds ominous —I am having my holiday.

I will go first to the noble Lord, Lord Rosser, who asked why there was a delay in publishing. I have probably trailed this on several occasions, when I said that Stephen Shaw had published his report and we were considering it and would respond in due course. We have rightly considered what is, as noble Lords have said, a big tome, before responding to it today. I hope that the noble Lord and the House do not see any conspiracy in the fact that it has been responded to on the last day.

The noble Lord said that the Government’s efforts had no impact on vulnerability. Stephen Shaw acknowledges real progress and said that it would be folly to abandon our reforms now. The adults at risk policy has certainly strengthened our focus on vulnerability and on the existing presumption against the detention of those who are particularly vulnerable to harm. However, I agree, as does my right honourable friend the Home Secretary, that we need to do more. That is why we will differentiate more strongly between vulnerable cases to ensure that the most complex get the attention that they need, building on the progress that has been made, to provide greater protection for the most vulnerable.

The noble Lord made the point that half the people detained are released and asked whether detention was therefore right in the first place. We would all like the proportion of detainees who are removed to be higher and we are tackling barriers to that. However, people may be released from detention for a wide range of reasons: by the courts, by appeal or by other legal proceedings, or there might have been a material change in their circumstances. That does not necessarily mean that the original decision to detain was inappropriate or wrong.

The noble Lord talked about time in detention being over six months. The Government totally agree that we should detain people for the minimum amount of time, consistent with their removal. Continuing challenges on documenting individuals and late appeals are an issue. The issues of foreign national offenders and public protection also remain important considerations.

I shall have to gallop through my replies. The noble Lord, Lord Rosser, referred to problems with additional beds. He will have heard today that my right honourable friend the Home Secretary has announced that there will be no more than two beds to a room. He also talked about the detention of pregnant women. Decisions on whether or not to detain individuals have never been predicated on absolute exclusions for any particular group. Being pregnant is not of itself a vulnerability, but I understand where the noble Lord is coming from on that. He mentioned indefinite detention. The Government are committed to getting more evidence on this issue into the debate. He will have heard what I said about my right honourable friend the Home Secretary carrying out a review into that and publishing its findings.

The time has run out extremely quickly. I do not know whether that is because noble Lords spoke for too long or because I did, but I have a number of unanswered questions, to which I will reply in writing and place a copy in the Library.

[Baroness Lister of Burtersett (Lab)]

My Lords, I return to the issue of pregnant women, which was of particular concern to your Lordships’ House when we considered these matters during the Immigration Bill—indeed, we voted for an absolute exclusion following Stephen Shaw’s original recommendation. In his report he quite mildly said that it would “assist” decision-making if the default position were to be an absolute exclusion of pregnant women from detention. The figures show that between July 2016 and January to November 2017 there were still 73 pregnant women detained, of whom 60 were released. For only 15 was there any case for detention. Will the Government look again at the question of an absolute exclusion?

On vulnerability, I am not quite sure I understand the Minister’s reply—I appreciate that she has had to move quickly. Have the Government accepted the specific recommendations 11, 12 and 13 in the report on adults at risk? In particular, will they consider the merit of the UNHCR vulnerability screening tool, which a number of voluntary organisations have recommended?

[Baroness Williams of Trafford]

I am glad that I have got some more time because the noble Baroness, Lady Lister, has nicely segued into some points I was going to make.

On pregnant women—I have made this point many times before—being pregnant does not of itself make you vulnerable. However, I understand where she is coming from.

On vulnerable detainees in general, the noble Lord, Lord Rosser, made the point that the policy was not working. In fact, Stephen Shaw described the adults at risk policy as a work in progress. We all agree that there is more to be done to make sure that the most vulnerable and complex cases get the attention that they need. As to rule 35, which reports on possible cases of torture and which noble Lords have criticised in the past, we will look again at how we can improve on it while avoiding abuse of these processes. We will pilot an additional bail referral at the two-month period—which comes back to the point made by the noble Baroness, Lady Hamwee.

The adults at risk policy requires a case-by-case assessment of the appropriateness of the detention of each individual. The policy means that vulnerable people are detained only when the vulnerability factors are outweighed by immigration considerations. So I do not agree with the noble Lord’s point that the policy is not working, but we need to continue with the progress that has been made so as to ensure that vulnerable people get the help that they need.

[Baroness Lister of Burtersett]

Will the noble Baroness tell me whether recommendations 11, 12 and 13 in the Shaw report have been accepted, because it is not clear from the Statement that they have? In particular, will the Government consider the merits of the UNHCR vulnerability assessment tool?

[Baroness Williams of Trafford]

Perhaps I might come back to the noble Baroness on this, because obviously I have pulled out some of the highlights of the report and I would not want to give her any details from the Dispatch Box that I am not certain about. So I will write to her on that point.

Immigration (Guidance on Detention of Vulnerable Persons) Regulations and the Detention Centre (Amendment) Rules 2018

Baroness Lister of Burtersett Excerpts

Wednesday 27th June 2018 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I will not beat about the bush. The purpose of my regret Motion is to ask the Minister whether the Government will consider the immediate withdrawal of these two statutory instruments before they can do harm to certain vulnerable individuals, and until a number of preconditions, of which the Home Office has been made aware and which I will outline, have been completed. Statutory Instrument 410 introduces the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016, enacting the draft updated guidance contained in the Immigration Act 2016. Statutory Instrument 411 introduces a new definition of torture into detention centre rules. Together, they provide the statutory footing for the adults at risk framework, introduced in September 2016 to improve safeguards for people who are particularly vulnerable to harm in detention. As neither instrument is due to come into force until 2 July, there is still time to withdraw them and initiate the alternative action that I will put forward. If this appears a little tight on timing, I should explain that I tabled my Motion some weeks ago, but its date was confirmed by the Whips’ Office only last week. The remainder of my contribution will be an explanation of why I am making this request.

In a recent debate on the vulnerable persons resettlement scheme, tabled by the noble Lord, Lord Scriven, I mentioned that the Independent Asylum Commission, which reported in 2009 and of which I was a commissioner, characterised the attitude of the Home Office to any asylum seeker, or indeed any outside advice or information, as a “culture of disbelief”. This was triggered by our hearing of a Sri Lankan victim of torture whose case was not believed by the Home Office, which resulted in him being sent back to Sri Lanka, where he was tortured again. Luckily, when he returned here for the second time, his case was believed.

In 2015, in response to growing concerns about the use of immigration detention, the Home Office commissioned Stephen Shaw to carry out a review of the welfare of vulnerable people in immigration detention. In his report he highlighted the lack of safeguards for vulnerable detainees and recommended a drastic reduction in the use of immigration detention. The Immigration Minister’s broad acceptance of Shaw’s recommendations was given statutory footing in Section 59 of the Immigration Act 2016, the purpose of which is to ensure that all individuals, particularly those who are vulnerable to harm if detained, are identified and protected. In the event, neither statutory instrument, nor the adults at risk guidance, delivers that purpose.

The proposed definition of torture is far too complex to be easily applied by Home Office caseworkers and doctors in the identification of vulnerable persons, and its concepts are clinically nebulous. For example, it invites doctors to make subjective judgments as to whether a victim did enough to resist ill-treatment or whether he or she was sufficiently robust to cope with it. Extracting the necessary information will require intrusive investigation of a vulnerable person that far exceeds the safeguards and the standard of proof that applies. In particular, the concept of powerlessness is ill suited to the determination of vulnerability to harm in detention, as both doctors and caseworkers will struggle to form a consistent and fair interpretation of such complexity.

The definition in SI 2018/411 seeks to distinguish between torture and ill treatment. That is an important distinction in international law, but entirely unnecessary and inappropriate when identifying those vulnerable to harm in detention. Even when applied correctly, the definition will exclude a whole cohort of victims of severe ill treatment who do not fall within the indicators of risk. These include victims of interpersonal violence on grounds of race, ethnicity, sexuality, tribal groups, blood feuds or clan origins, none of which presents an obvious situation of powerlessness in relation to the perpetrators of violence.

In fact, the adults at risk guidance has raised the threshold for a decision not to detain by increasing the evidentiary burden on vulnerable individuals. Under the previous policy, and not subject to the culture of disbelief, victims of torture needed only to show independent evidence of their history of torture in order to be considered unsuitable for detention, except in very exceptional circumstances. The new guidance, however, includes an additional requirement to present specific evidence that detention is likely to cause harm in order for release to be seriously considered. That evidence is extremely hard to come by before harm has actually occurred. By introducing a much wider range of immigration factors that have to be considered before a decision not to detain can be justified, the guidance has also weakened the protection offered to vulnerable people.

A number of NGOs working with immigrants immediately raised serious concerns about the adults at risk guidance, including the changes to the definition of torture, which previously had been based on case law and was not defined in government policy. This had been proved to be wide enough to include victims of torture, who, evidence showed, were particularly vulnerable to harm in detention. The charity Medical Justice and seven detainees challenged these changes in the High Court, the judge finding them to be unlawful and ordering their suspension. In addition, the judge instructed the Home Office to review and reissue the policy in a reasonable time, but did not place any obligation on the Home Secretary to define torture in the updated policy.

In parallel with this, Stephen Shaw carried out a second review—this time, of the Government’s progress towards fulfilling the recommendations in his first—which he delivered to the Home Secretary at the end of April this year. Despite promises that it would be published by the end of this month, it has still not appeared. Indeed, the Minister, who had clearly seen it when he responded to a recent Early Day Motion on the subject in another place, did not disclose any of its conclusions or recommendations to those taking part in the debate, which left them in the dark as to what he was saying. He also back-pedalled on the promised date of the report’s publication. Therefore, I ask the Minister to clarify the situation regarding the date of publication of Shaw’s second report and to tell the House when we can expect both it and the Government’s response.

The statutory instruments were laid before Parliament on 27 March this year, following a wholly inadequate and expedited consultation on the new definition of torture with a limited group of NGOs. They cautioned that no further definition should be considered in isolation from the necessary revisions to other elements of the safeguards, such as detention centre rules and the adults at risk guidance. They also asked the Home Office to await publication of the second Shaw review, to allow consideration of his findings before laying changes before Parliament. Their cautions were studiously ignored. I cannot help contrasting the Home Office’s unseemly rush to publish what is so clearly flawed with its unseemly procrastination over the short-term detention rules, taking over twice as long as World War II to publish in 2018 something originally promised in 2006. The noble Lord, Lord Dubs, whose letter on immigration of 28 March I co-signed, was also studiously ignored when he proposed the same action.

So what to do about this mess? As I put to the Minister at the start of my contribution, the statutory instruments should be immediately withdrawn and any changes to existing policy regarding the safeguarding of victims of torture or ill treatment postponed until after the publication of the second Shaw review, and subject to a proper consultation, subject to government guidelines. There is no need to define torture in either the adults at risk guidance or detention centre rules, so the proposed definition should be withdrawn from both. The broad range of immigration factors used to justify detention of those identified as being particularly vulnerable to harm should be replaced by a return to the previous threshold of very exceptional circumstances. There should be no need for a victim of torture or ill treatment identified as likely to be vulnerable to harm in detention to demonstrate any further why he or she is likely to suffer harm in detention. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for bring forward this regret Motion on such an important subject. He has already made the case against the new definition of torture in the regulations extremely persuasively. I shall simply do two things: first, ask the Minister some questions; and, secondly, underline why this is so important.

In her letter to me of 24 April drawing the regulations to my attention, the Minister acknowledged concerns raised by some NGOs about the Government pressing ahead with these changes in advance of the publication of Stephen Shaw’s review into the implementation of his previous report into the welfare of vulnerable people in detention, already mentioned. She sought to reassure me that the changes made at this point are,

“purely for the purposes of implementing”,

the High Court judgment on the definition of torture. But that is no reassurance at all; it is the very fact that this judgment is being implemented in this way that concerns the NGOs that have years of experience of working with people who have suffered torture.

Even if the Home Office were correct in its view that it needed to act swiftly, why did it need to do so by introducing a new definition of torture in the face of well-grounded objections from these organisations? As the noble Lord, Lord Ramsbotham, said, the High Court did not require a new definition of torture in response to its decision. Why could not the Home Office revert to the status quo ante until after the publication of the Shaw review and then consider the question as part of the wider review of the treatment of vulnerable people?

The same question was asked by my honourable friend Joan Ryan MP at the end of the debate she initiated in the House of Commons on 14 June. However, the Minister, while acknowledging that the current adults at risk policy is far from perfect—which is welcome—did not really answer the question, even though she said that she would. She said she was not seeking to turn the clock back without explaining why, in answer to Joan Ryan’s question, and I would be grateful if the Minister could do so now.

In doing so, could she also explain why the Home Office has seen fit to disregard the views of organisations such as Freedom from Torture and the Helen Bamber Foundation, which know more than anyone about the cruelty of torture and its terrible effects? It is the evidence from these and other organisations, such as the BMA, Women for Refugee Women and, most recently, the British Red Cross, that underlines why this Motion is so important.

I find it difficult even to imagine what it must be like to have been be subjected to torture. It is too easy for it remain a rather abstract concept and to lose sight of what it means to have been deliberately harmed by a fellow human being with often devastating consequences. Yesterday I attended the 10th anniversary celebration of Survivors Speak Out. One of those survivors spoke of his time in detention. He said, “We have already suffered so much”, and compared the experience of detention with the torture that he and fellow survivors had lived through.

In its report on health and human rights in immigration detention, the BMA noted:

“Pre-exposure to trauma is a key contributor to the rates of mental health problems in the detained population. One theme that emerges from the literature is that of the ‘retraumatisation’ detention can cause—in particular for those who may have experienced trauma in the form of detention or at the hands of authority figures in their home country”.


It also noted that the detention environment can be particularly retraumatising for LGBT individuals who have faced persecution and women who have suffered sexual assault and gender-based violence.

--- Later in debate ---

[Baroness Williams of Trafford]

I will get on to when it will be published. I am simply saying that officials kept the team informed of the work they were doing to implement the new definition while they were engaging with NGOs. We will carefully consider all of Stephen Shaw’s recommendations, as we did last time, and take them into account when we review detention centre rules, including the operation of the rule 35 reporting mechanism later this year. We will publish his report with a full government response before the House rises in July, in answer to noble Lords’ questions.

As I said, the current imperative is to ensure that, in the light of the court’s very clearly expressed view, we implement a lawful and effective definition of torture for the purpose of the adults at risk policy. There is no reason to delay this. It is separate to, and not dependent on, Mr Shaw’s report.

It has been suggested that the new definition of torture in the context of immigration detention is too complex to be applied by caseworkers and doctors. I do not accept this. It fully reflects the guidance handed down by the High Court. The court, in turn, had the benefit of a large amount of expert and clinical evidence, much of which was submitted by the litigants, Medical Justice. So there is no reason to believe that caseworkers and doctors will find the definition of torture set out in the statutory instruments too complex.

The noble Baroness, Lady Lister, asked whether the consultation with NGOs was sufficient. There was no legal obligation to run a consultation, but officials willingly engaged with them on the definition of torture and on caseworker guidance and training.

The noble Baroness, Lady Hamwee, asked—

[Baroness Lister of Burtersett]

I think the Minister might be getting us a bit mixed up, because the noble Baroness, Lady Hamwee, spoke more about consultation. What she wanted to know, and therefore what I will ask now, is: what was the response? That was not made clear in the Explanatory Memorandum. The response to us was that the organisations are very unhappy about this, which is why this Motion has been brought this evening.

[Baroness Hamwee]

Perhaps I may come back on that. I quoted the paragraph on the consultation outcome because the implication of the Home Office saying it has considered comments from the NGOs is that there is no difference between them, or at least nothing substantial, and that we should not be worried about whether the NGOs made critical comments—which we have discovered they did.

Home Office: Immigration

Baroness Lister of Burtersett Excerpts

Monday 18th June 2018 Lords Chamber

[Baroness Williams of Trafford]

The case raised by the noble Lord is obviously very sad, but he will understand that I cannot comment on individual cases, other than by saying that 94% of straightforward asylum claims are processed within service standards. However, we are committed to reaching asylum decisions as quickly as we can, while ensuring that those often complex cases are given proper consideration. He talked about appeals, and I do not disagree with him: we wish that the appeals rate was better. However, I am sure he understands that quite often information is brought at the last minute which enables an appeal to be granted.

[Baroness Lister of Burtersett (Lab)]

My Lords, given the support last week from around the House during the debate on a Motion on this, what steps are the Government now taking to ensure that no child who belongs in this country is dragged into the immigration control system because they cannot afford the fee to register their entitlement to citizenship, which the Home Secretary himself described as “huge”?

Immigration: “Right to Rent” Scheme

Baroness Lister of Burtersett Excerpts

Wednesday 6th June 2018 Lords Chamber

Asked by

[Baroness Lister of Burtersett]

To ask Her Majesty’s Government what assessment they have made of the impact and effectiveness of the “right to rent” scheme following the most recent report of the Independent Chief Inspector of Borders and Immigration into their “hostile environment” measures, An Inspection of the “Right to Rent” Scheme.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the Government have undertaken to reconvene the landlords consultative panel and to work with it to monitor the operation and impact of the scheme. We continue to raise awareness in this sector to promote compliance and in the past year the right to rent guidance has been viewed online nearly 450,000 times.

[Baroness Lister of Burtersett (Lab)]

My Lords, that is welcome news and it is also welcome that the Government are reviewing their hostile/compliant environment regime, though it is not clear to what extent that will include a proper, thorough review of right to rent schemes. In view of the inspector’s damning observations that hitherto there has been no attempt to measure its impact and that it has yet to demonstrate its worth, plus evidence from the Residential Landlords Association and others of discriminatory consequences, will the Government now suspend the scheme until they have conducted this proper, thorough evaluation that the inspector and others have called for?

[Baroness Williams of Trafford]

My Lords, the Government have no intention of scrapping the scheme. The first phase of the scheme, in the West Midlands, was subject to evaluation by Home Office Analysis and Insight to test its impact on discrimination, vulnerable groups and homelessness, as well as its impact on the sector and local authorities. The Home Office report published on 20 October 2015 found no evidence that the scheme was having any adverse impact on any of these. It is important that noble Lords note that the right to rent scheme is relatively new. It should not be seen in isolation but as one of a number of provisions that deter illegal immigration and restrict the number of illegal migrants establishing a settled life in the UK.

Immigration Applications

Baroness Lister of Burtersett Excerpts

Wednesday 16th May 2018 Lords Chamber

[Baroness Williams of Trafford]

I do not have the Companion with me, so I will leave that for another time. The noble Lord rightly makes a point about the number of appeals increasing. Actually, they went down slightly in the past year, but the number of applications is increasing over time and that is something to be mindful of. He also asked about better decision-making. I have several things to say about that. First, the average age of appeals being determined by the First-tier Tribunal is, according to HMCTS statistics, 50 weeks. That is a considerable length of time. The latest data on win rates is certainly not where we would like it to be.

Appeals are allowed for a variety of reasons. Often it is because new evidence is presented before the tribunal that was not available to the decision-maker at the time. Often, the information is presented very shortly before the hearing and too late for the Home Office to withdraw the case. But one specific reason for the higher rate of allowed appeals is that many cases going through the appeal system are now quite old. The average age of a human rights case is over a year. In that time, often appellants have built up new rights.

[Baroness Lister of Burtersett (Lab)]

My Lords, given that we heard on the news last night that over 60 of the Windrush generation may have been wrongly deported, and the recent observation of the UN special rapporteur that shifting from the rhetoric of a hostile environment to one of a compliance environment will have little effect if the underlying legislative framework remains intact, will the Government now review that legislative framework as a matter of urgency?

[Baroness Williams of Trafford]

I will refer to the cases that the noble Baroness asked about—63 people who may have been wrongly deported. As the Home Secretary said, the department has been checking records back to 2002, some 16 years ago, when electronic records began, looking at all removals and deportations of Caribbean nationals aged 45-plus. So far, 63 cases have been identified where Caribbean individuals could have entered the UK before 1973. This means that, of the 8,000 total deportation and administrative removal records that came up, so far there is a focus on 63 because something in their record indicates that they could have entered before 1973. Of those, there are 32 foreign national offenders and 31 administrative removals. So it does not mean that 63 people have been wrongfully removed or deported; it is the number of cases that merit further investigation. But I thank the noble Baroness for bringing that point up.

Refugees (Family Reunion) Bill [HL]

Baroness Lister of Burtersett Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 11th May 2018 Lords Chamber

I am pleased that the noble Lord accepts the premise of the Bill that families belong together and that our country has a moral duty to recognise them. Accepting the thrust of the Bill and in the light of what I hope he will read as reassurances, I hope that he will accept that the amendment would not be appropriate.

[Baroness Lister of Burtersett (Lab)]

My Lords, I oppose the amendment, which has already been ably opposed by the noble Baroness, Lady Hamwee. I apologise that I could not be here on Second Reading, because I strongly support the Bill. The noble Baroness spoke about the importance of family reunion to integration. I was a member of the inquiry set up by the All-Party Parliamentary Group on Refugees into integration, and I shall say a little about what we found, because I think it is relevant as we discuss the amendment.

The evidence that we received from a wide range of organisations underlined the psychological impact. Here I am talking particularly about the psychological impact on minors who are not allowed to bring any family into the country. Then there are refugees who are here, who have families still in conflict areas or who are still at risk, who are worried sick about what is happening to their families. On the children not allowed to reunite with parents and siblings, Coram Children’s Legal Centre said that it would continue the trauma and suffering of separation and loss. A number of people brought home to us the general impact on integration—that barriers to family reunion create barriers to integration. It is in all our interests that refugees are able fully to integrate into our society. In our findings and recommendations, we argued that,

“successfully being reunited with family members is an important step in helping refugees to integrate”.

We also argued that,

“the definition of family in the Immigration Rules remains very restrictive. Additionally, the lack of family reunion rights for unaccompanied children is a barrier to their successful integration”.

We recommended that they should be allowed to sponsor parents and siblings.

The noble Lord, Lord Marlesford, spoke about statistics and numbers, but we are talking about people. The noble Baroness, Lady Hamwee, rightly said that we were not talking about immigrants—although, of course, migrants are also people. We are talking about refugees, and she gave some very pertinent potential examples. I ask the noble Lord, Lord Marlesford, to think back to when he was an adolescent and put himself in their shoes—a young man who has left his country, for whatever reason, as a refugee. He is here in a strange country, his parents are still in danger, and he has two younger siblings, also in danger. How would he make the choice? Surely, to be asked to make a choice like that as a young person would just increase the psychological suffering. Whoever you chose, you would feel that you had left behind your mother, father, brother or sister, and you would live with the consequences. You would feel guilty about the people you had left behind, rather than those you had been able to bring in. That would increase the psychological trauma and suffering for these young people. We have to try to put ourselves in the shoes of people who are in a really difficult situation. To ask a young person in particular—but anyone, actually—to make that kind of choice about their family as to who they would save or not save is inhumane and cruel.

[The Earl of Listowel (CB)]

I speak in support of the Bill and against the amendment. I recognise the concerns that the noble Lord, Lord Marlesford, has raised about pressures on public services, but these children will be in care, so they will need a foster carer or perhaps be in a children’s home. If they have a family member with them, the public purse will benefit in that regard.

From a humane point of view, I worked in a hostel once a week over a period of time and saw a young girl from Afghanistan, and she was always quiet and depressed. She spoke no English—she spoke only a very limited dialect of her language, and the only other speaker was somewhere way off in the East End, so she was very isolated. One evening I arrived and she was in tears, because she had had news that the town that her parents lived in was being shelled, and she was concerned about them. The examples given about the hardship and emotional trauma for these young people ring very true to me. Simply from a humane point of view, anything that can be done to reunite these children and young people with their parents has to be welcomed, so I support the Bill.

Creditworthiness Assessment Bill [HL]

Baroness Lister of Burtersett Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 11th May 2018 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I beg to move the amendment in the name of my noble friend Lord Naseby. He cannot be here today but he has asked me to make it clear that he is not opposed to the principle of this Bill, as am I, but he is worried that it ties the hands of the FCA and is too prescriptive. That is why he seeks to delete the word “must” in the first group of amendments and substitute it with “may”; rather than the instruction to the FCA to “ensure that”, he suggests “consider whether”; and the word “should” in the final amendment in the group is a grammatical change.

In all of these amendments he was guided by the advice of the Consumer Credit Association and I would like to justify the amendments by explaining the CCA’s concerns. I want to set out this properly in this group so that there is no misunderstanding where my noble friend is coming from—the amendments are not a rabid desire for unfettered market forces. These are not so much probing amendments as airing amendments, if your Lordships will accept the term, to air the concerns of the CCA. I know that the noble Lord, Lord Bird, with his tremendous experience in this matter, has considered them and will have impeccable detailed arguments against them. If that is the case, then we will have succeeded in airing these amendments today.

The Consumer Credit Association says that it is not against the general evaluation of credit referencing systems; however, it considers it inappropriate and disproportionate for the law to force firms to use and pay for rental data—or any other specific type of data—in their commercial assessment. It is concerned about what it calls unintended consequences.

At face value, most people would think that requiring lenders to use more data would inevitably lead to better decisions and improved consumer outcomes. However, a number of complexities appear not to have been properly considered, says the Consumer Credit Association. For instance, the rents of just under 4 million households—that is 40% of the rental market—are subsidised via housing benefit to the extent of about £5,000 per household per year. This means that the rent payments in these cases reflect receipt of subsidy rather than a tenant’s propensity to pay. Where the subsidy is paid direct to the landlord, this effect is even more pronounced. In the same vein, non-payment of rent may often reflect delays in paying the benefit rather than the unreliability of the tenant. It also says that well over 1 million tenants are already in arrears on their rent. The proposal would not help this large group; on the contrary, these consumers would find it more difficult to access credit and would therefore become even more financially excluded.

The collection and use of rental data is being marketed to landlords as a means of reducing arrears. The proposal would give unscrupulous landlords who fail to repair their properties increased leverage over tenants, because it would increase the risks for a tenant making any reasonable attempt to withhold or set aside their rent against getting repairs done to the building.

The CCA also says that it is not a given that council tax and rental data would add value for all types of lenders in all situations, yet all firms would be required to pay for this data whether or not they used it. This would be commercially inefficient and the cost would be passed on to consumers through higher prices for credit. It is the CCA’s strong view that firms are the best judges of whether it makes commercial sense for them to subscribe to products such as rental exchange and credit lending. Compelling them by law to do so would, on the other hand, be inappropriate.

Consumer representatives are divided on the potential impacts of the proposal but have flagged the risks of possible harm to some consumers. The Centre for Responsible Credit, for example, has urged caution, because failure to pay rent could lead to the loss of a home, bailiff action and, ultimately, imprisonment. Mainstream lenders are unlikely to consider the data predictive. For many people who miss a rental or council tax payment, it could lead to complete credit exclusion or higher cost credit.

The rollout of universal credit is expected to lead to a significant increase in rent arrears for housing benefit claimants. Similarly, private tenants face rising rents and a freeze on local housing allowance rates. In evidence to the Treasury Select Committee on 28 February this year, both StepChange and Citizens Advice acknowledged the potential negative impact. StepChange said:

“That is fine if the thing that is going to be included is something that you are paying well and on time. If you are behind on your rent and your council tax payment, all that is going to do is enhance the social exclusion for those individuals”.


Matt Upton of Citizens Advice said:

“It is important to acknowledge that it is a double-edged sword. As you say, we see lots of people struggling to pay those bills, and that will not necessarily affect them in a positive way … of the clients we see who struggle to access credit there is a proportion for whom credit referencing is a factor. For a greater proportion it is not the big factor”.


The ambition to increase access to credit for those who rent is laudable. As said by the noble Lord, Lord Bird, I believe that it will help about 80% of tenants, but the CCA says that the proposal’s potential benefits are uncertain, unquantified and currently unsupported by robust independent evidence. My noble friend Lord Naseby thinks that more studies on this must be done but he respects the point of the noble Lord, Lord Bird, that millions of honest, hard-working tenants who pay their rent and council tax would benefit from having their good record of payments used to get a mortgage or cheaper white goods.

I know that the noble Lord, Lord Bird, is keen to pick up the 20% who are in debt and seek ways to get them out of that hole, but my noble friend finds the CCA’s worries and concerns quite persuasive. As I read them, I found them persuasive too. I look forward to the answers of the noble Lord, Lord Bird, and the Minister. All we wanted to do was give these amendments an airing, raise the CCA’s concerns and wait to hear the answer.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am very supportive of what the noble Lord, Lord Bird, is trying to achieve with the Bill. I have to admit, I was not aware of the issue until I read the debates on it and the Big Issue article he wrote.

I also have some worries about the potential unintended consequences raised by the noble Lord, Lord Blencathra, which I have communicated to the noble Lord, Lord Bird. We have to think about the context: more people are getting into rent arrears, partly because of universal credit and partly because of cuts to the benefits they rely on—in or out of work—at a time of rising rents. We know that council tax arrears are also going up because of what has happened to the council tax support system. This group of people will not be helped by the Bill. That is understandable: the Bill will help those with a good record, which is very useful and important. In his reply, I would like the noble Lord, Lord Bird, to assure the House that things will not rebound on that group and that they will not be in a worse position than they otherwise would have been. It would be helpful to have that assurance on the record.

Benefits: Two-Child Limit

Baroness Lister of Burtersett Excerpts

Monday 26th March 2018 Lords Chamber

[Lord Bates]

I pay tribute to the work that the right reverend Prelate does as an advocate for children among the Bishops and his consistent interest in this. The change in policy that he is referring to in effect came in at the beginning of April last year. We have said we will look at the statistics as they are gathered over a period of time and keep them under close review, particularly in relation to the exemptions, and will publish information on that. Ultimately, in the short term, the key message that we want to send is that the heart of the policy was built on the principle that work should always pay and that people should always be better off if they are working. The fact that we have near-record levels of people in employment, which is continuing to happen, is some evidence that the policy is working, but we need to keep the specific effect of this particular change under review, and we will.

[Baroness Lister of Burtersett (Lab)]

The policy is affecting those in work in particular. The Government claim that their policy-making gives primary consideration to the best interests of the child, in line with the UN Convention on the Rights of the Child. Can the Minister explain how the policy fulfils that principle, when all the independent analysis indicates that it will worsen child poverty significantly in addition to the increase in relative child poverty among larger families, particularly among certain ethnic minority groups and those in paid work?

[Lord Bates]

The benefit applies to those in work and those who are not. However, we were also seeking to introduce an element of fairness. People on very low incomes, in the low £20,000s , who may not have any children are forced to make very difficult decisions that impact upon themselves financially when they are about to have a child, and they will do so without any support—certainly child benefit, but also in terms of any additional support from the state. We feel it is only fair to them that other people ought to be in similar positions when considering whether to have a third or subsequent child.

Domestic Abuse

Baroness Lister of Burtersett Excerpts

Thursday 22nd March 2018 Lords Chamber

Asked by

[Baroness Lister of Burtersett]

To ask Her Majesty’s Government what plans they have to support survivors of domestic abuse and to prevent future abuse.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am pleased to be able to open this short debate, which provides an opportunity to discuss the consultation document published on International Women’s Day. For all my criticisms of the Prime Minister, I applaud her commitment on this issue and that of the Minister. Indeed, it was she who negotiated the concession on the Housing and Planning Bill which led to the Secure Tenancies (Victims of Domestic Abuse) Bill, which had its Third Reading last week.

I do not join in the criticism that this is only a consultation document, because consultation is good. I am particularly pleased that it aims,

“to harness the knowledge and expertise of victims and survivors”.

What is disappointing is that it has taken so long to get to this point.

There is much of value in the document and many of the proposals should help tackle what the ministerial foreword rightly describes as a particularly shocking form of violence and abuse. I commend in particular the recognition that domestic abuse is a gendered crime, overwhelmingly, though not uniquely, perpetrated by men against women especially in its most serious forms, and the proposed new statutory definition’s emphasis on economic abuse—of which, more in a moment. However, Women’s Aid has expressed some concerns about the definition which I hope the Government will look at.

I welcome the emphasis on protecting children and a degree of recognition that there is considerable room for improvement in how children’s services deal with domestic abuse—although it will need to go further here. I was also pleased to see acknowledgement of the need to improve how the immigration system deals with victims of domestic abuse who have no recourse to public funds, and the support for Southall Black Sisters, whose work in this area has been an inspiration. It is good to see proposals designed to enable ratification of the Istanbul Convention. Do the Government have a target date for ratification?

That said, I am sure that noble Lords would be surprised if I spent all my time praising the Government, so here come two big “buts”, both of which relate either directly or indirectly to universal credit. First, due to the rollout of UC, the Government have proposed a new funding model for refuges. At present, most of the housing funding element comes from housing benefit, but, as that is incorporated into UC and paid monthly in arrears—often with delays—it will no longer work easily. In its place, the Government have proposed combining refuges with a disparate group of short-term supported housing services and devolving all the funding in a ring-fenced grant to local authorities. This has caused dismay among refuge providers surveyed by Women’s Aid, to which I pay tribute along with other organisations in the field for its work on behalf of victims and survivors. Main concerns include: given that more than two-thirds of women flee to a refuge outside their area, a totally local funding model is inappropriate; the history of the Supporting People programme does not instil confidence in the longevity of any ring-fencing; and, as we have seen with devolution of funding from the national social fund without a ring-fence, this can lead to complete closure of local schemes.

As a joint report of the Communities and Local Government and Work and Pensions Committees emphasised, the unique challenges faced by refuges requires,

“a distinct model of funding, separate to the arrangements for other forms of supported housing”.

Otherwise, the kind of specialist support required by the Istanbul Convention, and in particular that for marginalised groups such as disabled and BME women, will be at risk. Indeed, it is already highly insecure, as noted by the Joint Committee on Human Rights, of which I was then a member, in its 2015 report on the issue.

This is highly relevant to Ministers’ reassurances that there are 10% more bed spaces since 2010 for those fleeing abuse, which no doubt the Minister will repeat later. What that figure hides is the loss of beds in specialist refuges, as competitive tendering and commissioning have driven a trend to larger, more generic providers and funding reductions have meant less funding per bed, thereby making it harder to provide the necessary support for women with complex needs. It is important to emphasise that specialist services are essential in supporting often traumatised women. In its latest domestic abuse report, Women’s Aid warns that such services are already,

“facing a funding and sustainability crisis”.

It believes that the impact of the proposed funding model will be catastrophic. It is therefore welcome that the Government appear to be listening and have now said that no options are off the table. But to provide reassurance, they should go further and drop the proposed local model completely. As the noble Lord, Lord Bourne of Aberystwyth, said recently:

“It is important that we recognise that there is a national dimension to the funding of refuges, not least because people … often are fleeing from the area where they live, understandably, to another area. Also, specialist services could not necessarily be provided on a local basis”.—[Official Report, 6/3/18; col. 1017.]


Indeed, my Lords.

My other big “but” relates to question 35 in the consultation document. It asks:

“What practical barriers do domestic abuse victims face in escaping or recovering from economic abuse and how could these be overcome?”.


I would argue that one of the biggest barriers is the Government’s own so-called welfare reforms, which it is in their power to overcome very easily. Among those highlighted by Women’s Aid are: the reduced benefit cap—which is undermining the exemption of refuges from the original cap because the exemption applies only to the housing benefit element—and the barriers it can create to women moving on to new accommodation; the need for a transitional period of exemption from the bedroom tax for women in a refuge or temporary accommodation, to ensure that suitable move-on accommodation can be secured; and the two-child limit, which could affect a significant minority of survivors.

While conception in the context of an abusive relationship might qualify for exemption, it requires disclosure to a work coach, which can be problematic—just think about having to tell a work coach about that. It requires the victim not to be living with the alleged perpetrator which, according to Women’s Aid, demonstrates a “lack of understanding” of the nature of coercive control. Indeed, the Prime Minister herself said in an International Women’s Day interview with the Independent that,

“we need to remember those women who don’t make that move to leave ... and what support they need”.

What is more, the payment of UC into one account—single or joint—has, in the words of one commentator, reshaped the benefits system into a weapon for abusers. The Women’s Budget Group, of which I am a member, has long warned that,

“the routine application of a single monthly payment can give perpetrators further mechanisms of financial control, putting survivors at greater risk of abuse and limiting their access to the benefit they are entitled to”.

A discretionary split-payment exemption lays the woman open to potential further abuse when the abusive partner’s benefit is then reduced. Such concerns have also been raised by the JCHR, among others, more than once.

In Scotland, split payments are to be routine following a consultation in which some nine in 10 responses recommended this. If the DWP refuses to follow suit elsewhere, it could be accused of aiding and abetting the offence of economic abuse. Will the Minister please take this message back to the DWP? Can she and colleagues in the Home Office and Ministry of Justice do what they can to persuade the DWP that this policy risks undermining the Government’s flagship domestic abuse policy, and that the DWP should include an assessment of the impact on domestic abuse survivors in all future policy impact assessments? My focus on the DWP also points to a wider concern raised by Women’s Aid: that if the domestic abuse Bill is really to transform the response to survivors, we need action across all parts of the public sector—including, for example, health and housing, about which the document says little that is new.

In conclusion, I have identified two ways in which government policy itself might undermine the welcome proposed domestic abuse strategy. In addition, for the strategy to be successful it needs to be adequately resourced, yet it is not at all clear from the document that it will be. The document itself cites research which puts the overall cost of gender-based violence to both victims and society at £26 billion a year—and that was back in 2012. On the principle of spend to save, it makes sense to invest in this policy, but more importantly this is a matter of human rights, equality and social justice.

Yarl’s Wood: Hunger Strike

Baroness Lister of Burtersett Excerpts

Tuesday 27th February 2018 Lords Chamber

[Baroness Williams of Trafford]

The noble Lord is right that individual cases should always be treated sensitively. If the noble Lord could outline an individual case for me, I will certainly take it back. The last thing we want for people in detention is for them to be refusing food and fluid. Legal representation is available to people. There are specific rules on how we should treat sensitively those with mental health problems, vulnerable adults and traumatised people in detention.

[Baroness Lister of Burtersett (Lab)]

My Lords, the point about indefinite detention is not that the person is never released; it is that they do not know when they will be released. We know from the evidence given to Stephen Shaw, including from a psychologist, that this has a devastating impact on mental health. Will the Minister now ask Stephen Shaw, who is reviewing how his recommendations are working, to widen his brief to include whether indefinite detention should be ended, which is in line with what happens in other countries?

[Baroness Williams of Trafford]

As I said to the noble Lord, 92% of people in detention do not stay there for more than four months. I appreciate the noble Baroness’s point about people with mental health issues in detention. In addition to the implementation of the Adults at Risk in Immigration Detention policy in September 2016, NHS England commissioned the Centre for Mental Health to carry out research to support the Mental Health Action Plan, which is part of the Government’s commitment to review and improve the provision of mental health services in immigration removal centres and short-term holding facilities. We appreciate the stresses and strains that this can have on people’s mental health. As the noble Baroness says, it follows one of the major recommendations of Stephen Shaw’s Review into the Welfare in Detention of Vulnerable Persons. We have now invited Stephen Shaw to carry out a short review in the autumn to assess progress against the key recommendations for action in the previous review of the welfare of vulnerable people in detention. The work will be completed in the spring and its findings laid before the House.