Windrush Compensation Scheme (Expenditure) Bill

Stuart C McDonald Excerpts

Tuesday 24th March 2020 Commons Chamber

[The Chairman of Ways and Means (Dame Eleanor Laing)]

I wish to restate to the Committee that I will call Divisions only when they are really essential. As always, the Chair will listen to the debate and form a judgment on whether to exercise that discretion. I am reminding the Committee now, as we reminded the Committee that sat yesterday, that today the bar is a high one and that arguments in favour of going through the Division Lobbies will need to be very persuasive.

Clause 1

Expenditure on the Windrush Compensation Scheme

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I beg to move amendment 1, in clause 1, page 1, line 2, at the beginning, insert “Subject to subsection (3),”

This is a paving amendment for Amendment 2 which requires modifications to the Windrush Compensation Scheme.

[The Chairman of Ways and Means (Dame Eleanor Laing)]

With this it will be convenient to discuss the following:

Amendment 4, page 1, line 7, after “persons” insert

“from not only Caribbean but also from other Commonwealth countries who arrived in the United Kingdom before 1 January 1973 and persons who have a right of abode or settled status (or who are now British citizens) and who arrived to live in the UK before 31 December 1988,”

This amendment clarifies that the Windrush Compensation Scheme is not literally limited to men and women who originally came to the UK from the Caribbean Commonwealth.

Amendment 2, page 1, line 9, at end, insert—

“(3) Subject to subsection (4), modifications that must be made to the scheme before subsection (1) comes into force are set out in sections [Responsibility for the operation of the Compensation Scheme], [Consultation on simplifying the application process], [Time limit], [Public consultation on limits, tariffs and caps], [Legal assistance], [Restrictions] and [Standard of proof], and [Appeal to the First Tier Tribunal].

(4) Subsection (3) does not prevent payment of interim awards under the Windrush Compensation Scheme.”

This a paving amendment which requires modifications to the Windrush Compensation Scheme before final payments can be funded by money provided by Parliament.

Amendment 5, page 1, line 9, at end insert

“, taking into account the impact of those difficulties on the family life of those persons”.

This amendment would require the scheme to take account of the impact on the family life of people who encountered difficulties in demonstrating their lawful immigration status.

Clause stand part.

Clause 2 stand part.

New clause 1—Responsibility for the operation of the Windrush Compensation Scheme—

“Within two months of the date on which this Act is passed, the Secretary of State must arrange for operation of the Windrush Compensation Scheme to be the responsibility of an institution other than the Home Office.”

This new clause requires the Secretary of State to move the operation of the Windrush Compensation Scheme to an institution other than the Home Office.

New clause 2—Consultation on simplifying the application process—

“The Secretary of State must launch a public consultation on the applicants’ experience of the application process under the Windrush Compensation Scheme.”

This new clause requires the Secretary of State to launch a public consultation on the applicants’ experience of the application process.

New clause 3—Time Limit—

“No time limit applies to when applications for compensation under the Windrush Compensation Scheme must be received.”

This new clause would ensure that no time limit can be imposed on when applications should be received.

New clause 4—Public consultation on limits, tariffs and caps—

“The Secretary of State must launch a public consultation on the limits, tariffs and caps in the Windrush Compensation Scheme.”

This new clause would require a public consultation on the limits, tariffs and caps in the scheme.

New clause 5—Legal assistance—

“The Windrush Compensation Scheme must make provision for the reimbursement to applicants under the scheme of their reasonable costs of legal assistance in making applications for compensation under the Scheme.”

This new clause would allow applicants to recover their legal costs in applying to the scheme.

New clause 6—Restrictions—

“(1) Compensation under the Windrush Compensation Scheme may not be denied to any individual on the basis that they have a criminal record.

(2) Awards of compensation under the Windrush Compensation Scheme may not be reduced on grounds that the individual failed to contact the Home Office at an earlier stage.”

This new clause would modify the restrictions on the payment of compensation under the scheme.

New clause 7—Standard of proof—

“No requirement may be made of applicants for a level of proof beyond the balance of probabilities for claims under the Windrush Compensation Scheme, including any claims relating to—

(a) loss of earnings

(b) reimbursement of private medical fees,

(c) reimbursement of international student fees, and

(d) loss of access to banking.”

This new clause would apply a civil standard of proof to claims for compensation under the scheme.

New clause 8—Appeal to the First Tier Tribunal—

“(1) The Secretary of State must make provision by way of regulations for claimants to have a right of appeal to the First Tier Tribunal against any determination issued under the Windrush Compensation Scheme.

(2) An appeal under subsection (1) must be brought on the grounds that the determination was not in accordance with the Windrush Compensation Scheme.”

This new clause would allow claimants to appeal to the First Tier Tribunal against determinations made under the scheme.

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[Stuart C. McDonald]

We need the Bill to pass this evening so that compensation can continue to be paid to the victims of the Windrush outrage. I dearly want that to happen, and I encourage all who may qualify for compensation to seek advice and to make claims. Ultimately, ensuring that compensation can continue to be paid is all that really matters this evening.

However, this Committee stage gives us a short opportunity to probe the Government on various aspects of the scheme where we think improvements can and should be made. Some of those suggestions will be all the more important given the findings of the lessons learned review that was published last week. The report represents an utterly damning indictment of Home Office policy over many years and should represent an absolutely pivotal moment—a turning point—in how Governments, and indeed Parliament, develop and debate immigration policy, as well as in the role that considerations of race must play in policy development. As the review points out:

“The department didn’t consider risks to ethnic minorities appropriately as it developed the policy. And it carried on with implementing the scheme after others pointed out the risks, and after evidence had arisen that those risks had materialised.”

This was not just a simple mistake, in the way we usually use that word; it was really an act of pretty outrageous recklessness.

This debate is understandably overshadowed by the coronavirus crisis and takes place in an understandably sparsely attended Chamber. All of that is completely understandable, but it means that this is not the appropriate moment for Parliament to have its final say on the lessons learned review. Therefore, probably the most important ask I would make of the Government today is that they make a commitment to find a suitable future date in Government time, on a Tuesday or a Wednesday afternoon, so that we can have a full day’s debate, with full and proper scrutiny of the Wendy Williams review and its implications. The period of profound reflection called for by her review should happen here in Parliament, as well as in the Home Office.

Against that background, I now turn briefly to the specific amendments and new clauses we have tabled, which are largely self-explanatory, so I can go through them in fairly quick order. Amendments 1 and 2 are simply paving amendments, and allow us to make the key points we want to make through new clauses 1 to 8.

New clause 1 makes a simple but fundamental point. As I argued on Second Reading, it is surely not only pretty crass but counterproductive for the Home Office to be responsible for operating the compensation scheme. If an institution ruins someone’s life, their faith in the compensation scheme is surely not enhanced if the very same institution then sets the rules and makes the judgments on compensation applications. That is even more the case if someone still has concerns that the same institution could do further damage to them or their life. That is exactly how it is with the Windrush compensation scheme.

I repeat that I want people to come forward and to apply. I say to the Minister that making the scheme independent of the Home Office will undoubtedly increase uptake and interest in it. Ultimately, given what these people have been through, how can any of us in this House criticise them for having concerns about providing information to the Home Office? Making the scheme independent is what the Windrush victims and campaigners have been asking for, so even at this late stage I urge the Government to think again about the institutional framework.

New clause 8 provides an alternative opportunity to introduce an independent safeguard through a proper, independent appeal to a tribunal system. Applying for compensation in this way is a full-blown and complicated legal process. The overall sums for the taxpayer, although not insignificant, are not huge either, particularly given the sums we have been talking about in recent days. However, they could and should be pivotal and life-changing for those who are obtaining compensation. This is also about the significance of the scheme and the importance of getting it right. All of that justifies proper, independent judicial scrutiny of controversial and contested decisions.

New clauses 2 and 4 are designed to encourage the Home Office to continue to consult and make improvements to the scheme as we proceed. The Minister has engaged previously, and he has made changes, and we encourage him to continue to take that practical approach.

More significantly, new clause 4 seeks further consultation on the various restrictions, tariffs and caps that are part of the scheme. Clearly, there was extensive consultation prior to the scheme being launched and I do not criticise any of that for one moment. That was valuable work, but I submit that everything now has to be reviewed in the light of last Thursday’s report. That report puts this scandal in a very different light from others where compensation has been awarded and from where practice may have been copied. Such was the flagrant disregard for the impact of Home Office policies, it surely is right that we revisit all the limits and restrictions on the losses that can be recouped. Quite simply, we must look again in the light of last week’s report.

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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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[Stuart C. McDonald]

I am grateful to the Minister for addressing some of the points raised. Through our interventions, I think the shadow Home Secretary and I have made it clear that we accept what the Minister has said, and we have asked him to go away with one or two points and ask further questions. In the meantime, I beg to ask leave to withdraw the amendment.

[Ms Abbott]

I just want to confirm that it is not our intention to vote against the Bill, and it is our intention to not press our amendments.

Just before the debate comes to a close, I would like to express, on his behalf, the regret of my colleague and right hon. Friend the Member for Tottenham (Mr Lammy) for not being here. He is in self-isolation due to the current public health problems.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third reading

Motion made, and Question proposed, That the Bill be now read the Third time.—(Kevin Foster.)

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[Stuart C. McDonald]

I think I said all that I needed to say in Committee. The most important thing to happen this evening will be that we pass the Bill so that compensation continues to be paid. We have made some suggestions about how the compensation scheme can be improved, but we welcome the intent behind it and hope that it reaches as many people as it needs to reach.

Another important thing to happen this evening was the undertaking that there would be a proper and full debate about the lessons learned review that was published last Thursday. It was a hugely significant moment in modern British political history. There are so many aspects of the Windrush scandal that still have to be properly explored in this place, as well as within Government, and we look forward very much to playing our full part in that.