Windrush Compensation Scheme (Expenditure) Bill

Kevin Foster Excerpts

Tuesday 24th March 2020 Commons Chamber

The compensation scheme is important, but Ministers should not labour under the delusion that it draws a line under the iniquitous injustice of Windrush. Ministers should also not labour under the illusion that it is some act of charity. This is a scheme providing long overdue compensation for a cruel and unjust fate that befell a generation who came here with the best of intent to help this country in its time of need after the war.

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

I thank the right hon. Member for Hackney North and Stoke Newington (Ms Abbott) and the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) for their constructive speeches and thoughts. As the shadow Home Secretary just reflected, we are talking about people—particularly those who came here before 1973—who are British. They are British, they viewed themselves as British, and then they had a reminder of some of the prejudices they experienced when they first arrived. The scheme is not about granting people citizenship but confirming the status they always had. When we debate this issue, we always need to make the point that we are not granting them citizenship; they had it and have done for nearly 50 years.

I am grateful for the opportunity to discuss the amendments and new clauses, which I will go through in turn. I hope to give clear assurances to the Members who tabled them on some of the issues raised and how they formed part of our thinking during the development of the compensation scheme. I will start with those tabled by the Scottish National party before turning to the official Opposition. Amendment 1 would pave the way for the new clauses that would modify the Windrush compensation scheme before final payments are made. I also recognise that amendment 2 intends not to prevent any interim payments from being made. It has always been our priority to ensure that payments are made as quickly as possible rather than only at the final resolution of a case.

New clause 1 would move the operation of the Windrush compensation scheme out of the Home Office. I understand hon. Members’ well articulated concerns about the Department that caused the issues facing these individuals deciding on their eligibility to receive compensation. The Home Office is determined to learn the lessons and right the wrongs experienced by the Windrush generation. I reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that the compensation team is working hard to ensure that people get the compensation they deserve. As my right hon. Friend the Home Secretary said to the House last week, we will continue to do everything possible to ensure that the Home Office protects, supports and listens to every single part of the community it serves.

I also noted the request for a substantive debate on the lessons learned review. If I recall correctly, when the Home Secretary was at the Dispatch Box last week, she indicated that we would almost certainly look to do that at future moment when we are not constrained by the circumstances around this debate.

[Ms Abbott]

Is the Minister happy with the very low level of pay-out from the Windrush compensation scheme thus far?

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[Kevin Foster]

No, I want to see more getting the compensation they are entitled to. That is why we are bringing the Bill forward and why we would have looked to have done more engagement events to reach out to those affected, as she touched on in her remarks. That has been inevitably curtailed by the situation we face. We have extended the scheme for another two years—it was to end in April next year, but it has been extended to April 2023—because we want more people to come forward and apply to it.

I will come in a moment to some of the ways in which we are looking to engage and get to more people. Hopefully, the next set of statistics produced will show that, for example, some more significant compensation awards have been made since the first statistics were produced. We are careful not to put out statistics that could identify an individual and what they may have received, because that is not an appropriate way to go about things as a Government.

Let me return to new clause 1. Moving the operation of the compensation scheme from the Home Office would risk significantly delaying payments to claimants. That is because the first stage in deciding a claim for compensation is to confirm an individual’s identity and eligibility, which is linked to an individual’s immigration status. It would be difficult to decouple this process from the Home Office, which is the Department that confirms this status. We have, though, established an independent review process for those dissatisfied with their compensation offer. The independent review is conducted by the Adjudicator’s Office—a non-departmental public body that is completely independent of the Home Office. The adjudicator can look at, among other things, whether the Department has followed its policies and the use of discretion by the Windrush compensation scheme.

New clauses 2 and 4 seek to require the Department to launch public consultations on applicants’ experiences of the application process, and on the scheme’s limits, tariffs and caps. I reassure Members that our approach to designing the scheme was informed by 650 responses to a call for evidence and nearly 1,500 responses to a public consultation. We also held several public events, and the previous Home Secretary appointed Martin Forde QC—an experienced barrister on all aspects of health law—to advise on the design of the compensation scheme. There are 13 categories under which people can claim compensation. The scheme awards compensation according to actual losses, as well as tariff-based awards. Although some categories of award have an upper limit, there is no overall cap on the amount that an individual can receive in compensation under the scheme, nor a set budget limit on payments to be made.

New clause 3 would see the scheme left open indefinitely. Let me reassure the House that this Government are committed to ensuring that all those who wish to make a claim are able to do so. This is why we announced last week that we were extending the duration of the scheme until 2 April 2023. It is also why we announced the launch of a national communications campaign and a £500,000 fund for grassroots organisations to promote the Windrush taskforce and Windrush compensation scheme. However, as I said on Second Reading, there is a balance to be struck between setting a date far enough in the future to enable people to feel confident that they have time to make their claim, but soon enough to encourage people to put in their claim and get the compensation that they are due. The Government believe that the two-year extension provides this, but there remains the option to extend the duration if that is required. I say in response to the point fairly made by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that we would not close off consideration. However, we think it is right to have a timeframe in order to encourage people to come forward and make their claims.

New clause 5 intends to allow applicants to recover their legal costs in applying to the scheme. The team have worked proactively to ensure that the design of the claim forms is simple and easy to understand, and they were tested with users to ensure that legal assistance is not required. The introduction of this clause might serve to encourage organisations to take advantage of potentially vulnerable individuals and to charge them for unnecessary support to complete a claim. Should claimants need support, the Home Office already has provision for a contract with Citizens Advice to provide free independent advice. We will soon be launching a procurement tendering process to select an organisation to provide free independent advice and support to claimants for the duration of the scheme up until April 2023, and the £500,000 fund for grassroots organisations announced last week to promote the compensation scheme includes provision for advice services.

[Stuart C. McDonald]

I take the Minister’s point about the work that has been done to try to make the scheme simple, and to have a tendering process for services that will provide advice. But this is not just about the form; it is about the process of putting together sometimes complicated evidence, particularly for the bigger awards. Surely there is a possibility that the Government could consider making available even a small panel of certain firms with expertise in this area—for particularly difficult or high-value claims. That is just something to think about.

[Kevin Foster]

I hear the hon. Gentleman’s point. That was one of the areas covered when I met the independent adviser, and his advice is clear: he believes that the system is set up in a way that means people do not need specialist legal support to make a claim. The compensation team will work with the claimant to look at things such as HMRC data on past employment and to access Government records—for example, on immigration fees that may have been paid in the past when someone should not have needed to pay them. At the moment, we are satisfied that this gives people the opportunity to engage, and we are keen that this is about working with the person to find out how they were affected, rather than getting into the type of adversarial legal process that could have been the alternative to the approach that we are adopting.

New clause 6 seeks to prevent the Home Office from reducing compensation awards due to criminality or the timeliness of actions to resolve status. In response to direct feedback from claimants and stakeholders, the Home Office has already made changes to the scheme’s mitigation policy. Individuals are no longer expected to show that they took immediate steps to resolve their status, and that was clarified in new guidance published on 5 March.

While it is reasonable to expect individuals who encountered difficulty in evidencing their lawful right to be in the UK to have taken some steps to try to resolve that, the Home Office will now consider any evidence of steps that someone took to resolve their situation, even if those steps were not taken as soon as reasonably practical when an individual lost their job or took place before an individual encountered difficulties. For example, that could include writing to a Member of Parliament rather than approaching the Home Office directly. That change means that some people may qualify for higher awards, particularly where it relates to loss of employment.

With regard to criminality, those with criminal convictions are not precluded per se from making a claim for compensation. However, being mindful of the Government’s obligations towards taxpayers’ money, we may reduce or decline an award if a claimant has a record of serious criminality. I was asked to explain why we would do that. There may be a claim for loss of employment due to a person not being able to show their migration status. If that claimant then had a serious criminal conviction shortly afterwards or during that period, it would not inherently flow that their employment would have carried on but for the migration status issue, because that serious offence would almost certainly have cost them their employment. But as I say, that does not preclude, and it is not a bar. We are always open with this process, as we work with stakeholders and the independent adviser in particular, but that explains why that would be done—because it seems unfair to compensate with taxpayers’ money when that employment may well have been lost anyway following a particular type of conviction.

New clause 7 seeks that no requirement be made of claimants to demonstrate a level of proof beyond the balance of probabilities for claims for actual losses under the scheme. The scheme awards compensation according to both actual losses and tariff-based awards. Evidential requirements have been designed to be straightforward and not too onerous. However, we do ask claimants to provide as much evidence as they can, so that the best assessment can be made. Caseworkers will work with applicants and contact other Government Departments, such as Her Majesty’s Revenue and Customs, on their behalf where there may be evidential gaps. Where awards are tariff-based, caseworkers will make decisions on the balance of probabilities. Where awards are for actual losses, it is right that we seek to obtain an appropriate level of assurance that those losses were incurred, in order to fulfil our duty to properly manage money.

[Stuart C. McDonald]

I ask the Minister to look at that again. I get the point that caseworkers have to be very careful and seek as much evidence as possible when it comes to certain types of losses, including loss of earnings, but to phrase it as “beyond reasonable doubt” seems pretty controversial. All I am asking is that he goes away and thinks about that and perhaps consults Home Office solicitors, because it seems very unusual to demand that standard of proof. I understand the need for evidence, but “beyond reasonable doubt” seems very strange.

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[Kevin Foster]

I thank the hon. Gentleman for his intervention and the constructive way in which it was put. I will give him an undertaking to raise that point with the independent adviser and ask for a response to it.

New clause 8 seeks to allow claimants to appeal to the first-tier tribunal against determinations made under the scheme. As I have outlined, we have already established an independent review process for those dissatisfied with their compensation offer. The first stage is an internal Home Office review by someone who has not been involved previously in the individual’s case, but if the claimant remains dissatisfied, they can request a review by the Adjudicator’s Office, which is a non-departmental public body that is completely independent from the Home Office.

Moving on to the two amendments tabled by the official Opposition, amendment 4 seeks to formally define the Windrush compensation scheme as open to individuals from beyond the Caribbean Commonwealth. I appreciate the thought behind the amendment, but it is not necessary. The criteria for the scheme do not just apply to individuals from the countries of the Caribbean Commonwealth. I accept that there may a need to promote that point a bit more, but, to be clear, that restriction is not there.

[Ms Abbott]

Does the Minister not accept, though, that because the scheme is called the Windrush compensation scheme, some people might assume that it is only for people from the West Indies?

[Kevin Foster]

I very much understand the shadow Home Secretary’s point. Windrush is the name we have for the generation. It is the name that has been in the press. It is the name that the media know, and the name that many of the public would identify with—even though it is a ship that the vast majority of people in the Windrush generation would never have seen, yet alone sailed upon. It has become common parlance. I agree that we need to get the message out there that, although it is called the Windrush compensation scheme, it is not just about those who came from the Caribbean; it is wider. It is for Commonwealth citizens who settled or had the right of abode in the UK before 1 January 1973, plus any person of any nationality who arrived in the UK before 31 December 1988 and is lawfully in the UK or is now a British citizen, and estates of the deceased and others. We intend to continue to promote the scheme and to make sure that more people come forward.

I move on to amendment 5, which seeks to ensure that the impact on family life of people who have difficulties in demonstrating their lawful status is taken into account. There is the ability to award compensation for impact on life, which is awarded on a series of levels, with payments ranging from £250 up to £10,000, where the effect on the claimant was profound and likely to be irreversible.

I hope I have been able to reassure the hon. and right hon. Members who have tabled some well-intended and well-thought-through amendments. I hope they will understand why it would be appropriate to withdraw the amendments.

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[Kevin Foster]

With the leave of the House, Madam Deputy Speaker, I will briefly respond. I appreciate the support that has been given to the Bill, and I wish to thank Martin Forde, QC, the independent adviser. As I said in Committee, we are still open to hearing suggestions as things move on, and we will certainly look to continue to engage with stakeholders to ensure that people get the compensation they deserve. The ability to bid for the funding will be available; it would not be right for me to pledge funding to particular organisations on the Floor of the House. The Black Cultural Archives will have the opportunity to bid into the process, but I hope the hon. Member for Dulwich and West Norwood (Helen Hayes) will understand why it would not be appropriate for me to give lists of groups that may do so, rather than going through the process that is in place. I hope that those who were affected by the Windrush scandal will see the type of debate we have had and see that even in the current circumstances there was a determination to get this Bill through. I accept the shadow Home Secretary’s point that this is not the ideal opportunity to have the longer debate that we will need to have on the Floor of the House at some point about the lessons learned review. I very much appreciate the support that has been given to this Bill by all Members today. Finally, let me wish the right hon. Member for Tottenham (Mr Lammy) a speedy recovery, as I imagine it would have been hard for him to miss this debate, given his passion about this issue.

Question put and agreed to.

Bill accordingly read the Third time and passed.