Health and Care Bill (Thirteenth sitting)
Tuesday 19th October 2021
(2 years, 6 months ago)
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The Chair
Before we start, I have a few notices. Welcome to Committee Room 14. Please stand to catch my eye because this is such a long room, although if you are doing anything naughty at the back I will see it. I should say that today is my birthday, but wishing me a happy birthday will get you no advantages. Electronic devices should be put on silent mode. No food or drinks, except water, are permitted during the sitting.
The House encourages Members to wear masks when they are not speaking and to give one another space when seated and when entering and leaving the room. Thankfully, in this Committee Room that is easy to do. Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk.
Clause 79
Information Standards
The Minister for Health (Edward Argar)
I beg to move amendment 117, in clause 79, page 69, line 15, leave out “services” and insert “care”.
This amendment has the effect that information standards may be set for public bodies that exercise functions in connection with the provision of any health care in England, and not simply NHS services.
The Chair
With this it will be convenient to discuss the following:
Government amendments 118 to 121.
Clause stand part.
Edward Argar
It is a pleasure to serve under your chairmanship, Mr Bone. As a member of the Government, I am well aware that seeking to curry favour with you in the Chair is a futile task, but none the less I wish you a happy birthday.
The amendments ensure that the drafting of the clauses covers all healthcare, whether delivered by public bodies or by the independent sector on behalf of the NHS or not, and that the relevant persons are captured by the requirement to comply with information standards. Those are matters of technical detail, and ensure that the changes made by clause 79 are coherent and consistent.
Amendment 117 makes minor changes so that information standards can apply to public bodies that exercise functions in connection with the provision of healthcare in England. It ensures that information standards can be applied to public bodies, even if the healthcare is not provided as part of the NHS. Similarly, amendment 118 ensures that information standards can apply in the processing of non-NHS and NHS healthcare information.
Amendments 119, 120 and 121 make consequential changes as a result of the previous amendments. Without those changes, there could be uncertainty about whether information standards can be applied to healthcare information generated outside the NHS. Without the amendments, we might not be able to ensure that data relating to NHS services—such as data about services provided in private patient units or by independent sector providers—flows through the system in a standardised way so that it is always meaningful and easy to understand for any recipient or user.
Clause 79 amends the Health and Social Care Act 2012. It allows the publication of mandatory information standards relating to the processing of information, including its transfer, collection and storage. Health and adult social care providers must currently have regard to information standards, but the clause would require providers to comply with them. The clause allows for the application of mandatory information standards to private providers as well. It requires regulations to be made about procedures for creating information standards. The clause also includes a power to require information from providers for the purpose of monitoring compliance with information standards.
The measures will help ensure that information flows through the system in a standardised way so that it is easily accessible and useful, and they will help to ensure the security of that information when it is processed. Given that publicly funded providers are already required to have regard to information standards, the clause will cause minimal disruption to compliant providers but will enhance the Department’s ability, on behalf of the public, to deal effectively with cases of non-compliance.
By applying information standards to private providers, the clause aims to improve the experience of patients who move between publicly and privately funded services by their own choice, such as individuals who choose elective surgery by a private provider. It does that by enabling the setting of standards that encourage the frictionless movement of information between those providers, with the aim of supporting timely and appropriate patient care decisions.
We consider the clause a crucial enabler for the creation in its broadest sense of a modern heath and care service whose systems are integrated and responsive to the needs of patients and users. I commend it to the Committee.
Alex Norris (Nottingham North) (Lab/Co-op)
It is a pleasure to resume proceedings on the Bill with you in the Chair, Mr Bone. I would extend birthday greetings to you, but I know that Tom Brady and the Tampa Bay Buccaneers are already giving you all the joy that you need at this time of the year.
Alex Norris
I thought that might get more traction with you.
I also take the opportunity on behalf of Opposition Members to pass our sincere condolences to Government Members and to pay tribute to our friend Sir David Amess. He was a wonderful man: funny, kind and caring. I say that now because my final conversation with him was about the Bill, which precluded me from joining him on a trip. He commended me on my diligence but also cautioned me not to work too hard. I will always remember that; it was classic David.
As the Minister said, we have reached the data part of the Bill. It is important for everything we talked about in part 1, because all the new cultures that we seek to foster will fall over if the data does not work and, as he said, flow freely back and forth between organisations. At the end of the day, ensuring that data can port between different organisations is our problem to solve, not that of the patient or the individual. Therefore, if we are to have properly joined-up care, it is vital that those who provide care have a full sense of who they are caring for and what is needed.
I will not cover the Opposition’s really good amendment to the next clause, which would improve it further, until we get to it. In that spirit, we do not intend to divide the Committee on this group of amendments or on the clause more generally, but I have a couple of points to address, which I hope the Minister might come to in his summing up.
On the clause in general, the Opposition support putting the entire health and care system on the same footing for information standards. As we heard in oral evidence, one of the major blockers is the myriad data systems used across the health and care landscape, many of which cannot talk to each other. When I was an adult services portfolio holder in my local council, I saw how hard it was sometimes even for council systems to talk to each other—I do not know whether that was remarkable or inevitable—never mind systems across different organisations and, in this case, the public, private, and community and voluntary sectors. That is a real challenge. I do not think we can remove that completely—systems may look different because of their different purposes—but there must be some attempt to standardise.
The Opposition do not oppose the clause, but proposed new section 6B in subsection 2(c) allows organisations to opt out—we might want organisations to be able to do that in some circumstances—and proposed new section 6C provides that regulations will cover when that is allowable. However, it is hard to know whether the clause will work until we have seen whether the regulations are strong enough and set a high enough bar on opting out. Will the Minister confirm that the measure allowing for opting out will be very much exceptional and that we will not see any nonsense about commercial confidentiality? We want data to flow across sectors, and that confidentiality has traditionally been one of the barriers to that.
Let me turn to Government amendments 117 and 118, which will expand the scope of the organisations covered. That is good. If we are to share data between social care and more traditional healthcare services, that includes a big landscape of non-NHS providers and perhaps even non-local authority providers, and it is right that information standards should be aligned. There must be a common basis on which to build. The Minister said that in general most organisations are probably already in that space and paying the due regard that they need to, but I fear that these things will be easier in concept than in execution. I am keen to learn what assessment the Minister and his officials have made of how ready the disparate providers in this landscape are to meet these new requirements, whether he thinks there will be a transition period, and whether providers will be helped to do this. Otherwise, the implementation of this strong concept in the Bill will not work. I hope the Minister can address that.
Edward Argar
May I put on record my gratitude to the hon. Gentleman for his kind words about our late colleague? I suspect that the Health team and the shadow Health team will also speak of him in oral questions in the Chamber in a little while. The hon. Gentleman’s anecdote was all too typical of Sir David and his approach to these things. I think the last time I spoke to Sir David was at our party conference; I had to do something on the platform, and he seemed mildly bemused by the fact that I was rushing off to have my make-up done before I went before the cameras. He then insisted on posing for a photograph with me. It was typical of him. We all miss him terribly in this place, as of course, most importantly, will his wife.
I am also grateful to the hon. Gentleman for his support, in broad terms, for clause 79 and the Government amendments. He is absolutely right about the importance of data flowing freely and safely for the benefit of patients. That is why the clause strengthens the wording of the Health and Social Care Act 2012, so that it says “must…have regard to” and “must…comply with”.
The hon. Gentleman asked a number of questions. First, he talked about the option of opting out from regulations. I can offer him reassurance on that; yes, I hope that its use would be exceptional, rather than the rule. Our assessment is that there is already widespread compliance with what we are seeking to do here, but as he rightly says, we have to make sure that we have as robust a framework as possible, because it is up to us to make this work for the patient, rather than their having to work their way around a challenging framework.
The hon. Gentleman’s final point was about the burden of execution. He is absolutely right; as we all know in this place, and from our previous careers in local government—we talk about this a lot—something can look immaculately thought-through and put together on paper, but when we hit the reality of practical implementation, there can be significant challenges. It is not our assessment that there will be significant burdens or challenges with implementation; I go back to my point that our understanding is that the vast majority of these requirements are already adhered to. However, I am happy to keep the matter under review, and to make sure that we tweak the implementation if we need to, and are sensitive to the reality on the ground.
Let me put a bit more flesh on the bones on the subject of the waiver—the opt-out, as it were—as we may touch on the subject when we come to the hon. Gentleman’s later amendments and in subsequent clauses. The thinking behind the waiver is that there may be circumstances in which an organisation feels that it genuinely cannot meet a published information standard that applies to it. That is why there is the waiver power. It could apply to use it, but that request would have to be considered very carefully by officials before it was granted.
I hope that I have given the hon. Gentleman some reassurance, but he knows, I hope, that I seek to be pragmatic in much of what I do, and in the implementation of the provisions, I will seek to apply a degree of common-sense pragmatism.
Amendment 117 agreed to.
Amendments made: 118, in clause 79, page 69, line 21, at end insert—
“(aa) in subsection (3), for ‘services’ substitute ‘care’;”.
This amendment makes it clear that the Secretary of State’s power to set information standards extends to information concerning health care other than NHS care.
Amendment 119, in clause 79, page 70, line 2, at end insert—
“(d) in subsection (7)—
(i) at the appropriate place insert—
‘health care’ includes all forms of health care whether relating to physical or mental health and also includes procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition;”;
(ii) omit the definition of ‘health services’.”
This amendment is consequential on Amendments 117 and 118.
Amendment 120, in clause 79, page 70, line 29, at end insert—
“(3A) In section 251C (continuity of information: interpretation)—
(a) after subsection (6) insert—
‘(6A) “Health services” means services which must or may be provided as part of the health service in England; and for that purpose “the health service” has the same meaning as in the National Health Service Act 2006 (see section 275(1) of that Act).’;
(b) for subsection (7) substitute—
‘(7) Adult social care’ and ‘public body’ have the same meaning as in section 250; and ‘processes’ and ‘processed’ are to be read in accordance with the meaning of ‘processing’ in that section.” —(Edward Argar.)
This amendment is consequential on Amendment 119.
Clause 79, as amended, ordered to stand part of the Bill.
Clause 80
Sharing anonymous health and social care information
Alex Norris
I beg to move amendment 109, in clause 80, page 71, line 15, at end insert—
“(4A) Before the power in subsection (1) may be exercised, and every five years thereafter, the Secretary of State must review, and lay before Parliament a report of that review, the possibility of combining the exercise of that power with the exercise of the powers under which—
(a) the General Practice Data for Planning and Research programme, and
(b) other data-sharing programmes
are run.”
I am moving this amendment in my name and those of my colleagues. There has been some disappointment that on part 1 of the Bill we have not been able to move the Government particularly far from what was originally presented in the Bill. As has been said a number of times, this Bill ought to drive integration in health and care services, but instead we really have a reorganisation Bill, with a promise from the Prime Minister to return with an integration White Paper in due course—when presumably some configuration of all of us will come back and do all this again. It is hard to think that we have not left some opportunities on the table, so I hope we can do better on parts 2 to 5 of the Bill, and I do not think there is a better place to start on that than amendment 109, which would significantly help the Government with an issue that they have been struggling with for more than a decade.
It is obligatory for Health Ministers and shadow Health Ministers to start by saying that data saves lives, and it does. It tells us what is happening in our communities and our country and how we may need to change services to meet the needs of populations. But if it is done right, it can also tell us what will happen in the future and what future needs we will have to meet. For the purposes of designing health and care services, that is golden information. It gives us the chance to get ahead of the curve, to make good early investments and to avoid dreadful workforce gaps, which we are seeing at the moment and which have been created over the last decade.
We are fortunate that there is no country in the world better set up for high-class use of data than ourselves. We have a single health system in each of the four nations covering our entire populations. Of course, our data is spread over more places than simply NHS databases. If we can get it organised, we ought to have the most rich understanding of our population’s health and of the outlook for the future. What an extraordinary gift that is, but we are not using it effectively enough at the moment and we can do much better.
I remember, early in my stint as shadow Public Health Minister, meeting a group of dentists, one of whom said to me that they can not infrequently recognise the signs of certain eating disorders by the impact that frequent vomiting has on the back of a person’s—in these cases, generally a young person’s—teeth. They found it hard to understand why they had no idea whether anyone else who provided care for that individual, or perhaps even the individual themselves, knew that that had happened, because they had absolutely no broader healthcare information about the person. Of course, there are important circumstances in which we need to create firewalls to protect privacy, and we would want people to have only the information that they needed to do their job properly, but in this case the clinician felt like they were flying blind and unable to provide the very best care for this person as a whole person rather than caring just for the teeth of the person.
As an Opposition, we want to see data used well, wisely and in an integrated manner, and if there has really been only token integration in part 1 of the Bill, why not see the real thing in part 2? As I have said, the history here for the Government is chequered. Only this summer, through the General Practice Data for Planning and Research programme, the Government sought, with a characteristic, I might say, lack of touch, to grab all the data from England’s GPs without explaining to patients why they wanted it, what they would do with it, who would use it and who would not use it. Again, it feels as if it is more than a three-word slogan: not enough time was taken to explain this, and the result was entirely predictable.
According to a survey done by Which?, 55% of people had heard of the scheme and, of those who had, 71% felt that the NHS had not publicised the scheme well. Of those unaware of the scheme, nearly 40% stated that they would now be likely to opt out of it. Fifty per cent. of the respondents who were aware of the plans said that they had heard about them through news or social media rather than official sources. Forty-two per cent. said that hearing about the scheme made them trust the NHS less—that was a particularly startling finding. And nearly one third of those who knew of the scheme and had opted out of it had found the opt-out process overly complicated. What a mess. In the end, we saw 1.4 million people opt out, despite how hard it had been made to do so, and the plans were soon punted into the long grass, to return at a date not specified.
This is a real hammer blow for the confidence in how the state and the country handle data. These were the headlines on 13 and 14 October alone. The Bracknell News had, “Thousands of people in Bracknell Forest have opted out of sharing their medical records”. The Somerset County Gazette had, “MORE than 10,000 people in Somerset West and Taunton have opted out of sharing their medical records”. The Lancashire Evening Post had, “Thousands in Preston block bid to share medical records”. The Wirral Globe had, “Tens of thousands of people in Wirral have opted out of sharing their medical records”. The Bolton News had, “Nearly 20,000 Bolton patients opt out of sharing their medical records for research.” There were similar headlines in the Shields Gazette, Hemel Hempstead Gazette, the Hartlepool Mail and more. If it were not so serious, it would be funny.
Dr Philippa Whitford (Central Ayrshire) (SNP)
It is important that we recognise the different types of data. The clause is talking about anonymised data, from which we are looking at performance standards, outcome standards and the percentage of patients who had a certain treatment. It is not talking specifically about identifiable data. We also have fully identifiable data with patient details, and in between those we have what is called pseudonymised data, which is like a blurry picture. However, the public are also concerned about that data because they fear that when it is triangulated with other sources somebody can be identified.
It is important that clinical data—the basis of communication between a GP, a breast surgeon like me and an oncologist in a centre—moves around and can be used. However, we must recognise that, as the hon. Member for Nottingham North clarified with the survey that he quoted, the public are concerned about their data. Beyond someone’s biological self, the most important thing that relates to them is their personal data, and after the care.data scandal of seven years ago and Google DeepMind, the public do not trust programmes that suddenly appear with little discussion and consultation and that talk about taking data. There is a huge public education process to be carried out, but equally, in the end, confidence is undermined by the talk about sharing data, whether identifiable or pseudonymised, with commercial companies.
Anonymised data is not an issue. For example, of the patients who took a drug, 10% got a side effect and, of those, 3% had previous heart disease. That is useful information; it does not identify patients. The public’s concern is that commercial companies, including pharmaceutical companies, could access pseudonymised or full data that would identify them. It is important that the Government explain the three types of data and how they are used for utterly different things. The public have no issue with Public Health England or academics working to recognise what is happening with heart disease or cancer in the UK and learning from data. However, they are concerned about the potential commercial use and potential revelation of their personal data.
The Government have a long job to do to convince the public. The danger is that the baby goes out with the bathwater and we lose not just research but integrated functioning in NHS England. It is important to recognise that the data held in the devolved health services is completely separate. I will come to that on clause 85.
Karin Smyth (Bristol South) (Lab)
Unfortunately, Mr Bone, you missed our last sitting, in which I relayed to other Members my long career in the NHS and my experience on these matters, but I will start in the spirit in which I left off. Having worked at a clinical commissioning group at the time of the care.data episode, I absolutely concur with the comments made by the Labour and SNP Front Benchers, my hon. Friend the Member for Nottingham North and the hon. Member for Central Ayrshire.
We have had a lost decade, which is a great shame because the use of such data—we have learned much more about data and science during the pandemic—can save lives. My hon. Friend the Member for Nottingham North mentioned meeting a patient who could perhaps have been helped better. At the end of the day, that is what we want to make happen.
My experience inside the health service will not be everybody’s, but on information governance the attitude to data is very well developed and sophisticated, and people take it incredibly seriously. When we started on the care.data episode, the value of that really seemed self-evident in the system.
We need to bear in mind, as we look at the issue as legislators, that the people who deal with it day to day to effect what they see as positive change may be operating on one track and be completely taken by surprise by the public reaction. I remember trying to understand it myself; I am not a data specialist, but I tried to understand the different channels of what was being tried at the time. I explained to more senior managers that it did not sit right with me—I did not understand where it was going or what it meant for me. If I did not understand it, I knew that if it were not explained carefully, as the hon. Member for Central Ayrshire says, the general public would not either.
There is a missed opportunity. I ask the Minister to consider our very helpful Opposition amendment, not just in his role as a political leader in the Government, but by thinking about the rest of the system and how we can support it to do what it needs to. We absolutely need to bring the general public with us. Because of the mistakes of the past, I would argue that that we now require quite a mammoth exercise: not just differentiating between types of data, but considering who owns it, how we give it and what powers we will have in future.
As my hon. Friend the Member for Nottingham North said, the opt-out was really quite an incredible exercise over the summer. I think that has gone below the political radar in terms of the numbers of people who have taken that really quite difficult step. Part of this, as we will come to later, is about trust in GPs and GP data, which is where so much of our individual source data goes. The role of GPs also has to be brought very carefully along the path, because that data is of course very valuable for them.
The commercialisation concerns people, but beyond that, this is about our very essence—our trust in the system and the clinicians we see, who most of the time are our GPs. The Government need to step back—although not for too long, because they have already stepped back for a decade—and consider what is the best public exercise that they could embark on to resolve this problem, as the system and all of us really need.
Accepting our amendment in the spirit in which it was moved would be a step in the right direction. If the Government do not accept it, at the very least we should understand what they propose in its place.
Edward Argar
I am grateful to the hon. Member for Nottingham North for tabling amendment 109. I appreciate where he is coming from; as I understand it, his amendment is intended to ensure that the clause does not require health and care organisations to provide information that they could already be required to provide under existing powers. He talked about consistency and a single approach, and he is right.
The hon. Member for Bristol South is absolutely right, as is the SNP spokesperson, the hon. Member for Central Ayrshire, about the need for us—the Government, the system and indeed all of us—to better explain and reassure people about the fact that data saves lives and about how it is used. The hon. Member for Central Ayrshire was right to draw a distinction between pseudonymised and anonymised data. She was equally right to highlight that pseudonymised data is not relevant under the power, which is about anonymised data. In a sense, the reassurance is there, but it is incumbent on us to make it clear to people.
Alex Norris
I thank colleagues for their contributions, which I thought were really good. This is an important area, and it is important that we give it a proper look. The points that the hon. Member for Central Ayrshire made about the different types of data were important, and the run-through of their benefits and disbenefits was well made. I know that we will get to them again when we debate future amendments, so I will not prejudge that conversation. I still feel strongly—this relates to what the Minister said—that we have reached a point in the public conversation where there is no differentiation left, and that is the point that Simon Madden made. Because the temperature of the discussion has been elevated, they will be seen as one. That is what I have sought to address in my amendment.
My hon. Friend the Member for Bristol South was right to say that we have had a lost decade. That is, sad because it means that there have been healthcare improvements that we have not made. Over that time, extraordinary workforce gaps have emerged, and we would perhaps have been able better to plan around them if we had had a greater sense of the growing healthcare needs in our population. She is right that getting public trust back will be a “mammoth exercise”. That is why we have advocated for getting everything under one roof, in a single process.
The Minister mentioned that we all have a responsibility to explain data, and that it is important to make the arguments that we make in here out in our communities. I agree, but I feel I have much less of a responsibility to do that when the process is snuck out over the summer at short notice, without our ever having had a conversation about it. There could have been some effort to build consensus. I would have been willing to have difficult conversations with colleagues and constituents about it on that basis, but the way the process was handled made it impossible to defend. It left right hon. and hon. Members in the very strange circumstance of helping people to opt out of a system while thinking that that was not a good decision for them, or for anybody. As local representatives, we have a responsibility to people who ask for help.
I still do not get the sense from what has been said since then, publicly or in these proceedings, that the Government really understand the public message that they have sent, and I fear that that means we will keep repeating this conversation. In the amendment I simply ask that before the powers in the clause are turned on, a statement is made about how we seek to use these processes, and any other data processes, and handle them as one piece. That feels like a very modest ask.
I am going back and forth on whether to press the amendment to a Division. The Minister’s offer was a kind one, and I am conscious that I am putting a lot of this at his door. He did not create this process, but he is here speaking to part 2, so it is at least half him. Perhaps, when the dust has settled from what happened over the summer, we can have a conversation soon between Government and Opposition Members about how to do such things differently in future.
Edward Argar
I am happy to reassure the hon. Gentleman that either I or the relevant portfolio-holding Minister will happily have that conversation with him.
Alex Norris
I am grateful for that, and on that basis I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 121, in clause 80, page 71, line 20, leave out “250(7)” and insert “251C(6A)”—(Edward Argar.)
This amendment is consequential on Amendment 120.
Question proposed, That the clause, as amended, stand part of the Bill.
Edward Argar
As we alluded to in our discussion on amendment 109, the clause inserts a new section into the Health and Social Care Act 2012. It has the sole objective of increasing the sharing of anonymous data for the benefit of the health and adult social care sector. The provision applies only to information that is in a form that does not identify any individual or enable the identity of any individual to be ascertained. It allows health and social care public bodies to require such information from other health and social care public bodies and from others who are commissioned by public bodies to provide health and adult social care services. As we discussed in relation to amendment 109, the provision requires those bodies to share only information that they already hold in anonymous form; they are not required to process information held in order to render it anonymous.
The use of “anonymised” in the title of the inserted chapter is a typographical error to be corrected. It does not reflect a change in the policy intention, nor does it have any practical impact on the clause. Anonymous information—information that does not identify any individual or enable the identity of any individual to be ascertained—can already be shared without the need for safeguards to ensure privacy and confidentiality. The provision will mean that public bodies will be able to require such information to be provided to them for the benefit of the health and adult social care sector.
The hon. Member for Nottingham North made an important point about understanding the message from the public on data. He may have a different interpretation, but I think the message was, “Data saves lives, but it is our data. We want to know and approve of how our data is used and have control over it.” People recognise that data can improve care and treatment, but it is their data and they want to be reassured and comfortable about how it is used and the safeguards that are in place, and that it is their choice rather than something that is done to them.
The new power to require sharing of anonymous information will complement section 251B of the Health and Social Care Act 2012, which places a duty on certain health or social care organisations to share information about an individual with certain persons where that will facilitate the provision of care to the individual and it is in the individual’s best interests. Both measures underline the importance of sharing data proportionately and appropriately to improve services and care.
The clause will also complement key provisions in the Bill, supporting those that strengthen the duty to co-operate across the health and care system. Regulations will provide for exceptions. Issues such as minimising the burden on providers and protecting commercially sensitive information may be taken into account when introducing exceptions. It is intended that proposed new section 251D(1), which allows for anonymous information to be required, will not be commenced until the regulations are made and the exceptions are clear. Given the extensive debate that we have had on amendment 109, I will stop there and commend the clause to the Committee.
Question put and agreed to.
Clause 80, as amended, ordered to stand part of the Bill.
Clause 81
General duties of the Health and Social Care Information Centre etc
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clause amends the Health and Social Care Act 2012 and requires NHS Digital, when exercising its functions, to have regard to the need to promote the effective and efficient planning, development and provision of health services and of adult social care in England. NHS Digital must have regard to that alongside various other duties, and the clause requires it to have regard to the need to balance those duties.
In addition, subsection (3) makes clear that NHS Digital may share information for purposes connected with the provision of healthcare or adult social care, or the promotion of health. That is intended to address previous confusion about when NHS Digital can share data by clarifying that it can share data for purposes such as planning the delivery of services and medical research. This will ensure that NHS Digital has the right powers and duties to collect, share and otherwise process data proportionately, appropriately and with due regard to protecting privacy.
Alex Norris
As the Minister says, the clause deals with the Health and Social Care Information Centre, known to its friends as NHS Digital. This is a crucial body, and everything we have heard in debate so far, and in part 1 of the Bill, makes NHS Digital’s role even more central. The provisions in the Bill are modest; to use the Minister’s preferred language, they are de minimis. NHS Digital will be crucial as the body that can bring together, under one roof, information held by various organisations, and that can make sense of multiple systems in order to get the right information out, which is difficult. As we have heard, the history is chequered.
I hope that when the Minister sums up, we will at least hear a commitment that goes beyond what is in the Bill, and that NHS Digital is empowered to get a grip on our data across the entire piece. This is very much in the spirit of what I just talked about; there are multiple processes, all of which will at some point go through NHS Digital, which makes it an important clearing house. I hope Ministers will have a keen eye on its resources, and technical expertise. There is a real need for the organisation to demonstrate leadership, politically and at official level, and to pull the system together. I hope that we will hear a little about that, and about the outlook for NHS Digital. I am grateful for the point about private companies’ data; I will not reiterate that.
Edward Argar
I am grateful to the shadow Minister for his remarks and their tone. I hope that I can reassure him, in the few brief moments that I will take to sum up, that we recognise entirely NHS Digital’s current and potential role in helping to pull the piece together, adopting an holistic approach to data, and making sure that there is a coherent data strategy that works. I am confident and reassured that it has the technical expertise and resources to continue to develop its work and deliver for people in this country. I also reassure him that it continues to be a key priority of Ministers and the Secretary of State to ensure that NHS Digital has the tools it needs to do the job, so that, to go back to the thread that has run through our debate this morning, it uses its data to save more lives and provide more treatment, and does so in a way brings the public and our electors along with it. I hope that reassures him, and I am grateful for his remarks.
Question put and agreed to.
Clause 81 ordered to stand part of the Bill.
Clause 82
Collection of information from private health care providers
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 82 enables NHS Digital to require private healthcare providers to provide data, where this is necessary or expedient in order to comply with a direction by the Secretary of State to collect information. It does this by amending section 259 of the Health and Social Care Act 2012.
This provision will enable a consistent approach to the use of data, supporting improved safety and quality across private and NHS health services. The need for this was underlined by the Paterson inquiry, which examined the case of Mr Paterson, a breast surgeon who worked both privately and for the NHS and was found guilty of wounding with intent in relation to unnecessary surgery. NHS Digital has been working with the Private Healthcare Information Network to develop the acute data alignment programme. These provisions will support that work and enable data to be required from private providers where it is needed.
This provision is needed to ensure that the system has the information it needs to better understand the quality and safety of services across private healthcare and the NHS. NHS Digital will be able to exercise this power only where it has been directed to establish an information system by the Secretary of State, and information from private providers is necessary or expedient for that system to be established or to operate. That means we can ensure that demands on private providers are proportionate and necessary, and that they do not duplicate other requirements.
Clause 82 will provide NHS Digital with the powers it needs to contribute to the work that is being done to address issues of patient safety and quality identified through the shocking case of Ian Paterson. I therefore commend the clause to the Committee.
Alex Norris
We think that this measure is particularly important. Private companies must play their role in the process and share their information, just as we would expect the NHS and local authority bodies to do. However, we want clarity that there will be no refuge to be had from hiding behind bogus confidentiality on commercial grounds. That is not explicitly recognised in the Bill, but I am hoping that I have read this right and the Minister can confirm that that is because proposed new section 251ZA, which clause 79(3) will insert into to the 2012 Act, allows the Secretary of State to compel the provision of that information if they judge it to be necessary.
Edward Argar
That is my understanding. If I have misunderstood, I will, of course, correct the record for the shadow Minister.
Question put and agreed to.
Clause 82 ordered to stand part of the Bill.
Clause 83
Collection of information about adult social care
Alex Norris
I beg to move amendment 143, in clause 83, page 73, line 23, after “assistance” insert
“or any form of reablement and rehabilitation provided under section 2 of the Care Act 2014 to reduce the need for care and support”.
This amendment is consequential on NC47.
The Chair
With this it will be convenient to discuss new clause 47—Registration of tertiary prevention activities in respect of provision of social care—
“(1) Section 9 of the Health and Social Care Act 2008 is amended in accordance with subsection (2).
(2) In subsection (3), at end insert ‘or any form of reablement and rehabilitation provided under section 2 of the Care Act 2014 to reduce the need for care and support’.”
This new clause would bring reablement and rehabilitation provided under section 2 of the Care Act 2014 to reduce the need for care and support into the purview of the Care Quality Commission.
Alex Norris
These measures would bring reablement and rehabilitation provided under section 2 of the Care Act 2014, for the purpose of reducing the need for care and support, into the purview of the Care Quality Commission. Unlike other adult social care functions, rehabilitation and reablement services are not currently part of regulated adult social care activities. There is no reporting, guidance on service standards, monitoring or inspection. That is despite the fact that rehab activities carry a level of risk similar to that of other adult social care interventions. This is particularly pertinent because rehabilitation services will be critical for those who are recovering from long covid.
One example that would fit into this category is vision rehabilitation. There is evidence from the Royal National Institute of Blind People that there are individuals who have been waiting since 2018 for their vision rehab. That will, of course, have been affected by the pandemic. However, those waiting more than two years, who have had this very profound change in their lives, need to develop new skills that they previously would have relied on their sight to achieve. The sooner that can be done, the better, because there are going to be so many other obstacles to adapt to.
The pandemic alone is not reason enough to offer comfort there. In the RNIB’s research, an inquiry made to lead councillors for adult social care in England last year found that about four in 10 did not know that vision rehabilitation formed part of that portfolio. An element of that will be because it is an unregulated function. Having been such a portfolio holder, I remember that you are very conscious of regulated provision in your area, because of the seriousness that comes with that, and I want to explore this gap a little.
Of course, the past 18 months have been extraordinary circumstances. Being a regulated activity on the same level of other adult social care activities would not fix the problems on its own, but it would have made a difference. It would certainly have given those gaps greater prominence. That might have been the beginning of addressing them. Indeed, there is a sense in the sector that this level of regulation would improve the visibility and priority of these services to senior managers and lead members by allowing for better data collection, for guidance, for quality standards to be developed by the National Institute for Health and Care Excellence, and for inspection services by the Care Quality Commission.
I will not say much more on that. It may well be that this is not the best mechanism to do those things, but I would be keen to understand why this particular element of adult social care is unregulated when so much effort is put into regulating other elements of it. Rehabilitation and reablement are particularly important.
Edward Argar
I am grateful to the shadow Minster for tabling the amendment and enabling us to have this discussion and air this issue. I understand his intentions in the amendment and new clause 47. It is right that social care services are appropriately and effectively regulated, and this includes rehabilitation and reablement. However, I do not believe that the amendment and the new clause are the right way of achieving the intended outcome.
Where providers carry out regulated activities as defined under schedule 1 to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, rehabilitation and reablement services are already within the scope of the CQC’s activities. As such, most rehabilitation and reablement services are CQC registered and are usually carrying on the regulated activities of accommodation, personal care, and treatment of disease, disorder or injury.
The definition of social care in section 9 of the 2008 Act is already sufficiently broad to cover reablement and rehabilitation provided under section 2 of the Care Act 2014. If there are concerns about the scope of CQC regulatory activities in relation to these services, they would perhaps be more appropriately picked up as part of the ongoing review of the 2014 Regulations. That work would probably sit better there. We intend to publish the response to that public consultation on the review in due course. For that reason, I would encourage the hon. Gentleman to withdraw the amendment and perhaps seek to use that process and that review as the mechanism by which to further air these issues.
Alex Norris
I am grateful for that reassurance. That does provide comfort, certainly on the CQC aspect. The driver behind the amendment was as much that the CQC sharpens its focus for local authorities. I am not quite sure that we have got to the point where this will close that gap. However, there is a good mechanism by which to do so, so I might pursue this later, rather than pushing it to a Division.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
This clause inserts a new chapter 3 into the Health and Social Care Act 2012, relating to information about adult social care. It introduces a new power for the Secretary of State to require regulated adult social care providers to provide information relating to themselves, their activities or individuals they have provided care to. The information may be sought only for purposes connected with the health or adult social care system in England, and its processing will need to comply with the UK general data protection regulation. Disclosure of commercially sensitive information is restricted under new section 277B(2).
As the shadow Minister set out, the clause enables the Secretary of State to delegate this function to the Health and Social Care Information Centre—known to its friends as NHS Digital—or to a special health authority, or to arrange for other persons to exercise them. Any such person would be subject to the restrictions on onward disclosure set out in new section 277B in the same way as the Secretary of State.
The clause is crucial for helping us to fill data gaps, understand more about self-funders and better manage emergency situations. Data from local authorities can show only part of the picture, as individuals who privately fund care have little or no contact with a local authority. That needs to be addressed to support local authorities to manage provider markets and secure improved outcomes for all receiving care and support.
The provisions will support a consistent and transparent approach to the processing of data across privately and publicly funded care to enable improved safety and quality of provision. Without that data, our ability to effectively identify and manage emerging risks and issues and to take appropriate action will be restricted.
The clause will enable us to collect higher-quality and more timely information, fill data gaps, support high-quality provision of services, and manage risks at local, regional and national levels. I therefore commend it to the Committee.
Alex Norris
To date we have discussed 83 clauses, and we might finally have found a little note of integration. Local authorities not only want to share their data, but they want a greater sense of the data that they do not have, as the Minister said. They are desperate to do this. They want the all the needs of their service users to be met, but they are frustrated by a system that is atomised and hard to navigate. We know that that is also exhausting for patients and their families. I know that local authorities will jump at the chance to use the provisions effectively, but I have a couple of questions.
First, is there an expectation and obligation that the data sharing will be a two-way street? There are times when local authorities are frustrated about their ability to get information either out from the centre or from local health services. I would not want that opportunity to be missed. Secondly, to reiterate a point I made earlier, it is a pain getting systems to talk to each other. Will the Minister and his officials look at what support and time may be needed to implement the measures?
Edward Argar
I am, as ever, grateful to the shadow Minister. On his final question, about the burden of the additional data that we want to collect, which is a fair one, the aim is to reach a point where we can collect and share data across the sector in a way that minimises those collection burdens. That will include giving careful consideration to the frequency and nature of data collection. We will seek feedback from those engaged in the process and carry out appropriate assessments of it.
The capacity tracker, which is a web-based digital insight tool that we used to collect provider data in near-real time to help manage the pandemic, currently has a very high completion rate. We do not anticipate that any further mandated collection will create a significant burden in addition to that tracker. We learned during the pandemic that it is one of the things that will have beneficial applications in future. The capacity tracker currently operates on a voluntary basis, but it has high sectoral coverage—about 95% of adult social care providers are voluntarily using it. That, I suspect, is motivated by the infection control fund incentives, but our intention is to make it as simple and as easy as possible for people to continue using the tracker without imposing a burden on them. We recognise, however, that if those incentives are not there, the balance of burden and compliance changes, so we are looking at longer-term collections, which would likely be required far less frequently than the frequent iterations involved in managing a pandemic.
We therefore believe that we have struck the right balance, but I assure the hon. Gentleman that we will continue to keep the matter under review and seek to strike the appropriate balance.
Question put and agreed to.
Clause 83 ordered to stand part of the Bill.
Clause 84
Enforcement of duties against private providers
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clause inserts a new chapter into the Health and Social Care Act 2012 dealing with the enforcement of information provisions. It enables regulations to be made to impose financial penalties on private providers that, without reasonable excuse, fail to comply with an information standard or a requirement to provide information, or that provide false or misleading information. I am sure that you, Mr Bone, and members of the Committee will be pleased to hear that the regulations will be subject to the affirmative procedure in Parliament. This allows us to provide for enforcement in respect of private organisations, which are not subject to usual accountability mechanisms and judicial review in the same way as public bodies. The clause also provides for the regulations to set out details such as the amount of the penalty, as well as safeguards such as notice of the penalty and an opportunity for the person to make representations and to appeal to the first tier tribunal.
Clause 84 enables the Secretary of State to direct a special health authority to exercise the enforcement functions under regulations made under these new provisions and to give directions to the special health authority about the exercise of those functions. That provision and the related information provisions in the Bill are part of the wider strategy for health and care data, which aims to ensure more effective use of data across health and adult social care to deliver better treatment for patients, better health results for people who need care and support, and better decision making, research and support for those on the frontline. Our expectation is that those aims will be delivered through the commitments in that data strategy, including the legislative changes that we are making. The use of fines or, in the case of public bodies, judicial review is—as always—a mechanism of last resort but an important part of achieving those aims. I therefore commend the clause to the Committee.
Alex Norris
The clause is an important counterpart to clause 82. If private organisations do not comply with their duties, enforcement will be necessary, although we hope it will not prove to be so very often.
As the Minister said, much of this has been left to regulations, so we are flying a little blind, but his point about the affirmative procedure is welcome as we will have a chance to revisit the issue. Ahead of that, however, we suggest that the Government consider two things in formulating regulations. First, a private company should not be able to pay its way out of its responsibilities. The fine alone should not discharge the notice, and instead the information should still be forthcoming.
Secondly, in pursuit of that, under section 54 of the Modern Slavery Act 2015 the Secretary of State has the power to injunct a company and stop it trading if it does not comply with its responsibilities to publish a statement on modern slavery and its supply chain. A similar provision in the Bill would be highly effective. I hope that the Minister and his officials will consider that when they formulate the regulations. We will have a further debate on this at that juncture.
Edward Argar
I am happy to bear in mind those sensible points as we look to the formulation of regulations. I am grateful to the shadow Minister.
Question put and agreed to.
Clause 84 ordered to stand part of the Bill.
Clause 85
Medicine information systems
Dr Whitford
I beg to move amendment 65, page 77, line 3, at beginning insert “Subject to subsection (3A),”
This amendment, together with Amendment 66, would allow specified people and organisations who are required to provide information for a registry or information system to provide information to NHS Digital in pseudonymised form.
The Chair
With this, it will be convenient to discuss the following:
Amendment 66, page 77, line 12, at end insert—
“(3A) The provision mentioned in subsection (2)(b) must enable those required to provide information to provide information in pseudonymised form.”
See explanatory statement to Amendment 65.
Amendment 64, in clause 85, page 77, line 33, at end insert—
“(5A) The Scottish Ministers may exempt persons to whom subsection (5) applies and who are in Scotland from any requirements imposed by regulations under this section.”
This amendment would allow Scottish Ministers to exempt providers in Scotland from participating in any particular registry or medical devices information system.
Amendment 61, in clause 85, page 77, line 34, at beginning insert “Subject to subsection (6A),”
Amendment 62, in clause 85, page 77, line 47, at end insert—
“(6A) Provision under subsection (6)(c) and (d) may only provide for the disclosure, use or (as the case may be) further disclosure of information for purposes of public health analysis, and must prohibit disclosure, use or further disclosure of information for commercial use.”
This amendment would require that the disclosure of information will only be for the purposes of public health analysis and not for commercial use.
Amendment 63, in clause 85, page 78, line 1, leave out
“includes power to vary or revoke the directions by a subsequent direction”
and insert “—
(a) includes power to vary or revoke the directions by a subsequent direction, and
(b) is subject to the consent of—
(i) the Scottish Ministers insofar as the direction makes provision for any matter which falls within the legislative competence of the Scottish Parliament,
(ii) the Welsh Ministers insofar as the direction makes provision for any matter which falls within the legislative competence of Senedd Cymru, and
(iii) the Northern Ireland Ministers insofar as the direction makes provision for any matter which falls within the legislative competence of the Northern Ireland Assembly.”
This amendment would require the appropriate authority to obtain the legislative consent of the devolved governments before powers under this clause are exercised.
Amendment 60, in clause 85, page 78, line 9, at end insert—
“(8A) Regulations under subsection (1) may not be made without the consent of the Scottish Ministers, the Welsh Ministers and the Northern Ireland Ministers.”
This amendment would require the Secretary of State for Health and Social Care to obtain the legislative consent of the devolved governments before powers in this clause are exercised.
Amendment 67, in clause 85, page 79, line 8, at end insert—
“(4) Provision under subsection (3) which changes the territorial extent of provisions of Chapter 2 of Part 9 of the Health and Social Care Act 2012 (constitution and functions etc of the Health and Social Care Information Centre) and—
(a) relates to Scotland may only be made with the consent of the Scottish Ministers,
(b) relates to Wales may only be made with the consent of the Welsh Ministers, and
(c) relates to Northern Ireland may only be made with the consent of the Northern Ireland Ministers.”
This amendment would require the Secretary of State for Health and Social Care to obtain the legislative consent of the devolved governments before regulations under this provision are made.
Dr Whitford
I should like to speak to the whole group of amendments because they all relate to one another—amendments 65, 66 and 64 are very much about the form of data, which I discussed earlier.
The principle of the clause relates to the powers that are going to be given to the Health and Social Care Information Centre. It is given a power to require, so it can demand data. As a Scottish MP I am aware that data handling under NHS Scotland is different. Our data systems are different. We have a real concern that there is no mention of consultation, let alone legislative consent. For the public across the UK, the way in which their data is handled, who owns and controls their data and what is done with it are critical. We did not take part in the care.data project or Google DeepMind. There has not been any attempt within NHS Scotland to commercialise data, but we have very innovative working from Public Health Scotland and the academic universities. We do not want to see that undermined.
It is disappointing that there is no recognition in the clause that there should be both consultation and consent from the devolved Health Ministers. Proposed new section 7A(2) and 7A(4) give the power to require, and amendments 61 and 62 relate to proposed new section 7A(6) on how data is used and to whom it is disclosed, which we discussed earlier.
On proposed new section 7A(3) relating to the form of data, I totally support registries, particularly of devices. We are all aware of vaginal meshes. I remember wading through case sheets at the time of the PIP breast implant scandal, even though I knew we had never used them, because the only way to prove that none of my patients had had them was to go through literally every single operation note and sign it off.
Amendments 65, 66 and 64 relate to the form of data and specify that the Health and Social Care Information Centre would have power to decide what kind of information would be included in individual patient information. Amendments 61 and 62 relate to what we talked about earlier: disclosure to third parties, which is of public concern.
Amendments 63, 60 and 67 relate to proposed new section 7B(5)(b), which is the power to change the territorial extent. Although most of these provisions talk about getting data on social care from local government in England, it is completely within this Bill that the information centre would be able to demand data from devolved health centres and that the Bill’s territorial extent could be changed later by regulation, and without consultation, let alone legislative consent. All my amendments relate to the same basic principle: the four health services run separately, use different data systems and have different principles for sharing, using and analysing data, and whether they feel that sharing that with commercial companies is actually in the best interests of research, of patients and of clinical communication.
It is not necessary for pharmaceutical companies to have access to pseudonymised or individual data to study the functioning of their drugs. They require analysed, anonymised data that has been handled by trusted academics and researchers, whether from Public Health England or working in collaboration with universities. The amendments call for both consultation and legislative consent, without which the devolved health services and their principles of keeping data within the NHS and the public health system will be undermined. The Government need to talk to the devolved nations about that. They saw this Bill the day before it was launched. That is not consultation. That is not collaboration. That is not involvement.
It may well be that Ministers feel that a central registry of individual, identifiable details makes sense, or they may feel that it should be pseudonymised and brokered by the individual health services, because it will be those services that will have to contact patients if devices are found to be unsafe or need reviewing or if people need further surgery. This is about the lack even of consultation. As we have talked about all morning, data is so important to the public and to patients that legislative consent should be put into all those clauses of the Bill. I am disappointed that none of the devolved Ministers got to see the Bill when it was being put together, and as we heard from the Welsh Health Minister during the evidence sessions, her concerns are exactly the same as those of the Scottish Cabinet Secretary for Health and Social Care.
That is what I call for the Government to do, and I look forward to the Minister’s comments.
Alex Norris
I congratulate the hon. Member for Central Ayrshire on her amendments and the case she made for them. I remember with fondness that during proceedings on the Medicines and Medical Devices Act 2021 we were able to offer constructive ways in which information regarding medical devices could be collected and used. We managed to move the Government on that. I hope we have similar success on these proposals too, because those were arguments well made.
Amendments 65 and 66 get to the heart of building confidence regarding data among the general public. There is widespread understanding about anonymised data and about datasets so big that individuals cannot be recognised, but we know that sometimes, if we want more detail, and particularly around rarer conditions or in rural and more isolated communities, we risk identification. Giving our information leaders the tools with which to protect individuals while still delivering the desired outcome is a sound principle and is part of hearing the message that was sent from our constituents, so we can start to rebuild trust. Providing such extra tools would be proportionate.
Turning to amendment 64, devolution is at its best when the four nations can exercise the advantage of local knowledge and leadership but collectively harness separate oversight to tackle collective challenges. That is important, particularly for the use of data. I strongly believe it will be in the interests of people across the United Kingdom for all four nations to have similar systems of standards and alignment on data. I am conscious that the challenges in north Nottingham will be similar to the challenges in north Cardiff, but devolution may well mean that services in Cardiff are different from those in Nottingham; that is part of the process. It can also mean that the outcomes are different, and we may want to know that, so that one community can, if it wants to, change to replicate what another is doing. I am not arguing against common usage; I think it is important, but we do not want a situation where the Secretary of State seeks to act with overbearing control as a first among equals. The mutual benefits of sharing data are so clear to all parties that they ought to be able to be agreed on a good-faith and negotiated basis. It should not need compulsion from the Secretary of State; in fact, that would be a significant failure. Therefore, the opt-out specified would be proportionate in this case.
Amendments 61 and 62 are crucial. The general practice data for planning and research process fell over because a significant part of the population did not trust the Government to handle their data appropriately. There is widespread concern about the Government’s relationship with big commercial entities, whether in the planning process, political donations or covid contracts. They are not scare stories or political fluff; they are real issues, they are in the public consciousness, and there is a sense that that relationship and the balance with the commercial sector is not one where the calibration is right.
On data, we must at every opportunity send the loudest possible signal that there are irremovable firewalls between people’s data and commercial usage. That works on two levels. First, as mentioned there is a lack of trust that the data will not be handed over to big commercial companies. We know that the mega-giants in social media have an insatiable desire for our data, and the old adage that social media is only free because our data is the product rings true. The NHS is not like a social media platform, though; it is free at the point of use, but we have paid for it through our taxes. It is not a free service we get in return for sharing our data, and there is no mandate to simply pass on the information collected as a result of our healthcare.
Let us be honest: what confidence would we have in sending the Government to negotiate with these companies? We have seen the painstaking process involved in just getting them to pay tax in this country; I would not, with full confidence, send a Prime Minister to negotiate a fee for our data, because I suspect we would end up paying the companies. This is an opportunity to be absolutely, immovably and irreversibly clear that we do not think that they should be near this data.
Secondly, it is worth reiterating that it is not as simple as just not handing data over. Even through legitimate and beneficial use of data, we are still at risk of getting a bad deal. For example, we no doubt want to use population-level healthcare to work out what conditions we may need new treatments for in the future. For that reason, we want researchers to use this data, and from that new treatments and drugs will emerge. Big pharmaceutical companies stand to gain from this, so how is it to be accounted for? We have a stake and have played a part in that process, so we ought to have a share of the benefits. How will the premium that we pay for the new treatments reflect the contribution that we have made—bluntly, where is our dividend? Those are the reasons that the GPDPR process fell apart, and why there is so much suspicion about the Government’s handling of data more generally. If we keep repeating the same approaches we will get the same outcomes. This is a moment to change that and to send a signal that our data will be protected from commercial interests; I hope the Minister will meet this moment.
Finally, on amendments 60 to 63 and 67, I will not rehearse the arguments I have previously made. I can conceive of times when NHS bodies, local authorities, community and voluntary sector providers or private sector providers might fall short of the expectations we have of them on data sharing, and exceptions where the Secretary of State may need to step in. That is why the Opposition have supported earlier clauses in part 2. That is a reasonable and proportionate way of ensuring that the data sharing regime is an enabling regime. I cannot think that applies to the devolved nations. All four nations are partners in the common pursuit of improving health outcomes; we may diverge in approach, but the common goal is the same. I cannot conceive that there will be such a divergence on data that it would be legitimate and wise to resolve it by working without shared consent. I hope, in the light of the arguments made, that the Minister will revisit that point.
Edward Argar
To the point made by the hon. Member for Central Ayrshire about the relationship with Edinburgh, while it is correct that a number of these clauses, and a large part of the Bill, were not finalised in their drafting until a day or two before publication, it is important to say that since the beginning of this year Scottish Government officials have had sight of the intentions and have been discussing with UK Government officials the wording and content of these clauses. I appreciate that this is not necessarily the same as a Minister seeing the exact wording, but that relationship and transparency has been there at that level.
I also put on record my gratitude to Humza Yousaf, the Cabinet Secretary for Health and Social Care. I spoke to him a week or two ago, and with tragic timing, in that conversation he asked me to pass on his best wishes to James Brokenshire for his recovery. I know that they got on well, and I hope that I have a similar relationship with Humza, who is pragmatic, and I appreciate the work that he is doing on this. We continue to talk, because I am keen that we have that healthy relationship and it is my intention that we respect the Sewel convention and work together to come to an agreed position. It is challenging because there are genuine differences of principle on how things should be interpreted, but I am committed to working with him, as he is with me, to find a way to reach a common position that respects everyone’s principles and approach.
The medicine information systems clauses give us an important opportunity to ensure we have the highest quality evidence on which to base critical regulatory decisions. If we get this right, there is real potential, which has been alluded to by all Members, to take a step forward in the way medicines are monitored, risks are identified and action is taken to protect patients. We need to provide for the most effective operation of this system to realise the full benefits for patients across the UK.
The detailed operation of the system will need to be carefully considered further as we develop the regulations under the clause. It will probably be important that the systems are able to receive information that is fully identifiable to ensure accurate linkage and deduplication of data. That is necessary to ensure that the information system is able to capture a comprehensive picture of a patient’s treatment to generate robust evidence, and that if a patient moves from one area of the UK to another, they are not lost from the registry.
Robust decision making on patient safety must be made using accurate data, which can only be achieved by processing identifiable data from the four nations to create the UK-wide information system. That necessitates precise data linkage due to the nature and potential rarity of harmful events based on multiple identifiable data points. It is proportionate to use identifiable data to understand potentially adverse patterns early.
Patient-identifiable information is also necessary where inclusion in a registry is to be used as a risk minimisation tool, where a patient needs to be identifiable in the registry to their healthcare providers, or if information systems are linked with wider safety monitoring mechanisms already in place, such as the yellow card scheme, through which the public and healthcare professionals can report adverse incidents experienced with a medicine to MHRA, to further strengthen the data it collates.
It is not necessary to make provision in the Bill, because the powers in clause 85 give the ability to follow the most appropriate approach on the collection and disclosure of data, following discussion with stakeholders on the detail of the future regulations. The confidentiality and security of patient data and the reassurance that offers to patients is paramount. I hope I can assure the hon. Member for Central Ayrshire and other Members that all data held in a medicines information system will be processed in compliance with data protection legislation, which places crucial safeguards on the use of that information. That includes data principles such as lawfulness, fairness and transparency, purpose limitation and data minimisation—meaning that the minimum necessary information will be collected to meet the required purpose.
I recognise the importance of ensuring the appropriate and proportionate use and access to information in a medicine information system. As part of our consultation on the regulations to establish and operate a medicine information system, we will engage with patient groups and other stakeholders across the UK, as well as the devolved Administrations, on the content and scope of the system to ensure we do what is right for patients.
On amendment 64, at official level we have been in discussions with the devolved Administrations since February about the provisions in the Bill, particularly those for which at an early stage we identified a shared agreement that legislative consent was required. Clause 85 is one of those. I would like to put on record my gratitude to those officials—we often talk at ministerial level, but they worked very hard for some time in the spirit of finding a way forward that works for everyone. Let me say the same in respect of the devolved Administrations, who have spent considerable time working with us.
Without going into too many details, because those discussions are continuing, I have had constructive discussions with the Cabinet Secretary for Health and Social Care in Edinburgh. I am keen, as he is, to do what we can to move those discussions forward. I hope we will be able to provide further reassurance over any outstanding areas of concern to the DAs, and where necessary and agreed, to table amendments ahead of Report. I hope that gives the hon. Lady some reassurance that I am directly engaged with the Cabinet Secretary and I will continue to be so. I am due to have another conversation with him in the coming days, and I have in my bundle another draft letter I am due to send him addressing some of the details of the granular points we are now looking at. I hope we will be able to make progress.
For medicine information systems to be truly effective as a tool, they need to cover all patients using the medicine across the UK. The regulatory decisions taken on the basis of the data collected will apply to the licensing of that medicine across the whole of the UK. My concern about Scottish Ministers choosing whether Scottish providers should or should not participate in the information system is that it could risk a fragmented approach, which is why we are having those discussions at policy level.
Dr Whitford
I welcome the Minister’s constructive comments. Obviously, I am not party to the consultations that are going on. I am still disappointed that there was not provision for both consultation and, where necessary, legislative consent. As the Minister clarified, those registries will absolutely contain individual patient data. As a surgeon, of course I support the principle of registries and how they are put together, but the responsibility for data in NHS Scotland and in the other devolved nations lies with the Health Ministers of those nations. It is disappointing that there was nothing put in these provisions.
I hope that the consultation goes forward. I will therefore not push the amendments. Obviously, I reserve the right to table amendments at a later stage. However, it is important that the Government recognise that the same concerns that we have heard around GP data in England would then apply in Scotland, where we have not taken any kind of commercial approach in the past, and that there will be a recognition of the role of those health Ministers. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
As we have discussed in the context of the various amendments, clause 85 inserts a new chapter, 1A, into the Medicines and Medical Devices Act 2021. It introduces a new power to make regulations that would provide for one or more medicines information systems to be established and operated by NHS Digital. The power may be exercised only for the specified purposes set out in the provision: namely, purposes relating to the safety, quality and efficacy of human medicines and the improvement of clinical decision making in relation to human medicines. The clause sets out the types of provisions that could be made by the regulations and, to ensure full engagement, includes a mandatory public consultation requirement that must be fulfilled before any regulations are made.
Medicines information systems will enhance the capture and collation of information on the uses and effects of specific medicines across all four nations, including medicines prescribed to patients by the NHS and private healthcare providers. That information will be used by the Medicines and Healthcare Products Regulatory Agency to enhance post-market surveillance of medicines by enabling the development of comprehensive UK-wide medicines registries, which will be used to drive improvements to patient safety. The evidence generated through medicines registries can be used to inform regulatory decision making, support local clinical practice and provide prescribers with the evidence needed to make better-informed decisions. For example, where safety concerns have led to the introduction of measures to minimise risk to patients, comprehensive medicines registries will enable early identification and investigation of cases where those measures are not being followed, so that additional action can be taken to improve safety at national, local or individual patient level.
The clause also ensures that we have the right powers to promptly modify what data is collected by NHS Digital as the need for new or different information about a medicine emerges in the light of changing or developing public health needs. That will provide the ability to rapidly respond to emerging risks to patient safety if and when they develop.
Given the overarching aims of the clause, it makes sense that the provisions will ultimately sit within the Medicines and Medical Devices Act 2021, which has a similar power for establishing information systems for medical devices in section 19. To ensure the effective operation of both the medicines information systems and the medical devices information systems, the clause also introduces necessary technical amendments to the MMD Act.
The clause drives forward improvements to the safety measures that protect patients in the UK against avoidable harm from medicines, and supports the need for the establishment of registries as recommended in the independent medicines and medical devices safety review, published last year. The clause directly supports putting patient safety at the heart of regulatory decision making. It will ensure that we have robust and comprehensive evidence to address public health concerns, and enable mechanisms to track the use and effects of medicines, based on public health needs. I therefore commend the clause to the Committee.
Alex Norris
I had intended to go the entire period that I am in this place, however long that might be, at least trying to be a young Member, if not a new Member, but clause 85 amends a piece of legislation that I was on the Bill Committee for previously, so I feel that I cannot do that now. That is really startling. Nevertheless, as I said earlier, I and the hon. Member for Central Ayrshire argued strongly for this in Committee on that Bill, and I certainly would want to see this used properly and developed. With all the daily treatments that there are—and certainly when it comes to the medical devices that are inserted into people on any given day and on every day of the year every year—we really ought to know what those things are and, when there is a problem, be able to deal with it quite quickly.
I will make one final point. The Minister references, quite rightly, the independent review—the Cumberlege review. We will be revisiting the matter in the new clauses, because the Government have not done the job properly on that review. Although there are elements in this clause that make good on some of the commitments, there are very significant things that have been left out and that the Government do not intend to do, and they have really let down the families by not doing them, so we will be returning to that point, and I hope to find the Government in listening mode when we do.
Edward Argar
I have nothing further to add to what we have said, save that I am always in listening mode when the shadow Minister is making his points.
Question put and agreed to.
Clause 85 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)
Nationality and Borders Bill (Fifth sitting)
Tuesday 19th October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 October 2021 - (19 Oct 2021)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Chair
Good morning, ladies and gentlemen, and welcome to what will be for some of you the first sitting of a Committee for a very long time, and for others probably the first sitting of a Public Bill Committee. Please switch electronic devices to silent. I am afraid that food and drink are not allowed in the Committee Room, so if any Member feels obliged to get a coffee or something, I am afraid they have to drink it outside in the corridor. Water, of course, is permitted.
Members are encouraged to wear masks when they are not speaking, in line with current Government guidance and that of the House of Commons Commission. Please also give each other and members of staff space when seated and when entering. I shall mainly not be wearing a mask, I am afraid, because my glasses steam up and I need to be able to see my papers. I mean no discourtesy to any Members who feel either inclined or obliged to wear a mask. Hansard will be grateful if Members could email their speaking notes to hansardnotes@parliament.uk.
The format of the Committee Room this morning is slightly changed as a result of the pandemic. It is a sadness to me and to the Clerks that civil servants are now required to sit in the Public Gallery rather than where they would normally sit, along the side. That makes life slightly difficult for parliamentary private secretaries, who may wish to communicate messages from the civil service to the Minister. I gather that that is now done electronically, but if there is a problem please let me know. I hope that the system will work, but we need to know if there is a difficulty.
We are about to commence line-by-line consideration of the Bill. Before we do that, at the risk of teaching granny to suck eggs, I will give a very modest tutorial. I am fully aware that, as Committees have not sat for some time, there will be Members present who have never sat on a Public Bill Committee. Even those who have and, dare I say it, even Chairmen sometimes get things wrong or do not understand what is going on. It is a fairly arcane process. All the papers that are needed, in case you have not already worked this out for yourselves, are on the table in front of me. You are not supposed to walk in front of the Chair, but I will not bite your head off if you suddenly find that you need a paper that you do not have, so feel free to come and get it. I should have said at the start that when I am in the Chair—this may not be the case with Ms McDonagh; it is up to her to decide—if Members wish to remove their jackets they may do so. Given the weather, you may not wish to.
Coming to the selection list, which I hope you all have a copy of, you will note that amendments are grouped by subject of debate, which may or may not be in the order that the Bill dictates. The order is dictated by subject matter, not the sequence in which amendments have been tabled. That is why you will find that the groupings appear to be out of order. The first grouping—amendments 29 and 84—relates to clause 1, so that is pretty straightforward. The second grouping under clause 1 relates not only to clause 1 but to other clauses. If you wish later to move an amendment, only the lead amendment may be moved. Therefore, amendment 29 may be moved, but not amendment 84, and amendment 8 but not the rest of the group. The other amendments may be moved when they are reached in the Bill. The amendments to clause 10 will be debated now but moved formally when we reach clause 10.
I am sure that is as clear as mud, but it will become clear. If Members have doubts about this or any other procedure, please do not hesitate to ask; like the man from the Inland Revenue, we are here to help you.
Not all amendments will be moved. All Government amendments will be moved, but if an Opposition Member wants to move an amendment that does not appear at the start of a group, please tell us. The Clerk will note it and you will be asked to move it at the right point in the Bill.
I hope that is relatively clear. Unlike in proceedings on the Floor of the House, any Member who wishes to speak should indicate as much to the Chair—I do not have second sight. We will try to accommodate you. You may intervene more than once in Committee, whereas only one speech may be made of the Floor of the House.
At the end of clause 1 there will be a stand part debate, offering an opportunity to debate the whole clause, as amended. If I consider that every conceivable thing that can, should or needs to be said about clause 1 has already been said, I shall not permit a stand part debate: that is in my gift, not yours. I always say that you may have one bite of the cherry, but not two. I normally allow a fairly wide-ranging debate on the first group of amendments—Siobhain might take a different view—but please bear it in mind that if you avail yourself of the opportunity I am unlikely to permit a stand part debate: you cannot say the same thing twice.
I shall try to guide you as we go along, but I am probably no less rusty than you. Let us see how we get on.
Clause 1
Historical Inability of Mothers to Transmit Citizenship
Bambos Charalambous (Enfield, Southgate) (Lab)
I beg to move amendment 29 in page 2, line 10, leave out “parents been treated equally” and insert
“mother been treated equally with P’s father”
The Chair
With this, it will be convenient to debate amendment 84 page 2, line 14, leave out
“had P’s parents been treated equally”
and insert
“had P’s mother and P’s father been treated equally”
Bambos Charalambous
It is a pleasure to serve under your chairmanship, Sir Roger.
I thank colleagues from across the refugee and asylum sector for their considerate and constructive scrutiny of all the proposals made in the Bill’s evidence session in September.
As part of the Opposition’s detailed scrutiny, we will express our serious concerns about the Bill, which we believe does nothing to address the crisis in our broken asylum system and seeks to penalise the most vulnerable people in our society.
I shall first consider the Bill’s impact in addressing historical injustices in British nationality law concerning discrimination, specifically in relation to British overseas territories citizenship. We generally support the proposals in clauses 1 to 5, which seek to close important loopholes.
I pay tribute to the efforts of the British Overseas Territories Citizenship Campaign, which has campaigned tirelessly over many years for the nationality and citizenship equality rights of the children of British overseas territories citizens who have suffered under UK law owing to loopholes that we shall discuss in detail. These people feel a strong connection to the UK and deserve our support.
British nationality law can be complex. Some of the complexity arises from the British history of empire and Commonwealth. In passing the British Nationality Act 1981, Parliament created British citizens and British overseas territories citizenship. In doing so, it abolished citizenship in the UK and colonies—abbreviated to CUKC—which was a unifying citizenship for all persons of the UK and its colonies. This meant that the status of some children had the potential to be changed to overseas citizens, even though they had been born and raised in the UK.
Persons unified by CUKC were therefore separated by the 1981 Act into two groups, but amendments made since mean that the two groups are no longer aligned in British nationality law.
The Bill’s early clauses seek to bring into line the two elements of British nationality—British citizenship and British overseas territories citizenship. For the benefit of those on the Committee, I point out that British overseas territories citizenship is the citizenship of people connected to the territories that the UK has retained. It includes the following territories: Anguilla, Bermuda, the British Antarctic Territory, the British Indian Ocean Territory, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, Pitcairn Islands, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, and the Turks and Caicos Islands.
Clause 1 would create a registration route for the adult children of British overseas territories citizens and for mothers to acquire British overseas territories citizenship. Before the 1981 Act commenced on 1 January 1983, British nationality law discriminated against women, whose children could not acquire British citizenship through them. The Act removed that discrimination, but did not address the impact of that discrimination prior to the Act. Many people, therefore, would have been born British but for this discrimination and continue to be excluded from British nationality after the passing of the Act.
It is clear that a historical anomaly was created. Changes were made under section 4C of the 1981 Act to rectify the situation of children of British citizens, but no such rectification was made for the children of British overseas territories citizens. Members of the Committee will know that under the 1981 Act a number of cases arise in which an individual who would have qualified for automatic British overseas territories citizenship, British citizenship or the right to register or naturalise as a citizen is unfairly prevented from doing so through no fault of their own, as has been the case with the adult children of British overseas territories citizens.
We need to rectify that injustice. The historical inability of mothers to transmit citizenship should be corrected, and I am glad that is being addressed in the Bill. Clause 1 sets out to correct that and create a registration route for the adult children of British overseas territories citizen mothers to acquire British overseas territories citizenship.
The Opposition generally support the changes proposed in clause 1 to close that important loophole. None the less, our amendment refers to a technical matter in relation to the drafting of clause 1—specifically, that it does not follow the language previously accepted to address the injustice, as used in section 4C of the 1981 Act.
I am sure that the Committee will agree that clarity is crucial in matters of citizenship and nationality law. The language used in clause 1 is not sufficiently clear. I will explain why. For example, the clause introduces proposed new section 17A, subsections (a) and (b) of which include the terms “had P’s parents been treated equally”. As Amnesty International and the Project for the Registration of Children as British Citizens outline, the difficulty with such wording is that it tells us nothing about the direction in which equality is to be achieved or indeed in what place.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Does my hon. Friend agree that clarity is absolutely crucial, given the mistrust of the Home Office that often exists because of its high error rate in some citizenship and wider visa decision making processes?
Bambos Charalambous
My hon. Friend makes an excellent point. Citizenship, clarity and consistency in the law are essential, which is why we seek to rectify the position. The provisions of one Act cannot be inconsistent with those of another.
The amendment would address the difficulty by inserting the wording,
“had P’s mother been treated equally with P’s father”,
in clause 1. It would clarify the clause and the positive intention behind it. I think that there is broad agreement in the Committee on the need to address the historical inability of mothers to transmit citizenship.
The Chair
Ordinarily, unless the Minister wishes to intervene, we now have a debate in which any Member may take part. At the end of the debate, the Minister exercises his right to respond and the mover of the motion decides whether he wishes to press the amendment to a Division or withdraw it. If it is the latter, I seek the leave of the Committee for him to do so.
Neil Coyle
On a point of order, Sir Roger. Although I have been on a Bill Committee before, I am a bit rusty. We deal with just one amendment first—not the whole of clause 1.
The Chair
That is a very good point, and I am glad that the hon. Gentleman makes it. It gives me an opportunity to explain again. You may speak to any of the grouped amendments. In this instance, you may speak to amendments 29 and to 84, although it has not been moved. Any one of the second grouping of amendments—8, 9, 10, 11, 12 and new clause 16—may be spoken to. They may be moved later. I hope that is clear.
Neil Coyle
Thank you, Sir Roger: that is very helpful.
Do we have to declare an interest each time we speak or once per sitting? I want to make it clear and above board that I have received support from the Refugees, Asylum and Migration Policy project. It provides policy support two days a week. I am unsure how often I have to do that in the course of a Bill Committee.
The Chair
We have declared interests during the evidence sessions, and personally I regard that as a declaration of interest. If a Member is in doubt and wants to do a belt-and-braces job on this, they should feel free to declare an interest and cover themselves. That is their responsibility. As far as the Chair is concerned, that job has been done already. If a Member has not declared an interest but wishes to do so, the appropriate moment for it is when they stand to speak.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to serve under your chairmanship, Sir Roger. I am grateful for your refresher course. We are all rusty and I ask for your forgiveness for the mistakes that I shall undoubtedly make in the days ahead.
I support amendments 29 and 84 and much of what the shadow Minister just said. I welcome the Minister to his new role. I wish him all the best—apart from with large parts of the Bill, unfortunately. He has been thrown in at the deep end, and I dare say his recess was particularly busy. However, I congratulate him on finding time to record an excellent time in the London marathon a couple of weeks ago.
This complex and technical Bill raises profoundly important issues. We are all aware of the huge concerns that have been expressed about large parts of the Bill. I would also like to thank the various organisations that have given evidence in writing, orally or in private briefings or that have drafted the overwhelming majority of the amendments that we have tabled. I thank the Clerks for their help in what is not always a straightforward process in tabling amendments at a time that has been hugely difficult for them as well as for all hon. Members. We do, however, start our line-by-line consideration on a positive note. Even though we have fundamental disagreements with many aspects of the Bill, that is not the case for part 1 where for eight ninths of the time we can have hearty agreement. We just suggest a little probing and tweaking on one or two issues.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
I understand some of what the hon. Gentleman is saying but, by way of clarification, may I point out that there is never any doubt as to who the mother of a child is, but there are occasionally questions over the paternity? Does the wording of the amendment make it easier to define who the father is? Sometimes someone’s parent may not be the biological father. Is the difference between a father, and someone who is married to the mother who may have thought he was the father when the child was born?
Stuart C. McDonald
I am grateful to the right hon. Gentleman for the intervention but I am not sure that I followed every aspect of it. All I can say is that the definition of father in the amendment is exactly the same as the definition that the Government have used. It is not changing that at all. I will explain exactly what the amendment does in a moment.
We are talking about getting rid of the unacceptable discrimination against women and children. A correction, albeit an imperfect one, to the laws of British citizenship that does exactly the same thing has already happened. In clause 5, there is a provision that actually fixes that. However, that correction was not made to British overseas territories citizenship. The Government have already fixed it for British citizenship; the amendment is now trying to fix it for British overseas territories citizenship. In a nutshell, the question we are asking the Government is, “Why are they using slightly different wording this time round compared with last time?” That is the crux of the debate and I will come back to that point.
My amendment would allow people who have suffered injustice to register as British overseas territories citizens. That is good, but two issues arise. The first is cost and we will come to that when we consider the next group of amendments. The second is about the language used and whether it really makes sense. Amendment 29 would challenge the Government on the use of the language to correct the injustice. Slightly surprisingly, the Government have not just copied, or used copy and paste, from the fix used for British citizenship that is found in section 4C of the British Nationality Act 1981. Section 4C allows for the correction of injustices by registration if someone missed out on citizenship because citizenship by descent was not provided for mothers “in the same terms” as for fathers or if someone missed out because it could not be acquired because it could not be obtained “in the same terms” for mothers as for fathers.
The Bill, in doing the same job for British overseas territories citizens, uses the terminology
“had P’s parents been treated equally”.
The key questions for the Minister have been pointed out by Amnesty International and the Project for the Registration of Children as British Citizens in their written submissions. Why are the Government not using the same language as they used to fix the problem for British citizenship? If there is a good reason for not using that language—if there is some sort of problem with the language that was used in the case of British citizenship and the fix used for that—do we not need to go back and fix that fix, as it were? Even assuming that there is a problem and the language used has to be different, why have the Government chosen to use this language, which seems rather clunky and problematic?
Speaking about hypothetical circumstances when parents are treated equally does not make it clear, unlike the section 4C version, whether we are, to coin a phrase, “levelling up” rather than levelling down. P’s parents could be treated equally badly, as well as equally well, so the drafting leaves a lack of clarity about the fact that we want mothers to be treated the same as fathers and not the other way round. The Government like to talk about “levelling up”, so here is a chance for the Minister to do some of that and make what appears on the face of the Bill absolutely clear.
Amendment 29 provides the best wording and addresses all the points in amendment 84. It flags up another place where the issue arises and if we wound back the clock a few days, I would probably copy amendment 29 that the shadow Minister has tabled. I believe it is the best version. I will therefore not press amendment 84 to a Division, but I fully support amendment 29. I look forward to hearing the Minister’s response.
The Chair
Ordinarily, I would take speakers from both sides of the Committee, but if no Government Member wishes to speak at this stage, I will call the hon. Member for Glasgow North East.
Anne McLaughlin (Glasgow North East) (SNP)
I will be brief and echo what my hon. Friend has said. I welcome the Minister to his place and wish him well although I am sorry to say not with this Bill. I thank all the multiple organisations that are concerned by the Bill and supported the moves to make the changes that need to be made.
It might be a moot point but, as my hon. Friend said about amendments 29 and 84, we do not want to be in a situation in which parents are treated equally badly. I suspect that that is not what the clause is about and I hope that the Minister will say that it is fine and we will accept that. However, it is important that we acknowledge that mothers were treated unequally and wrongly. That is because, throughout the centuries, women have been treated systemically badly. Yes, of course things have improved—and this is an improvement—but we have to acknowledge it whenever there has been systemic bias against any group of people, and in this case we are talking about women and mothers. I do not think any member of the Committee would disagree that what has happened is extremely unfair but we must acknowledge it so that we can move forward. Acknowledging a problem draws attention to it. Let us not pretend that we have equality of the sexes and genders. We do not. Every time that that is acknowledged it enables us to move forward and think of other situations in which there is inequality.
We have helpfully been provided with photos of members of the Committee and been given their constituency names but when I saw the photo of the right hon. Member for Scarborough and Whitby, I thought he was the right hon. Member for Con, Scarborough and Whitby. I thought, “Where is ‘Con’?” until I realised that it referred to the fact that he is a Conservative. I am learning something new every day.
The right hon. Gentleman was factually correct to say that it is easier for mothers rather than fathers to prove their parentage. That is why I wonder why on earth it was so difficult for women to pass on their nationality to their children. There is no question who the mother is in such cases. I hope the Minister will say that he will change the language to refer to mothers and that the Government will acknowledge the inequalities between men and women and mothers and fathers. Treating parents equally should not mean that they are treated equally badly. I suspect that he does not want to do that and I support most of the provisions in this part of the Bill. That is probably the last time I shall say that today.
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
I start by thanking Opposition colleagues for their warm welcome to me in my new role. It is welcome that, in the early provisions of the Bill, there is broad agreement across the Committee about the need to correct the injustices and to put things right.
I thank the hon. Members for Enfield, Southgate, for Halifax, for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for tabling amendments 29 and 84. They both refer to clause 1, which I am pleased to introduce because it corrects a long-standing anomaly in British nationality law. I appreciate hon. Members’ attention to detail in seeking to make sure that the new provision is clear and in line with the parallel provision in the British Nationality Act 1981 for the children of British citizen mothers. However, I do not think an amendment is needed, as the proposed wording here achieves what is intended. In saying that this provision applies to someone who would have been a citizen had their parents been treated equally, we are talking about a situation where the law applied equally to mothers or fathers, women or men.
The term “parents” is consistent with the wording used in section 23 of the 1981 Act, which determined which citizens of the United Kingdom and colonies became British dependent territories citizens on commencement. One of the three conditions that a person needs to meet to qualify for registration under this clause is that they would have become a British dependent territories citizen under section 23(1)(b) or (c) of that Act. That section refers to a person’s “parent”.
I wish to point out that we will further clarify the points that have been made in the underpinning guidance. I trust that will afford greater comfort because it is clear that the Bill is technical, so plain language will be used in the guidance itself to achieve what members of the Committee seek to achieve.
Neil Coyle
I, too, congratulate the Minister on his new role. If the Minister is saying that this may require further explanation in the guidance, will he agree to review it in more depth before the Bill reaches the Lords if organisations are able to present examples of case studies where the current wording may not meet the Government’s intent?
Tom Pursglove
I will of course be delighted to receive any such examples. I genuinely think that, as with so many cases of immigration law, the underpinning guidance plays an important role in making it clear, in plain English that people can understand, precisely what various aspects of the law entail. I am satisfied with the current wording of the clause.
Stuart C. McDonald
I understand what the Minister says about the wording doing a job in statute, but will he say whether he thinks that the wording used has any implications for British citizenship as opposed to British overseas territories citizenship? Was a problem with the wording recognised and is that the reason why it was not copied across? Or is this Bill a wee bit different and therefore uses different wording?
Tom Pursglove
The short answer, based on my understanding, is no. The connected provision in the Act talks about parents and not the mother and the father, so that is why we think this is the appropriate route to take for BOTCs. I am satisfied that the current wording does what is required so I ask hon. Members not to press their amendments.
Bambos Charalambous
I have heard what the Minister has said, but we could avoid going down the path of seeking to clarify the current wording if the same wording that was used in the 1981 Act were used here. We do not see what the problem would be. If the wording in the 1981 Act is adequate, why not just repeat it in the Bill? It would provide clarity and stop problems occurring in the future. Our belief is that everyone should be treated equally, and we should not have a separation, which the amendment tries to correct, between British overseas territory citizens and British citizens. Regrettably, we will press the amendment to a vote.
The Chair
Ordinarily, Mr McDonald, I will not ask this question, because I will assume that if you, or any other Member who wishes to move an amendment that has been debated but not yet called, have not notified the Chair, you do not want it to be called. However, because this is the first time, do you wish to press amendment 84 to a Division?
Stuart C. McDonald
I beg to move amendment 8, in clause 1, page 2, line 46, at end insert—
“(7) The Secretary of State must not charge a fee for the processing of applications under this section.”
This amendment would prevent the Secretary of State from charging a fee when remedying the historical inability of mothers to transmit British overseas territories citizenship.
The Chair
With this it will be convenient to discuss the following:
Amendment 9, in clause 2, page 7, line 30, at end insert—
“(6) The Secretary of State must not charge a fee for the processing of applications under sections 17C, 17D, 17E or 17F.”
This amendment would prevent the Secretary of State from charging a fee when remedying the historical inability of unmarried fathers to transmit British overseas territories citizenship.
Amendment 10, in clause 3, page 8, line 18, at end insert—
“(4) The Secretary of State must not charge a fee for the processing of applications under this section.”
This amendment would prevent the Secretary of State from charging a fee for British citizenship applications by certain British overseas territories citizens.
Amendment 11, in clause 7, page 10, line 25, at end insert—
“(5) The Secretary of State must not charge a fee for the processing of applications under this section.”
This amendment would prevent the Secretary of State from charging a fee on applications for British citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.
Amendment 12, in clause 7, page 11, line 8, at end insert—
“(5) The Secretary of State must not charge a fee for the processing of applications under this section.”
This amendment would prevent the Secretary of State from charging a fee on applications for British overseas territories citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.
New clause 16—Registration as a British citizen or British overseas territories citizen: Fees—
“(1) No person may be charged a fee to be registered as a British citizen or British overseas territories citizen that is higher than the cost to the Secretary of State of exercising the function of registration.
(2) No child may be charged a fee to be registered as a British citizen or British overseas territories citizen if that child is being looked after by a local authority.
(3) No child may be charged a fee to be registered as a British citizen or British overseas territories citizen that the child or the child’s parent, guardian or carer is unable to afford.
(4) The Secretary of State must take steps to raise awareness of rights under the British Nationality Act 1981 to be registered as a British citizen or British overseas territories citizen among people possessing those rights.”
This new clause would ensure that fees for registering as a British citizen or British overseas territories citizen do not exceed cost price. It would also ensure that children being looked after by a local authority are not liable for such fees, and that no child is charged an unaffordable fee. Lastly, it would require the Government to raise awareness of rights to registration.
Stuart C. McDonald
In short, the amendments say to the Government, “Having recognised an injustice and provided people with a right to have it fixed, which is very welcome, you must also ensure that that remedy is accessible to those who have been wronged.” It is about the cost of applications, and about other parts of the procedures that have been put in place. If we acknowledge that these people should have been British citizens automatically, we should not ask them to jump through other hoops. They should not have to pay any fee for an application or for biometrics, or travel hundreds of miles for a citizenship ceremony unless they want to, if that would not have been required of them had the injustice not been done.
It is all about putting the person, so far as is possible, in the position in which they would have been had the injustice not occurred. It is also about making people aware and giving them support, if they need it, to make these new rights a reality, so that we are not just passing laws but making sure they are effective. That can be vital—we know that from the Windrush scandal and the deliberately low-key efforts by the Home Office in the 1980s to advertise registration rights, to avoid a deluge of applications.
Amendment 8 provides that there should be no fee for registration applications under clause 1. As we discussed, that remedies injustices in relation to British overseas territories citizenship for women and their children. Amendments 9 to 12 would do similar in relation to three other clauses that seek to remedy other injustices: clause 2, which corrects injustices whereby people lost out on British overseas territories citizenship because of rules that prevented unmarried fathers from passing on that citizenship; clause 3, which corrects the double injustice faced by some who, having lost out on British overseas territories citizenship, then lost out on entitlement to British citizenship provided for by the Nationality, Immigration and Asylum Act 2002; finally, clause 7, which provides for more general power to remedy injustices by registration as British overseas territories citizens or British citizens.
The Bill recognises that had our laws not been unjust, the people impacted would have been BOTCs or British citizens with no fee and no procedure. It seems only just to rectify that injustice free of charge. In relation to clauses 1 and 2, there are no fees charged for the equivalent fixes to British citizenship law, so it should be the same for British overseas territories citizenship. I was pleased to learn at the weekend, having already tabled the amendments, that back in July the Home Office had apparently written to various nationality experts to confirm that the intention was not to charge for those applications and that the same approach would be taken for applications under clause 3. That is welcome, but it would be useful for the Minister to confirm that is accurate, so that we can hold the Government to account in future, if the Treasury ever tries to force a change of approach.
I still say that Parliament’s intention should be in the Bill, because it is clear from debates around the British Nationality Act 1981 that registration fees for children were never intended to be set at anything more than the cost of processing for the Home Office. Yet a quarter of a century later, the Home Office started ramping up prices relentlessly and now makes massive profits on them. Let us all agree today that the applications should be free and ensure that our successors are aware of that by putting it into law.
Notwithstanding the welcome Home Office letter, that still leaves applications under clause 7, which is the broad discretionary clause. It would be good to have an indication of the Government’s thinking. Let us remember what that clause provides for: it is a general fix for persons who missed out on British citizenship or British overseas territories citizenship because of laws that discriminated between men and women or against children of unmarried couples, or because of acts or omission by public authorities or something exceptional. If a person has been deprived of citizenship because of discriminatory laws or a mistake by a public authority, it is hard to see why they should be charged a fee for fixing that. That is certainly true where citizenship would have been automatic, hence this amendment.
As the Project for the Registration of Children as British Citizens and Amnesty International argued in their written submissions, fees for registration are undermining access to those procedures. The sum of £1,112 for a child and £1,206 for an adult is a long way beyond the cost—something like £372—to the Home Office of the registration process. It is particularly dangerous to ramp up the fees for applications where success is not guaranteed or certain. Under clause 7, it is not the case that someone simply has to show a date of birth and nationality of a parent and it is easy to know whether the applicant will be successful. In many cases, people will be unsure whether the Secretary of State will regard their circumstances as exceptional. Even if the circumstances are exceptional, as the clause stands, the Secretary of State still has the discretion to say, “no”, because the clause says she “may” register them in those circumstances, rather than “must”.
The lack of certainty of success, coupled with the high fee, risks causing low uptake of the new rights. We are all delighted that the new rights have been put into law, but if someone is not certain that they will be successful and they are putting at risk a huge fee, they will simply not apply and injustices will be left uncorrected.
New clause 16 would enshrine a broader principle that registration for citizenship should not be a profit-making exercise. It is vital to keep in mind the fundamental distinction between naturalisation and registration. It is possible that the root of such problems is the fact that the Home Office has come to treat those things as pretty much the same—they are not; they are very different.
People who naturalise as British citizens, and their families, have made a conscious choice to come to the UK, settle and make this their home country, and seek its citizenship. In contrast, those who register as British citizens—in the overwhelming majority of cases, they are children—did not make those choices. Often, they are British-born kids who are not automatically British at birth. They are allowed to register as British if they lived in the UK for the first 10 years of their lives; if either parent settles and becomes British before the kid turns 18; or if they were stateless at birth and live here for five continuous years. Although the Home Secretary has no discretion over that, the 1981 Act quite rightly retained a discretionary power for the Home Secretary to allow other children to register, including those who came here at an early age and who are, to all intents and purposes, British.
In 1981, Parliament repealed automatic citizenship by birth alone on the basis that birth here did not necessarily mean that someone’s connection to the country was strong enough that this should be their country of citizenship. However, Parliament was careful to put in place protections for children born here to non-British parents, for whom this clearly was or became home, hence their right to register as British citizens. Far from being equivalent to naturalisation as a British citizen—those people have picked the UK to be their home—citizenship through registration should be seen as equivalent to the British citizenship that most people in this room will have automatically enjoyed simply by being born here to British parents.
To make a massive profit from that is as outrageous as demanding that anyone in this room pay for the privilege of being British. Parliament took the view that Britain was the home country for those kids in the same way that it is for everyone in this room. Now, the Home Office is putting that citizenship way beyond the means of many. When he was Home Secretary, the now Secretary of State for Health and Social Care, the right hon. Member for Bromsgrove (Sajid Javid), accepted that that fee was a huge sum of money. The Home Office is undermining Parliament’s intentions: thousands of children cannot access the citizenship that should be theirs because the Home Office now charges that huge sum. When the fees for registration came into force, they were set at something like £30—around £100 in today’s money—simply to cover the cost of administration, and it remained like that for a quarter of a century. Since 2007, however, the Home Office has rapidly ramped up the fee, which now stands at more than £1,000. The application processing cost stands at around £360, so almost £700 of the fee is pure profit for the Home Office.
The impact on kids whose families cannot afford to register them is absolutely profound. Many will grow up unaware that they are not British citizens like their pals. That penny will perhaps not drop until they cannot join a school trip abroad or apply for college, university or a job. Without British citizenship, those children are made subject to immigration control and could feel the full implications of the hostile or compliant environment, meaning that they even run the risk of being refused access to child healthcare, employment and education, social assistance and housing, and of being detained, removed and excluded from their own country altogether. It is important to say that that affects tens of thousands of British-born children, and is surely contrary both to the Government’s duty to safeguard and promote the welfare of children and to the requirement that children’s best interests be a primary consideration in all actions that affect them.
Over the years, the Home Office has made various arguments, a number of which do not stand up to scrutiny, and I will address three of them. First, the Home Office often asserts in such debates, of which we have had several since I turned up in 2015, that the fee reflects the benefits received by the child in being able to register. That is a completely inappropriate argument. On that basis, we all should be charged a fee for our British citizenship, but as it is our right, we are not, and it should be exactly the same for those kids.
Secondly, in what I regard as an even more dreadful argument, the Home Office states that citizenship is not actually necessary for those kids, and that they can instead just apply for leave to remain. Frankly, that is an astonishing argument. If the Home Office said to anyone on the Committee, “We are going to deny you your British citizenship, but don’t worry, you can apply for leave to remain—we might even give you a fee waiver if you’re struggling to afford it”, would any of us be content with that? Absolutely not, particularly given that the leave-to-remain route is the horrendous ten-year route to settlement. To suggest that immigration leave is any sort of equivalent to being recognised as a national is quite simply insulting to those kids.
Thirdly, the Home Office makes the case that people using the immigration and nationality system can fairly be asked to pay a contribution towards its broader costs, so that British taxpayers do not have to. In some circumstances, I accept that that is true. I do not have a problem if the Home Office makes a profit on work visas, perhaps, to subsidise other work that it does, but it is totally unfair to apply that principle to people for whom the UK is home, and who are simply trying to access their right to nationality. These are not migrants choosing to come here to work, study or whatever else; they are, to all intents and purposes, British kids, and it is time that the Home Office supported them in exercising their rights to the British citizenship that reflects that, and stops trying to profit from them and put them off. Let us end this injustice now.
Mr Goodwill
The principle of fees reflecting the cost of delivering the service is a good one that should be applied widely across Government. It is applied, for example, at the Driver and Vehicle Licensing Agency for some of the processes that it carries out for motorists. The Passport Office reflects the cost of issuing a passport in the fee that it charges. In the vast majority of cases, the cost of these services should be reflected in the fee. When I was an immigration Minister, I would scrutinise officials and say, “Why is it so expensive to do this?” They would say, “Well, these are often quite complex cases with quite a lot of paperwork.” We must also bear in mind that there are people who try to obtain British citizenship fraudulently using fake documents. Therefore, the amount of scrutiny that needs to take place reflects that. I hope that the Minister will reassure us that we will continue to apply that principle, so that we do not see profit incentives but merely cost recovery.
Neil Coyle
There is a slight contradiction in what the right hon. Member is claiming, because in the practical, lived reality of examples in my constituency it is at the point that a child discovers that they need to go through the citizenship process in order to access a passport that they discover all the fees that they are obliged to pay. He says that he wants the passport process to reflect only the costs of administering that passport. For the children and families affected by this, in order to get that passport at cost they have to pay thousands of pounds, which is profit for the Home Office.
Mr Goodwill
As I was saying, I would always scrutinise the officials and say, “Does it actually cost this much to apply?” They gave me evidence that this was indeed an expensive operation. As I said, often fake documents are presented, and forensic work needs to be done to ensure that the identity of the person is as stated, and that the documents provided in evidence are correct.
Stuart C. McDonald
The figures that I gave in terms of the cost to the Home Office came from, I think, freedom of information requests, so they have been carefully calculated. It is beyond doubt—I do not think the Home Office disputes this—that it makes something like £700 profit on an application that costs just over £1,000. We are talking about kids, so it is, as the former Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), said, a huge sum of money.
Mr Goodwill
As I said, I hope that the Minister will reassure us of the principle that was certainly in effect when I was in the Home Office: that this is not an opportunity to make a profit out of these people, but merely to recover the cost.
I believe that the amendments will place a greater burden on taxpayers as a whole for a service that is being provided to these applicants. I am also a little concerned about new clause 16(3), which talks about whether a person can afford the fee. I am not clear whether that means that it should be set at a level that anyone can afford, which in effect would have to be zero, or whether the proposal is for some sort of means testing, which of course would add the cost of getting financial information from the applicant. The cost of the process could end up being greater overall, although if the new clause were accepted the costs for some would be lower than for others.
Stuart C. McDonald
The fundamental point is that a kid’s British citizenship is not a service; it is a right. I am happy to have a discussion about the wording of the new clause, but I understand that the language has been borrowed from elsewhere. The Home Office has fee waiver schemes, for example in the long route to settlement, as the right hon. Member will well know, so it is not something that the Home Office will not understand. It will be able to put in place a scheme that allows people who are generally unable to pay the fee because of their impoverished circumstances not to have to pay it. I am happy to discuss the wording if he accepts the principle.
Mr Goodwill
I hear what the hon. Gentleman says, but I maintain my view that the Government have it right on this occasion: the fees should reflect the cost of delivering those services, and should not fall more widely on taxpayers as a whole. Of course I have a right to a British passport, but that does not mean that I should not pay the fee to ensure that the passport is applied to me, not to somebody who is pretending to be me or trying to impersonate another citizen.
Stuart C. McDonald
To echo the point made by the hon. Member for Bermondsey and Old Southwark, no big profits are made on passports. Of course, people still have British citizenship even without a passport. A passport is a useful thing to have to prove citizenship in many circumstances. In a way, that could almost be described as a service. I think it is a pretty important one, and it is right that the Home Office does not make a huge profit on it, but the right hon. Member was not charged a fee for his British citizenship. None of us were. It is not a service that has been provided to us; it is a right, and it is a right for these kids as well.
We have had lots of support on these arguments from Conservative MPs over the years. It is very strange that it is a Scottish National party MP who tends to stand up and champion British citizenship. I thought that this would be made for Conservative MPs. Even if folk will not support us today, I encourage them to please go away and think about this, and speak to their colleagues. I think many hon. Members would have sympathy for this cause if they just looked closely.
Mr Goodwill
I completely understand the hon. Gentleman’s point, but I maintain my position that although it is a right for these people to apply for citizenship, the cost of their doing so, and indeed the cost of ensuring that people who may be fraudulently trying to avail themselves of citizenship, should not fall disproportionately on taxpayers as a whole but on the applicants. As long as the Minister can reassure us that the fees reflect the cost, and that any high fees can be justified by the man hours spent and the time needed to check those applications, the Government should be supported on the wording in the Bill.
Anne McLaughlin
Before I come to what I was going to say, may I respond to the right hon. Member for Scarborough and Whitby as well? He does not need that reassurance, and he does not need to worry about the British taxpayer, because in 2018 the Home Office made profits of £500 million by charging £500 million more than it cost to process fees. He talked about the DVLA. He cannot say that the DVLA never gets fraudulent claims; it builds them into its costs. The Home Office has already built in the cost of checking fraudulent claims, and the profit in 2018 was £500 million for the whole year, so the British taxpayer does not have to worry about that. Who has to worry about it are the people who have to pay the fees, which is what I wanted to talk about.
I will give two examples that I think will illustrate the broader point of the unfair impact on people’s lives when they have to pay fees over and above what it costs to become a British citizen or to be allowed to remain in this country. My hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East was right to focus on children. After all, children have absolutely no say on what happens in their lives. Throughout all the talk about immigration, particularly asylum for instance, we talk about single men as if they are not vulnerable. I will tell the Committee about two young men who were extremely vulnerable—they are less so now—and how the fees affected their lives, stopped them living their lives, and almost ended one of their lives.
They are not young men now. If they are watching this—I doubt that they will be—I think they will be delighted that I am calling them young men; they are just younger than me. I will not give you the first one’s correct name. He adopted a Scottish name, which I will say is Fraser, even though it is not. Fraser has become part of my family. He calls my mother “Mum”. She taught him to drink whisky and he is eternally grateful for that.
Anne McLaughlin
My mum is even less likely to be watching this, but if she is, I will certainly let the hon. Member know.
Fraser—I must remember to use the adopted name—came from Sudan. His village, where he grew up, was razed to the ground. Everybody fled, and he did not know where the rest of his family were. He assumed that his two brothers, sister, mum and dad had died, but he did not know for sure and he kept hearing rumours over the years. He was helped by the British Red Cross, so he came here as an asylum seeker and then got his refugee status. But he wanted to go back and find out, because he kept hearing rumours that his sister had managed to get away and that his mum might still be alive, although he doubted it. The British Red Cross was doing everything it could to help him, but in order to get back to Sudan he needed a British passport and to be a British citizen. He had got his refugee status, but that took something like six years beyond when he was able to apply for citizenship, because he could not afford the fees. Had he been charged what it actually cost the Home Office, he would have got home a whole lot sooner. I know that nobody in this room would have wanted what happened to him to happen, but I am just explaining what the impact of these extortionate fees can be.
It took Fraser a long time, but he did finally get back with his British passport. Members here will be very proud of me, because I went to his citizenship ceremony and stood to sing “God Save the Queen”. I do not do that terribly often, but I did it for him, because it was so important to him. He went to Sudan to see what had become of his family and he discovered that his sister had fled but had come back. His sister was there, living in very dangerous circumstances, which he was then able to help her with. She has children there; she does not want to leave Sudan, but she wants to be safe and he was able to help her. He discovered that his mum had been very ill for many years. She had not died at the time; she, too, had escaped. She had been very ill for many years but—I am trying to think how to put this—she had clung on, because she just wanted to see him one more time. But she had died two months before he got over there.
As I said, I am not for a second suggesting that anybody here or anybody drafting the legislation would not care about what happened to Fraser, but if he had had easier access, had not had to save up for years because he worked on the minimum wage in various precarious employments, and had been able to get over sooner, he could have been reunited with his family, which is a huge thing for him. He calls my mum “Mum”, because he does not have one in his life.
I will call the second person I want to talk about Matthew. He had leave to remain but had to renew it after three years. He, too, worked on the minimum wage in precarious employment, with a zero-hours contract. How could he save up the £2,000 that he had to pay to renew it? So he buried his head in the sand; he did not save it up—well, he could not possibly have saved it up, to be fair—and then his employer said to him, rightly, “I’m no longer allowed to employ you, because you don’t have leave to remain.” He said, “But I can’t afford to apply for leave to remain,” but of course the employer cannot do anything about that. He was obviously then unemployed, but he has no recourse to public funds, because he does not have any status in the UK, so his housing association is saying to him, “Where’s the rent?” A year has gone by and he has clocked up all sorts of debt. His housing association is saying, “Look, we don’t want to evict you, but we are going to have to.” That is all because he could not afford the fees—fees that were way more than it was costing the Home Office. There was no need to do this to him.
The situation then got really complicated because he discovered something—this fits in with new clause 16 and awareness raising. He did not know that it is possible for the fees to be waived if the person is in certain circumstances, and his case fitted those circumstances; they are not waived as a right, but there is that possibility. He did not know that, so he did not ask. He got a lawyer, who obviously did know it, and asked. The Home Office asked to see his bank statements for the past couple of years, and then said, “No, we are not waiving the fee,” and just left it at that. He came to me, and I asked the Home Office. The Minister there was very helpful and said, “Look, it is because he has been gambling his money away. That is why he can’t pay his fees.”
Neil Coyle
I am a little rusty when it comes to this process, Sir Roger, so thank you for your clarifications. I missed the first evidence session, in which declarations of interest were made, because I was at my brother’s wedding, which was fantastic. For the purposes of formal declaration, as noted in my entry in the Register of Members’ Financial Interests, I receive support from the Refugee, Asylum and Migration Policy Project in a policy capacity to support constituents and to work on relevant issues here in Westminster.
I welcome the Minister to his new role and congratulate him on completing the marathon, which of course goes through my constituency—he is welcome back to Bermondsey and Old Southwark any time. He was raising funds for Justice and Care, which could lead to interesting discussions about some aspects of the Bill. [Interruption.] I have not been heckled by technology before—these are interesting interventions. We are clear for take-off I believe.
I shall plough on. The Bill addresses access for a relatively small group, which some will welcome, but I support the amendments. [Interruption.] This is rather distracting.
The Chair
Order. I am terribly sorry, but clearly someone has not fastened their seatbelt. Let us try again, but if it happens again I may have to suspend the sitting for five minutes.
Neil Coyle
I thank colleagues for their kind words about not particularly wanting to hear my contribution and being grateful for the technical problem.
I support the amendments because I believe that the Bill misses an opportunity to address some wider process issues that need reviewing for several reasons. Fundamentally, I come back to the impact of imposing costs on people’s access to their rights and entitlements, given the delays and times involved and the impact on Home Office staff.
Let me give a practical example: the Home Office’s processes take so long and cost so much that businesses in my constituency have moved country as a result. One financial sector firm was trying to recruit someone from Japan. They were told that it would take at least six months to process an application, and that she may not even qualify to work in the UK under the process they were following. They discovered that it was cheaper and faster to up sticks, because of the price, process and times. They chose to move to Frankfurt, and in two weeks they were able to complete the registration and visa process that they could not do over here.
There is a wider problem with how long the process takes. Imposing costs adds to the bureaucratic impact on the Home Offices and the delays. At the end of March 2021, 66,000 people were waiting for initial decisions from the Home Office—the highest figure for over a decade. Of those, 56,000 had been waiting more than six months. I come back to the point that the right hon. Member for Scarborough and Whitby made about accessing a passport. If a child wants to go on a school trip and wants a passport, but cannot get it without going through a process that takes more than six months, how on earth will they go on a school trip? In that circumstance, children are denied the opportunities afforded to their classmates, even if they were born over the river here at St Thomas’ Hospital and sit next to the other children whom they do not have the same rights as. It is iniquitous.
Anne McLaughlin
I just want to share a story. When I was in primary 7, everyone in my class went on a trip to Paris, except me, because my parents were too strict and thought I was too young. At least I understood why. Those children cannot go because of who they are; it is not because of a decision by their parents but because they are deemed not to be equal to their classmates. I know how bad it felt to be told by my mum and dad that I was not going to Paris. It must feel 100 times worse for a child when who they are is in question.
The Chair
Order. We are feeling our way. I do not want to be heavy handed, but interventions are not speeches.
The Chair
It is quite all right. We allow greater flexibility in Committee than we do on the Floor of the House. Nevertheless, an intervention should arise directly from, and be a question to, the Member who has the floor.
Neil Coyle
I am not sure why the hon. Lady’s parents were concerned about Paris in particular, but the point is that they were able to make that choice. In these circumstances, children born and educated in this country who have never lived anywhere else do not have the right to decide whether they can go on a school trip.
Returning to my point about the timeframes involved, the number of people waiting over a year for a decision has risen tenfold since 2010, with 33,000 people in that position in 2020, including 7,000 children, and 2,500 people waiting more than three years. I have at least two examples in my constituency of people waiting over a decade for a Home Office decision on their status. Those people are reliant on local authority emergency support, because the Home Office has shunted the cost to councils rather than get on with the process, make a decision and end the need for more expensive emergency support.
Who carries out the process and what trust is there in the Home Office? We are well aware of the Windrush examples and the denial of entitlements to people who were legally entitled to be in this country and should have had their rights upheld. They should have been respected for their contribution to rebuilding this country, to providing our public services in particular, and to our economy more widely.
The hostile environment has damaged trust in that regard; calling only on casework experience, the Home Office had an officer placed in my council’s “no recourse to public funds” team who took away the driver’s licence of someone who was seeking support from the council, which caused even more complications in getting their situation addressed, adding more time and more delay. In this Bill, the Home Office seems to be adding more complications, process and bureaucracy, rather than addressing where things have gone wrong—and things have gone very badly wrong.
To give one example, my constituent Ade Ronke came to see me when I was first elected in 2015. At that point, her son was three years old and she had been battling for three years to try to get her status resolved. The Home Office had declared that she was in effect a person of bad character because it believed that she had been subject to a criminal prosecution. She had never been arrested, she had never been in court, and the police and courts provided proof that it was not her that the Home Office was referring to, but it took a long time. Her son was 10 years old before that case was resolved. He had grown up for seven years in a family where there was no entitlement to child benefit or housing benefit and no recourse to public funds. Throughout that process, his mother was reliant on a church group for accommodation.
The Home Office could have used the Bill to address the division that has been created between what the Government aspire to do and the faith groups and others who are providing support, as the hon. Member for Glasgow North East mentioned. That philanthropic support means that there are many organisations and individuals out there who are aware of the deep disadvantage and even destitution that these Home Office policies cause, which the Bill could have addressed.
There is also an issue about numbers, which perhaps the Minister can address when he speaks. It is unclear whether the Bill will require the Home Office to take on more staff or whether it intends to increase the workload of existing staff. The staff complement has risen in the past 10 years, but productivity has collapsed. We see fewer decisions made and fewer interviews of people going through these cases per calendar month, despite the fact that there are more officers working on those cases, according to Home Office figures.
At a time when nine in 10 crimes in this country go unpunished, we should be doing everything humanly possible across the House to ensure that the Home Office can focus on law and order and its fundamental purpose of keeping our communities safe. That is not happening for my constituency on antisocial behaviour and other crimes, and it would be welcome if the Home Office could return its focus to those issues, rather than adding more bureaucracy, more costs and more time to distract from that fundamental purpose.
Linked with that question, over the past 10 years we have seen a drop in access to legal aid. I know that the Bill’s equality impact assessment suggests there will be an extension to legal aid support in some cases. I hope that the Minister, when he addresses this particular section of the Bill, will confirm that legal aid will be available to those going through citizenship processes.
As the hon. Member for Cumbernauld and all the other places—I thought my constituency had a long name—said, there is also a cost issue, and the Bill misses an opportunity to address that. I support these amendments based on the cost issues alone, because we are one of the most expensive countries in the world in terms of the bureaucracy involved in this. I am proud to be British; I think this is the best country in the world and that London is the best city in the world, but it is also one of the most expensive.
To process citizenship here costs 10 times as much as in many of our neighbours: France and Spain have the lowest, but I appreciate that some on the Government Benches do not like European comparators, so let us look at the United States, as our price is already double theirs. It is also hideously expensive here compared with Canada, which charges only £400 to process citizenship, or other Commonwealth compatriots such as Australia.
I know that some Government Members will be using Australia as an example in later parts of the Bill, but perhaps they could have a look at it here as well, because Australia charges just £153 for an adult citizenship registration process, and Australia does not charge children a bean. There is a direct example within the Commonwealth of a country that has adopted a more progressive system, and perhaps we could learn from that.
Mr Goodwill
Or indeed joining the British Army. I had a constituent whose mother was German and was married to a British citizen, who was in the British Army in Germany at the time. My constituent apparently could not join the British Army. He had to go through the process and pay the citizenship fees to join the British Army.
Neil Coyle
Some people are fortunate enough to find sponsors for these processes, but fundamentally that still leaves the problem in place. The Government said they would review this. Where are they with that? The point I want to make is this: someone who goes to university is more likely to secure a higher income and pay more taxes in the long term, so, if this issue is a deterrent to some people going to university, which I believe it has been in some constituency cases, failure to address the problem will have a long-term economic hit on UK plc.
My final point is on the lived reality of people in these circumstances. They often have no recourse to public funds conditions imposed as well, and the restrictions and limitations of that are devastating. Sadly, I have multiple examples from my constituency.
Mr Musari came to see me in 2015, when I was first elected. He was working in the private sector and renting in the private sector, when he suddenly had a no recourse to public funds condition imposed on him. His wife was pregnant with their third child, Mofe, at the time, so she had stopped working in order to give birth—you cannot really do both at once. The impact of the no recourse to public funds condition was that he was in the process of being evicted, because he was not able to pay his rent, because he could not access benefits and continued support. He became reliant on a church group for accommodation.
He told a group in my constituency—he got up and told this story publicly—that on Christmas day, when he was living through that terrible experience, he woke up in that emergency philanthropic accommodation, in one room with his wife and their three children. They had no private kitchen use. There was no Christmas dinner. Because of their financial circumstances, there were no Christmas presents for the children. He said that that day he felt that Government policies meant that if he took his own life, his children would get more support. He told that story publicly to outline the human impact on him.
His family, of course, ended up becoming reliant on emergency social services support from Southwark Council. That is a massive cost to a council—a colossal cost. London councils are spending £53 million a year on emergency social services for children subject to no recourse to public funds conditions, because the Home Office has imposed that process on them. That is the process we have before us today. It is a massive economic cost. Councils of every political hue are up in arms at how they are being forced to spend money through their noses on emergency services rather than on more affordable, long-term, permanent accommodation. Emergency accommodation provided through social services is the most expensive—more expensive than sending someone to prison or detaining someone in hospital. It is a ridiculously expensive system, but a deliberate choice. The Bill is an opportunity to address those issues, and I fear that it will impose new, and more, costs.
The equality impact assessment says that the Government plan to drop no recourse to public funds conditions for some of those affected by the legislation. I hope the Minister will say more about that. I hope he will agree to do what the Prime Minister has asked, which is to publish the figures on all those subject to no recourse to public funds conditions. I hope he will tell us whether he will agree to a review of the whole system to help people like Mr Musari and all those affected as we go forward.
The Chair
The hon. Gentleman has been entirely in order throughout his remarks. He has quoted from a number of documents. Would he please make sure that paper copies—or electronic copies, preferably—are made available for Hansard? Thank you.
Bambos Charalambous
I will be brief. I entirely support amendment 8 and the associated amendments on fees. The starting point is rectifying the injustice that has been done, and fees should not be a barrier to rectifying that injustice. We support the waiver of fees in those cases, because there has clearly been an anomaly that has disproportionately affected the people in this case. Fees should never be used as a barrier and they will clearly be a barrier in this instance, and that is why we support amendment 8 and the associated amendments in the group. If the intention is to make it easier for people to acquire citizenship, we want to remove barriers, not add them. That is what the amendment would do and that is why we support it.
There has been discussion about the cost of the administration of fees. My hon. Friend the Member for Bermondsey and Old Southwark has made the point that the Government are meant to be carrying out a review following legal challenges. I hope that we see the fruits of that review before the Bill goes through its parliamentary stages, so that we can have greater certainty. I am sure the Minister will clarify that. We also need to make sure that awareness is raised about the access to rights to citizenship and the impact that the fees will have. For those reasons, we commend the amendments.
Tom Pursglove
I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for tabling amendments 8 to 12 and new clause 16, which provides the Committee with the opportunity to consider fees charged in respect of applications for British citizenship and British overseas territories citizenship.
Before I address the specific points in the proposed new measures, I want to provide some background information. Application fees for immigration and nationality applications have been charged for a number of years under powers set out under clause 68 of the Immigration Act 2014, and they play a vital role in our country’s ability to run a sustainable system, reducing the burden on taxpayers. Sitting beneath the 2014 Act are fees orders and fees regulations, which are scrutinised by both Houses before they come into effect; that is an important point. That ensures that there are checks and balances within the system and maintains the coherence of the fees framework. If we were to remove those fees during the passage of the Bill, as the hon. Member for Bermondsey and Old Southwark suggests, it would undermine the existing legal framework without proper consideration of the sustainability and fairness to the UK taxpayer.
Tom Pursglove
I will, although I know that you wanted us to make good progress, Sir Roger.
Neil Coyle
I want to comment on the point about the burden on taxpayers. First, there is a very significant profit margin—86% profit for some of the processes of the Home Office—so there is no burden there. Secondly, it is quite offensive language to those that are living, working and paying tax here to say that they are a burden, even though they are already contributing economically through national insurance and tax contributions. I find the language unhealthy.
The Chair
Order. The Minister has indicated that we want to make progress, and that is true, but the Minister must not feel under any pressure not to respond to points that have been raised. This is a very important part of the Bill, so please, as a new Minister, feel able to take your time if you need to do so.
Tom Pursglove
Thank you, Sir Roger. I appreciate that. I also appreciate the hon. Gentleman’s strength of feeling on this matter. I was Parliamentary Private Secretary, several years ago, to my right hon. Friend the Member for Scarborough and Whitby who was Immigration Minister, and I learned a lot from him. He got to the nub of the issue of fees. The truth is that there is a level of fee that is set. There is constant parliamentary scrutiny of those fees, as I have described. There is a level of cost associated with that. Any fee level that is incurred over and above that is actually invested into the wider nationality and borders system and helps to pay for the services that are provided.
Paul Blomfield (Sheffield Central) (Lab)
The Minister refers to the contribution of the right hon. Member for Scarborough and Whitby. That was a challenge to give a commitment that fees should not be set at a level that does other than reflect cost. I hope the Minister will take advantage of that opportunity. As he is beginning to develop his argument, he is suggesting that fees are set at a higher level in order to reinvest in the Home Office. That is what other people have described and The Times reported in 2019 as profit of quite significant proportion.
Tom Pursglove
I will gladly take away the Committee’s feedback on fees. As I have said, fees are kept under constant review and are subject to parliamentary scrutiny. I have no doubt that members of the Committee, and indeed Members across the House, will want to scrutinise any fees orders and fees regulations that are brought forward, express views on them and, as they see fit, either support them or take issue with them.
To return to the focus of the amendments and the clause, removing these fees during the passage of the Bill would undermine the existing legal framework without proper consideration of sustainability and fairness for the UK taxpayer. It would also reduce clarity in the fees structure by creating an alternative mechanism for controlling fees.
Beginning with amendments 8, 9, 10, 11 and 12, the aim of which is to limit the Secretary of State’s power to charge a fee for applying for British overseas territories citizenship, I can reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that I am sympathetic to the view that a fee should not be charged in cases where a person missed out on becoming a British citizen automatically due to historical anomalies. The provisions in the Bill are about righting historical wrongs, and I can give the Committee my assurance that we will look carefully at where fees should be waived via the fees regulations. However, as I have outlined, that is not a matter for this Bill and it should be remedied through secondary legislation, in line with other changes to immigration and nationality fees.
Stuart C. McDonald
My understanding, from the briefing I was given at the weekend, is that in July the Home Office sent a letter to nationality experts stating that the intention was not to charge a fee, but the Minister seems to be saying something different; that there will be fee waivers, rather than no fees at all. We are talking about historical injustices here, so can he be a little more clear? Is the intention not to charge a fee for the applications to which amendments 8 to 11 refer?
Tom Pursglove
The hon. Member is always on point in asking pertinent questions. I reiterate the point that the Home Office tends not to charge fees in instances where unfairness or injustice have occurred, and it remains our intention to continue to adopt that approach in relation to the provisions that we are enacting through the Bill. I hope that gives him the reassurance he is seeking.
Neil Coyle
I thank the Minister for giving way. Yesterday we saw Parliament at its finest, and I genuinely think that he is a decent man, but what he is saying today is not what was indicated previously and it does not address what the Court of Appeal has required the Home Office to do. If he is saying that there will be secondary legislation at some point, when is it coming, because we have an opportunity here to address the issue? The Court of Appeal found that the Home Office had failed to assess the best interests of children in setting the fee. To fail to do so again in this legislation will have only one outcome, which is the Government being back in court.
Also, I forgot to mention the case that I was speaking about earlier, so for reference it is R (The Project for the Registration of Children as British Citizens) v. the Secretary of State for the Home Department.
Tom Pursglove
I thank the hon. Member for that further intervention. Let me just set out the position on the point about child citizenship fees that he raises. I understand the concerns expressed about child citizenship fees. However, this is currently subject to legal challenge in the Supreme Court and the position will be reviewed after the judgments have been received.
Neil Coyle
So when the Government said in February that the issue was being reviewed, was it not being reviewed then? It is extraordinary that many months down the line the Minister is telling us that there will be a review only if they lose the case in the Supreme Court, which will incur further costs of millions of pounds for the taxpayer simply to go through the legal process.
Tom Pursglove
The hon. Member would be surprised if we did not want to review the situation and take into account fully the judgment of the Supreme Court in due course. I think that it is entirely proper that we take a view on this and that the situation should be reviewed in the light of any judicial ruling handed down. This exchange has been very useful, as it has allowed me to address many of the points that I would have picked up at the end of my remarks.
I turn now to subsection (1) of new clause 16, the aim of which is to limit the Secretary of State’s power to charge a fee for applying for British citizenship and British overseas territories citizenship to the cost to the Secretary of State of processing the application. As I have already outlined, imposing such a requirement would cut across the funding and coherence of the whole system and is not a matter for the Bill.
Subsection (2) would prevent the Secretary of State from charging a fee to register as a British citizen or British overseas territories citizen if the child is being looked after by a local authority. It is important to remember that any child, irrespective of nationality, who is looked after by their local authority can apply for both limited and indefinite leave to remain without being required to pay application fees.
Stuart C. McDonald
The Minister is being generous with his time, but I regret that the Home Office appears to have dusted down the same old briefing and he is making the same points that have been made before. He cannot possibly argue that limited leave is some sort of alternative to British citizenship. None of us would accept that; why should these kids?
Tom Pursglove
We would argue that the provision ensures no child in local authority care is unable to access leave. We remain of the view that citizenship is not necessary for any individual to work, live, study or access services within the UK. Subsection (3) would prevent the Secretary of State from charging a fee to be registered as a British citizen or British overseas territories citizen that the child or the child’s parent, guardian or carer is unable to afford. That raises similar points to subsection (1) in that imposing such a requirement would cut across the funding and coherence of the whole system and is not a matter for the Bill. Subsection (4) would require the Secretary of State to take steps to raise awareness of rights under the British Nationality Act 1981.
Stuart C. McDonald
I have a quick question on the fee waiver. Why is registration for citizenship just about the only thing where there is no fee waiver scheme at all? There is a fee waiver sometimes for the 10-year route to settlement—as ludicrous a system as that is. Why is there no fee waiver system at all even for folk who cannot remotely afford that?
Tom Pursglove
I am conscious that I want to get through my remarks on this. I will write to the hon. Member on that point.
Neil Coyle
The Minister is being very generous in giving way. Perhaps he will be able to tell us how many applications for a fee waiver were denied by the Home Office in each of the last few years, or perhaps he could furnish us with that detail in another way. My understanding is that it is about 90%.
Tom Pursglove
Again, I do not have the figure to hand, but I will happily take that away and see if I can provide him with a written answer on that point. Information about becoming a British citizen is made available in published guidance on gov.uk and we are committed to ensuring information of this nature is fully accessible for all. I am conscious that we have had quite an extensive debate around fees in general, but I hope what I have said around the provisions in the Bill and the Government’s intentions for handling fees in relation to the nationality measures we are seeking to enact gives comfort to the Committee, and that the hon. Members will feel able to withdraw their amendments.
Stuart C. McDonald
I am grateful to all Members for taking part and the Minister for his response. There have been two separate issues. First, on the new registration provision in the Bill, he has provided some assurance that because it is correcting historic injustices the broad intention will be hopefully to avoid a fee. We will hold the Government to that and watch very carefully.
I hear what the Minister says about the fact there is a system of statutory instruments being laid—we all come here and say our piece and then the Government sets a fee pretty much regardless. In theory, that is fine. However, the lesson we learned about the citizenship registration of kids is that in 1981 the then Government and Parliament as a whole made it absolutely clear that profits should not be made on that registration, and that was fine for 20 or 25 years. But then along came successive Governments that decided to ramp it up.
On a principle as fundamental as this, I still think there is a strong case for putting it in the Bill. If a new Government want to change the approach in the future, they can do so, but they will first have to introduce primary legislation to do that. I do insist on amendment 8. I will insist even more strongly on new clause 16.
Tom Pursglove
The hon. Gentleman asked specifically about fee waivers in relation to nationality, and I have just reflected on that point. My understanding is that, for most people, nationality is a choice and is not needed specifically to live in the UK. That is why we do not tend to offer fee waivers, typically, unless it is to correct a historical injustice. I just wanted to make that point clear.
Stuart C. McDonald
I am grateful, but that is an argument that the Home Office makes every time we have this debate. We have had Westminster Hall debates and so forth, and it is an awful point. This is the point that I have just been making. Imagine if I were to say to the Minister that we are taking British citizenship away from him and that he could get indefinite leave to remain or apply for five years’ leave to remain or two and a half years’ leave to remain. The long route to settlement involves two and a half years, two and a half years, two and a half years and two and a half years. After 10 years, thousands of pounds and all sorts of uncertainty, he would get settlement, but even that is not citizenship. We would laugh at anyone’s suggestion that we would swap our British citizenship for that. That is not a remotely reasonable justification for not having a fee waiver.
It is the Home Office’s official position that British citizenship is somehow equivalent to the long route to settlement. The long route to settlement is a disgrace, but that is another issue. For goodness’ sake, we are talking about something that I would think Conservative and Unionist politicians would think fundamental. A kid’s citizenship is not a commodity or a service. Leave to remain is not an alternative, so that is not an excuse for not having a fee waiver or for having a fee for kids who are in care.
The right hon. Member for Scarborough and Whitby made plenty of points about the importance of being able to subsidise other parts of the system, and I get that for other reasons, but not for this. The figures show that the Home Office is making a huge profit. Making that profit on visa applications means that tens of thousands of kids who should be British citizens are out there struggling to secure leave to remain, with thousands of pounds of fees. They are being denied access and their rights, stability and security. I ask the Minister to take the issue away and think about it again. I also ask Government Members to think about this issue, because it is not party political. As say, I have had lots of support from Conservative MPs in the past. Let us do justice by these kids. In effect, they are British citizens. Let us make them legally British citizens as well.
As I say, new clause 16 is modest. It is not asking for no fees at all; it is asking for no more than cost price. It is asking for a fee waiver, and it is asking to ensure that people have all these rights. I will definitely press amendment 8, and new clause 16, when we reach it, to a vote.
Question put, That the amendment be made.
The Chair
Having listened very carefully to the debate this morning, I am of the view that the matters arising from clause 1 have been thoroughly debated. I therefore do not propose to engage in any stand part debate.
Clause 1 ordered to stand part of the Bill.
Clause 2
Historical inability of unmarried fathers to transmit citizenship
Question proposed, That the clause stand part of the Bill.
The Chair
There is no need to have a stand part debate on clause 2. There are no amendments to clause 2, but I do not wish to curtail debate if hon. Members have anything they wish to say.
Bambos Charalambous
I have some remarks, which I will try and keep as brief as possible. As outlined in the Committee, opening clauses 1 to 5 seek to close the important loopholes in British nationality law. As we have already heard, British nationality law has discriminated against women and that will be corrected by clause 1 and the Opposition amendments. Clause 2 deals with children born out of wedlock, who have been prevented from deriving nationality from a British father if unmarried. That is another historical injustice and I am glad it is being considered in the Bill.
As Committee members know, before 1 July 2006, children born to British unmarried fathers could not acquire British nationality through their father. Registration provisions have since been introduced to rectify that issue for the children of British citizens through sections 4E and 4I of the British Nationality Act 1981, but that was not changed for children of British overseas territory citizens. Let us pause for a moment to reflect on the impact of the inconsistency: a child has no control over its parents’ choices, yet British overseas territories children, now adults, have been discriminated against because their parents were unmarried. Due to a loophole in British nationality law, those children would not automatically acquire British overseas territory citizenship as the law failed to provide unmarried fathers with the ability to transmit citizenship. Therefore, through no fault of their own and without knowing why, that group of British overseas territories children did not acquire rights as British overseas territories citizens—rights they deserved and should have been entitled to, including, for example, holding a British passport or gaining consular assistance from the UK.
As we know, injustices that relate to nationality and citizenship span generations, and it is right the Government seek through clause 2 to correct the historical inability of unmarried fathers to transmit citizenship. The clause will insert new sections 17B and 17G to the British Nationality Act to provide for registration as British overseas territories citizens for persons born before 1 July 2006 to British overseas territories citizen fathers, where the parents were unmarried at the time of their birth. The provisions provide an entitlement to be registered for those who would have become British overseas territories citizens automatically had their parents been married at the time of their birth and for those who would currently have an entitlement to registration were it not for the fact that their parents were not married at the time of their birth. As the clause creates a registration route for the adult children of unmarried British overseas territories citizen fathers to acquire British overseas territories citizenship, the Opposition welcome and support clause 2. It shows that the adults who have slipped through the cracks in UK nationality law over many years are no longer punished and, instead, are finally placed on an equal footing with mainland UK children born under the same circumstances.
Tom Pursglove
Following clause 1, this clause also seeks to rectify a historical anomaly in British nationality law for people who would have become British overseas territories citizens. The purpose of the clause is to insert a new registration provision for people who, first, would have become BOTCs automatically had their parents been married and, secondly, would currently have an entitlement to registration as a BOTC but for the fact that their parents are not married. That has long been awaited. We are aware of people who would have become British had their parents been married and see citizenship as their birthright.
Building Safety Bill (Eleventh sitting)
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Eddie Hughes)
Before I address this group, I would like to say that since this Committee last met we have suffered the very sad loss of two much loved and much respected colleagues, so I want to put on the record my condolences to their families and close friends, who are trying to come to terms with their tragic loss.
Following the pause in proceedings yesterday, the business of the House continues and we must now turn our minds to saving the lives of other people.
Clause 58 serves as an overview of part 4 of the Bill, which contains provisions for the management of building safety risks in higher-risk buildings. Part 4 is concerned with occupied buildings. It defines a building safety risk and it defines and places duties on the accountable person in relation to risks in their building, including duties regarding resident engagement.
Clause 59 defines “building safety risk” for the purposes of the Bill as a risk to the safety of people in or about a building due to the spread of fire or structural failure. The accountable person for an occupied higher-risk building must consider the spread of fire, structural failure and anything which may trigger them, through the safety case approach.
The Government’s approach embraces the independent review’s recommendations that the new, more stringent regulatory regime should focus on fire and structural safety. Our consultation referenced fire and structural safety, and we have engaged stakeholders on what the appropriate building safety risks should be. That engagement has supported that our approach covers the appropriate risks.
The clause also creates a power for the Secretary of State to add other building safety risks in the future, should evidence come to light that that is necessary. The Building Safety Regulator will oversee building safety and through that gain knowledge about the built environment. Therefore, it is only right that it must provide a recommendation or advice, or be consulted, before the power to specify new building safety risks is used. However, the spread of fire and structural failure cannot be removed in the future. They will and must remain at the heart of the new regulatory regime.
Clause 60 will enable the Building Safety Regulator to recommend that the Secretary of State makes regulations under the power in clause 59(1)(c). It also specifies the conditions that must be met for the regulator to do so. Through its duty to keep the safety of people in and about buildings under review, the regulator will be aware of the risks to and in buildings. It is only right that the regulator should be able to make recommendations based on that knowledge. In making a recommendation to change the definition of building safety risk, the Building Safety Regulator must have regard to the regulatory principles in clause 3, including proportionality.
We are focusing on preventing those rare incidents that have the highest consequences. The conditions that must be met for the regulator to make a recommendation reflect that, including the three-part test for simultaneously adding a new category of higher-risk building and a new building safety risk.
Finally, clause 61 provides that the Building Safety Regulator must provide advice about proposals to make regulations under clause 59(1)(c) to the Secretary of State, if requested. The regulator will be able to provide expert advice and will be a wealth of knowledge on risks such as the aforementioned spread of fire and structural failure. Moreover, it is important for the regime to be flexible and to be able to respond to new risks, if and when they arise. Thus the ability for the Secretary of State to request formal advice when considering altering the definition of building safety risk is an important step in ensuring that the Secretary of State is expertly informed and to keep the regime flexible.
Question put and agreed to.
Clause 59 accordingly ordered to stand part of the Bill.
Clauses 60 and 61 ordered to stand part of the Bill.
Clause 62
Meaning of “higher-risk building” etc
Mike Amesbury (Weaver Vale) (Lab)
I beg to move amendment 12, in clause 62, page 81, line 37, at end insert—
“(aa) has characteristics relating to function, material used for construction or inaccessibility of emergency routes out of the building as must be defined by the Secretary of State in regulations which make it a high risk to its residents, or”
This amendment would require the Government to define high-risk buildings which are not at least 18 metres or 7 storeys high in regulations.
Mike Amesbury
It is a pleasure once again to serve under your chairmanship, Mr Dowd, and to follow the Minister, whom I welcome to his place on the Front Bench. I concur with his comments on the tragic events surrounding Sir David Amess and on the loss of James Brokenshire, who served this House and, indeed, the Department well over the years.
The amendment seeks to broaden the definition of risk. During Committee stage, Members and Ministers have heard and reviewed evidence from many stakeholders, including the Construction Industry Council, which has argued that the current definition—which applies to buildings below 18 metres or with fewer than seven storeys—is not a sufficient definition of genuine risk. Indeed, the Fire Brigades Union argues in its written evidence, provided just a few days ago—I am sure that Members have had the opportunity to read it—that the scope is not broad enough.
For example, the fire at a residential care setting in Crewe not very long ago—we have referred to it throughout our deliberations—would not have been covered by the proposed definition because it was below 18 metres and had fewer than seven storeys. Yet the residents who called that building home were undoubtedly at a higher risk than many of us in this Committee Room.
The fire at the Cube student accommodation in Bolton, which has also been referred to throughout this Committee, would not have been covered by this definition, either. Yet in a relatively short period, a significant fire destroyed the building and—there but for the grace of God—nearly cost lives.
Although it is acknowledged that hospitals and care homes are covered by previous clauses, which have been debated, their focus is also on buildings below 18 metres or with fewer than seven storeys. The 18-metre threshold has caused considerable debate, as have comments made by officials in the now renamed Department. I am not at all confident that the Department itself believes that it is an appropriate figure. Indeed, the former Secretary of State, the right hon. Member for Newark (Robert Jenrick), said that relying
“on crude height limits…does not reflect the complexity”
of the risk, as many Committee members will know. He concluded that height would need to
“sit alongside a broader range of risk factors”—[Official Report, 20 January 2020; Vol. 670, c. 24.]
Finally, given that buildings below the proposed threshold are no longer deemed to be at high risk, I find it rather perplexing that the Government would advertise for and recruit a civil servant on a salary of £77,000 to take charge of the new proposed loans regime to remediate building safety issues on buildings from 11 to 18 metres. If they are not at risk, they are not at risk.
Ruth Cadbury (Brentford and Isleworth) (Lab)
It is a pleasure to serve under your chairmanship again, Mr Dowd. I echo the comments made across the Committee about our departed colleagues Mr Brokenshire and Sir David Amess.
I rise to support amendment 12, which stands in my name and those of my hon. Friend the Member for Weaver Vale and the hon. Member for St Albans. I reinforce the point that risk to building safety should be defined by actual risk—as assessed by the many experts we have in this country and the systems that we use but should probably improve—and not by some arbitrary cut-off.
I will describe two examples. On building risk, my hon. Friend the Member for Weaver Vale mentioned the risk of occupation, which should be covered but from which so many users and so many types of residential building are excluded—a point that I have covered in previous Committee sittings.
In my constituency, we have six 22-storey tower blocks called the Brentford Towers, which are council blocks with a mixture of tenants and leaseholders and were built more than 40 years ago. Not so long ago, a man died in a fire in his flat in one of those blocks. The fire did not spread. There was smoke damage in the communal hallway, which was shared by three other flats, and a lot of the smoke went out of his windows or through the smoke escape hatch on the stairwell.
The fire did not spread upwards, downwards or into the other flats on the man’s floor, because the building was designed with fire safety in mind and had not subsequently been messed around with. The fire doors were all shut and the smoke vent was open. That is what was supposed to happen: it was a tragic death, but sadly the man might have died in any kind of home-based fire. No one else was injured, no other flat was damaged and the cost to the community was minimal.
The other example is a block of flats that I have mentioned before, Richmond House in Worcester Park in south London. It had four storeys, I believe, with just over 30 flats. Once the fire took hold, it took 11 minutes for that building to burn down completely. By the grace of God, as my hon. Friend the Member for Weaver Vale said, no one died, although some people had smoke injuries.
Daisy Cooper (St Albans) (LD)
It is a pleasure to serve under your chairmanship, Mr Dowd. On a number of occasions during the passage of the Fire Safety Act 2021 and this Bill, we have heard from the Government that the number of fires has gone down, but does the hon. Member agree that it is important that we remember the evidence we have heard from a number of organisations that fires are now spreading a lot faster and that there is therefore a much greater danger when fires do break out?
Ruth Cadbury
The hon. Member is absolutely right: we need to look at the evidence from actual fires. Many of us have had examples in our own constituency; the one that I mentioned was not in mine, but there was a fire in a block of flats in my constituency as a result of flammable cladding that had not yet been removed. Luckily, the fire brigade got there in time, before serious damage, injury or death occurred.
I conclude by referring to so much high-quality, professional expertise that has submitted evidence to the Committee and said that the risks should be based on actual risk and not on an arbitrary cut-off by height or number of storeys.
Eddie Hughes
I thank hon. Members for raising the important question of the definitions for high-risk building safety and safety in buildings of under 18 metres and a height of seven storeys. I am afraid the Government will not be able to accept the amendment.
We recognise that the height and the use of a building are not the only factors that affect the level of risk found in each building. However, they are commonly used factors in determining the level of risk. We consider that other factors, including the materials used for construction, the presence of fire protection measures and the distance to emergency exits, could be used to define a high-risk building, but we concluded that it would be inappropriate to base the regime on factors like that because we were concerned that there would be unintended consequences. For example, when considering the materials used in construction, a large number of materials can be found in various quantities in various combinations. A material or product may be safe on one building owing to its placement, use and combination with other materials yet unsafe on another. Apart from particular circumstances such as the ban on combustible materials in and on external walls of certain buildings, a blanket approach to specific materials would therefore be inappropriate.
As for the accessibility of emergency routes, our assessment is that this would be a subjective factor. Different people may have different opinions about whether a building has sufficiently accessible emergency routes and therefore whether the building is or is not a high-risk building. This would not provide the clarity residents, industry and the regulator need.
We recognise that it is important that the risk of a fire occurring is low in any building. We must be proportionate in the application of the new regulatory regime.
Mike Amesbury
The FBU and Leeds University have carried out recent research that for residents in buildings of 11 metres-plus the risk of fire is somewhat higher. The current scope of the Bill suggests that it captures about 13,000 buildings, but if the definition were broadened to buildings of 11 metres-plus, it would be about 100,000. There has been no effective risk assessment of the risk in individual buildings, and people who reside in them may have disabilities, for example. They would be at significantly higher risk. There are also care homes, hospitals, prisons and educational institutions, so more effective and concerted effort needs to be made by Government and Departments to assess risk properly.
Eddie Hughes
The stakeholders we have consulted—Dame Judith Hackitt, the National Fire Chiefs Council and the Building Research Establishment—all think we have taken a proportionate approach in setting the level at 18 metres. The hon. Gentleman has mentioned prisons, but we should not be distracted by other things. My understanding is that the fires that there have been in prisons in recent times have not involved a spread from the source location. Clearly, risk safety means that there is a limited amount of combustible materials in cells. I understand the point that he is making and we are sensitive to it. We do not in any way avoid the fact that the Bill might need to evolve at some point in the future. More risks may become apparent and we will talk again when we come to later clauses about how the Bill may develop to accommodate that.
The definition of high-risk building for the occupation regime that is outlined in part 7 was determined on the basis that the risk to multiple households is greater when fire spreads in buildings of at least 18 metres. That followed extensive consultation, including a stakeholder listening exercise following the publication of the independent review by Dame Judith Hackitt, stakeholder engagement and our public consultation on building a safer future. Therefore, we think the current definition is correct, proportionate and deliverable for the new regulator. The amendment intends to create a power that duplicates clause 62(5), which already contains a power to alter the definition of higher risk building.
Ms Marie Rimmer (St Helens South and Whiston) (Lab)
What material factors would be considered appropriate to reconsider this situation? What would be necessary to re-examine or develop this further? Are the Government waiting for incidents to happen? Risk is supposed to be based on hazards and the likelihood of them materialising. Risk assessments are supposed to avoid materialisation, but that is not how the Bill is drafted.
Eddie Hughes
I understand the passion with which the hon. Lady makes her case, but I simply do not accept that point. We have been highly proportionate. Dame Judith Hackitt is well respected in this field. We have taken her advice and that of the Building Research Establishment—experts in the field—into consideration. The Building Safety Regulator will be responsible, through the Health and Safety Executive, for monitoring ongoing situations and therefore will be well placed to make recommendations to the Secretary of State should new evidence come to light. We are alive to the issue, and the Bill responds to it.
Ruth Cadbury
The Minister speaks of waiting for evidence to come to light. My hon. Friend the Member for St Helens South and Whiston asked whether we have to await an incident involving death or serious injury. Is that the definition of evidence? If not, what is?
Eddie Hughes
I thank the hon. Lady for her intervention. We need to acknowledge how much the building safety sector has changed as a result of Grenfell Tower and of this Bill. People are more attuned to fire safety and the risks and are more engaged in the process of addressing it. I speak following my engagement with social housing providers. I know from the work that we are doing on the social housing White Paper that they are much more engaged. They are listening to their residents and working with them. We are providing an opportunity to ensure that residents’ voices are heard more in the future. With the resident engagement set out in the Bill we will be in a much better informed position to determine safety risks.
I assure Members that the safety of people in buildings under 18 metres high and under seven storeys is of no less importance to the Government. We have a wide programme to strengthen the fire safety regime that includes improving fire safety in all premises regulated by the fire safety order and introducing specific requirements to protect residents’ safety in multi-occupied residential buildings of any height.
I shall not go into the details of clause 134, which takes forward our proposals on fire safety reform, as it is due to be debated at a later sitting of the Committee. However, it is another step in the delivery of our reforms and the Committee will be aware that the Government intend to lay fire safety regulations specific to multi-occupied residential buildings this autumn.
In the light of the work that the Government are doing to protect residents’ safety in multi-occupied residential buildings under 18 metres in height and under seven storeys, and given how the power to amend the definition of higher-risk buildings in clause 62(5) works with clause 143(3), I urge Members to consider withdrawing the amendment.
Mike Amesbury
I beg to ask leave to withdraw the amendment, Mr Dowd.
Amendment, by leave, withdrawn.
Clause 62 ordered to stand part of the Bill.
Clause 63
Regulations under section 62: procedure
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
Clause 63 sets out that the Secretary of State must consult the Building Safety Regulator, unless advice or a recommendation has already been provided, before making regulations under clause 62. The regulations may supplement clause 62, exempt categories of building from the definition of higher-risk building, and provide definitions or alter the clause, apart from subsections (2) and (5). The regulator will oversee building safety and through that gain knowledge about the built environment. It is therefore only right that it is consulted before the powers in clause 62 are used.
Clause 63 also states that the Secretary of State must consult any other persons they consider appropriate before making regulations under clause 62. As the powers cover a few areas, we do not think it right to specify particular other people to consult. However, we recognise that there may be other appropriate people to consult before regulations are made, so we have included that general duty. The powers in clause 62 should not be used lightly and must be used in a proportionate way. This clause provides one of the checks on that.
Clause 64 provides extra checks. If the Secretary of State proposes to use the powers in clause 62 to add a category of building to the definition of higher-risk buildings, it stipulates that the Secretary of State must have received advice or a recommendation from the Building Safety Regulator, and a cost-benefit analysis must be undertaken and published. The Building Safety Regulator oversees building safety and is therefore in the best position to assess if a category of building should be higher risk. It is vital that the regulator’s advice be obtained if it has not already provided a recommendation if the definition of higher-risk building were to expand. To ensure that we are being proportionate in the measures we place on buildings, a cost-benefit analysis must be carried out. If the definition of higher-risk building were to expand, it is only fair and transparent that the analysis must be published.
Clause 65 provides for the Secretary of State to use regulations to disapply or modify clauses from part 4 of the Bill for a category of higher-risk building. We cannot predict incidents that may occur in the future, nor how the evidence base on risk will evolve. There may be circumstances in future where it would be prudent to include a different category of building within the definition of higher-risk building for the occupation elements for the new regulatory regime. In this case, it may not be appropriate to apply all the clauses within part 4 of the Bill to that category of building—for example, resident engagement duties in a non-residential building. The clause provides for that scenario. Any substantial change to the regime that we have so carefully thought through should be open to comment and scrutiny. That is why the Building Safety Regulator and any other appropriate person must be consulted, and it is why regulations to do that must be approved through the affirmative procedure by both Houses.
Clause 66 specifies when the Building Safety Regulator must make recommendations to the Secretary of State that a category of building should be added to the definition of higher-risk building for the purposes of part 4 of the Bill. Through its function to oversee building safety, the regulator will be aware of the risks to and in buildings, and the regulator should therefore be able to make recommendations based on that knowledge.
Any change to the definition of a higher-risk building must be proportionate. That is why the regulator can recommend adding a category of building to the definition of a higher-risk building only if it believes that a three-part test is met. First, it must believe that the level of building safety risk is greater in the proposed category of building than in buildings in general. Secondly, it must believe that if the building safety risk occurred there is the potential for it to cause a major incident in the proposed category of building. Lastly, it must believe that the occupation parts of the new regulatory regime should apply to the proposed category of building.
To ensure that the process is transparent, if the Secretary of State does not make regulations to put the regulator’s recommendation to add a category of building into effect they must publish an explanation. If the regulator considers that a category of building should no longer be a higher-risk building it must provide a recommendation to the Secretary of State. It would not be appropriate to continue to apply the occupation parts of the new regulatory regime to a category of building that should no longer be a higher-risk building.
Clause 67 provides for the Secretary of State to request advice from the Building Safety Regulator about the definition of a higher-risk building. The regulator will be able to provide expert advice. Therefore, the ability of the Secretary of State to request formal advice when considering altering the definition of a higher-risk building is vital. Any change to the definition of a higher-risk building must be proportionate, which is why the regulator can recommend adding a category of building to the definition of a higher-risk building only if it believes that the three parts of the test that I referenced when discussing clause 66 are met.
Similarly, if the Secretary of State requests advice about whether a category of building should no longer be a higher-risk building the regulator must provide it. To ensure that the process is transparent, if the Secretary of State does not make regulations to put a recommendation made under subclause (3)(a) into effect they must publish an explanation of why not.
Mike Amesbury
I thank the Minister for his comments. We have some questions and points of clarity. On clause 63, who would the appropriate stakeholders and consultees be? On clause 64, the notion of a cost-benefit analysis raises important issues. Who bears the cost, and how will that benefit be measured? Could clause 67 include flood risk, for example? An early amendment that we tabled referred to climate change, as we march towards COP26.
Eddie Hughes
With regard to who to consult, the question would be: what is the circumstance in which we are seeking information? For the sake of argument, one example given in the explanatory notes is increased wind speeds. If buildings suffered as a result of that, we would need to consult structural engineers. Were it a different issue, we would need to consult a different group of people, so it is helpful for it to be an open category, and for the Building Safety Regulator, and probably the Secretary of State, to understand and determine from whom they would need to seek advice.
On the cost-benefit analysis, I suspect that we will come later in our discussions to who bears the costs in various circumstances. Clearly that will depend on the leasehold arrangements that are in place in that particular building. Given that we have seen changing climate conditions, flood risk is certainly one of the things that could be considered in the future, depending on how weather conditions change in the coming years.
I conclude by saying once again that the powers in clause 62 should not be used lightly. They must be used proportionately, and clause 63 provides one of the key checks on that. Combined with clauses 63 and 65 to 67, and with parliamentary scrutiny, clause 64 ensures that using the powers in clause 62 to expand the definition of a higher-risk building is done appropriately and in a transparent way.
Question put and agreed to.
Clause 63 accordingly ordered to stand part of the Bill.
Clauses 64 to 67 ordered to stand part of the Bill.
Clause 68
Meaning of “occupied” higher-risk building etc
Eddie Hughes
Clause 68 defines the meaning of “occupied” and a resident of a higher-risk building. They are key definitions that determine the application of the obligations under the new, more stringent regime provided for in part 4. As the Committee will recall, the definition in clause 62 defines the meaning of a higher-risk building as one that is at least 18 metres in height, has at least seven storeys and contains at least two residential units.
Clause 68 gives details of the meaning of an occupied higher-risk building. It states that if a higher-risk building is to be classified as occupied, residents must actually be living in the building. Specifically there must be residents in more than one residential unit in the building. If there is a building that meets the definition of higher risk but that is not occupied for the time being, it will not be subject to most of the obligations under part 4 such as the registration requirement or production of the safety case. I will discuss that later. However, some of the provisions kick in regardless of occupation. A reference to a resident of a higher-risk building is to a resident of a residential unit. The definition of a residential unit will be discussed at clause 123.
Clause 68 creates a power for the Secretary of State to amend the definition of “occupied” and the resident of a higher-risk building. By way of regulations, the Secretary of State has a power to define the meaning of being the resident of a residential unit. This is to ensure that the scope and definitions can be amended to meet future policy relating to building safety regulation.
Mike Amesbury
I have a quick point for the Minister. If one person were resident in a high-risk building of above 18 metres, they would not be covered by the Bill.
Eddie Hughes
That is correct. In those circumstances, that could be an individual’s home and we are not in the business of legislating to that extent. The idea of the Bill and proportionality is that it covers properties in multiple occupation.
The Chair
Order. The Minister has finished so we will leave it at that.
Question put and agreed to.
Clause 68 accordingly ordered to stand part of the Bill.
Clause 69
Meaning of “Accountable Person” Etc
Eddie Hughes
I beg to move Government amendment 41 in clause 69, page 85, line 34, at end insert—
“This subsection is subject to subsection (2C) (special rule for commonhold land).”
The Chair
With this, it will be convenient to debate Government amendments 42 to 51 and clause stand part.
Eddie Hughes
This group of amendments makes provisions on who the accountable person is for higher-risk building when the title to the building is held in commonhold. The commonhold association owns and manages the common parts of the building in accordance with the commonhold community statement framework. Amendment 48 ensures that the Bill is explicit in providing that where the title to the building is held in commonhold, the commonhold association will always be the accountable person for the building. That works to ensure that the building safety risk will be properly managed by providing that an accountable person is both identifiable and, more importantly, responsible when considering that building ownership type.
Amendment 49 aligns the definitions of commonhold land and commonhold associations with the Commonhold and Leasehold Reform Act 2002, thereby maintaining consistency across the interacting pieces of legislation. Amendment 41 makes consequential changes necessitated by amendment 48. Amendments 42 to 46 and amendments 50 and 51 are technical and deal with the definition of an accountable person in relation to higher-risk buildings, where the right to manage has been exercised. Currently, the Commonhold and Leasehold Reform Act 2002 provides that where the right to manage has been exercised by leaseholders, the right to manage company takes on all the management functions for a building under the lease. That includes the repairing obligations for common parts. By virtue of clause 69(1)(b), the Bill provides that a right to manage company will therefore become an accountable person for the higher-risk building. Amendments 42 and 46 ensure that when that is the case, a person who is an accountable person by virtue of clause 69(1) is now expressly excluded if all the remaining obligations in relation to the common parts are subsequently the obligations of the right to manage company.
The amendments clarify where the responsibility for building safety duties sit when the right to manage has been exercised, thereby avoiding any confusion where it may appear that there is more than one accountable person captured by the definition for the same common parts of the building. I point out to the Committee that where repairing obligations are not provided for under a lease, and do not therefore become functions of the right to manage company, persons will still rightly also be captured as an accountable person under clause 69(1)(a) or (b) for their respective parts of the building. That maintains a whole-building approach to building safety management.
Amendment 50 aligns the definition of a right to manage company with the existing definition in the 2002 Act to maintain consistency across the interacting pieces of legislation. Amendments 43, 44 and 45 make consequential changes necessitated by the changes made by amendment 42. Amendment 51 is consequential on the motion to divide clause 69 into two separate clauses. Subsection (3) will now form its own clause entitled “Part of building for which an accountable person is responsible”.
On amendment 47, the Committee will be aware that clause 69(1) defines an accountable person for a higher-risk building as
“a person who holds a legal estate in possession in any…of the common parts”.
However, in some complex leasehold arrangements it may be that the person who has the active repairing obligations for some of the common parts holds a legal estate in the building but does not have the legal estate in possession. Under the current Bill provisions, that would mean that those persons are not currently being captured as accountable persons but they should be, as they have the active repairing obligations for some of the common parts. The amendment addresses that issue by ensuring that where such leasehold arrangements are in effect, the landlord or superior landlord who has the relevant repairing obligations pursuant to a lease for any of the common parts will be accountable persons for those respective parts of the building. In that scenario, the person with the active repairing obligation will therefore be the accountable person instead of the person who holds the legal estate in possession in those common parts under clause 69(1)(a). The amendment gives due consideration to the whole building approach to building safety by ensuring that where a superior landlord or landlord is under a relevant repairing obligation for only some parts of the common parts, both they and the person with the legal estate in possession will be captured as accountable persons for their respective parts of the building.
Turning to the clause itself, the independent review concluded that having a clear and identifiable person with responsibility for managing building safety during occupation and maintenance was clearly necessary. Clause 69 enacts that recommendation, and creates the statutory definition that identifies who the accountable persons for occupied higher-risk buildings under the new building safety regime are. These accountable persons will have legal requirements under the Bill to ensure that fire and structural safety for their parts of the building are being properly managed in accordance with the new building safety regime.
Having clearly identifiable accountable persons is critical to managing buildings safely, enabling residents to feel safe in their homes and enabling the Building Safety Regulator to regulate effectively. The effect of this clause is that accountable persons could therefore be landlords, freeholders, right to manage companies, management companies or commonhold associations that are in charge of repairing the common parts of a building. The clause defines common parts to include the structure, exterior and any other part of the building provided for the common use of the residents.
Clause 69 allows the Secretary of State to make regulations to amend the definitions of accountable persons, to ensure that the new regime is adaptable and fit for purpose for many years to come. To provide further clarity to accountable persons about the areas that fall under their remit for the purposes of fulfilling their duties, the clause allows the use of regulations to define the parts of a building accountable persons are responsible for. The Government recognise that the success of the enhanced building safety regime rests with ensuring that it is clear where responsibility lies, so that building safety obligations can be adequately complied with.
Mike Amesbury
Many of these amendments are technical tidying-up exercises, looking at the legislation coming through the other place at the moment on leasehold, ground rents and commonhold. In principle, these measures support that direction of travel on commonhold, but to get the new regime right, to stop the ping-pong of people passing the buck that we are all familiar with, there is still more work to be done on the accountable person—the principal accountable person. I noted that on, I think, Thursday 14 October, 200 factsheets were published by the Department. I know every Member on this Committee will have read them in great detail over the past few weeks.
The amendment tries to add some clarity, but again it relies on secondary legislation. The Minister mentioned the right to manage and commonhold, the relationship with the building owners and the demarcation of who will be the principal accountable person versus the accountable person. How will the disputes that will undoubtedly arise be resolved?
Eddie Hughes
I thank the hon. Gentleman for his questions. My understanding is that, if there is contention over who is responsible, the principal accountable person will first and foremost be the person responsible for the exterior of the building. That gives us an easily defined headline position, but, as he rightly points out, there is incredible complexity in English law when it comes to property ownership. It is good that the opportunity arises within the Bill to allow flexibility for the Secretary of State to redefine the accountable person, should it transpire that for some reason there is an entity that has escaped the clutches of this clause. Hopefully we have covered everybody now, given the complex amendments we have tabled; but, should the need arise in future, the Secretary of State has that flexibility.
Amendment 41 agreed to.
Amendments made: 42, in clause 69, page 85, line 35, after “person” insert
“(‘the estate owner’) who holds a legal estate in possession in the common parts of a higher-risk building or any part of them (‘the relevant common parts’)”.
This amendment and Amendment 46 provide that a person within subsection (1)(a) is not an accountable person if their repairing obligations in relation to the relevant common parts are obligations of a right to manage company.
Amendment 43, in clause 69, page 85, line 35, leave out “a higher-risk” and insert “the”.
This amendment is consequential on Amendment 42.
Amendment 44, in clause 69, page 85, line 37, leave out paragraph (a).
This amendment is consequential on Amendment 42.
Amendment 45, in clause 69, page 86, line 1, leave out “person” and insert “estate owner”.
This amendment is consequential on Amendment 42.
Amendment 46, in clause 69, page 86, line 4, at end insert “, or
(c) all repairing obligations relating to the relevant common parts which would otherwise be obligations of the estate owner are functions of an RTM company.”
This amendment and Amendment 42 provide that a person within subsection (1)(a) is not an accountable person if their repairing obligations in relation to the relevant common parts are obligations of a right to manage company.
Amendment 47, in clause 69, page 86, line 4, at end insert—
“(2A) Subsection (2B) applies where—
(a) under a lease, a person (‘the estate owner’) holds a legal estate in possession in the common parts of a higher-risk building or any part of them (‘the relevant common parts’), and
(b) a landlord under the lease is under a relevant repairing obligation in relation to any of the relevant common parts.
(2B) For the purposes of this section and section 70—
(a) the legal estate in possession in so much of the relevant common parts as are within subsection (2A)(b) is treated as held by the landlord (instead of the estate owner), and
(b) if (and so far as) the landlord’s actual legal estate in those common parts is held under a lease, the legal estate in possession mentioned in paragraph (a) is treated as held under that lease (and, accordingly, subsection (2A) and this subsection may apply in relation to it).”
This amendment provides that where, for example, a landlord of a person within subsection (1)(a) has covenanted to keep the common parts held by the person in repair, the landlord is the accountable person (instead of the person).
Amendment 48, in clause 69, page 86, line 4, at end insert—
“(2C) Where a higher-risk building is on commonhold land, the commonhold association is the accountable person for the building for the purposes of this Part.”
This amendment provides that where title to a higher-risk building is held in commonhold, the commonhold association is the accountable person for the building.
Amendment 49, in clause 69, page 86, line 15, at end insert—
“‘commonhold association’ and ‘commonhold land’ have the same meaning as in Part 1 of the Commonhold and Leasehold Reform Act 2002 (see sections 34 and 1 respectively);”.
This amendment, which is consequential on Amendment 48, defines “commonhold association” and “commonhold land” for the purposes of this clause.
Amendment 50, in clause 69, page 86, line 21, at end insert—
“‘RTM company’ has the same meaning as in Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002 (right to manage).”
This amendment, which is consequential on Amendment 46, defines “RTM company” for the purposes of this clause.
Amendment 51, in clause 69, page 86, line 23, leave out “subsection (3) or”. —(Eddie Hughes.)
This amendment is consequential on the motion to divide this clause into two clauses.
Eddie Hughes
I beg to move,
That Clause No. 69 be divided into two clauses, the first (Meaning of “accountable person”) consisting of subsections (1) to (2C) and (4) and (5) and the second (Part of building for which an accountable person is responsible) consisting of subsection (3).
The motion, which would divide amended clause 69, moves the power under subsection (3) into a separate clause, creating two distinct clauses. That is so that all the clauses relating to the identity of the accountable person are in one place, and the ability to make regulations to help identify the parts of the building for which the accountable person is responsible can be in the other.
Question put and agreed to.
The Chair
As a result of the Committee’s decision to divide clause 69 into two clauses, I now propose, in accordance with the precedent, to ask the Committee to come to a formal decision separately on the two clauses created. For the purpose of putting these questions, I think it will be convenient to the Committee to describe the two clauses as clause 69A and 69B, and to debate them together. When the Bill is reprinted after the conclusion of the Committee stage, these clauses and the remaining clauses of the Bill will be renumbered accordingly.
Question proposed, That clause 69A, as amended, stand part of the Bill.
Eddie Hughes
We have already debated clause 69 in detail at an earlier stage. Therefore, I will briefly touch on the core functions of clause 69A and clause 69B. Clause 69A creates the statutory definition that identifies who are the accountable persons for occupied higher-risk buildings under the new building safety regime. Clause 69B will allow the use of regulations to define the parts of a building that accountable persons are responsible for.
Question put and agreed to.
Clause 69A, as amended, accordingly ordered to stand part of the Bill.
Clause 69B ordered to stand part of the Bill.
Clause 70
Meaning of “principal accountable person”
Eddie Hughes
I beg to move Government amendment 52, in clause 70, page 86, line 29, at end insert “, or
(ii) is within section 69(1)(b) because of a relevant repairing obligation (within the meaning of that section) in relation to the relevant parts of the structure and exterior of the building.”
This amendment caters for cases where accountable persons within clause 69(1)(b) have repairing obligations in relation to the structure and exterior of the building.
The Chair
With this it will be convenient to discuss the following:
Government amendment 53.
Clause 70 stand part.
Government amendments 54 and 55.
Clause 71 stand part.
Eddie Hughes
Amendments 52 and 53 amend clause 70. The Committee will know that clause 70(1)(b) sets out that the principal accountable person for a higher-risk building where there are multiple accountable persons is the one
“who holds a legal estate in possession in the relevant parts of the structure and exterior of the building”.
That is a more eloquent answer to the question put earlier by the hon. Member for Weaver Vale. However, there is a scenario where an entity holds a legal estate in possession in the relevant parts of the structure and exterior of the building but is not subsequently captured as an accountable person under clause 69. In those circumstances, the provisions as drafted would not capture a principal accountable person for the building. Specifically, this occurs when accountable persons within clause 69(1)(b) have the relevant repairing obligations in relation to the structure and exterior of the building, but do not hold the legal estate in possession to these common parts of the building.
Amendment 52 is technical and caters for this issue by ensuring that the accountable person who has the repairing obligations for the structure and exterior by virtue of clause 69(1)(b) can become the principal accountable person. It also aligns with amendments made to clause 69, which are aimed at ensuring that the accountable person is the person who has an active repairing obligation through their legal estate in possession or, where they do not have a legal estate in possession, has an active repairing obligation pursuant to a lease. Amendment 53 makes a consequential change necessitated by the changes made through amendment 52.
Amendments 54 and 55 amend clause 71, which sets out that an interested party may apply to the tribunal for a determination on who the accountable persons for the building are, who the principal accountable person is, or the parts of the building for which an accountable person is responsible. Under the current provisions, an interested party is either the regulator or a person who holds a legal estate in any part of the building. This does not therefore allow an accountable person who has an active repairing obligation, but does not hold a legal estate, to apply to the first-tier tribunal for a determination.
Amendment 55 addresses the issue by capturing a person who is under a repairing obligation to the common parts of a building to now be classified as an interested party for the purposes of clause 71, enabling them also to make an application for a determination to the first-tier tribunal. This works to effectively align clause 69 with clause 71.
Amendment 55 also limits applications that can be made to the first-tier tribunal from a person with just a legal estate in the building to a person holding a legal estate in the common parts of the building. This ensures that the court’s resources can be dedicated to resolving complex issues from those that are, or may be, directly responsible for managing building safety for the building. Amendment 54 makes a consequential change as a result of an amendment made to clause 70.
I will now move on to the clauses themselves, beginning with clause 70. We concur with the independent review’s recommendations that a “clear and identifiable dutyholder”, with overall responsibility for building safety during occupation and maintenance, is needed for higher-risk buildings. Clause 70 makes certain that all occupied higher-risk buildings will have at least one clearly identifiable accountable person, known as the principal accountable person, who will be responsible for ensuring that fire and structural safety is being properly managed for the whole building.
This clause sets out that, where there is a single accountable person for a building, they will automatically become the principal accountable person. Where there are two or more accountable persons, the one responsible for the repair of the structure and exterior of the building will be the principal accountable person. The principal accountable person will have overall responsibility for meeting specific statutory obligations for the whole building, such as complying with registration and certification requirements for the building. Where there are multiple accountable persons for a building, the principal accountable person will have the same statutory obligations for assessing and managing building safety risks in their own part of the building as each individual accountable person. This will be as well as additional obligations arising from their role as principal accountable person.
As part of the registration process, the principal accountable person will identify themselves to the Building Safety Regulator as being the person with overall responsibility for managing fire and structural safety. If a principal accountable person does not come forward to register the building, the Building Safety Regulator can identify who the principal accountable person is by using the statutory definition, or by applying to the first-tier tribunal for a determination. Having a principal accountable person for each higher-risk building is critical to effectively managing buildings safely, as a whole, and ensuring that residents feel safe in their homes.
Clause 71 allows an interested party to make an application to the tribunal for a determination on who the accountable persons are, who the principal accountable person is, or which parts of the higher-risk building an accountable person is responsible for. We recognise the importance of ensuring that the correct persons with responsibility under the Bill are identified, and that the extent of where their responsibility lies is clear. The clause is to be used in complex cases requiring judicial oversight, as the tribunal will decide and provide clarity to those who may be affected by the Bill.
Once an interested party makes an application to the tribunal, the tribunal would make a decision that may bind persons as the ones with obligations pursuant to the extent applicable by the Bill. The clause specifies that an interested party who may apply to the tribunal is either the regulator or a person who holds a legal estate in any part of the building. Buildings must have only one principal accountable person, and in cases where more than one person fits the definition of a principal accountable person clause 71 allows the tribunal to decide, as it considers appropriate, who the principal accountable person for the building is.
Mike Amesbury
I thank the Minister for his thorough explanation, which was a great credit to him. I have a couple of questions. The clauses make sense—again, they are technical, tidying-up exercises. Earlier, I referred to 13,000 buildings. We have principal accountable persons and accountable persons. That is a lot of people who require the skills, qualifications and competence to ensure that this new landscape emerges. Are the Minister and his team convinced that it will be properly resourced, and that we genuinely will change the landscape for existing residents, leaseholders and other people? Also, on clause 71, at what stage should the determination be made at the tribunal? Must all buildings in scope have a clearly identified principal accountable person?
Eddie Hughes
I thank the hon. Gentleman for his questions. The question of capacity is an interesting one, although it may be that various people will hold principal accountable positions, as with building safety managers. Some people might hold the position for multiple buildings. There are big companies that own lots of buildings and will therefore already have managing obligations for multiple buildings. With regard to capacity, we are talking big numbers. According to my notes, the number of buildings in scope is 12,500, but some of them could be covered by multiple people. There are already large practices operating in this area.
As I said, given the existence of the Bill, and subsequent to Grenfell Tower, there has been a huge increase in the number of people who are concerned and active in the building safety sector, so I do not feel that there is any need to be concerned about capacity at this stage. However, the point and purpose of the Building Safety Regulator is to be live to changing circumstances so, should there prove to be challenges once the Bill is implemented, it will be for the regulator to monitor any challenges and report back to the Secretary of State. I am sure that we will talk about that in the House in future.
Eddie Hughes
The Bill makes the principal accountable person responsible for registering a building and applying for a building assessment certificate. Building on those responsibilities, clause 72 requires that all occupied higher-risk buildings are registered with the Building Safety Regulator. The principal accountable person will commit an offence if they fail to register.
For new buildings, the principal accountable person will be required to register their building before it becomes occupied. For existing occupied buildings, there will be a transition period in which the principal accountable person must register their building. During the registration, the principal accountable person will provide important information about the building and its duty holders to the Building Safety Regulator. It will include core details of the building, including address, height, date of completion and the name and contact details of all accountable persons and any building safety manager.
The Building Safety Regulator will use the information obtained through the registration of the effective regulation of higher-risk buildings. For example, registration information will support the regulator in prioritising building assessment certificate applications. The regulator will also use registration information to publish the national register of higher-risk buildings.
Clause 72 sets out the maximum penalty for the criminal offence of breaching the registration requirement. If tried by magistrates, the offence will carry a maximum penalty of an unlimited fine and/or 12 months’ imprisonment. If it is tried in the Crown court, the maximum penalty will be an unlimited fine and/or two years in prison. These measures are tough but fair and are an important addition to engender compliance with the regime.
Clause 73 makes provision for the registration of higher-risk buildings and allows the Secretary of State to make regulations setting out procedural and administrative details for registration. The information obtained through the registration will ensure that the Building Safety Regulator has a record of all occupied higher-risk buildings in England and those responsible for managing them. Information collected through registration will be used to produce the national register of higher-risk buildings, which will be published. That means that higher-risk buildings can be easily identified and give the regulator excellent oversight and data on buildings in scope.
Clause 73 allows the Secretary of State to make regulations about registration applications. Information required in the registration process will be set out in regulations and will comprise core details of the building, including address, height and date of completion, and the name and contact details of the accountable persons, principal accountable persons, and any building safety manager. Regulations will also set out the procedures for submitting and withdrawing a registration application.
Mike Amesbury
The Minister referred to national registration. For residents and leaseholders who want to access the information, what form will it take? Will it be digital? The Joule Group International Ltd made a lengthy written submission on that topic. I would be interested in hearing the Minister comments.
Eddie Hughes
One of the things that needs to underpin the way the Bill operates is the access to digital information. We need to ensure that residents and leaseholders have no difficulty in accessing information about their building, and that the Building Safety Regulator has access to that information.
With regard to the capacity that we have discussed, once the register is published, the sector will understand the extent of the buildings in scope, where they are geographically and so on, and it will be able to respond in kind by developing appropriate resource in those areas. The information will be available digitally, which is one of the things that underpins the functioning of the Bill.
Siobhan Baillie (Stroud) (Con)
It is a pleasure to serve under your chairmanship, Mr Dowd. I was just listening carefully to the Minister. It is helpful to understand the digital nature and transparency of the measures. If there were a change to the details of a higher-risk building or an accountable person, would the register published by the Building Safety Regulator be updated, and how would that happen?
Eddie Hughes
When the registration details of a higher-risk building or an accountable person change, there will be a need to inform the Building Safety Regulator, which will need to consider whether further changes are needed. The point is that the Bill needs to be flexible to accommodate the circumstances that the hon. Lady has mentioned. We may need to consider that further.
Ian Byrne (Liverpool, West Derby) (Lab)
It is a pleasure to serve under your chairmanship, Mr Dowd, especially after some recent results.
Many people do not have digital access, despite the preoccupation with it. They might not be able to afford it or might not have the materials to get online. How will we ensure that residents who do not have the ability to access information digitally can see the overall picture of the register and any changes made to it? We need to drill down into that so that the Bill ensures that those records are accessible not only digitally and that everybody can access them.
Eddie Hughes
I completely agree with the hon. Gentleman. We do not have a preoccupation with digital, but it does allow lots of people easy access to the information. However, I think he is referring to the access to information that individual residents and leaseholders will have, which we will discuss later in Committee. It is incredibly important to me and to the Government that that information is presented to residents in an accessible format. That covers the necessity not just to publish the information in hard copy but to ensure that it is presented in an accessible format for people with any disability or impairment. I thank him for making that important point.
Question put and agreed to.
Clause 72 accordingly ordered to stand part of the Bill.
Clause 73 ordered to stand part of the Bill.
Clause 74
Occupied building: duty to apply for building assessment certificate
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
As the previous clause makes the principal accountable person for a building responsible for registering their building with the Building Safety Regulator, clause 74 makes them responsible for periodically applying for a building assessment certificate. The building assessment certificate process will allow the Building Safety Regulator to assess whether, at the time of the assessment, the accountable person for a higher-risk building is meeting their obligation to manage building safety risk and keep residents safe.
The clause enables the Building Safety Regulator to direct the principal accountable person to apply for the building assessment certificate. If that happens, they must then apply for the building assessment certificate within 28 days of the notice’s being given.
The principal accountable person commits an offence if they fail to apply for the building assessment certification when directed to do so by the regulator, without a reasonable excuse. For new buildings, the principal accountable person will be directed to apply for the building assessment certificate within six months of occupation of the building.
There are currently around 12,500 occupied high-rise residential buildings in England. It will take around five years for the Building Safety Regulator to assess all these existing buildings for the first time. The regulator will take a risk-based approach to prioritising existing buildings for assessment and will assess the highest-priority buildings first. It will put existing occupied buildings into five annual groups, or tranches. These tranches are based on height, with the tallest buildings assessed first. All buildings will be reassessed at least every five years.
Clause 74 sets out the requirement for a principal accountable person to apply for a building assessment certificate when directed to do so by the Building Safety Regulator; as part of that process, clause 75 clause sets out the administrative and procedural requirements to obtain a certificate. To apply for the building assessment certificate, the principal accountable person will need to submit a suite of prescribed information and documentation to the regulator, including, among other things, a copy of the safety case report, the resident engagement strategy and information about the principal accountable person’s compliance in appointing a building safety manager.
The regulator will use the evidence provided to assess whether the accountable persons are complying with their obligations and managing the building’s safety risks effectively. To ensure an adaptable regime, clause 75 also allows the Secretary of State to make regulations setting out further details of the process, including the form and content of an application, the way in which it is made, and anything that may accompany it.
The Bill creates a requirement for the principal accountable person for a higher-risk building to apply for a building assessment certificate when directed to do so by the Building Safety Regulator. The building assessment certificate will demonstrate that, at the time of assessment, the accountable persons were complying with their obligations to effectively manage the building’s safety risk and keep residents safe.
Following from that, clause 76 sets out how the Building Safety Regulator will make decisions about applications for the building assessment certificate. On receipt of the application, the regulator will consider the application and decide whether the relevant duties are being complied with. The regulator can also inspect the building before coming to a final decision.
If the regulator is satisfied that all relevant duties are being complied with, then it will issue the building assessment certificate. Before a certificate is issued, however, there are a number of relevant duties against which the regulator will assess compliance. These include appointing a building safety manager, assessing and managing building safety risks, and producing a safety case report. Clause 76 also allows the regulator to issue a notice to the principal accountable person if it finds that a relevant duty is not being complied with on assessment, but can be put right quite easily.
Mike Amesbury
The Minister refers to a resident engagement strategy. What would a good resident engagement strategy look like and where would people find information on that? What information will be contained in the building safety certificate? Where are the reference points for that?
Eddie Hughes
I am afraid that the hon. Gentleman will have to wait for another day to hear about the resident engagement strategy. That is an exciting episode that we will discuss in detail later in the Bill. I look forward to engagements on that.
I explained some of the information that will be displayed on the certificate but I think the pre-eminent role of that is to ensure that residents know who is responsible for building safety within their building. The certificate will identify the principal accountable persons so that residents know where the line of responsibility lies. That is why it is important that such information is displayed prominently in the building.
Eddie Hughes
That question goes to the heart of how the Bill will change responsibility in the future. It will be important that the information is displayed, and if it is not—and we will talk about resident engagement later in the Bill, but I will touch on it briefly now—residents will now know who is responsible. As part of that process, there will have to be a complaints procedure through which they can escalate their complaints. A well-informed bunch of residents in a property will understand what provision should be made for them and how they can be helped to be apprised of building safety. If that is not done, the opportunity to make a complaint and escalate appropriately and perhaps ultimately to the Building Safety Regulator, if necessary, will be one of the things that we will talk about later. The hon. Lady is right. It is imperative that residents have access to that information and, when it is not provided, they have a route to escalate a complaint about its absence.
Ms Rimmer
The Committee has talked about the culture in the building industry and how there has been a lack of trust. At its core the Bill is about changing that culture and bringing about safety. The issue is in training people, ensuring that they keep that training up, quantity and compliance. We must ensure that the procedures on which people are trained are adhered to consistently. That must be part of the arrangements. We should be really concerned about that—I am not saying that we are not—and ensure that that happens. The culture of the people working in the industry is vital.
Eddie Hughes
One of the great things about the Committee is the agreement we have had at several points on matters of great concern. It is important that this is not a tick-box exercise. It is not, “I submit information to you. You tick a few boxes and give me a certificate. I put it on the wall, and everybody feels that we live in a safer place.” Since the Bill has been talked about, we are already seeing that culture change.
To cross-reference that with regard to the social housing White Paper—my other responsibility—we need to put tenants at the heart of everything that we do. This is not an academic or legislative exercise for a bunch of people in the room to figure out the best way to do things and trust that that will be done in the future. The hon. Lady is completely right that we need to change the culture, bringing tenants and residents with us, and I think that the Bill will serve that purpose.
Question put and agreed to.
Clause 74 accordingly ordered to stand part of the Bill.
Clauses 75 to 77 ordered to stand part of the Bill.
Clause 78
Duty to appoint building safety manager
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
The independent review recommend the creation of the role of the building safety manager with the right skills, knowledge and experience to oversee the day-to-day management of higher-risk buildings. The Government agree, and the clause both establishes the role of the building safety manager and makes it a duty of the principal accountable person to appoint one for occupied buildings.
It is important that competent persons are engaged to support the co-ordination and management of safety, providing a systemic approach and delivering safe outcomes for residents. The principal accountable person must be satisfied with the competence of their appointed building safety manager.
While the building safety manager will also hold responsibility for certain tasks and provide expertise and assistance, accountability for meeting the duties set out in Bill cannot be transferred by accountable persons. Such an approach is commonplace in the standard arrangement in many high-hazard sectors.
The tasks to be undertaken by the building safety manager will be set out in contract with the principal accountable person. The role may be fulfilled by an individual with the necessary skills, knowledge, experience and behaviours or by an organisation such as a managing agent. Where an organisation is appointed, that does not in any way dilute the need for competency requirements to be met. Any organisation appointed as building safety manager must have the capability to deliver and must have a nominated individual in place with the skills, knowledge, experience and behaviours needed to oversee that that is achieved. We believe that requiring a named individual to be nominated from within the organisation appointed as building safety manager is the right way to provide assurance to residents. If at any time the appointment of a building safety manager comes to an end, a new one must be appointed as soon as reasonably practical. Given the importance of the role in supporting the delivery of safe buildings, failure to appoint a building safety manager without reasonable excuse will be an offence.
This is a new role and we have been working hard to ensure a smooth transition. Through the competence steering group, we are sponsoring the development of a publicly available specification for building safety managers, which will be available ahead of the requirement coming into force. Latter clauses deal with an exception to the duty to appoint a building safety manager, which allows principal accountable persons to deliver the role themselves where they are suitably able.
Clause 79 relates to the appointment of a building safety manager for a building with two or more accountable persons. The Government strongly support the independent review’s proposals for a whole building approach to be delivered and to do so there should not be multiple building safety managers in place. A single building safety manager should be appointed by the principal accountable person, playing a key role in ensuring a whole building approach to delivering safe outcomes for residents is delivered.
Every accountable person must ensure that they meet the relevant duties placed on them by the Bill, including the duty to co-operate and co-ordinate with one another, ensuring this whole building approach is delivered. Before the appointment can be finalised, accountable persons should agree on the scope of the building safety manager’s role and how each will contribute to payments made to the building safety manager. A consultation between the parties should arrive at this, and ratify the agreement. The principal accountable person must provide a document for other accountable persons setting out the terms of an agreement, including establishing the arrangements for sharing expenditure. By reaching such an agreement, all accountable persons will understand and confirm their support for the scope of the building safety manager’s functions across the whole building and how they must act to enable delivery.
Where no agreement can be reached, we will ensure, through regulations, that appropriate mechanisms are in place to arrive at suitable conclusions. We are confident that through this approach we are protecting property rights, ensuring each accountable person meets their obligations and delivering safe outcomes for residents.
Clause 80 relates to the terms of appointment of building safety managers and confirms that the role is held by virtue of the contractual arrangements agreed with the principal accountable person. Either party may confirm in writing to the other their intention to end the agreement. When that occurs, as set out under clause 78, the appointment of a building safety manager must be made as soon as possible to replace the outgoing building safety manager.
Where a building is put into special measures, the effect will be that the building safety manager’s appointment will cease. As a special measures order is a last resort for failing buildings, special measures managers must be afforded the scope to act in the best interest of residents. In such circumstances, it would not be right for the building safety manager to remain in place.
The independent review highlighted the need to improve the management of safety in occupied higher-risk buildings and recommended the new role of building safety manager. The review rightly noted that many building owners have the capability to, and already do, deliver safe outcomes for residents themselves. As mentioned, we are making provisions to allow principal accountable persons to confirm their capability to deliver safe outcomes without appointing a building safety manager to assist them. This exception is designed with parameters and, importantly, the same competency standards must be met by the principal accountable person.
A principal accountable person must be satisfied in their capabilities to fulfil the duties placed on them and be able to demonstrate that their approach will deliver safe outcomes for residents. It is our expectation that this exception will be a benefit to organisations such as housing associations and local authorities, many of which already successfully manage their own building stock through in-house teams. Where the principal accountable person is an organisation, and it relies on that exception, it must have a named individual identified who has the skills, knowledge and experience to oversee day-to-day management of building safety risks.
Ms Rimmer
Is the certificate transferrable within an organisation to individuals? Would the Health and Safety Executive have some responsibility to ensure that if a new manager came along in the future, or a new accountable person, they would be up to the skills required to qualify for the original certificate?
Eddie Hughes
That is an interesting point. As I said, we need to ensure that the building safety regulator is kept informed and they will be able to determine that the new building safety manager appointed meets the criteria set out in the Bill. Effectively, if someone operates as a building safety manager and complies with the criteria set out in the Bill, a change in personnel should not matter because the competence level will be maintained and assured.
Question put and agreed to.
Clause 78 accordingly ordered to stand part of the Bill.
Clauses 79 to 82 ordered to stand part of the Bill.
Clause 83
Assessment of building safety risks
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
Clause 83 relates to the undertaking of comprehensive and regular assessments of building safety risks in occupied higher-risk building.
The independent review identified that, too often, building safety has not been proactively maintained over a building’s life cycle, and that fire risk assessments were frequently inadequate and in some cases not carried out at all. We are taking steps to ensure that this lax culture changes and are making it a clear duty on accountable persons to ensure that assessments of building safety risks are carried out. Risk assessments must consider hazards that may originate from outside of the part of the building under the direct control of accountable persons, including in mixed-use buildings where commercial activities may be carried out.
Where there is more than one accountable person for a building, each is duty bound to co-ordinate and co-operate with others. At a minimum, risk assessments should be shared to ensure a whole-building approach is delivered. We are also clear that risk assessments must enable accountable persons to comply with the ongoing duty to take all reasonable steps to manage building safety risks and risk assessments must remain up to date.
The clause requires further risk assessments to be carried out not at specified intervals but based on the accountable person’s knowledge and experience of the building. We recognise that there is not a one-size-fits-all solution and the challenge for the industry is to take greater ownership and responsibility for ensuring safety, rather than relying on being told what to do and when. The regulator will, however, have the power to require that a risk assessment be undertaken where it considers it necessary.
Established best practice risk assessment principles, including the use of management systems that deliver evaluation and monitoring, will continue to play an important role. Those building owners who have been acting responsibly will not find they are presented with a significant additional burden, but we must ensure that the right legal framework is in place to make sure that residents of higher-risk buildings are and can feel safe in their homes.
The Government are committing to providing the right framework to deliver on the challenges and recommendations set out by the independent review. The clause places a clear duty on accountable persons to take all reasonable steps to deliver ongoing management of fire and structural safety while a building is occupied, ensuring that residents are safe and feel safe in their homes.
There are two clear purposes for the management of building safety risks: to prevent an incident from happening and to limit the consequences should one arise. The new safety case approach is based on delivering those tangible outcomes, not on blindly following guidance, which was a criticism of the previous system levelled by the independent review. The steps required by the clause must be taken as a direct response to the results of risk assessments carried out under the previous clause. Accountable persons must make an informed judgment on the steps they take and safety arrangements that they need to have in place to deliver safety for residents.
The new regime promotes a proportionate approach and requires people to think for themselves. It is not about requiring all buildings to be brought up to existing standards, which would be disproportionate and, in many cases, impractical. Accountable persons must deliver and maintain a combination of preventive, control and mitigation measures to guarantee that effective and efficient layers of protection are in place. Regulations will be made to set the principles accountable persons must follow when managing building safety risks. These will establish a best practice approach, helping accountable persons make informed decisions.
The expectation on duty holders in an outcome-focused regime is that they adopt a systemic and proactive approach to risk management. The clause requires that approach to be delivered. The review’s recommendation set a clear expectation that duty holders adopt and can describe the building safety management systems they have in place to deliver that approach. Accountable persons must have systems and policies in place that ensure that their safety arrangements are maintained and remain effective. Such arrangements help ensure that potential safety risks are proactively identified and managed on a continuous basis, improving performance and delivering better safety outcomes. The Health and Safety Executive has vast experience of delivering effective regulatory oversight of industry that requires similar approaches to the management of risks and delivery of safety.
We, and the shadow regulator, recognise the need to work with industry as we move towards the new framework, and have been working closely with industry, including the early adopters group and the joint regulators group, to support that. The shadow regulator recently published a paper setting out the key principles and requirements of a safety case regime. That will help preparations for the new regime and support the development of future guidance. Many responsible building owners already operate in that manner, and the new framework will further support them to deliver safety for residents.
Mike Amesbury
Of course, the new regime is resource intensive. We have principal accountable persons, accountable persons, building safety managers and 12,500 to 13,000 buildings. There will be new builds each year; I am not sure what the projections are. It is about having that reassurance that the new regime can be effectively implemented, and that people will have the competency and qualifications. Who will pay for this landscape? It seems potentially very costly. What salary level would a building safety manager, a principal accountable person or an accountable person have?
Eddie Hughes
We return to the question of capacity. I touched on the idea that organisations such as housing associations or councils already have their buildings under a management structure and a safety structure, and already have appropriate people appointed to those roles. They will have a benchmark with regard to the legislation that sets out the requirements of a building safety manager against which to measure that they have the appropriate skills and competences in place. The fact that within those organisations they will need to identify a named person who has those competences will focus minds, albeit that the person with those responsibilities might not need to discharge all the duties; they can delegate them to others.
The hon. Gentleman is right that this is a big endeavour, but it already exists in many organisations. On the appropriate salary levels, I think it is beyond the scope of the Bill to identify the remuneration for people employed in this, but as I say there are already people doing this role and I am sure that those who are already managing their buildings effectively and safely will not find this a much more onerous obligation.
Shaun Bailey (West Bromwich West) (Con)
It is a pleasure to serve under your chairmanship, Mr Dowd, and to see a fellow Black Country MP on the Treasury Bench. I agree wholeheartedly with what the Minister said, but we need to ensure that we do not allow anyone to test the boundaries, particularly when it comes to such things as regular intervals on assessment. He encapsulated a lot of what I was going to say in his contribution. I know that he agrees that we have to have a culture that ensures that those who are regulated by the legislation and by regulations do not see the leeway that we have rightly given them as an opportunity to test the boundaries.
Eddie Hughes
It is an important point. We need to strike a balance between being prescriptive, and setting very specific regulatory periods within which tasks have to be performed, and allowing some latitude for people to continue to manage their buildings in an appropriate way. If we give prescription for one thing it certainly will not apply across all 12,500 buildings, or however many more might be created in future. I return to the point about the Building Safety Regulator being live to developments within the sector and ensuring that it can respond accordingly.
Mike Amesbury
We have both been involved in the social housing sector. The Minister rightly referred to the exemptions. The current landscape and resourcing are there for some in the sector—for some who will be within the scope of the Bill—but it will be different for others in the private sector and, indeed, for some in the third sector. He referred to the regulator and associated committees and to the industry looking at competences and qualifications. Surely, they will look at salary levels. That will not be a role for Ministers or members of the Opposition, but it is important that it is resourced and attracts the right calibre of people.
Eddie Hughes
I am grateful for the opportunity of further deliberation on this point. The Bill will stipulate the level of competence, and remuneration will vary across the country. I understand the hon. Gentleman saying that this process could be expensive, but fortunately it already exists. We need to focus on the competence rather than on the money, and that will lead to improved safety.
Question put and agreed to.
Clause 83 ordered to stand part of the Bill.
Clause 84 ordered to stand part of the Bill.
Clause 85
Safety case report
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
The independent review recommended the introduction of a safety case regime for high-rise residential buildings to drive culture change and improve the understanding and management of fire and structural safety risks, delivering safer buildings for residents. We are delivering on this recommendation. The introduction of this regime will change the way in which building owners demonstrate how they are managing building safety risks.
Safety case regimes have been successful in improving safety standards and reducing incidents in a number of sectors. Under this approach, accountable persons will not be able to rest on the assumption that merely following prescribed standards will result in safe outcomes. They must produce and maintain documented assurance to demonstrate that they are meeting the duties placed on them.
Safety case reports, which will be assessed by the Building Safety Regulator, are a tool that help to offer this assurance. The report must focus on the unique risks and arrangements in place at each higher-risk building and should justify why the safety arrangements that accountable persons are taking are appropriate and sufficient for managing the risks present. We will set out in secondary legislation the form and minimum content required for a safety case report. This will provide clarity on the areas that should be covered.
The HSE, as the shadow regulator, is leading a work programme with industry that will deliver simple guidance to help those with duties under the new regime comply with these new requirements.
The safety case regime is a dynamic and continuous process. A safety case report must remain relevant and be revised to reflect the risks present and how the building is being managed if and when circumstances change. Safety case reports will be assessed by the Building Safety Regulator, including as part of the building assessment certification process. On assessment, the regulator may use its powers of direction to require that further safety measures be implemented if they consider that accountable persons do not have sufficient arrangements already in place.
The process of developing the safety case report will improve safety by ensuring a systemic review and assessment of hazards and their associated risks and the control measures either required or being employed to eliminate or reduce them. The Health and Safety Executive has vast experience and expertise in delivering regulatory oversight for safety case regimes and working collaboratively with stakeholders. We will ensure the right environment is in place to deliver holistic management of building safety risks, so that residents are, and feel, safe in their homes.
The independent review recommended that the duty holder for occupied higher-risk buildings be required to present their safety case to the regulator at regular intervals, to demonstrate that building safety risks are being managed. Clause 86 provides the framework by which this process will be delivered. On completion of a safety case report, and at any time when the report is revised thereafter, the principal accountable person must notify the regulator. As noted, the regulator will assess the safety case report as part of the building assessment certification process, but it may also undertake a further assessment if that is deemed necessary. The report must be submitted if such a request is made. The knowledge that there has been a review by the regulator of the safety arrangements in place in their building will provide reassurance to residents that their buildings are safe to occupy. These arrangements will ensure that the regulator is able to maintain oversight and deliver its functions effectively.
Ms Rimmer
The Bill is already setting criteria for the building safety case report, inasmuch as it refers to 18 metres or seven storeys. Beneath that, a building does not comply, so how or where do we get the building safety manager’s freedom to do a personal risk assessment of a building that is below seven storeys or 18 metres? Can the Minister quantify or qualify how they are going to be able to do their job, or is this one of the “developments” that we are looking for to change the criteria, to bring buildings below that measurement in?
Eddie Hughes
I think there is a terrible possibility that I may not have completely understood the case the hon. Lady was making. The point about the assessment is that it will be a live assessment of the risks in a particular building and then the mitigating factors that will be introduced in order to minimise those risks. With regard to the prescription of building height set out in previous clauses, that simply determines which buildings are in scope. If we assume that a building is in scope, that the legislation applies and that the principal accountable person needs to submit their building case to the regulator in order for it to be assessed, that will be bespoke and determined by individual building requirements.
Mike Amesbury
On the safety case reports, a lot of the detail will, again, be elaborated on in secondary legislation. Sometimes this is rather difficult—we are operating blind—in terms of scrutiny and challenge. Something that we are all familiar with, in regard to the history and journey of the Bill, is the practice in the construction sector of setting up special delivery vehicles and then folding them. How will the information be retrieved, in terms of the safety case report, if those organisations no longer exist?
Eddie Hughes
I have two points. With regard to the idea that some of this information will be developed as secondary legislation and the idea of scrutiny and challenge, we will use the affirmative procedure, so I strongly suspect that the hon. Gentleman and I might be standing across from each other in a room like this, deliberating on the content of those statutory instruments, in the future.
With regard to the structure of companies that are set up, if the hon. Gentleman is referring particularly to new buildings, the idea of the golden thread that runs through this process means that we will be capturing more information, more or less from conception of the building through to its construction and occupation. It means that we will have better access to information, and safety will have been built in early on and a more rigorous process adopted in order to ensure that safety, given the fact that named people will apply throughout the whole process, so I think assurance will be built in once the Bill is introduced.
Elections Bill (Eighth sitting)
Tuesday 19th October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Elections Act 2022 View all Elections Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 October 2021 - (19 Oct 2021)
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Chair
Before we begin, I have a few reminders for the Committee—you heard them this morning, but I am required to repeat them. Could you please switch electronic devices to silent? I encourage all Members to wear masks when they are not speaking, in line with Government guidance and that of the House of Commons Commission. Please also give each other enough space when seated and when entering and leaving the room. Hansard colleagues would appreciate it if Members could email their speaking notes to hansardnotes@parliament.uk.
We now resume line-by-line consideration of the Bill. Members wishing to press a grouped amendment to a Division should indicate when speaking to it that they wish to do so.
Clause 6
Requirement of secrecy
Question proposed, That the clause stand part of the Bill.
The Minister of State, Department for Levelling Up, Housing and Communities (Kemi Badenoch)
The clause concerns the important issue of the secrecy of the ballot for postal and proxy voters. Its purpose is to extend the requirements in place to protect the secrecy of voting for persons voting in polling stations to those voting by postal vote and proxy voting. This change implements a recommendation in the Pickles report, which found that:
“The secrecy of the ballot is fundamental to the ability of voters to cast their vote freely without pressure to vote a certain way.”
This is an important measure to keep our elections up to date, particularly as the rise of digital communication channels and social media could increase the risk that voters experience undue pressure and are compelled by inappropriate influence to take a photo of their postal ballot to show how they have voted. That goes against the fundamental democratic principle that someone’s vote is personal and secret, and we believe that it is unacceptable.
The measure will prevent a person from seeking to find out or communicate information about someone else’s postal vote, such as how the person has voted. The safeguards will also apply to the postal votes of those acting as a proxy for another elector. Additionally, a proxy will not be permitted to disclose information about how they voted, other than to the elector who appointed them. The existing offence in section 66 of the Representation of the People Act 1983 will apply to anyone who contravenes the new provisions related to postal and proxy votes. Voting by post or a proxy are perfectly valid ways in which an elector can choose to cast their ballot and should be protected by the same level of secrecy as in-person voting.
The clause also makes an important change to the existing requirement for a person who assists a blind voter in a polling station to maintain the secrecy of voting. That requirement will be extended to a person assisting a voter who has another disability or who is unable to read.
Cat Smith (Lancaster and Fleetwood) (Lab)
It is a pleasure to serve under your chairship this afternoon, Ms Ali. Clause 6 extends the requirement of secrecy to proxy and postal votes, which is a right and proper move. It is fundamental.
The Minister raised in her remarks the principle of free and fair elections. There are many principles that we need to adhere to if we are to have free and fair elections, and there are many things we could do in the Bill to extend those free and fair elections that would improve the Bill.
We support clause 6, but we have a couple of questions. Someone photographing a postal vote and perhaps posting it on their Instagram because they are proud of how they voted is very different from someone taking a photograph of their ballot paper because another person is putting pressure on them to prove that they have voted a certain way. Does the Minister agree that those are two very different issues? How might the provisions of the clause be implemented to differentiate between those two examples? There are those who may be pressured to act in a certain way and to photograph their ballot paper to prove it, but I am sure that all Committee members know of party activists who photograph their own ballot papers and post them on Twitter, saying how proud they are to vote for the A. N. Other party candidate in an election. Those are two very different things. Will the Minister highlight how she envisages that they will be differentiated?
Kemi Badenoch
That is an important distinction to make. There are people who inadvertently break the law and those who do it for a different reason. We are trying to prevent failure to maintain secrecy because of undue influence. We will discuss undue influence more generally in the next clause, but this clause ensures that people are not being made to do things that they would not ordinarily do just to prove who they have voted for.
The offence is already in law, so we are not doing something new but extending the offence to postal and proxy votes. We will be carrying on as we are at the moment, but ensuring that the standards for postal and proxy votes are brought up to the same level as those for in-person voting.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Undue influence
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider that schedule 4 be the Fourth schedule to the Bill.
Kemi Badenoch
It is a core tenet of our democracy that electors should be able to cast their vote free from interference and intimidation. Although it is already an offence to unduly influence an elector, the legislation has not been substantively updated since the 19th century. In the “Protecting the Debate” public consultation, 100% of respondents agreed that the law on undue influence requires greater clarity. The outdated legislation needs to be updated to provide electors with the protection they deserve.
Clause 7 therefore updates the existing electoral offence of undue influence in section 115 of the 1983 Act. It clarifies the types of activity that amount to undue influence, including physical violence, intimidation, damage to a person’s property or reputation, or deceiving a person in relation to the administration of an election. By broadening the scope of what constitutes elector intimidation for the purposes of undue influence, this measure helps to address the concerns raised by both the Pickles report and the Tower Hamlets election court that undue influence currently
“does not penalise thuggish conduct at polling stations of the sort that occurred in 2014”.
The clause maintains the existing offence’s reference to undue spiritual influence, as recommended by the independent Pickles review on electoral fraud. Given their charisma and authority, some spiritual leaders are uniquely able to abuse a person’s religious convictions to change their voting behaviour. However, I also recognise that a degree of spiritual influence is inherent in all positions of religious or spiritual authority.
Undue behaviour does not include, for example, a religious leader expressing their opinion on political or policy matters that have implications for the principles of that religion. It would also not apply in the case of religious groups for whom not voting is an established doctrinal position. It is only when spiritual influence becomes a form of improper pressure that it amounts to undue influence. I want to emphasise that this clause has been crafted to promote the genuine enjoyment of both the freedoms of religion and expression and the right to vote in elections free from spiritual harm or pressure.
Finally, schedule 4 ensures that if a person is guilty of undue influence in relation to any electoral event anywhere in the UK, the resulting incapacity—a 5-year ban on being elected to or holding certain offices—should apply consistently to elected offices across the UK.
The clause makes undue influence clearer to interpret and enforce, and I therefore urge that the clause and its associated schedule stand part of the Bill.
Cat Smith
I thank the Minister for her remarks and echo the fact that for many of us, our politics and our faith are entwined. Indeed, our faith backgrounds often influence our politics and guide our values, so I am glad for her clarification and remarks.
The report that she highlighted recommended improvements around the existing corrupt practice of undue influence, which is subject to an offence designed to protect electors from malicious interference and intimidation. The main purpose of the clause is to clarify the activities that constitute undue influence in order to make the legislation easier to interpret. For that reason, the Opposition will support it.
We are pleased that Ministers backed away from creating a new offence, given that the existing criminal law is perfectly capable of dealing with intimidation and harassment. The enforcement of the law is the problem, and an update of section 115 of the 1983 Act, which, as the Minister pointed out, originated in the 19th century, is long overdue.
Although we welcome the clause, it is just a small step forward. We are disappointed not to see the comprehensive and joined-up reform of electoral law that is required.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Schedule 4 agreed to.
Clause 8
Assistance with voting for persons with disabilities
Patrick Grady (Glasgow North) (SNP)
I beg to move amendment 60, in clause 8, page 11, leave out lines 16 to 27 and insert—
“(a) in paragraph (3A)(b), for ‘a device’ substitute ‘equipment’;
(b) after paragraph (3A)(b) insert—
‘(c) such equipment as it is reasonable to provide for the purposes of enabling, or making it easier for, relevant persons to vote in the manner directed by rule 37.’;
(c) after paragraph (3A) insert—
‘(3B) In paragraph (3A)(c), “relevant persons” means persons who find it difficult or impossible to vote in the manner directed by rule 37 because of a disability.’”
This amendment would retain the requirement for returning officers to make specific provision at polling stations to enable voters who are blind or partially-sighted to vote without any need for assistance from the presiding officer or any companion and change the nature of that provision from “a device” to “equipment”.
Patrick Grady
It is a pleasure to serve under your chairmanship, Ms Ali.
The amendment, which was tabled in my name and that of my hon. Friend the Member for Argyll and Bute, is pretty straightforward and simple. It preserves and enhances current provisions and protections for blind and partially sighted people, while incorporating the Government’s new provisions for people with all other kinds of disabilities to be fully supported when casting their vote. The 1983 Act, as amended, provides that:
“The returning officer shall also provide each polling station with—
(a) at least one large version of the ballot paper which shall be displayed inside the polling station for the assistance of voters who are partially-sighted”.
I am sure that we are all familiar with seeing the big ballot papers up, and I think that they are probably a help for most voters going into the polling station, irrespective of whether they are partially sighted. The Act states that the returning officer shall also provide:
“(b) a device of such description as may be prescribed for enabling voters who are blind or partially-sighted to vote without any need for assistance from the presiding officer or any companion”.
Clause 8 removes subparagraph (b) and replaces it with a more general requirement for returning officers to provide
“such equipment as it is reasonable to provide for the purposes of enabling, or making easier for, relevant persons to vote in the manner directed by rule 37.”
During the oral evidence sessions, the previous Minister, the hon. Member for Norwich North (Chloe Smith), argued that the provision expands and enhances the duties of returning officers and will not diminish the support currently available for blind and partially sighted people. I suspect her successor will say the same. That does not necessarily reflect the reality on the ground. Even with the current RPA requirements, the Royal National Institute of Blind People estimates that four in five blind people cannot vote independently and in secret. Its researchers found that 46% of blind and partially sighted people—less than half—are satisfied with their experience of voting, and at polling stations nearly two thirds of blind people, 61%, and a third of partially sighted people, 32%, had to get another person to help them to vote.
I am sure that Members have read the written evidence submitted to the Committee by the RNIB—EB04—which contains some quotes from respondents to the survey and research that the RNIB has carried out. One says
“The lady had to read out the candidates to me and point out the one that I wanted to vote for. It was slightly humiliating… Don’t get me wrong—the ladies were lovely and kind but it wasn’t secret or independent.”
Another said:
“I usually have my partner with me to help, which makes things easier, but today I was alone, which made me realise just how dependent I am on others. Very negative from start to finish.”
That evidence went on to say:
“In 2019, a Judicial Review found the Government’s current provisions to support blind and partially sighted voters unlawful, with the judge describing existing provisions as ‘a parody of the electoral process’ because of the inability for voters to review the ballot paper independently using equipment provided and then make their mark.”
That is 150 years since the Ballot Act 1872 provided for everyone to have the right to vote in secret.
I suspect that we will hear from the Minister that the Cabinet Office—well, it was the Cabinet Office, but perhaps it is now the levelling-up Department or whoever is in charge—or the Government collectively are engaging with the RNIB to update the technology to improve the provisions. That is great, and that is a simple matter of fact: they are working with the stakeholders and that is welcome. However, the same stakeholders are clear that the Bill as drafted represents a diminishment of the current rights afforded to blind and partially sighted people.
Kemi Badenoch
Although the Government share the aim of elections being accessible to all voters, we cannot agree to the amendment because it is needlessly prescriptive. I listened carefully to the hon. Gentleman’s arguments, which were not bad ones. I understand what he is saying, but we disagree on what the clause is trying to do.
I emphasise firmly that the principle underpinning the change is to make elections more accessible to a wider range of disabled voters. I welcome the hon. Gentleman’s agreement with the provision to include, for the first time in law, a requirement for returning officers to consider the needs of voters with a wide range of disabilities when providing equipment for polling stations. However, I do not agree with the proposal to keep a piece of specific, prescribed equipment for one subset of disabled voters.
Our experience with prescribing assistive equipment in law is that it can become an obstacle to wider inclusion and innovation more generally. A prescriptive approach in legislation makes changes difficult when better solutions are developed, and it also becomes an impediment to their development. We believe it is better to allow returning officers that flexibility to tailor the equipment they provide to suit the needs of voters in their area.
Fleur Anderson (Putney) (Lab)
Has the Minister been able to meet the RNIB? I have met its representatives and heard their concerns, and we have all seen their written evidence. They discussed their concern about the word “reasonable”, as it will not widen access to means of voting but reduce it because there will be inconsistency: what is deemed reasonable will be different at different polling stations, instead of being consistent for all people. That may mean that instead of access being widened there will actually be nothing.
Kemi Badenoch
I have not personally been able to meet the RNIB, but I believe that officials and possibly my predecessor did—[Interruption.] My officials are confirming that that is the case. We have seen its evidence and we believe that these changes are proportionate. We do not expect the outcomes that the RNIB has outlined to necessarily be the case.
I am a patron of a sight organisation in my constituency called Support 4 Sight, and I have discussed the issue with its representatives. They raised this legislation with me during a surgery and I was able to reassure them. I will be happy to write to the RNIB, as the Bill progresses and as we consider the secondary legislation, to see what other reassurances we can provide for it.
Sorry, I have lost my place in my notes—bear with me just a moment.
Jerome Mayhew
Perhaps the Minister will be interested to learn that one of the pilots for new equipment for people with disabilities—particularly the blind—was undertaken in my constituency. I had a meeting with the chief executive of my local authority to discuss how that pilot went; it was quite small, involving, from memory, seven to 11 people, but the new equipment did seem to voters’ experience. Is the Minister concerned that there will be a dead hand on innovation if we are too prescriptive in the drafting of the clause?
Kemi Badenoch
I do thank my hon. Friend for that intervention—[Laughter.]
As I was saying, it is better to allow returning officers the flexibility to tailor the equipment they provide to suit the needs of voters in their area. The new requirement will also be supported by Electoral Commission guidance, which will be developed in conjunction with organisations representing a wide range of disabled people and will support returning officers to make positive decisions to support disabled electors. Retaining a specific prescriptive requirement is an unnecessary obstacle to inclusion, as I mentioned earlier; it is also a significant challenge for those who administer elections, as I am informed we heard in evidence to the Committee before I took up this post.
I would like to provide a little additional reassurance to the hon. Member for Glasgow North. I understand the problem that he believes he is trying to solve. It is important to emphasise that we are not removing the requirement to support blind and partially sighted voters; we are only changing how that is delivered. The current requirement is too restrictive: providing only a single device is an obstacle to innovation and wider inclusion. Our approach will ensure that the most suitable support is provided at polling stations.
The hon. Member for Putney referred to the RNIB, and I can provide additional reassurance. We are trying to make elections as accessible as possible for all those eligible to vote. That is why, for example, we are removing restrictions on who can act as a companion to support electors with disabilities to cast their votes. For the first time in electoral law, we are also putting in place a broader requirement in respect of equipment at polling stations, and that should help more disabled people.
What we are doing will provide additional accessibility, as I will discuss when I speak to clause 8. We respectfully ask that the amendment be withdrawn.
Cat Smith
I congratulate the hon. Member for Glasgow North on tabling this amendment. It was so good that I tried to table exactly the same amendment a day after him, but he beat me to it, so he is nimble on his feet as well. We share the concerns that he and the RNIB have raised that the Bill weakens protections for blind and partially sighted voters by removing the limited legal protections that used to exist. Removing the requirement to provide tactile voting devices leaves blind and partially sighted voters somewhat to a postcode lottery.
I see where the Minister is coming from, but I disagree. While she sees it as prescriptive and stifling innovation, I see it as providing a baseline for a level playing field. That does not stop returning officers being innovative. Obviously as technology advances we will come across things that will help us to make voting more accessible for people of many disabilities or impairments. The legislation as it stands creates the risk of a postcode lottery with different systems being used in different areas. Although that might open up to innovation, it risks leaving some blind and partially sighted voters without adequate systems in place to help them to vote in secret and independently.
The RNIB has been consistent and has done excellent reports after every major national election outlining just how few blind and partially sighted voters get the opportunity to vote independently and in secret. It is something that I have raised many times over the years and I had higher expectations for the Bill. I am disappointed that clause 8 does not go far enough. We support the general gist of the clause in terms of making voting more accessible for those with disabilities, but it really only scratches the surface of the quite radical action that is needed to make our democracy more accessible to disabled people.
I share the concerns of the disability charity Sense that the Bill could have the dangerous consequence of removing the fundamental principle that electoral staff must enable voters to vote without any need for assistance. Although a broader duty designed to enable all disabled people to vote is a good thing, the wording of the new duty does not carry over the previous requirement to enable voters to vote without any need for assistance. As a result, I think polling stations will not be required to ensure that disabled people can vote independently. I seek the Minister’s clarification on that.
Brendan O’Hara (Argyll and Bute) (SNP)
It is a pleasure to speak in this debate, though I am greatly disappointed both in the Minister for not having met with the Royal National Institute of Blind People and in my hon. Friend the Member for Glasgow North. She said that she listened carefully to his argument, and if he had just been more persuasive, this could have been the first time in 38 years when a Minister was persuaded to change her mind. Really, Minister? Let us be honest: this amendment is never going to pass because the Government have an entrenched position on it, and they were never going to listen to reasonable and decent arguments put forward by a reasonable and decent charity.
Fundamentally, voting is a visual exercise, and the frustration and humiliation felt by blind and partially sighted people at their inability to vote independently and in secret has been an open sore for many years. This afternoon, Government Members have talked extensively about secrecy and the privacy of the ballot, but that does not seem to extend to blind and partially sighted people. There are currently 350,000 voters in the UK who cannot vote without having to share their preference with a returning officer or anyone who happens to be within listening distance. Four fifths of blind or partially sighted people said that they were unable to vote independently and in secret.
Respondents to the RNIB survey said such things as:
“The voting booth was right beside the queue for the check in desk; it wasn’t closed off and I had to verbalise my choice to my partner…a person, waiting in the queue beside the booth, audibly sighed. I don’t feel I get privacy”.
Another respondent said:
“My helper disagrees with my vote and I have no way to be sure she voted as I wished”.
Another said that
“it’s a totally humiliating experience from start to finish,”
and the whole thing is predicated on
“assumptions that everyone can see.”
Things are far from perfect at the moment, but the RNIB, which is the UK’s leading sight loss charity, is extremely concerned that the Bill will make a bad situation even worse, as it weakens the protections that exist and could make it even harder for blind or partially sighted people to cast their vote independently and in secret. Could the Minister tell me what experience the Government have and what expertise they drew upon in reaching their conclusion that the RNIB does not have? What sources of evidence did they seek to get to this point that the UK’s leading sight loss charity, which she has not met, does not have?
Patrick Grady
The Minister said that the Government are not removing existing protections, but that is exactly what they are doing. They are literally removing the existing provisions in the RPA and putting in a different clause. She said that the amendment would be needlessly prescriptive, but the amendment simply retains the current legislation and the language that is currently in the Bill, thanks to the ingenuity of those who helped us to draft the amendment.
As all Opposition Members who have spoken have said, the concerns are raised clearly by the RNIB. I refer again to the written evidence that it submitted. In paragraph 2.7 it said that
“in the revised wording proposed, an individual returning officer could in theory decide that even the tactile voting device is not ‘reasonable’ to provide, lessening the accessibility of voting even compared to today.”
To the point that the hon. Member for Lancaster and Fleetwood made, the RNIB also said:
“Moving the decision regarding what adaptations to provide to returning officer level would result in even more of a patchwork of provision and make it very difficult for blind and partially sighted people to know what to expect and to obtain the adjustments they need, damaging the ability to vote independently even further.”
The amendment would retain the Government’s wording and what is in the existing legislation, so we are providing a double level of support for blind and partially sighted people, and other people who require specific reasonable adjustments. I did not quite catch what the Minister said in response to the intervention on whether she had met with the RNIB. It is understandable that she is new in post and has not had time to meet with it, but I hope that she was not saying that she would not meet with it in future. I hope that she will give an undertaking to do so.
I am disappointed that the Government are not supporting the amendment, and I think that blind and partially sighted people who are following these proceedings would also be disappointed if we did not test the will of the Committee by pressing the amendment to a vote.
Question put, That the amendment be made.
Elections Bill (Seventh sitting)
Tuesday 19th October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Elections Act 2022 View all Elections Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 October 2021 - (19 Oct 2021)
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Chair
Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk.
We now resume line-by-line consideration of the Bill. The selection and grouping list for today’s sitting, which is available in the room, shows the order in which selected amendments will be debated. I remind Members that decisions on amendments do not necessarily take place in the order they are debated; it happens in the order they appear on the amendment paper. Members who wish to press a grouped amendment to a Division should indicate that they wish to do so when speaking to it.
We now return to where we left off on 22 September, with amendments to schedule 1. I remind Members that we have already debated clause 1 stand part, and therefore it is not orderly to open up a further debate on the principle of voter identification. I expect focused debates on the amendments in question.
Schedule 1
Voter identification
Fleur Anderson (Putney) (Lab)
I beg to move amendment 54, in schedule 1, page 75, line 9, at end insert—
“(1HA) In this rule a ‘specified document’ also means a poll card.”
This amendment would enable someone to vote by presenting their poll card as an alternative to photo ID.
To recap from where we left off, the Opposition feel that there is no need for the reforms listed in the Bill. They will reduce people’s ability to vote, they will suppress voting and they are disproportionate to the risks identified. They will have a huge impact on councils, be very unwieldy, potentially have an impact on frontline services delivered by councils and be very expensive.
The Government’s own pilot programmes threw up many issues regarding the ability to vote in different circumstances. Different trials were used, including on the use of a polling card, which showed many ways in which barriers to voting can be overcome—not the ways that appear in the Bill. There are also questions about whether people will be turned away on polling day, and that is why the amendment would include the use of a polling card.
To explain the context, several of the pilot schemes in 2018 and 2019 that were commissioned by the Government asked voters to bring their polling card as a form of identification, or some form of photo ID if they did not have it. The results make for interesting reading. In the 2018 voter ID pilot in Swindon, 95% of voters produced their polling card instead of another form of ID. It was much more accessible to them, and Swindon recorded the lowest percentage of voters not returning with correct ID of all the 2018 pilots, at 0.06%. The Watford pilot saw 87% of voters produce their polling card instead of an alternative form of ID, and only 0.2% of voters did not return with the correct ID.
The poll card pilots in 2019 recorded lower percentages of voters being turned away than the photo ID or mixed ID and polling card models. In the poll card pilots in Mid Sussex, North West Leicestershire and Watford, 93% of voters produced a poll card instead of the alternative form of ID. It is clearly highly preferential for voters, and we want to make voting as easy as possible while making it safe and maintaining integrity.
The impact assessment to the Bill states that the implementation of voter ID could cost up to £180 million over 10 years. As we heard in the evidence sessions, that is not entirely known because not all councils have given in assessments. They do not know how many staff it will take or what the cost will be. Of that total, £80 million could be spent on the updated polling cards, which will notify voters of the new requirements. The proposal is to move to an A4 polling card, to be posted in an envelope. If that much is being spent on polling cards, why not use them at the polling station?
Aaron Bell (Newcastle-under-Lyme) (Con)
Does the hon. Lady accept that, notwithstanding what she said about safety and making it easy, she has not addressed the security element of knowing the person who turns up is the person named on the polling card? In many cases, polling cards can be stolen. I am thinking in particular of when they are posted to pigeonholes in higher education institutions. That has been a real problem in previous elections, and the Opposition’s amendment does not address that.
Fleur Anderson
The issue is parity with postal votes. If someone is to have a postal vote, they need to prove that they are living at the relevant address. That applies to polling cards as well; there is consistency.
The hon. Gentleman says that things can be stolen from a higher educational establishment, but that issue should be addressed by the establishment. The same could happen to postal votes, which would be a big concern. Making polling cards safe would be the same as making postal votes safe, so why not use polling cards?
Aaron Bell
I thank the hon. Lady for giving way again. The difference, of course, is that a postal vote requires a signature. Someone could literally take a polling card out of another person’s pigeonhole and present themselves at a polling station saying, “I am Joe Bloggs.” They would be given a vote. That is how things are at the moment, and that is what we think needs to change.
Fleur Anderson
When someone is applying for a polling card, they have to prove that they live at the relevant address. The overall issue is that voting is reduced; people might not necessarily want to go to vote if they find it at all hard. On polling day, we and other people will go to people’s houses, knock on their doors and say, “You can go down and vote.” Despite all the advertising that will happen ahead of time, they will say, “Oh, I don’t have my photographic ID—I haven’t yet got it.” We saw from the pilots how things could be so much easier.
Paul Bristow (Peterborough) (Con)
Does the hon. Lady recognise, like me, that one of the most common experiences on the doorstep is someone saying that they have lost the polling card itself and have seen that as an entry into voting? Nine times out of 10, when someone has lost something it has been the card itself. I say to them, “You don’t need that—you just need to say your name and address.” Has she had that experience?
Fleur Anderson
Different people will have different ID. If we open up the forms of ID that people can take, we make it more likely that they will vote. Many people will have lost their photo ID. Some people do misplace their polling card in their pile of post and so do not have it to hand. We can say at the moment that they can just go down to the polling station, but the Bill introduces an extra barrier of people having to find their photographic ID—their passport or driving licence. If a polling card is a high barrier, photographic ID is even higher. My amendment would lower the barriers to voting and enable more people to get involved in democracy, which in the end would make decisions better. The Bill would increase the barriers.
Cat Smith (Lancaster and Fleetwood) (Lab)
I have been reflecting on what my hon. Friend has been saying. I recently had to send off my driving licence to update my address, and that happens to have coincided with the expiry of my passport. Normally I have two forms of photo ID, but at the moment I do not. Could this legislation not end up affecting people who would normally have forms of ID and therefore would not necessarily apply for the voter card, but who due to circumstances may occasionally disenfranchise themselves accidentally?
Fleur Anderson
My hon. Friend makes a very good point. There are many circumstances in which someone might just not have that photographic ID to hand. My children go off, use their photographic ID in a nightclub and do not return with it. There are so many reasons why it might be hard to find that photographic ID. If people find it hard to locate their polling card on the day—I accept that sometimes they do—they will find it even harder to find their photographic ID.
This amendment is so important. The polling card would give people huge reassurance that they will be able to go down and vote. If the amendment is not agreed to, that will be taken away. The amendment is logical and supported by plenty of evidence from the pilot schemes themselves. I urge the Minister to support it.
The Minister of State, Department for Levelling Up, Housing and Communities (Kemi Badenoch)
If I may, Sir Edward, I want to take time to acknowledge the tragic loss of Sir David Amess. He was a fellow Essex MP to me and my hon. Friend the Member for Castle Point. He was a truly beloved friend and colleague who served both Parliament and Southend West for nearly four decades with dedication and care.
It is particularly poignant that we should be debating the Elections Bill at this point. The act of violence that occurred on Friday was abhorrent. Violence and intimidation cannot be tolerated in any circumstance and must have no place in our public life. No one should feel afraid to participate in our democracy or to represent their community, and tackling intimidation in public life is a top priority for the Government. There are measures in the Bill that seek to introduce a new electoral sanction against anyone found guilty of intimidating a candidate or elected representative, but this is a problem that no one measure alone will address. That sanction is just one part of a much wider effort by the Government to tackle intimidation and violence in public life.
Amendment 54 would allow a voter to use their poll card as a form of identification under the new system being introduced by the Bill. The amendment effectively defeats the purpose of the Bill. We cannot agree to it because the requirement to provide a form of photographic identification is the best way to secure the electoral system against fraud and to stamp out the potential for it to take place at polling stations in elections.
My hon. Friends have made the argument already, but I should also say that when evaluating the security strengths and weaknesses of each pilot model the Electoral Commission found that
“the photo identification only model has the greatest security strengths compared with the other models”.
A poll card can easily be intercepted, particularly for those living in shared accommodation, and so cannot be used as a form of identification. It is simply not secure enough. That is why we are requiring voters to provide photographic identification.
The Chair
Before we continue the debate, I echo what the Minister said on behalf of all members of the Committee about our colleague Sir David Amess. I entered Parliament with him 38 years ago, with over 100 MPs. Many of them rose to great distinction; at least two became Prime Minister. Sadly, there were only three of us left from that intake, and there are now only two. I say to Back-Bench Members that the career of David Amess shows that it is wonderful to be a Member of Parliament and to be a Back Bencher, even for your whole career, so keep campaigning, intervening and talking about the causes that you hold dear.
Patrick Grady (Glasgow North) (SNP)
I was inspired to say a few words, not least by your intervention, Sir Edward. I pay tribute to both Sir David Amess and James Brokenshire, whom I held in the highest regard. I express my condolences to everyone affected by their loss, and may they both rest in peace.
I was also inspired to speak by the contribution from the hon. Member for Devizes about people who, when we are out doing our knock-ups on polling day, say, “I’ve forgotten my poll card.”
Patrick Grady
I do beg your pardon—it was the hon. Member for Peterborough. They will need to fix the lighting for the next round of parliamentary photographs. I do apologise, but the point stands that it is an experience that we have all had. We knock on the door and people say, “I’ve lost my poll card. How can I vote now?”. Currently, we can reassure them by saying, “You don’t need your poll card. Simply identify who you are and your name will be ticked off the list.” That shows the attachment that people have to their poll card. A lot of people think that their poll card is required as a form of ID to vote. As campaigners standing at polling stations, we see people turning up to vote and bringing their poll card with them because of the attachment that they have to it as a document. It helps to inspire their right to vote, so in that sense it works in both directions.
Now when we are on the doorstep, we will have to say to voters, “You need to bring a form of identification with you to vote.” Under the schedule, that has to be a particular form of voter identification. If we were able to say, “You’ve got your poll card. That’s great. You can take that down. That will verify your identity and you’ll be able to take part in the poll,” that would make it even easier for people to comply with the legislation that is under consideration.
On the notion that people could go around harvesting poll cards from university dockets—not to go back to the original clause, Sir Edward—we have heard that instances of that are extremely few. It is already a crime. If someone turns up with more than one poll card, that is personation. I have every faith that in our current electoral system, individual polling clerks will realise, if a voter turns up with two cards, that they are only one person, and they will not be allowed to cast two votes. They would there and then be done, and were it determined that a candidate had been responsible for encouraging them to do that, the candidate would be disqualified from the election.
The amendment, and those that we will discuss shortly, would help as many people as possible to comply with the new requirement that people have a form of identification in order to cast their vote. Opposition Members are trying to expand people’s opportunities to comply with that requirement, and the Government’s opposing it demonstrates what the real intent is behind the clause and the Bill as a whole, which is to make it more difficult for people to vote, which is a dangerous route to go down.
Fleur Anderson
I echo your words, Sir Edward, and those of the Minister, about Sir David Amess. I send my sincere condolences to his family, his staff and his constituents. We all feel his loss greatly. Sir David chaired many debates that I took part in. As a new MP, I do not know an enormous number of MPs, but I felt that I knew Sir David, so that was the measure of him.
I am disappointed that the Government will not accept the amendment, but I urge the Minister to please look into and assess the impact on voting when the Bill comes into force. It will have a big impact. Can we please continue with the pilot so that we can assess the impact of not being able to use a polling card, and keep the door open to make sure that there is the potential for everyone to vote by using a polling card?
Question put, That the amendment be made.
Fleur Anderson
I beg to move amendment 55, in schedule 1, page 75, line 9, at end insert—
“(1HA) In this rule a ‘specified document’ also means a utility bill dated within 3 months of the date of the poll.”
The Chair
With this it will be convenient to discuss the following:
Amendment 56, in schedule 1, page 75, line 9, at end insert—
“(1HA) In this rule a ‘specified document’ also means a valid bank or building society debit card or credit card.”
Amendment 57, in schedule 1, page 75, line 9, at end insert—
“(1HA) In this rule a ‘specified document’ also means a birth certificate.”
Amendment 58, in schedule 1, page 75, line 9, at end insert—
“(1HA) In this rule a ‘specified document’ also means any of the following documents (in whatever form issued to the holder)—
(a) a driving licence;
(b) a birth certificate;
(c) a marriage or civil partnership certificate;
(d) an adoption certificate;
(e) the record of a decision on bail made in respect of the voter in accordance with section 5(1) of the Bail Act 1976;
(f) a bank or building society cheque book;
(g) a mortgage statement dated within 3 months of the date of the poll;
(h) a bank or building society statement dated within 3 months of the date of the poll;
(i) a credit card statement dated within 3 months of the date of the poll;
(j) a council tax demand letter or statement dated within 12 months of the date of the poll;
(k) a P45 or P60 form dated within 12 months of the date of the poll;
(l) a standard acknowledgement letter (SAL) issued by the Home Office for asylum seekers;
(m) a trade union membership card;
(n) a library card;
(o) a pre-payment meter card;
(p) a National Insurance card;
(q) a workplace ID Card.”
Fleur Anderson
Amendments 55 to 58 include other forms of identification that could be used to prove a voter’s identity. They would include utility bills, bank or debit cards, birth certificates and other forms of non-photographic ID as acceptable types of identification that a voter may produce to obtain a ballot under schedule 1.
The Minister has stated in support of voter ID that we already ask people to prove who they are in order to collect a parcel from the post office or to rent a car. The list of identity documents accepted at the post office for picking up a parcel includes non-photographic ID such as credit or debit cards, cheque books and utility bills. As the Government have indicated, it seems nonsensical not to extend that to voting. Instead, we should help to enable as many people as possible to get involved in our democratic processes.
The Minister might be interested to hear that half of US states with voter ID requirements allow non-photographic ID. She might also be aware that the Pickles report, “Securing the ballot”, recommended:
“There is no need to be over elaborate; measures should enhance public confidence and be proportional. A driving licence, passport or utility bills would not seem unreasonable to establish identity.”
It is estimated that 10% of people who do not have photographic ID have a birth certificate. The Government have chosen the strictest form of ID despite their own review, led by Lord Pickles, suggesting that non-photographic ID such as a utility bill would be acceptable. This is all about what is proportionate.
When it introduced voter ID, Northern Ireland did not initially require solely photographic ID. It did not leap straight to that highest barrier of ID. Elections took place for almost 20 years with a less stringent ID requirement. I urge colleagues to consider the amendments. They are logical and fair, bring the response to concerns about elections into proportion, and are in line with best practice.
Kemi Badenoch
The amendment would allow a voter to use a utility bill, a debit or credit card or a birth certificate as a form of identification under the new system being introduced by the Bill. I disagree with the hon. Lady’s arguments. The threshold for picking up parcels should not be the same as for voting, which is far more important.
Patrick Grady
One of the key arguments for introducing the principle of voter identification was that people needed to show ID when they were picking up a parcel from the post office. These are precisely the kinds of identification that people need to pick up a parcel at the post office. I understand the argument that people might go around harvesting poll cards, but is the Minister seriously suggesting that there is a lot of harvesting of bank cards and birth certificates going on that would make these really unreliable forms of identification at a polling station?
Kemi Badenoch
What the hon. Gentleman has said does not negate my argument. We are talking about the threshold and we are talking about photographic identification. All these things might meet the threshold for picking up a parcel, but we are making the threshold for elections tighter than that. I made the same arguments when talking to amendment 54.
Alec Shelbrooke (Elmet and Rothwell) (Con)
We keep hearing this argument about what is going on in America, which is on the other side of the Atlantic.
Is my hon. Friend aware of this point? I would just warn that it is from Wikipedia:
“Netherlands: The registration office of each municipality in the Netherlands maintains a registration of all residents. Every eligible voter receives a personal polling notification by mail some weeks before the election, indicating the polling station of the voter’s precinct. Voters must present their polling notification and a piece of photo ID (passport, identity card, or drivers license (a passport or ID is compulsory from the age of 14)). Such photo ID may be expired by not by more than five years.”
Is an argument constantly focusing on America not slightly trying to muddy the waters?
Kemi Badenoch
I thank my right hon. Friend for that intervention; I was not aware of that information, which is very helpful. It shows that the evidence we have gathered and the basis for the Bill is correct. As I set out in my response to amendment 54 about pilots, photographic identification is by far the most secure method of those piloted and I cannot agree to amendments that seek to weaken that protection.
Cat Smith
I had not intended to give a speech, but I want to raise the point that when we look at international comparisons, it is important to find countries that reflect our country. The reason America is used as an example is that the United States does not have a national, free, state-issued ID card, unlike the Netherlands, which the right hon. Member for Elmet and Rothwell used as an example just now, where there is a state ID card, issued by the state, for free, to every citizen. Although he is indeed correct that America is on the other side of the Atlantic—I thank him for that geography lesson—it is used as an example because it has a similar policy around state ID cards.
Alec Shelbrooke
The hon. Lady said that identity cards do not exist in this country, but of course the information from the Netherlands also refers to the fact that a driving licence or passport is also acceptable.
Patrick Grady
I just want to expand slightly on the point I made in my intervention. If the opposition to the use of poll cards in the discussion on the previous amendment was because of the risk of harvesting and the lack of verification to go with the issuing of a poll card to ensure it matches the person who is carrying it, I do not see how that argument can be applied to the forms of identification listed in the amendment from the Labour party. All those require some form of external verification and, in many cases, someone else to verify the identity and the physical appearance of the person being identified in the document in question—unless there is evidence that we have not heard during our discussions: about the mass forgery of birth certificates, marriage certificates, paper driving licences or adoption certificates.
In fact, in many cases the forgery of such documents is already a crime, so if someone were to try to impersonate another voter by producing a forged or stolen birth certificate, they would be guilty of two crimes: personation under the existing electoral registration measures and forging important documents.
Perhaps the Minister and hon. Members who oppose the amendment are starting to question the integrity of all the organisations listed in the amendment who issue these forms of identification, such as banks and building societies who issue mortgage statements.
Aaron Bell
I thank the hon. Member for acknowledging the force of our arguments on the previous amendment, which of course he voted for. Is it not the case that people could still vote for others in their own household? That is of concern to Government Members. For example, if someone knew that their son would not vote, they could happily take one of those identity documents with them—they have no photos on them—and present themselves at the polling station. Without that check from photographic identification, security is still threatened.
Patrick Grady
I am sorry—they absolutely could not. First, I do not accept the force of the previous argument, although I accept the Committee’s decision to reject the amendment. Secondly, there is no way that someone from the same household could turn up because, by definition, they would be voting at the same polling station with the same polling clerks and with the same party candidates and activists standing outside. If one person turned up with two birth certificates, utility bills or whatever, that would be a clear case of personation. I have sufficient confidence in the integrity of our current system to trust the poll clerks on duty in a station to identify that same person from the same household trying to vote on behalf of two people.
I find it slightly ironic that my parliamentary pass, issued to me by the House of Commons on account of my being elected three times by the electors of Glasgow North, lets me get on a plane, and I can cast votes on legislation with it, but I do not think it is good enough to vote in a general election under the Bill. I am therefore happy to support the Labour party’s amendments.
Fleur Anderson
We would like to press the group of amendments to a vote, if it is possible to vote for them together.
Fleur Anderson
I would like to press amendment 56, then. I have nothing further to add, but I beg to ask leave to withdraw amendment 55.
Amendment, by leave, withdrawn.
Amendment proposed: 56, in schedule 1, page 75, line 9, at end insert—
“(1HA) In this rule a “specified document” also means a valid bank or building society debit card or credit card.”—(Fleur Anderson.)
Fleur Anderson
I beg to move amendment 62, in schedule 1, page 82, line 4, at end insert—
“Reports on voter identification and turnout
35A The Secretary of State must prepare and publish reports on the effect of the voter identification requirements in this Schedule on turnout—
(a) across the electorate,
(b) in minority groups,
(c) among disabled people,
(d) among young people.
35B The Secretary of State must publish a report under paragraph (35B)—
(a) no later than 31 July each year, and
(b) in the 90 days following a general election.”
This is a highly reasonable amendment, which I hope will be supported. I also hope that all hon. Members would want to see the effects and outcomes of what the Bill does. The Secretary of State would be required to prepare and publish reports in a timely fashion on the effect of voter identification requirements in the schedule—in particular those where civil society groups have raised a large amount of concern—so that we can learn the effect of the measures in real time. The amendment would not undermine the fundamentals of the Bill; it just says, “We should report on it and learn from it in a timely fashion.” I hope that it will be accepted.
Kemi Badenoch
We believe that the amendment is unnecessary. The Bill already outlines that there must be three evaluations of the effect of a requirement to show identification on voting, and those will consider the effect of the new policy on electors’ applications for a ballot paper. Committing to further evaluations annually and in perpetuity would be disproportionate and an inappropriate use of taxpayers’ money.
The Government will consider how best to gather information relating to the impact of the policy on all parts of the electorate. Although some data will be collected at polling stations under new rule 40B, and used for evaluations, it is important to note that it would be inappropriate to collect information on protected characteristics at the polling station directly. Electors would not expect to have to answer questions about their race, sexual orientation or gender identity before receiving their ballot and might not feel comfortable doing so. We will consider how best to gather that information without such intrusion.
Patrick Grady
This is a very reasonable request from the Opposition. One of the most robust evidence sessions we had was when we discussed the impact of the Bill on minority groups and people with protected characteristics. I would have thought it would be in the Government’s interests to try to gather evidence to show the minimal impact—or indeed the positive impact—they expect the Bill and the requirement to show voter identification at the polls will have on those groups.
The Labour party makes a perfectly reasonable request. As the Minister said, there is already a certain amount of evaluation built into the Bill; an additional round of evaluation is not going to cause too much difficulty. No one is suggesting that people should be quizzed before the ballot box. There are perfectly acceptable and valid ways to conduct research, at academic or Government level, without having to put people under pressure at the moment they are carrying out their votes. We have seen some of that research already, as some of it was commissioned to help inform the Bill. The Opposition are entitled to make the points they have and can expect our support if they push the matter to a vote.
Fleur Anderson
This is the third Public Bill Committee I have taken part in, and no amendment has yet been accepted. I tabled 200 amendments to the Environment Bill. Hoping against hope, even when I stood up for the last time to speak to the 200th amendment, I thought that might be the one to be accepted. What is the point of sitting in Committee, going through a Bill line by line, for the Minister to say, “Don’t worry—we are going to look into this”?
There are ways to find out the impact on different parts of the electorate. There are definitely ways to find out the impact very quickly after an election, so that we can learn as we go on and prepare for the next election. I am very disappointed that this measure will not be taken up. It leaves the electorate wondering what the Government have to hide.
The Chair
I have been attending these Committees for 38 years and no Government, Labour or Conservative, have ever accepted any amendment.
Question put, That the amendment be made.
The Chair
We have now disposed of all the amendments to schedule 1. Unless a Member indicates to me that they wish to make detailed points on schedule 1 that have not been covered in the debate so far, I propose to put the question that schedule 1 be the first schedule of the Bill.
Schedule 1 agreed to.
Clause 2
Restriction of period for which person can apply for postal vote
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider that schedule 2 be the Second schedule to the Bill.
Kemi Badenoch
Clause 2 is essential to strengthen and improve the current security of the postal ballot. The clause, and associated schedule 2, will require postal voters in Great Britain to make a fresh postal vote application after a maximum of three years of being registered as a postal voter if they want to continue to vote by post at future elections. That is one of a number of measures in the Bill that implement recommendations in the 2016 Pickles report into electoral fraud, and it is needed to address documented weaknesses in the current absent voting arrangements.
The Electoral Commission’s winter tracker for 2021 found that one in five people considers postal voting to be unsafe, and the witnesses who gave evidence to this Committee also highlighted that absent voting can be particularly subject to fraud and abuse. Currently, an elector may have a postal vote on an indefinite basis as long as they provide a signature sample every five years. Requiring an elector to reapply for a postal vote at least every three years will enable the electoral registration officer regularly to assess their application and confirm that they are still an eligible elector. The measure will also ensure that electors’ details are kept up to date and reduce the waste and cost of postal votes being sent to out-of-date addresses, where they may also be vulnerable to fraudulent abuse.
By requiring each postal voter’s signature to be refreshed more frequently, we will also reduce the likelihood of a postal vote being rejected because of the elector’s handwriting changing over time. Further, asking that electors confirm their preferred arrangements at least once during the life of a Parliament provides an opportunity for someone who may have been initially convinced or coerced into having a postal vote to break out of that situation and protect their vote from being stolen.
Existing long-term postal voters will benefit from the transitional provisions in the Bill that allow them to maintain their preferred voting arrangement, and they will have advance notice of the change so that they can prepare ahead of the deadline. Electoral registration officers will be required to send a reminder to existing postal voters in advance of the date that they will cease to have a postal vote and to provide information on how to reapply.
Schedule 2 also provides for postal vote registrations for the maximum period to cease on 31 January in the year in question, which will give electors time to apply for a fresh postal vote ahead of scheduled elections in May that year if they wish to vote by post. For overseas electors, we are aligning the maximum period for which they may hold a postal vote with their registration cycle, and have extended that period so that it may also not exceed three years.
Those safeguards will not only protect against the abuse of postal voting but also, I hope, raise the level of confidence in absent voting so that no one has to feel concerned that their vote could be stolen or abused.
Fleur Anderson
We will vote to remove the requirement for the reapplication for postal voting every three years and return to the status quo of postal votes lasting an indefinite period, because we believe that the requirement is disproportionate, costly and confusing. We strongly oppose moves to force those using a postal vote to reapply.
Clause 2 is another Government provision that has left me scratching my head and very concerned. These pointless changes will make the process of voting more complex and bureaucratic, forcing lifetime postal voters to reapply every three years. The Minister may think that mandating re-registration every three years is making our electoral system more secure from postal vote fraud, but that is mistaken and based on flawed assumptions about where postal vote fraud is happening. It is at variance from what we heard in evidence.
In evidence, we heard about the highly concerning case of postal vote fraud in the 2004 local elections in Birmingham. However, the main concerns raised by the commissioner included the deadline for postal voting packs being close to the election—six working days before—and the lack of checks on whether applications were made by the named voter, which made it difficult to detect fraud. Clause 2 does not address that.
Following that case, the Electoral Commission made a number of recommendations, including using personal identifiers for postal votes, moving the deadline for applications from six to 11 working days before polling day and making falsely applying for a postal vote an offence. The Electoral Administration Act 2006 was passed by the Labour Government in response to criticisms and has addressed a number of those concerns already, including a system of personal identifiers for postal ballots. What is the evidence that clause 2 will address the postal fraud that has been identified in the cases about which we have heard? The measure is not based on good evidence.
The second thing we are deeply concerned about is that the changes will reduce flexibility for voters and risk imposing yet another barrier to voting, which damages our democracy. Ministers should direct their energy towards changes that make voting easier, not putting up barriers. The change will suppress voting and erase the positive improvement in postal voting seen during the pandemic. It is unnecessarily bureaucratic.
We have seen a gradual rise in the use of postal voting over recent years, as an easy and flexible alternative for those who prefer not to visit the polls in person, even more so during the pandemic. In 2001, 1.8 million postal votes were issued; in 2012, 6.3 million; and at the last general election in 2019, 7.3 million postal votes were issued. As has been mentioned, in his review, Lord Pickles concluded that
“the availability of postal voting encourages many legitimate electors to use their vote effectively”.
But forcing people to keep reregistering so frequently—too frequently—could risk disenfranchising people who are not aware until it is too late that the rules are changing and that they need to reapply for their postal vote, when they have only had to do it once before. Changing the rules is confusing.
We oppose moves to change the law to limit who can hand in postal votes at polling stations. That change could create barriers for some voters who genuinely need assistance. My other concern is the sheer cost; as we mentioned, the Cabinet Office’s own impact assessment published with the Bill estimates the cost of the new requirement for postal voters to register every three years rather than five at between £6 million and £15 million. This will cost millions of pounds, and do we even need it? That estimate is in addition to existing costs and is based just on the cost of sending out the additional letters, let alone the extra administration and advertising costs. Can the Minister explain how she will pay for those additional costs?
There is also a capacity issue for local councils. It will inevitably prove hugely burdensome on local authority election teams, who are already overburdened and under-resourced. The Association of Electoral Administrators agrees with that assessment. It believes that reapplying for a postal vote every three years rather than five will bring an “additional burden to Electoral Registration Officers, creating more regular peaks of demand.”
There is the confusion between different election systems in the devolved nations Currently, neither Scotland nor Wales has diverged from existing legislation on postal voting. Postal votes on demand are available indefinitely, as they currently are in England, and signature refreshes are also required every five years. If the current measures in the Bill are approved, a complex, messy system of divergent requirements for different sets of elections will be created. I cannot imagine having to explain that multiple times on the doorstep, and for councils to have to explain that: one local election will be like this, but a general election will be like that. It will be very confusing.
Confusion stops people voting and gets in the way of our democracy. For instance, someone who has chosen to vote by post permanently in Scotland and Wales will be required to reapply every three years for their postal votes for the UK parliamentary elections, and will also separately be required to refresh their signature for postal votes in devolved elections every five years. It will create a huge administrative and bureaucratic nightmare that will be highly confusing for voters, who do not look in as much detail as we do at postal votes and when to sign for them and apply for them. I have yet to hear the Minister’s solution to that, and I hope to hear it now.
The clauses are pointless and arbitrary; they will not achieve what the Government is setting out to achieve. As usual in the Bill, they are disproportionate. There is very little evidence that they are necessary. They will hit the already disenfranchised the hardest. They will cost the taxpayer millions of pounds, pile the pressure on our already overstretched electoral staff and conflict with the frontline service delivery of our local councils. I urge colleagues not to let the clauses stand.
Patrick Grady
I will echo many of the hon. Lady’s points. The renewal of a postal vote comes up on an annual basis when the check of who is registered at the household comes through the post. It indicates whether electors are postal voters. If they wanted to change at that point, the opportunity would be there. But the Bill is putting on a separate new requirement. When a voter moves house, a fresh check is done—I know that from recent personal experience. When a voter moves house, they are asked to reapply for a postal vote at their new address.
The move to expand postal voting over the years has undoubtedly helped to increase turnout and participation. The Labour spokesperson explained that, where there have been difficulties, measures have been taken to stop them. That is not an argument to make it more difficult in general for people to apply for and exercise the right to vote by post.
The point about the risk of procedural complication is particularly acute. There is an interesting question about why the renewal has been set for every three years rather than every two, four or five years. Maybe the Minister can explain the evidence base for that when summing up, because that would help to align it with the parliamentary cycle of elections, although there is no cycle of elections at the moment—they are just happening on an almost annual basis. The effect of that is the real risk of someone who thinks they are registered for a postal vote actually being caught out because their postal vote expires while they are away for whatever reason has already inspired them to apply for a postal vote. They may then find that yet another snap election has been called and they are left effectively disenfranchised.
I echo the point about divergence across the United Kingdom. My hon. Friend the Member for Argyll and Bute and I have no problem with divergence. We have a solution to people in Scotland getting confused about voting in Westminster elections, which is to stop that from happening and for Scotland to be an independent country. If Members on the other side of the House and indeed our good friends on the Labour Front Bench do not want that to happen, perhaps they need to think about the divergence and different franchises that are being established across the United Kingdom, and about the different voting systems and the increase in differences. Quite how that makes a case for a strong and stable Union—well, it is not a case for me to make. We fully support the Labour party in opposing this clause and I look forward to hearing how the Minister responds to the points.
Paul Bristow
In response to some of the points made by the hon. Member for Putney, I would argue that this change is perfectly reasonable. If someone is trying to renew something as precious as their postal vote, it is perfectly reasonable to be asked to do that every three years. As it happens, I personally think it should be done every year. Households have to renew who is on the electoral register every year. It is not that much of a leap to apply yearly for something as precious as a postal vote. This is a perfectly reasonable request.
I would like to draw Members’ attention to the evidence we heard from the chief executive of Peterborough City Council. It was argued earlier that some of the restrictions about who could hand in postal votes to a polling station were unreasonable. I would ask, what is reasonable about people walking up to polling stations, indeed to the town hall the night before, with plastic bags full of postal votes?
Cat Smith
I thought I might help out the hon. Gentleman, because I think he might be straying into the next schedule to the Bill. The hon. Gentleman said that he thought that he would like to see postal votes renewed every year. Why did he not table an amendment to the Bill on that?
Paul Bristow
Because we have to start somewhere. As a start, considering the evidence and arguments we have had, renewing every three years is a perfectly reasonable thing to ask someone to do. We should look at what happens after three years and maybe in the future we can see where we are. It is perfectly reasonable to ask someone to apply for something as precious as a postal vote every three years. We have talked about how important the privilege of voting is. If it is important, it is perfectly reasonable to fill out a form every three years. Evidence from my constituency suggests that we have wards in Peterborough that are twice as high as the national average for registered postal votes. I am not saying that that is done for any particularly nefarious reason, but clearly considerable postal vote harvesting and postal vote recruitment have been seen in Peterborough.
Jerome Mayhew (Broadland) (Con)
Does my hon. Friend recall the reasons Lord Pickles gave in his 2016 report in favour of this measure? He said, first, that it
“would provide an opportunity for up-to-date checking of the application against other data at the local authority,”
secondly, that
“it would help to reduce scope for redundant postal votes to continue to go to an address which the elector has left”,
and, thirdly,
“it also provides anyone with a postal vote who feels they are subject to coercion or undue influence with an opportunity to cease having a remote vote.”
Does he agree that the third of those reasons is the most important?
Paul Bristow
I absolutely do. The evidence comes from Peterborough, Tower Hamlets and many other parts of the country. It is not isolated to a handful of local authorities; it is much more widespread than Opposition Members would believe. A lot of the evidence we heard in Committee about fraud—Opposition Members have made this argument time and time again—was that the issue was postal votes. Here is an opportunity to try to do something about it, and I urge hon. Members to support this element of the Bill.
Kemi Badenoch
I will respond briefly to Opposition Members’ points, which can be summarised as, “This new measure is burdensome.” I thought it would be helpful to let the hon. Member for Putney know that any additional costs on local authorities or electoral returning officers relating to these measures would be covered under the new burdens doctrine. She also mentioned administrative burdens on devolved Administrations, and the answer to that is that they could easily align what they are doing with what we are doing if they felt it was overly burdensome on them.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Schedule 2 agreed to.
Clause 3
Handling of postal voting documents by political campaigners
Question proposed, That the clause stand part of the Bill.
Kemi Badenoch
Clause 3 introduces a new criminal offence and bans political campaigners from handling postal voting documents issued to others. This is designed to address activities and behaviour that have been a cause for concern at previous elections. The Pickles report into electoral fraud found that there had been episodes where party activists had used the ploy of canvassing or answering inquiries from voters about completing postal votes to collect or harvest the votes of other postal voters. There is a real risk that voters could be coerced into completing their postal voting statement before handing the ballot paper unmarked to campaigners to be taken away and filled in elsewhere.
The Pickles report also highlighted that concerns have been raised about party activists taking completed ballots and then choosing not to submit them if they are not completed in a way that suits the campaigner’s aims. Clearly, these are very concerning matters and show that there are weaknesses in the current arrangements that have been, and could be again, exploited by persons seeking to undermine the integrity of the electoral system. That is why the Government in their manifesto committed to stopping postal vote harvesting.
The Electoral Commission’s code of conduct for campaigners is clear that campaigners should never touch or handle anyone else’s postal ballot paper.
Kemi Badenoch
However, the code does not have legal force. We believe it is time to put it on a statutory footing, and make it a criminal offence for political campaigners to handle postal votes.
The clause sets out details of the postal vote handling offence and makes the offence a “corrupt practice”. Of course, it is perfectly reasonable that a political campaigner might, like many others, want to offer help to a family member, perhaps offering to drop their household’s completed ballots into the post box. This measure makes provision for that, creating exemptions to the offence where the handler is a listed family member or carer of the postal voter. We do not wish to deny legitimate support, but we must be clear, as the Bill is, that systematic collection of votes is unacceptable. This measure will strengthen the integrity of postal voting and give protection to postal voters from those who would seek to subvert the postal voting process.
Cat Smith
The official Opposition rise to support that clause 3 stand part of the Bill. Indeed, the advice given by the Electoral Commission is also issued by the Labour party to our own activists, in terms of the rules by which we guide our canvassers, campaigners and candidates not to handle postal vote documents from electors when out canvassing. Fraudulently applying or tampering with or using someone else’s vote—postal vote personation—is already a criminal offence in electoral law; and a person convicted of personation or postal voting offences, which are corrupt practices, can be disqualified from standing for and voting in elections for five years. This proposal is in line with the advice that we give our campaigners and activists already, so we will not oppose clause 3.
Patrick Grady
Again, I just want to echo the points made from the Labour Front Bench. This is advice that I think all of us identify as best practice. All of us want to ensure the integrity of the system when we are out and about canvassing our voters, and particularly on polling day, as regards the handling of postal voting documents. I just think it is interesting that we can find points of consensus, and perhaps as we go through the Bill we will find some others. It slightly speaks to points that were raised in evidence and on Second Reading about the need for a far more far-reaching and comprehensive review of electoral legislation, and that is precisely the kind of thing that might have been achieved by more effective prelegislative scrutiny—by a draft Bill and a draft Bill Committee that would have heard from a wide range of stakeholders, that would have taken place over a longer period and that would really have come up with the comprehensive electoral legislation reform for which we have heard there is a need. We all welcome this provision, and we want to see this particular clause proceed, but it is a pity that it is couched among so many other things that we find objectionable and will continue to object to.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Handing in postal voting documents
Cat Smith
I beg to move amendment 69, in clause 4, page 8, line 27, at end insert—
“(6) The Secretary of State may not make any regulations using powers under this section unless they have first undertaken a public consultation on a draft of those regulations for a period of not shorter than 28 days.”
This amendment would require the Secretary of State to conduct a public consultation for at least 28 days before making regulations by virtue of Clause 4 of the Bill.
Cat Smith
Clause 4 is about the handing in of postal vote documents—not necessarily by party political campaigners, but by anyone. It is about setting out requirements for the handing in of postal votes to the returning officer and at polling stations, including setting a limit on the number of postal voters on behalf of whom a person may hand in postal votes, and postal votes being rejected if not handed in in accordance with the requirements.
The new rules could create barriers for some voters who genuinely need assistance. For example, the new rules will limit, perhaps, care home staff being able to hand in, say, a dozen postal votes from residents in the care home. This leaves us in the bizarre situation whereby a care home worker could drop a dozen postal votes into a postbox but not hand them in at a polling station, so I raise that as a potential loophole with the Minister. There is something of an inconsistency. As has just been said by the SNP spokesperson, the hon. Member for Glasgow North, perhaps some level of prelegislative scrutiny with a draft Bill could have allowed us to look at ways to deal with such matters. Given that we can find consensus on many issues in relation to elections, we might have been able to iron some of these matters out before we ended up in Committee.
Let me deal with amendment 69. In its current form, the Bill, as I have just set out, contains numerous holes. Our amendment asks the Government to provide draft regulation that would include greater detail about exactly how the new limit would be enforced, and I would like to put a few questions to the Minister. Could she outline whether polling station staff will be asked to enforce the new limit, and if so, how? What level of training does she envisage polling staff will receive in order to be able to, potentially, enforce this legislation?
Paul Bristow
I want to repeat the point that I probably made rather presumptuously in my previous remarks. I want to know what the hon. Lady’s thoughts are on the evidence proposed by Gillian Beasley, the chief executive of Peterborough City Council, when she described a practice of people turning up with plastic bags full of postal votes either at polling stations or at the town hall the night before the election. I want to know whether she thinks that a reasonable practice.
Cat Smith
That is exactly why prelegislative scrutiny would have been useful. This is about the distinction between political campaigners and voters. There are legitimate reasons why some voters may wish to hand in more than two postal votes at a polling station.
I gave the example of a care home, but equally, in the current context of covid, a family of three may not have posted their postal votes and ask neighbour to deliver them. If two postal votes can be handed in by an individual but three postal votes cannot, and someone turns up with three, how do we know if that third postal vote is an individual postal vote? There are various holes in the legislation. I am putting these questions to the Minister and I hope she will be able to answer them.
For example, with the limit of two postal votes, if someone were to turn up at a polling station with three postal votes to hand in, and they are able to hand in two for other people and one for themselves, how do we know which is which, given that when they are sealed there is no way of identifying whose votes they are? If the person says, “That one is mine. That is my postal vote so I can legitimately hand that in, and these are the two that I can legitimately hand in,” how would a polling clerk know that those were two postal votes that were being handed in on behalf of other people and one that was for that individual, if the envelopes are sealed and there is no way of identifying them? Can the Minister clarify how she envisages a polling clerk can make that assessment?
According to the explanatory notes accompanying the Bill,
“regulations may require a person seeking to hand in a postal voting document to complete a form containing specific information, which the government anticipates would include, among other information, the name(s) of the postal voter(s) whose ballot papers are being handed in. Regulations may make provision to require the “relevant officer” receiving the ballot to reject the document if the person fails to complete the form.”
The Minister will know that, once completed, a postal vote does not have a person’s name on the front of the envelope, for obvious reasons to do with the secrecy of the ballot. How does the Minister see this being enforced or policed? It would be impossible to know if the postal vote being handed in actually belongs to the person recorded on the form.
I leave the Minister with those questions. It would be helpful to have some clarification on these matters, in terms of how the Committee might progress and whether or not to accept this clause as part of the Bill. I draw the distinction between political campaigners, whose actions were the subject of the clause we previously debated and who I believe should be held to rights, and members of the general public, who might be handing in postal votes on behalf of a neighbour or family member, or be a care home worker handing in ballots on behalf of residents of a care home.
Kemi Badenoch
Amendment 69 would require the Secretary of State to conduct a public consultation for at least 28 days before making regulations under the provisions in clause 4 of the Bill. The Government will not be accepting the amendment as we believe it would impose an unnecessary administrative burden.
The Government will be required to consult the Electoral Commission on any regulations made under this clause, followed by parliamentary scrutiny under the affirmative SI procedure, which answers the hon. Lady’s question about further detail. We have had a similar conversation in earlier Bill Committees, but Parliament would naturally want to ensure that any future changes are appropriate and based on contemporary evidence.
We have been working with the Electoral Commission and electoral stakeholders on the issue of handing in postal votes while developing the legislation. We will continue to consider their inputs, and the needs of voters, in the development of the regulations. With the example that the hon. Lady gave about care homes, I do not believe that that is a loophole. Just as we said earlier in terms of political campaigning, we recognise that there are exceptions, and a carer in a care home would fall into that.
The measures in the Bill to tighten up the current arrangements concerning the handling and handing in of postal votes flow from the report by Sir Eric Pickles into his review of electoral fraud. That review took into account views from a range of persons, including academics and policy-makers; electoral administrators and political parties; and people who have found themselves impacted by real examples of fraud. The review’s findings were informed by a wide range of views. Given that, the Government are not able to accept the amendment.
Patrick Grady
I would, Sir Edward, seeing as I have been so kindly invited to. Conservative Members are clearly enjoying this riveting debate and it is great to see them engaging with such force and alacrity, as someone used to say. We agree with the points made by the Labour Front Bench. There is a legitimate difference to be made between political operatives such as ourselves, who are trained—or at least ought to be trained—in the process of going out and canvassing and handling electoral documents, and the wider public, who perhaps need to understand a little bit more about the detail.
Aaron Bell
I have been provoked by the hon. Member for Glasgow North to show some more support from the Government side for the clause. Before I do so, I would like to briefly pay my own tribute to Sir David Amess. The first general election I was able to stay up late for the results for was 1992. I did not fully understand the concept of a bellwether seat and all the rest of it, but we were all talking about Basildon for the first hour or so before the result came in, and when it did, we saw his million-watt smile. Twenty-seven years later, when I found myself in this place, that smile was still as bright as ever.
We have lost two very dedicated public servants in Sir David Amess and James Brokenshire. They gave decades of public service to this place and their constituents. What I would say about both of them is that it was always service with a smile.
I welcome the clause. It is a proportionate response to the cases we have seen and the evidence we have heard. My hon. Friend the Member for Peterborough referred to cases in his constituency. We heard from Peter Golds about what went on in Tower Hamlets. I wholeheartedly agree with the Minister on why the amendment is unnecessary. I will leave it there—to be honest, the hon. Member for Glasgow North just provoked me a little bit. As ever, I think the Government have considered the issue properly. I have listened to the Opposition’s points on prelegislative scrutiny, but the clause is very detailed and the Government have considered all the points that need to be addressed. For that reason, I support it.
The Chair
It might be a convenient moment for the Minister to make her clause stand part speech now.
Kemi Badenoch
Thank you, Sir Edward. Clause 4 concerns the handing in of postal ballot papers at elections. The clause is closely linked to clause 3, which introduces the new offence banning political campaigners from handling postal votes issued to other persons. Together, these measures address concerns about the harvesting of postal votes and individuals handing in large numbers of postal votes, and reduce opportunities for votes to be stolen.
It will still be permitted for people who are not campaigners to handle and hand in postal voting documents issued to others. However, we believe that it is important to ensure that the arrangements in place governing that process are robust and support the integrity of postal voting. The clause therefore seeks to tighten up the current arrangements concerning the handing in of postal votes. It does so by introducing powers to allow regulations to be made that set out requirements for the handing in of postal votes at elections to returning officers across the UK and at polling stations in Great Britain. That includes setting a limit on the number of postal voters on behalf of whom a person may hand in postal votes, and requiring postal votes to be rejected if not handed in in accordance with the requirements.
We currently envisage that in addition to their own postal vote, an individual will be able to hand in the postal votes of up to two electors, but that will be considered during the process of developing secondary legislation, which I hope the hon. Member for Lancaster and Fleetwood will be most interested in and will contribute to.
I note that currently there is no requirement for a record to be kept of persons who have handed in postal votes or of whom those votes belong to. The clause will allow regulations to require persons handing in postal votes to complete a form giving these details, which will help promote compliance with the new requirements and with investigations of allegations of fraud.
It is right that these reasonable limits are introduced on the handing in of postal votes to ensure that the integrity of postal voting is safeguarded. The clause, and the postal vote handling measure in clause 3, are aimed at addressing activities and behaviour that have been cause for concern at past elections. They will give greater confidence in the integrity of the process by preventing an individual from collecting and handing in unlimited numbers of postal votes on polling day to returning officers at polling stations across Great Britain or at the Electoral Office in Northern Ireland.
Cat Smith
I am glad that the Minister has raised the issue that I will almost certainly be spending many more hours of my life in a Committee Room ironing out how this stuff works in secondary legislation. My frustration is that so much is not on the face of the Bill and will be decided in secondary legislation in Committee corridors, which, as you, Sir Edward, and members of the Committee have pointed out, does not have the same level of scrutiny as it does on the Floor of the House. Indeed, it is very unusual—I do not think it has ever happened—that an Opposition have amended a piece of legislation in an SI Committee or a Bill Committee and it has been accepted by the Government. It seems somewhat reckless to be legislating on the strength of the Bill as it stands, because it does not have the level of detail that we will clearly need.
I am minded to press my amendment to a vote. Picking up on what the Minister said in her opening remarks about its being an unnecessary administrative burden, there is a huge administrative burden on our electoral officials up and down the country, and the Bill will heap a whole load more tasks on electoral returning officers and registration officers in town halls across the country. In the last five years there has been one piece of legislation after another, putting more and more administrative burdens on electoral returning officers.
I think it is fair to say that our local authorities have had their belts tightened. They have had austerity and cuts, and we are asking fewer and fewer people to do more and more. I want to flag my concerns that electoral administrators are under a lot of pressure and that the Bill is putting additional pressure on them. While it is slightly beyond the scope of my amendment, I will be cheeky and say that the Government really need to look at how we resource local authorities as well.
Question put, That the amendment be made.
The Chair
With this it will be convenient to consider that schedule 3 be the Third schedule to the Bill.
Kemi Badenoch
The purpose of the clause and associated schedule 3 is to strength the current arrangements for proxy voting. Currently, someone can act as a proxy for up to two electors and an unlimited number of close relatives in any constituency in a parliamentary election or any electoral area at a local election. That can give rise to situations where an individual can harvest and cast many proxy votes over which they may have inappropriate influence. It may lead to someone being coerced into appointing a proxy who could then effectively steal their vote.
The Bill introduces a new limit of four on the total number of electors for whom a person may act as proxy in UK Parliament elections or local government elections in England. Within this figure of four, no more than two may be domestic electors—that is, electors who are not overseas electors nor service voters. All four may be overseas electors or service voters.
The approach will tighten up the rules on proxy voting while also providing appropriate support for overseas electors and service voters wishing to appoint a proxy. It will be an offence for an elector to appoint a proxy knowing that the person they are selecting as proxy is already appointed as a proxy for the permitted number of electors. An appointed proxy will also be guilty of an offence if they vote as proxy for more than the permitted number of electors.
Of course, these provisions have been developed to ensure that there are no gaps for those already voting by proxy. Under the Bill, there will be transitional provisions for existing proxy voters, so that they will have advance notice of the change. The current proxy voting rules will continue until a date to be specified in secondary legislation. At that point, electors wanting to continue with a proxy vote arrangement will need to reapply for a proxy vote under the new rules. Electoral registration officers will be required to send a reminder to existing proxy voters in advance of the date they cease to have a proxy vote, and to provide information on how to reapply for a proxy vote.
The Bill will also amend the eligibility requirements to act as a proxy at elections in Northern Ireland by providing that a person must be registered in a register of electors to be eligible to act as proxy. Currently, a proxy is not required to be registered but must meet age and nationality requirements. That will bring elections in Northern Ireland in line with proxy eligibility in Great Britain.
The measures will reduce the risk of fraud and reassure voters that appropriate safeguards are in place to protect the integrity and fairness of the proxy voter system. The clause will prevent an individual from casting a potentially unlimited number of proxy votes, over which they could have inappropriate influence.
Patrick Grady
I have a couple of questions. The Minister said that it will be an offence if a person knowingly asks to be their proxy someone who already holds the maximum number of proxy votes. How on earth will that be determined? Is there any risk of people being prosecuted when they have, in good faith, asked someone who, whether on purpose or accidentally, is acting in bad faith by securing more proxy votes than the statute allows?
Where did the figure of four come from? Why not three? Why not five? Why not some other figure? What research has the Minister’s Department carried out to determine that four is the optimal and safely manageable number of proxy votes? Is there any evidence that if someone has four proxy votes, they are probably not carrying out personation or any other kind of voter fraud, but if they have five, there is clearly criminal intent, and they must be punished to the full standard of the legislation?
We accept that there is a certain issue around the management of proxy votes, as we heard in evidence, but we need from the Minister a robust defence of the necessity for the provisions. I look forward to hearing that before we determine whether the clause should stand part.
The Chair
Debates would be a lot shorter if Ministers always said that.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Schedule 3 agreed to.
Ordered, That the debate be now adjourned.—(Rebecca Harris.)
Nationality and Borders Bill (Sixth sitting)
Tuesday 19th October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 October 2021 - (19 Oct 2021)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 7 - Question accordingly agreed to.
The Chair
There may be a vote in the Chamber this afternoon. If there is a Division, we will suspend for 15 minutes.
Clause 2
Historical inability of unmarried fathers to transmit citizenship
Question (this day) again proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
I will continue my remarks from the point at which I left off. One of the general criteria is that the person has not previously been a British overseas territories citizen. The registration provisions are intended to cover those who missed out on becoming a citizen by virtue of the fact that their parents were not married; they will not benefit those who acquired BOTC status in some other way and subsequently renounced or were deprived of that status.
The provisions created by this clause are detailed, as we need to cater for changes over time to British nationality legislation. It may help if I summarise who is covered by each provision. Proposed new section 17C of the British Nationality Act 1981 will apply to those who would have been entitled to be registered as a BOTC under the 1981 Act if their mother had been married to their natural father at the time of their birth. It allows the Home Secretary to waive the need for parental consent where that would normally be required. A good character requirement must be met if there is one for the provision that the person could have applied under had their parents been married.
Proposed new section 17D of the 1981 Act will apply to those who would automatically have become a British dependent territories citizen or BOTC at birth under the 1981 Act had their mother been married to their natural father at the time of their birth. Both parents must consent to a child under 18 making an application for registration, but this requirement can be waived where one parent has died, or in special circumstances.
Proposed new section 17E is for those who were citizens of the United Kingdom and colonies immediately before the 1981 Act came into force, and who would automatically have become a British dependent territories citizen, and then a BOTC under the 1981 Act, had their mother been married to their natural father at the time of their birth.
Proposed new section 17F covers three groups. The first is those who were British subjects or citizens of the UK and colonies by virtue of birth in a former colony, and who would not have lost that status on that country’s independence if their parents had been married. The second group is those who were British subjects before 1 January 1949 and would have become citizens of the UK and colonies on that date if their parents had been married. This would affect, for example, a person born in Canada whose father was born in Bermuda, and who would have become a citizen of the UK and colonies by descent if their parents were married. The third group are those who did not acquire British subject status, or citizenship of the UK and colonies, but who would have done if their parents were married. For example, this would affect a person born in the USA to a father born in Montserrat.
Clause 2 also sets out when a person registered under these provisions will acquire BOTC by descent or otherwise than by descent. A person who holds that status by descent will not normally be able to pass it on to a child born outside the territories. Our intention here is to give the person the status they would have received had their parents been married. Home Office officials are working with territories to develop the process for these applications. As was the case with clause 1, we think that registration is the right route, rather than automatic acquisition, to allow people to make a conscious choice about acquiring British nationality.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
If a married couple has a child, the assumption is made that the man is the biological father, even though anyone who has seen “The Jeremy Kyle Show” will know that that is not always the case. If a couple is living together when a child is born, will DNA evidence be required in some or any cases, or will it be assumed that the man is the biological father?
Tom Pursglove
I am grateful to my right hon. Friend for that question. I will take it away and write to him on that point.
As I mentioned in relation to clause 1, we will also create a route for people who become BOTCs to additionally become British citizens.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Sections 1 and 2: related British citizenship
Tom Pursglove
I beg to move amendment 59, in clause 3, page 8, line 17, leave out “under this section” and insert “on an application under subsection (1)(a)”.
This amendment means that the requirement in s.4K(3), that a person is registered as a BOTC, only applies to applications under subsection (1)(a). It is not needed for applications under subsection (1)(b), which are made by persons who are already BOTCs, and as previously drafted could have prevented registration of persons naturalised as BOTCs rather than registered.
Tom Pursglove
The amendment remedies a drafting issue. The clause as a whole creates a route to register as a British citizen for people who have registered as a British overseas territories citizen under the new routes introduced by clauses 1 and 2. The British Overseas Territories Act 2002 made BOTCs British citizens as well, so it is right that we allow those who missed out on British overseas territories citizenship to become British citizens as well. However, we also want to cover those who have already taken steps to become a British overseas territories citizen, such as through registration or naturalisation in a territory. The amendment introduces the wording of section 4K(3). As that section is currently worded, it means that only those who have been registered as a BOTC can register as British citizens using this clause. The amendment will mean that people who have naturalised as a BOTC will also qualify.
More broadly, on clause stand part, this is an important change aimed at giving British citizenship to those who become British overseas territories citizens under the provisions introduced by clauses 1 and 2. As we have heard, two groups missed out on becoming BOTCs because of anomalies in British nationality law: people born to BOTC mothers before 1983, and people born to unmarried fathers before 1 July 2006. Clauses 1 and 2 will correct this, giving them the opportunity to acquire the BOTC status that they should have had.
We also recognise, however, that changes to the law in 2002 mean that they should also have become British citizens. Under the British Overseas Territories Act 2002, on 21 May 2002 all British overseas territories citizens who had that citizenship by connection with a “qualifying territory” became British citizens. For children born in a qualifying territory after 21 May 2002, British citizenship is acquired automatically if either parent is a British citizen or settled in that territory. This means that this group have missed out on both BOTC and British citizenship, so we need to create a route for them to acquire both.
We recognise that some people who did not become BOTCs automatically may have already taken steps to acquire that status by applying for registration or naturalisation in a territory. Some may also have applied to become a British citizen under existing provisions, but for those who did not, this clause allows a person who would have become a British citizen, had women and unmarried fathers been able to pass on status at the time of their birth, to register as a British citizen if they are now a BOTC.
Home Office officials are working with territories to develop the process for these applications, including in respect of whether this can be a done as a “one-stop” approach, with a person being able to apply for BOTC and then also opt in to apply to be a British citizen at the same time.
We regularly receive representations on this issue, from individuals and governors, and so understand the strength of feeling. We are aware of families where cousins have different statuses because women and men could not pass on citizenship in the same way, or because a child’s parents did not marry. Those in this position understandably feel that they have been unfairly prevented from holding a status that they should have acquired by birth. It is therefore important that we make this change, and I commend clause 3 to the Committee.
Bambos Charalambous (Enfield, Southgate) (Lab)
It is a pleasure to serve under your chairmanship, Ms McDonagh.
Opposition Members will not oppose amendment 59, and I will speak primarily to clause 3 stand part. The clause refers to the creation of the new statutory entitlement for British overseas territories citizens who have been affected by the injustices that we have heard about this morning in relation to clauses 1 and 2 to become citizens by registration. While all those with BOTC status additionally became British citizens in 2002, by virtue of section 3 of the British Overseas Territories Act 2002, we know of the loopholes that have existed due to the fact that women could not pass on citizenship, or because their parents were not married, and as a result many were unable to become British citizens under the 2002 Act. I am pleased that the Government are committing to new routes for adult children of British Overseas Territories Citizen parents to be registered as BOTCs and, in turn, as British citizens.
Clauses 1 to 3 would benefit people born to BOTC mothers and BOTC unmarried fathers who could not pass on citizenship to their child due to nationality laws at the time of the child’s birth, which, as we have heard this morning, is deeply unfair and is rightly being addressed in this legislation. Clause 3 creates a route to becoming a British citizen for people who registered as a BOTC under the new routes introduced by clauses 1 and 2.
However, we must also discuss the implementation of clauses 1 to 3. Accessibility is all-important and while we welcome the changes made to British nationality law outlined earlier today, I have concerns about rights being inaccessible, which we have seen time and again in the UK, with devastating consequences. If we take perhaps the clearest and most heartbreaking example of the Windrush scandal—one of the most shocking and contemptible episodes in the UK Government’s history—I am sure colleagues across the Committee will agree that the Windrush generation were treated shamefully after a lifetime of working hard, paying their taxes, bringing up their families and contributing to our society. They were left facing uncertainty about their legal status in the UK and lost access to their homes, jobs and healthcare, through no fault of their own.
As last year’s “Windrush Lessons Learned Review” highlights, changes made to British nationality law in the 1980s
“progressively impinged on the rights and status of the Windrush generation and their children without many of them realising it.”
Therefore, to avoid repeating the mistakes of the past, the rights that are to be established for British overseas territories citizenship must be accessible. The Home Office must provide assurances as to when and how these rights will be made public and widely publicised for those affected. I make the point around accessibility now as we discuss clause 3, and I hope we can return to it later on, as I believe it is very important.
Overall, the Opposition none the less support clause 3 as it provides the framework to tidy up inconsistencies in British nationality law and acknowledges those who have suffered under UK law due to loopholes outlined in clauses 1 and 2.
Amendment 59 agreed to.
Amendment proposed: 10, in clause 3, page 8, line 18, at end insert—
“(4) The Secretary of State must not charge a fee for the processing of applications under this section.”—(Stuart C. McDonald.)
This amendment would prevent the Secretary of State from charging a fee for British citizenship applications by certain British overseas territories citizens.
Question put, That the amendment be made.
Question negatived.
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4
Period for registration of person born outside the British overseas territories
Question proposed, That the clause stand part of the Bill.
Tom Pursglove
We have been clear that the nationality provisions within the Bill seek to tackle historical unfairness and inequality in British nationality law. As with earlier clauses, this legislation gives us the opportunity to amend provisions for British overseas territories citizens to mirror the comparable requirements already in place for British citizens.
Section 17(2) of the British Nationality Act 1981 provides a registration route for a child whose parent is a BOTC by descent where that parent had been in a territory for a continuous period of three years at some point before the child’s birth. At present, an application to register a child under this route must be made within 12 months of the child’s birth. However, the parallel provision for British citizens, section 3(2) of the 1981 Act, was amended in 2010, replacing the requirement for an application to register a child to be made within 12 months of the child’s birth, with a requirement for the application to be made while the child is a minor.
Clause 4 seeks to amend the BOTC registration route in the same way. Rather than requiring applications to be lodged within 12 months of the birth, the clause would allow an application to be made at any time before the child’s 18th birthday. Consequently, the provision for the Secretary of State to exercise discretion to extend the registration period from 12 months to six years in section 17(4) will be removed as it is no longer needed.
Entitlement remains limited to children with a particular parental and residential connection to the relevant territory. In line with the British citizenship route, we do not propose extending the route to adults. Other adults seeking to become BOTCs, such as by naturalisation, must demonstrate a personal connection with the territory and cannot rely merely on the residence of their parents, and we want to ensure that this amendment remains consistent with other existing provisions. The aim is to ensure fairness across British nationality law, not to create further discrepancies. Clause 4 will bring the provisions for BOTCs in line with those already in place for British citizens.
Bambos Charalambous
Clause 4 also refers to an additional aspect necessary to align British citizenship and British overseas territory citizenship. The clause removes a requirement that applications for registering a child as a BOTC must be made within 12 months of birth, amending section 17(2) of the 1981 Act. As the Committee will know, section 17(2) provides a registration route for a child whose parent is a BOTC by descent and had been in a territory for a continuous period of three years at some point before the child’s birth. At present, an application under this route must be made within 12 months of the child’s birth; however, the same provision for British citizens was extended throughout childhood with the Borders, Citizenship and Immigration Act 2009, which replaced the requirement for the application to be made within 12 months of the child’s birth with a requirement for the application to be made while the child is a minor.
Clause 4 amends the BOTC registration route in the same way, so the same extension from within 12 months of the child’s birth to throughout childhood is applied to BOTCs. The Opposition support this clause and would be interested to know how many people will be affected once clauses 1 to 4 have been implemented.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Disapplication of historical registration requirements
Question proposed, That the clause stand part of the Bill.
Tom Pursglove
This clause seeks to amend British nationality law to remove historical registration requirements and to reflect recent case law. As we have already heard, before 1983 women were unable to pass on British citizenship, and before 1 July 2006 unmarried fathers were unable to pass on citizenship. Under the previous legislation, the British Nationality Act 1948, citizenship could normally only be passed on to one generation of children born outside of the UK and colonies.
However, section 5(1)(b) of the 1948 Act permitted transmission through a father to a further generation if the child was born in a foreign country and their birth was registered within a year at a British consulate. The period could be extended at the Secretary of State’s discretion. An example of this might be where the child’s grandfather was born in the UK and their father was born in the United States of America: the child’s birth could be registered at the British consulate in the United States and they would have become a citizen of the United Kingdom and colonies as a result. However, a British mother or unmarried British father could not register their child’s birth at a consulate, because they were unable to pass on citizenship at that time.
There are already measures in place for people to register as a British citizen if they would have been able to acquire that status automatically if women and unmarried fathers had been able to pass on citizenship under the 1948 Act. This clause means that a person will not be prevented from registering under those provisions if the only reason they cannot qualify is that their parent was unable to register their birth at a consulate.
Bambos Charalambous
As we move through part 1 of the Bill, we turn to British citizenship in clause 5. This clause again seeks to correct historical problems in British nationality law concerning discrimination against women. The current statutory language has caused significant problems in implementation. Under the 1948 Act, citizenship could normally only be passed on for one generation to children born outside the UK and colonies, but section 5(1)(b) of the Act permitted it to be passed on to a further generation if the child was born in a foreign country and the birth was registered within a year at a British consulate. The child of the British mother or unmarried British father could not be registered because they were unable to pass on citizenship at the time.
British women, therefore, although able to inherit their fathers’ nationality when born abroad, have historically been denied the right to pass it on to their own children in the same circumstances. Although when it came into force on 1 January 1983 the British Nationality Act 1981 equalised the rights of men and women as regards the nationality of their children, it did nothing to remedy the discrimination against women that had persisted up to that point. That discrimination was demonstrated in the Supreme Court on 9 February 2018, in the Advocate General for Scotland v. Romein. Ms Romein was born in the USA in 1978 and her father was a US citizen. Her mother was born in South Africa to a Scottish mother and a Welsh father, from whom she inherited her British national status. Despite her family’s connections to the United Kingdom on both sides, as a result of the discrimination inherent in British nationality law—specifically, at that time, section 5 of the British Nationality Act 1948—she was unable to pass her British national status on to her own child, despite wishing to do so.
Clause 5 therefore amends eligibility requirements for registration under section 4C and 4I of the British Nationality Act 1981, to disapply the requirements for a birth to have been registered at a British consulate within 12 months. In effect, it will tidy up the language of British nationality legislation to make clear the Supreme Court’s judgment in Ms Romein’s case, which confirmed the right of British women to pass their nationality on to their children born abroad. The Opposition support the clause, which creates no new rights, but rather makes clear the existing rights in UK law. We welcome that.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Citizenship where mother married to someone other than natural father
Question proposed, That the clause stand part of the Bill.
Tom Pursglove
Picking up on the earlier question that the shadow Minister asked, I should say that my understanding when it comes to this amendment is that the clause will affect only a small number of people. But it is an area of law out of touch with modern society, so it is right that we should make this change.
The issue is that in British nationality law the mother’s husband is the child’s father, even if she has been separated from him for years and the child is not biologically related to her husband. That can create difficult cases—for example, when a child’s biological father is a British citizen, but their father for nationality purposes is the mother’s estranged non-British husband. The child misses out on British nationality as a result.
Generally, we think it is right that the mother’s husband should be treated as the child’s father for nationality purposes. The common law presumption is that a child born during a period of marriage is the child of the mother’s husband, unless shown otherwise. For nationality purposes, however, there should be certainty about a child’s status, which should not be subject to change at a later date if paternity is disputed. But we need a solution for the child whose father is not the mother’s husband, so that they do not miss out on becoming British through their natural father.
Until now, we have been registering such children as British citizens using the discretion that the Home Secretary has to register any child under the age of 18 under section 3(1) of the 1981 Act. We recognise that those children would have been British automatically were it not for their mother being married to someone else, so we made that a fee-free route last year.
However, the inconsistency has been highlighted by the courts. In the case of K, the court ruled that, although it was a correct interpretation of the legislation for the child not to be a British citizen automatically, the fact that the only remedy was through discretionary legislation was incompatible with the European convention on human rights.
We must take this opportunity to create a specific route for children in this position to be able to acquire British nationality. That is achievable by removing from existing registration provisions the requirement for children of unmarried fathers to have been born before 1 July 2006. People in this position may not see any practical difference, as they can currently make a fee-free application under section 3(1), but the important point is that the provision gives this group a legal entitlement to registration, rather than their having to rely on the exercise of discretion.
We are also using the clause to allow a child of a non-British member of the British armed forces to make an application to register as a British citizen, despite their mother being married to someone other than their biological father at the time of their birth. That will bring them in line with other children whose parents were serving overseas at the time of the birth.
Bambos Charalambous
It is deeply regrettable that British statutory law has long discriminated against children born out of wedlock, preventing British nationality from being derived from a British father if he was not married to the child’s mother. The British Nationality Act 1981, when first passed, did not correct that discrimination relating to British citizenship, but since then there have been various attempts to remove it. Those amendments have created rights to be registered as a British citizen for some of the people affected by that discrimination. However, no corresponding right has been introduced for people who would have become British overseas territory citizens. As we have seen, clause 2 is intended to correct this omission, and the Opposition support it.
However, clause 2 is not sufficient in itself to correct the discrimination relating to British citizenship; indeed, the relevant legislation has led to an anomaly. That anomaly, which is to be corrected by clause 6, which we also support, is that people who would have been born a British citizen but for their father not being married to their mother now have the right to be registered as a British citizen if they were born before 1 July 2006. That applies whether or not the mother was married to someone else at the time of the person’s birth.
However, people born on or after that date, who would similarly have been born a British citizen but were not because their father was not married to their mother, do not have a corresponding right. The courts have declared that discrimination to be incompatible with the Human Rights Act 1998. Clause 6 is intended to correct that injustice, and we therefore support it. It does so only for British citizenship. That is because the correction for British overseas territories citizenship is built into clause 2.
As has been said, our primary concern with clauses 1, 2, 3, 5 and 6 is not with the text or with the fundamental intentions behind them but with the fact that, when commenced, the rights that are to be established must be accessible. There are too many examples of British nationality rights being inaccessible. The Windrush scandal is but one especially painful relevant example.
The following matters are therefore crucial. We would like the Minister to give assurances as to how these rights will be made public and will be sufficiently widely publicised, not least because many of the beneficiaries will be in other territories or countries.
Ministers must equally give assurances that evidential and procedural obstacles will, to the fullest extent practical, be removed or reduced. Biometric registration and overseas and mandatory citizenship ceremonies, for example, must not be prohibitive to the exercise of these rights, as they have been in the past. Biometric registration must not be prohibitively expensive or inaccessible. Ceremonies can be waived, and that should be done where a person wishes to do that, or where a ceremony cannot be offered without undue cost or delay to the person being registered.
Where relevant information is available and can be confirmed by the Home Office or the Passport Office, that should be done. People must not be obstructed by unreasonable demands for evidence. It must be understood that, for some people, there may be considerable obstacles to securing evidence of their rights so many years after the original injustice—for example, due to age, somebody passing away, or separation, including by reason of abuse or violence. The Home Office or Passport Office must be as helpful as possible to facilitate the exercise of these rights.
In conclusion, we support the clause and the intention behind it, but it is of great importance that the Minister also ensures that these rights are fully accessible.
Tom Pursglove
Let me respond briefly to the point that has understandably and rightly been made. As I said in response to earlier clauses, there is a very constructive working relationship between the Home Office and the various overseas territories for which these provisions are relevant, as well as with the various governors. There is good engagement, and we are keen to see this information cascaded.
The point I would strongly make is that we are seeking through the provisions in the Bill to put right past injustices, and we would want this information to be as readily available as possible to people who may find themselves affected. The hon. Member for Enfield, Southgate has my undertaking that I will take that point away and monitor it very closely to ensure that that happens.
In the discussion on an earlier clause, my right hon. Friend the Member for Scarborough and Whitby showed an interest in relation to proof of paternity. In relation to this clause, regulations will set out what can be accepted as proof of paternity—first, being named before 10 September 2015 as the child’s father on the birth certificate issued within 12 months of the birth and, in all other cases, any evidence such as DNA test reports, court orders or birth certificates considered by the Secretary of State to establish paternity. I know that my right hon. Friend had an interest in that issue in relation to the earlier clause, but I thought that it would be useful to say something about it here as well.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Citizenship: registration in special cases
Bambos Charalambous
I beg to move amendment 35, in clause 7, page 9, line 36, at end insert—
‘(1A) In section 1 (acquisition by birth or adoption) subsection (5)—
(a) in paragraph (a), for “minor” substitute “person”; and
(b) after paragraph (b), for “that minor shall” substitute “that person or minor (as the case may be) shall”.’
This amendment seeks to bring British nationality law in line with adoption law in England and Wales. In those nations, an adoption order made by a court may be made where a child has reached the age of 18 but is not yet 19. Yet such an adoption order currently only confers British citizenship automatically where the person adopted is under 18 on the day the order is made.
The Chair
With this it will be convenient to discuss the following:
Amendment 13, in clause 7, page 9, line 40, leave out “may” and insert “must”.
This amendment would require the Secretary of State to approve applications for British citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.
Amendment 30, in clause 7, page 10, line 25, at end insert—
‘4M Acquisition by registration: equal treatment
(1) Where a person (P) is registered as a British citizen under subsection 4L(1), the Secretary of State must—
(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;
(b) amend or make policy or guidance in line with the registration of P;
(c) make that new or amended policy or guidance publicly available; and
(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.
(2) In each Parliamentary session, the Secretary of State must lay before Parliament a report of any historical legislative unfairness on the basis of which any person has been registered under subsection 4L(1) and which remains to be corrected by amendment to the British Nationality Act 1981 or such other legislation as may be required.
(3) The report required by subsection (2) must both explain each case of historical legislative unfairness to which it relates and set out the period within which the Secretary of State intends to make the necessary correction to the British Nationality Act 1981 or other legislation.’
This amendment requires that the Government publicise any change in policy or guidance in order to ensure that there is no unfairness in treatment of British citizens or those who are applying to be registered as British citizens. It also requires the Secretary of State to report and explain any historical legislative unfairness.
Amendment 14, in clause 7, page 10, line 30, leave out “may” and insert “must”.
This amendment would require the Secretary of State to approve applications for British citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.
Amendment 31, in clause 7, page 11, line 8, at end insert—
‘17I Acquisition by registration: equal treatment
(1) Where a person (P) is registered as a British Overseas Territories citizen under subsection 17H(1), the Secretary of State must—
(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;
(b) amend or make policy or guidance in line with the registration of P;
(c) make that new or amended policy or guidance publicly available; and
(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.
(2) In each Parliamentary session, the Secretary of State must lay before Parliament a report of any historical legislative unfairness on the basis of which any person has been registered and which remains to be corrected by amendment to the British Nationality Act 1981 or such other legislation as may be required.
(3) The report required by subsection (2) must both explain each case of historical legislative unfairness to which it relates and set out the period within which the Secretary of State intends to make the necessary correction to the British Nationality Act 1981 or other legislation.’
This amendment requires that the Government publicise any change in policy or guidance in order to ensure that there is no unfairness in treatment of British Overseas Territories citizens or those who are applying to be registered as British citizens. It also requires the Secretary of State to report and explain any historical legislative unfairness.
Amendment 34, in clause 7, page 11, line 8, at end insert—
‘(4) After section 23 (Citizens of UK and Colonies who are to become British overseas territories citizens at commencement), insert—
“23A Acquisition by registration: special circumstances
(1) If an application is made for a person of full age and capacity (“P”) to be registered as a British Overseas citizen, the Secretary of State may cause P to be registered as such a citizen if, in the Secretary of State’s opinion, P would have been, or would have been able to become, a British Overseas citizen but for—
(a) historical legislative unfairness,
(b) an act or omission of a public authority, or
(c) exceptional circumstances relating to P.
(2) For the purposes of subsection (1)(a), “historical legislative unfairness” includes circumstances where P would have become, or would not have ceased to be, a British subject, a citizen of the United Kingdom and Colonies, or a British Overseas citizen, if an Act of Parliament or subordinate legislation (within the meaning of the Interpretation Act 1978) had, for the purposes of determining a person’s nationality status—
(a) treated males and females equally,
(b) treated children of unmarried couples in the same way as children of married couples, or
(c) treated children of couples where the mother was married to someone other than the natural father in the same way as children of couples where the mother was married to the natural father.
(3) In subsection (1)(b), “public authority” means any public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal.
(4) In considering whether to grant an application under this section, the Secretary of State may take into account whether the applicant is of good character.”’
This amendment seeks to extend the remedy in Clause 7 to those who would have been British Overseas Citizens but for historical unfairness.
Clause stand part.
Bambos Charalambous
It is the view of the Opposition that British nationality law is out of kilter with adoption law in England and Wales and needs to be rectified. In those countries where an adoption order has been made by a court, it may be made where a child has reached the age of 18 but has not yet reached the age of 19; yet such an adoption order confers British citizenship automatically only where the person adopted is under 18 on the day the order is made. It seems evident to the Opposition that that is a slip that results in unnecessary unfairness.
The adoption law as it stands was enacted some 20 years after the relevant nationality law, and apparently the inconsistency that it created was overlooked. It has never been suggested that the adoption law and British nationality law should be out of step where a court in England and Wales authorises a person to be adopted by a British citizen parent. It is important for every member of the Committee to know that the stated problem is not merely a theoretical one; it generates victims in real life, including a university graduate who was 18 but not yet 19 when she was adopted by her aunt after her mother died of cancer, and who will have no basis on which to enjoy family life in the UK with her new adopted mother once her student status has ended.
We therefore believe that the position needs correcting. The Bill is the right vehicle to make that correction, which is not controversial and which we do not believe should divide Committee members on party lines. The amendment, which should command cross-party support, would bring British nationality law in line with adoption law, so that where our courts make an adoption order in respect of a person who is 18 but not yet 19, and the adoptive parent was a British citizen, British citizenship is conferred automatically on the person adopted. No adoption order may be made in respect of a person who has reached the age of 19, so the proposed amendment affects only those who are 18 but not yet 19 when the adoption order is made.
It is also important to point out that it is no answer to the problem to say that an 18-year-old adopted by a British citizen will be able to apply for registration by an adult as a British citizen at the Secretary of State’s discretion under proposed new section 4L of the British Nationality Act 1981, provided for in clause 7. The problem relates to those persons who should be treated as British citizens automatically from the date of their adoption by a British citizen. Where the only solution is a subsequent application for British citizenship at the Secretary of State’s discretion, there is the risk that such an application may be overlooked, or refused on another basis, such that the intention of Parliament to confer British citizenship on a person adopted by a British citizen will be frustrated. We therefore believe that the sole solution is to make this simple amendment to align British nationality law with adoption law.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to serve under your chairship, Ms McDonagh. I will speak in support of amendments 13, 14, 30 and 31. I also support amendments 34 and 35. Amendment 35 in particular seems to make perfect sense—although it relates exclusively to England and Wales. I confess that I have not managed to ascertain whether a similar issue arises in relation to either Northern Ireland or Scotland and, depending on what the Minister says in response, that is perhaps something we can all do our homework on before Report stage.
On the other amendments, this brings us back to the point I made when making the case for no fees for introducing applications, or at least restricted fees. These fees put people off from accessing their rights, especially when there is discretion or subjective criteria are used that mean people can have only a limited idea about whether paying a fee and making an application will result in anything positive happening. If they can afford it and if they know that they meet the criteria, people will pay a fee, but this would not necessarily make it easier to see in advance whether they would be able to show historical injustice or exceptional circumstances, or that the fault lay with the public authority.
We have already debated the fee aspect and made the case for lower fees to ensure that people are not put off from seeking to fix injustices that they have suffered. These amendments taken together address the other side of the coin: what can be done to make the criteria more transparent so that people can feel confident with their applications?
Amendments 30 and 31 seek to ensure that both officials and the victims of injustice are aware of how the provisions brought about by clause 7 are being implemented. If a new type of injustice in UK nationality law is discovered, or circumstances are deemed so exceptional that the Secretary of State decides that registration is merited and she grants such an application, she will first need to ensure that policy and guidance are updated so that those processing other similar applications are aware of that fact and people applying in the same circumstances are successful. More than that, she will also be required to take steps to try and ensure that people who might be entitled to register in the same circumstances know that they can do so.
Again, as I said earlier, we know from Windrush how important taking such action to make people aware of their rights can be. In short, people will have a greater understanding of whether their application will be successful and those who meet the criteria set out in policy will apply. Those who are making decisions will be aware that in previous cases similar applications have been granted and those applications will therefore be successful.
Amendments 13 and 14 challenge a Minister to explain why the provisions introduced by clause 7 are expressed entirely as “may” rather than “must”. If a person proves they are a victim of an injustice, which is carefully defined in the clause, then why should the Home Secretary still have a totally unlimited power to refuse registration in any event? Similarly, if a person shows they were denied citizenship because of an act of omission by a public authority or by exceptional circumstances, why should the Home Secretary have a totally unfettered power to say no?
The big fear is that the Secretary of State has the broadest discretion possible regardless of whether a person meets other criteria. Who will make an application, particularly if there is a fee involved? I can see possible flaws in going completely the other way to a situation where it is a requirement and a must, but that would be better than the totally unlimited discretion that is in the Bill right now. I simply challenge a Minister to come up with a better form of this.
Bambos Charalambous
On amendment 30, we want to make sure that the Secretary of State is required to take all reasonable and necessary steps to ensure that the right to registration under clause 7 is made accessible to all its intended beneficiaries. We also want to ensure that historical legislative unfairness is corrected. We do not believe that it is sufficient to rely on that being done ad hoc, subject to the discretion of any particular Secretary of State.
As has been obvious from discussions on previous clauses, several injustices have been identified in British nationality law in our policy and practice over the years. Important provisions in the Bill are necessary to correct some of that, including changes to previous amendments to the British Nationality Act 1981, which only partially corrected a particular injustice.
The Opposition understand and accept that the broad purpose of clause 7 is to provide the means to correct further injustices, and we broadly support its aims. We are concerned, however, about the implementation of the clause, and the amendment serves to address that.
Hon. Members will be aware that clause 7 introduces a new discretion to register adults as British citizens or British overseas territories citizens where that is immediately necessary or appropriate in view of some historical injustice, an act or omission by a public authority, or other exceptional circumstances. As it stands, that provision is welcome and reflects the underlying purpose of all rights of registration under the British Nationality Act 1981 to ensure that citizenship is the right of all persons connected to the UK or the British overseas territories.
However, given that clause 7 relates to historical legislative unfairness, it raises a concern that it may be relied on by Ministers to avoid making necessary future amendments to the 1981 Act, required specifically to correct such injustice. We are deeply concerned, because when such an injustice is identified, Ministers must take the appropriate action to correct it in the Act. It is not enough to rely on the opinion of any particular Minister or group of Ministers. For that reason, we want to insert the following in clause 7:
“Where a person (P) is registered as a British citizen under subsection 4L(1), the Secretary of State must—
(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;
(b) amend or make policy or guidance in line with the registration of P;
(c) make that new or amended policy or guidance publicly available; and
(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.”
Clause 7 must genuinely be given real practical effect—it must not become a mere token statutory provision. Registration requires someone to make a formal application, so the clause will be ineffective if uncertainty over the result of an application, coupled with any cost or other impediment to do so, deters people from making applications. In such circumstances, clause 7 could stand redundant on the statute book because no one to whom it ought to apply knows about it or is sufficiently encouraged or enabled to apply for the discretion to be exercised.
For those reasons, the following matters must, at a minimum, be addressed. It is generally inappropriate, as with registration more generally, for the Secretary of State to charge prohibitive and above-cost fees to prevent people from exercising their rights to British citizenship. The fees are made even more prohibitive if it is not possible to assess in advance that an application will be successful because there are no fixed criteria by which the right to be registered will be assessed.
Ministers should also be pressed to give an assurance that when an individual application is successful, there will be positive action to ensure that other potential applicants are made aware of their equal or similar right to register at their discretion. Under amendment 30, if an unfairness, act or omission by a public authority or exceptional circumstances are identified that make it necessary to exercise discretion, appropriate publicity must be given to it, and there should be a formal updating of public-facing policy. It must be made clear that others in the same circumstances will succeed with their applications to register, if they make them; otherwise, people will continue to be excluded from citizenship in circumstances where it is clearly intended that they should not be.
Anne McLaughlin (Glasgow North East) (SNP)
I will speak in support of the amendment in my name and the name of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East. We also broadly support the Official Opposition’s amendments. I wanted to raise the evidence that the Committee heard from Free Movement and Amnesty International.
Anne McLaughlin
I was speaking in support of all the amendments in the group and will use evidence given to the Committee by Amnesty International and Free Movement before adding a couple of points. The clause introduces the discretionary route for registration as an adult. Discretion can be exercised where, in the Secretary of State’s opinion, that person would have been able to become a British citizen if it were not for a number of things. I want to look first at the exceptional circumstances.
Free Movement’s concern, shared by a number of people, including me, is about the reference to the Secretary of State’s opinion. A future Secretary of State—let us not say the current Secretary of State, because we would not want to personalise this—may hold an opinion generally considered to be disproportionate, unreasonable or ridiculous. They may not be from the current party in government—I am not saying that it is more likely to happen under one particular party—but where does it end? There is nothing to say that their opinion can be curbed. I am wondering what is meant by that reference. How could a legal challenge be mounted against a decision that the Secretary of State is allowed to make based on their opinion? I would like something from the Minister on that.
I turn to historical legislative unfairness, which we have talked about a lot today. It has been defined with specifics. We have talked about the unequal treatment of mothers, children of unmarried couples, and children of mothers married to someone other than their natural father, but the list does not include discrimination on the basis of ethnicity and race. The list is not definitive. Is there scope to consider the role played by such discrimination in terms of historical unfairness? I would like the Minister’s thoughts on that.
On the act or omission by a public authority, it is always useful to say when we think somebody has got it right—and we have said that a number of times today. I want to reiterate that, as Free Movement has said, there have been a number of concerns that local authorities responsible for children who become entitled to British citizenship under their care do not always get the applications made on those children’s behalf. Sometimes that is because there has been a misunderstanding, and at other times it is deemed to be not in the child’s interest at that time and it is not always included in their care plan. By the time they are an adult, it is too late for them to make that decision themselves, so I am quite supportive of measures to deal with that.
I want to talk about a concern that Amnesty has expressed—I am sure the Minister has seen this—which is that clause 7 has to be given real, practical effect, and that the measure will be ineffective if uncertainty over the result of an application, along with the excessive fees that we have talked about, deters people from making applications in the first place. I know that my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East has made those points.
Amnesty has asked for the following matters to be addressed. First, we have talked about fees at length, but I reiterate that several organisations are very concerned about the fees. Secondly, Amnesty has asked for assurances that where an individual application is successful, the Government will take positive action to ensure that other potential applicants are made aware of their equal or similar right to register at discretion. This means that where an example is identified of, as the Bill says, unfairness, an act or omission by a public authority or exceptional circumstances on which it is right or necessary to exercise the discretion, there should be publicity and awareness raising. We have talked a lot about that, but Amnesty wants to know that that will happen, and that members of the public who could use the legislation to the same positive effect will have that information. Lastly, Amnesty has asked for an assurance that awareness raising will apply equally to British citizenship and British overseas territories citizenship.
Bambos Charalambous
I want to speak to amendment 34, which deals with people who would be British overseas citizens today but for historical unfairness in the law, an act or omission of a public authority or other exceptional circumstances. The Opposition welcome the fact that clause 7 attempts to rectify the position for those who would be British citizens or British overseas territories citizens today but for such an error. However, the clause does nothing for people who would be British overseas citizens today, and that is wrong.
Those who would be BOCs but for such an error should not be excluded from the proposed remedy. They have suffered from historical unfairness, just as those who would be British citizens or BOTCs today have done. Prior to 1983, there was one substantive class of British nationals, citizens of the United Kingdom and colonies. When the British Nationality Act 1981 came into force on 1 January 1983, CUKCs were divided and reclassified into three categories: British citizens, connected to the UK; British dependent territories citizens—now BOTCs—connected to the remaining British overseas territories, such as the Falkland Islands and Gibraltar; and BOCs, connected to the former British colonies.
The Home Office acknowledges that past unfairness in British nationality law includes where men and women were unable to pass on citizenship equally, and where unmarried fathers could not pass on citizenship. The Home Office acknowledges that in the case of people who could be British citizens or BOTCs, but many persons who would be overseas citizens today also suffer from such prejudice. As a result of the British overseas expansion and later decolonisation, there are pockets of BOCs around the world—for example, in Kenya, Malaysia, South Africa and anglophone west Africa, including places such as Sierra Leone. The category of BOC was created under the British Nationality Act, and it gave effect to the fact that BOCs were British nationals and should remain so. The newly created status gave no home or right of abode in the UK or any other remaining British territory.
Although BOCs have no right to come to the UK or a remaining British overseas territory, the status still has real value. It enables a person to seek to use the UK BOC passport, and possession of such a passport enables BOCs to seek UK consular assistance in a third country and to seek residence and permission to work in third countries under local laws. It may be useful where the passport of another nationality that those people hold is considered unreliable, and where their children are born stateless, to benefit from UK laws that reduce statelessness.
BOCs around the world make active use of that status. For example, many persons of Somali heritage born in Aden in Yemen when it was a British colony are reliant on BOC status, as they were, and are, shut out from the Yemeni nationality. Their BOC passports enable them to obtain lawful residence and permission to work in Gulf states, and to secure a visa to study in other countries. The Home Office proposal in clause 7 helps those affected by historical unfairness in British nationality law, an act or omission of a public authority, or exceptional circumstances to become British citizens or BOTCs. However, potential BOCs would also have suffered from such historical unfairness in British nationality law, acts or omissions of public authorities, or other exceptional circumstances. All those classes of British nationals were CUKCs prior to the British Nationality Act 1981, and all suffered from these problems. Clause 7 should therefore be supplemented to provide for registration as a BOC on the same basis as it enables registration as a British citizen or BOTC.
Tom Pursglove
I will deal with each of the amendments proposed, and then I will of course pick up on a number of the points, questions and challenges that have been raised throughout the course of this debate.
I thank the hon. Members for Enfield, Southgate and for Halifax for having tabled amendment 35, which would allow a person to become a British citizen automatically following their adoption in the UK if the order was made after the age of 18 but before the age of 19, but the adoption proceedings started before their 18th birthday. I have noted the unusual situation, highlighted by hon. Members, in which newly adopted young people can find themselves as a result of differences between the Adoption and Children Act 2002 and the British Nationality Act 1981. An adopted person can automatically acquire British citizenship, provided they are under 18 on the date the adoption order is made. However, under the 2002 Act, it is possible for an adoption order to be made where someone is already 18 years old but has not yet turned 19.
I am aware of cases in which individuals are affected by those nationality provisions, and I have some sympathy for them. However, I am also conscious that a person aged 18 will normally be capable of making their own life choices. At 18, someone can purchase alcohol, accrue debt, join the Army, or vote in an election. From a legal standpoint, at 18, an individual is fully fledged and can theoretically live independently of other family members. It is therefore consistent that a person aged 18 or over who is seeking to acquire British citizenship should normally do so only on the basis of their personal connections with this country, not those of their new family.
I must consider the wider position of adopted children, and I am satisfied that to extend the nationality rules to cover persons who have attained the majority would move nationality out of step with immigration routes. For example, young people over the age of 18 must meet the requirements of the immigration category they are applying in, and are unable to rely on other family members for a claim to residence. I have sympathy for those young adults who feel that they have lost out, but other routes are available that would allow them to choose whether they wish to naturalise or register as British citizens.
Turning to amendment 13, again I thank hon. Members for tabling the amendment and for drawing attention to clause 7, which we believe is a positive move that will allow the Home Secretary to grant British citizenship to those who have missed out on acquiring it, potentially due to reasons beyond their control. Clause 7 will apply to anyone who
“would have been, or would have been able to become, a British citizen but for—
(a) historical legislative unfairness,
(b) an act or omission of a public authority,”
or their exceptional circumstances. This means that the clause covers not just those who would have become citizens automatically, but those who might have had an entitlement to registration or could have registered or naturalised at the Home Secretary’s discretion. As such, we think it right that the provision remains discretionary, to allow the Home Secretary to take into account the criteria that she might have taken into account at the time.
Stuart C. McDonald
I will have to give some further thought to what the Minister has just said. I take the point about people who would have had to register—therefore, there is still an element of discretion. However, will he look again at the case of those who would have automatically had that citizenship and whether there really should be such broad discretion in cases where people have missed out on citizenship because of historical injustice or exceptional circumstances?
Tom Pursglove
I am grateful to the hon. Gentleman for the point that he raises. Broadly speaking, there is a view that the discretionary approach to cases is helpful in ensuring that we can reach the right decision in individual cases and that we are able to take into full account, in general terms, all the relevant factors.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Is it the Minister’s intention that the Government will publish the grounds on which decisions are made with discretionary purposes for each decision, regardless of whether they are successful or not?
Tom Pursglove
I will come back to the point that the hon. Gentleman raises but, as I say, there is a view that taking a discretionary approach to cases is helpful in reaching the correct decisions, and that the circumstances of individual cases are properly taken into account. There is precedent in the British Nationality Act 1981 for applications to be considered on a discretionary basis—for example, naturalisation is a discretionary provision. The law states that the Home Secretary may naturalise a person if she thinks fit and that person meets the statutory requirements. Members will be aware that the Home Office publishes caseworker guidance, which sets out the sorts of circumstances where discretion would normally be exercised, and that is relevant to the point that the hon. Gentleman raises.
Neil Coyle
It is in part, but publishing the full grounds will help to determine whether people seek to take a case or not.
My further question is about the equality impact assessment. As I touched on this morning, the Government are suggesting that they will extend access to legal aid through the Bill. Is the Government’s intention that legal aid will be extended for this specific purpose, regardless of whether people can make a successful claim or not?
Tom Pursglove
Again, I am grateful to the hon. Gentleman for his question. The key point is that through the Bill, we are improving access to justice. Clearly, the improved access to justice offer is very relevant to the one-stop shop proposals that we are taking forward in the Bill and which we will no doubt debate in greater detail when we reach later clauses.
Tom Pursglove
We will no doubt debate this in great detail in due course. As I say, we are putting in place an improved access to justice offer more generally through the Bill.
Stuart C. McDonald
There is an absolutely fundamental distinction between naturalisation and registration. We are talking about people who would have had an automatic right to citizenship, which is completely different from naturalisation altogether. Again, I am still struggling to understand why there has to be such broad discretion. People have lost their automatic right because of historical injustice, and the danger that has been highlighted by Members is that that will put folk off applying. Will the Minister not even think about some restrictions on the degree of discretion that the Home Secretary has, or at least provide detailed guidance on when she will exercise that in people’s favour?
Tom Pursglove
I want to pick up the points that have been raised by the hon. Members for Bermondsey and for Old Southwark and for Cumbernauld, Kilsyth and Kirkintilloch East. Clearly, the guidance is a very important element of the immigration system, so that people can understand very clearly what is required and precisely how cases will be handled. I am always in favour of trying to make such matters more transparent and to improve guidance wherever we can, and that is always ongoing work. I take on board the point that has been raised, and I will certainly reflect on it.
As I say, Members will be aware that the Home Office publishes caseworker guidance, which sets out the sorts of circumstances where discretion would normally be exercised. This works, and we intend that published guidance will also be available for the new adult registration route. The fact that the Home Secretary is not obliged to naturalise a person does not therefore impact practically on most applicants. However, we want to maintain the ability to refuse applications from people who might meet the requirements, but are nevertheless unsuitable to become British citizens.
Where registration is set out in legislation as an entitlement, it needs to be more tightly set out so that there is no doubt as to who does and does not benefit. Because of the historical nature of citizenship and the fact that issues can crop up that we might not have been aware of, we need the flexibility to be able to consider someone’s circumstances without being overly prescriptive. Equally, we recognise that people can be affected by a number of circumstances, which may be difficult to set out in detail. We are not making this a discretionary provision in order to refuse deserving people, but to allow us to respond to situations that cannot reasonably be foreseen.
I understand that hon. Members may wish to seek assurance that people who have missed out in the past will be granted citizenship, but we think that this can be achieved through a discretionary route, which will allow us to take into account all the circumstances of a case. That is why we are introducing the various provisions in the Bill in the first place: to right those historical wrongs. We want this to work.
On amendment 30, again, I thank the hon. Members for tabling the amendment. The new adult discretionary registration provision will allow the Home Secretary to grant British citizenship to anyone who would have been, or would have been able to become, a British citizen, but for historical legislative unfairness, an act or omission of a public authority, or the exceptional circumstances in play. I understand hon. Members’ concerns that that power should be used fairly and consistently, which is right.
Each case will be considered on its own merits, taking into account the particular circumstances of that person, including the reasons they were unable to become a British citizen automatically, through registration or through naturalisation. On that basis it would be unnecessary to have a legislative clause that effectively causes us to treat like cases in a similar way, because applications will be decided in line with the legislation and guidance.
I have already mentioned that we intend to publish caseworker guidance setting out when we expect that this power might be used and the sort of circumstances we will take into account. Of course, that is done very transparently and can be seen by hon. Members and by people out there seeking access to those routes. As I think is my colleagues’ intended purpose in proposing the amendment, that will help to maintain consistency in decision making.
However, I am not convinced that that would be helped by a statutory requirement to produce or amend guidance every time a person with different circumstances is registered. There may be concerns about reflecting an individual’s circumstances in published guidance, even if anonymised. We will reflect the overarching principles in guidance and amend as appropriate. Guidance will continue to be published on the gov.UK website. I can also assure hon. Members that work is done within UK Visas and Immigration to ensure consistency of decision making, particularly when a new route is introduced, and I think that that is right and proper.
I do not think we can commit in statute to publicise any grants of citizenship to people in a similar position. As I have said, we will publish guidance setting out the approach we will take and make it available to potential applicants, but it would not be right to impose a statutory requirement to do so. Indeed, some of those registered will be in unique positions and it would not be possible to identify others who might qualify on the same basis.
The reporting obligation set out in the amendment would require the Home Secretary each year to report any historical legislative unfairness that had been identified in registering a person under clause 7 and say how she intends to correct it. Perhaps it would help to clarify that the thinking behind clause 7 is that it can be used to rectify individual situations that may have been created by historical unfairness, rather than having to create specific provisions to cover each scenario.
Neil Coyle
I thought the Minister was one of those who believed in Parliament taking back control, not the Executive having more control, but let me have one more attempt at the legal aid question. This is not just about the circumstances of the individuals involved—we have heard some distressing cases today—but about the costs imposed in particular on councils, which are using emergency services to support people who might otherwise qualify for support. If legal aid were immediately available for everyone affected, those cases could be resolved much more quickly. Given the complexity the Bill is imposing, it seems as if it should be an actual requirement that that support be available. Let me try again: will legal aid be extended to everyone facing these circumstances as a result of this legislation?
Tom Pursglove
I am grateful to the hon. Gentleman for his question and I will visit that in my later remarks, if I may. He is right to say that I think it is right that Parliament took back control. That is a debate we have had on many occasions and no doubt will continue to have in the years ahead. I am a member of the Government, but I still believe very strongly in parliamentary sovereignty and the role of Parliament in decision making.
To clarify, the thinking behind clause 7 is that it can be used to rectify individual situations that may have been created by historical unfairness, rather than having to create specific provisions to cover each scenario, some of which may affect only a very small number of individuals. This is in fact the way we intend to address those situations, and it may not necessarily be appropriate to introduce additional measures to do so. As such, I do not see that specifying such a report in legislation would be helpful. In terms of addressing unfairness, this provision does not give a far-reaching power—it is much narrower than the discretion the Home Secretary has to register a child under section 3(1) of the British Nationality Act 1981. It does, however, reflect our desire to address historical injustices, as is reflected in all of the first eight clauses. I therefore ask hon. Members not to press amendment 30.
I am grateful to hon. Members for tabling amendment 14, which replicates amendment 13 for British overseas territories citizenship. I set out in response to the earlier amendment why we wanted this to be a discretionary provision, rather than creating an obligation to register. The same arguments apply here. Turning to amendment 31, I have set out why we could not accept an earlier amendment, and the same arguments apply here. I hope that hon. Members will not press amendment 31 either. On amendment 34, new clause 12 seeks to create a discretionary adult registration route for a person to become a British overseas citizen.
The Chair
I am sorry for interrupting, but I am not sure that we are actually debating new clause 12 at the moment. As far as I understand it, we are debating amendment 35 to clause 7 and amendments 13, 30, 14, 31 and 34 and clause 7 stand part.
Tom Pursglove
I was referring in passing to new clause 12, Ms McDonagh. British overseas citizenship, or BOC, was created by the 1981 Act. It was created for people connected with former British territories who did not have a close connection with the UK or one of the remaining British overseas territories. This was usually where they were from or connected to—a country that had become independent, but they did not acquire the citizenship of that country. The intention was to avoid making people stateless due to complex histories of independence or countries ceasing to be British protected territories. The intention of the 1981 Act was that everyone who was a citizen of the United Kingdom and colonies immediately before 1 January 1983 would continue to hold some form of British nationality. The then Government anticipated that many who became BOCs would have an additional citizenship or nationality.
British overseas citizenship was intended to be a transitional status, and it was expected that many who held that status would have acquired the nationality of the place where they were born or were living in the 38 years since that legislation was passed. They are able to hold a BOC passport and rely on consular assistance when outside the country of any other nationality that they hold, but are likely to rely on their other citizenship for rights of residence and local travel. Given the 38 years that have passed, we do not anticipate that there can be many people who have missed out on becoming a BOC and have no other citizenship or nationality.
There were provisions for children of CUKC mothers to register under the British Nationality Act 1964 where they would otherwise have been stateless. Since 1983, there have been measures in place to acquire BOC through discretionary registration as a child or for certain people who are stateless. However, it was not the general intention that further people would acquire British overseas citizenship under the 1981 Act other than in those specific circumstances. People who hold only BOC and do not have, and have not voluntarily lost, another citizenship or nationality are able to apply for British citizenship under existing legislation. If a person believes that they missed out on becoming a BOC because of historical unfairness, and that, as a result, they also missed out on being able to become a British citizen, as they have no other nationality and have not done anything that meant that they lost a nationality, there is nothing to stop them applying for that status under the clause. BOC status was introduced to avoid statelessness due to complex histories of independence or countries ceasing to be British protected territories. We do not intend to create a new route to British overseas citizenship.
Neil Coyle
If I heard the Minister correctly, he is suggesting that someone should pursue their rights through the Equality and Human Rights Commission, but that process would take years and could cost millions if the Government were opposing what that individual was seeking. Is it not incumbent on the Government, under the Equality Act 2010, to get things right up front? Would that not save a lot of time and money, and prevent a lot of desperate situations from emerging?
Tom Pursglove
The point that I would make is that we keep evolving circumstances and individual cases under review. It is right that we consider cases individually and properly take account of their individual circumstances. That is why we are arguing strongly that the discretionary means of tackling this is the correct way to do so. I am confident that through the provisions, we will right many historical injustices and wrongs, and that is something we should all welcome.
In the light of the debate that we had about fees, whether or not applications will be free under the clause is an important point. That will be an issue for the appropriate fees regulations in due course. As I set out when dealing with earlier clauses, those regulations will be subject to parliamentary scrutiny. I note the views that have been strongly expressed today. Members will have heard what I have said about this previously, and I would be very happy to engage with them in the development of those regulations that we would then bring forward. With that, I would ask hon. Members not to press their amendments.
Bambos Charalambous
I wish to press amendment 35, and all other amendments in my name and in the names of the other Members.
Question put, That the amendment be made.
The Chair
With this it will be convenient to consider that schedule 1 be the First schedule to the Bill.
Tom Pursglove
I think it is fair to say that, with all the Blair and Brown documentaries on television at the moment, it is perfect to be thinking about clause IV, for members of the Opposition.
The Chair
I do not wish to interrupt the Minister, but he may find that clause IV was not dealt with in the depth that it should have been.
Tom Pursglove
That is me told.
Clause 7 applies to three routes to British nationality: naturalisation as a British citizen, naturalisation as a British overseas territories citizen and registration as a British citizen for other British nationals. All these routes require a person to have been in the UK or an overseas territory for a continuous period immediately before applying. This is known as the residential qualifying period. These residence requirements exist to allow a person to show that they have a close and ongoing connection with the United Kingdom.
The residential qualifying period is five years, or three years for spouses and civil partners of British citizens or British overseas territories citizens who are applying for naturalisation. During the five-year period, the person must not have been outside the UK for more than 450 days, must not be subject to immigration time restrictions in the UK or a relevant territory, and must have been lawfully resident. There is discretion in the legislation to overlook excess absences and unlawful presence, but the requirement to have been in the UK or territory on the first day of the residential qualifying period is mandatory. There is no discretion in the current law to grant citizenship to someone who does not meet that requirement.
This means that, for example, a person who has lived in the UK for 10 years, but who was absent from the UK at the point five years before making an application because of a global pandemic, would not be able to qualify, despite their long-term connection with the UK. Under the current legislation, their only option would be to wait until they could meet the requirement.
Bambos Charalambous
The clause seeks to enable the Secretary of State to waive requirements for naturalisation as a British citizen under section 6, naturalisation as a British overseas territories citizen under section 18, or registration as a British citizen under section 4 of the British Nationality Act 1981. At present, there is no power to waive the requirement to have been present in the UK at the start of the qualifying period except in relation to applications for naturalisation as British citizens from current or former members of the armed forces, which presents a barrier in otherwise deserving cases.
The immediate necessity for the clause arises from the circumstances of people of the Windrush generation, many of whom were deprived of their rights to register their British citizenship by the Home Office’s failure to ensure that people were aware both of their rights and of the need to exercise them. It has since become necessary to use naturalisation without a fee as a means to put people in the position they should have been in all along as British citizens. However, since some people were wrongly exiled from the UK, the remedy has been inadequate for some people who were only recently able to return.
The main barrier stems from the requirement for naturalisation that a person must be present in the UK at a fixed point five or three years before the date of their application to naturalise. The clause therefore seeks to amend the 1981 Act to allow the Secretary of State to waive the requirement that the individual must have been present in the UK or relevant territory at the start of the qualifying period in the special circumstances of a particular case. The waiver will be introduced in relation to the requirements to naturalise a British citizen under section 6 of the 1981 Act, to naturalise as a British overseas territories citizen under section 18 or to register as a British citizen under section 4.
The clause would not have been necessary had the Windrush scandal not happened in the first place, and we wish to place on the record our concerns that it happened because of the hostile environment that was created by the Home Office. Although we welcome clause 8 and will support it, we wish that it had never been necessary because of the injustice of what happened to all those people.
Stuart C. McDonald
I want to pick up on one thing the shadow Minister mentioned in his speech. He is right that the most profound implications of the clause relate to the correction of wrongs that were done to the Windrush generation, but I slightly disagree with him when he says that it would not have been necessary but for that.
Certain nationality applications always have caused some awkwardness. In the dim and distant past, when I was one of these wicked immigration lawyers, I would have people come to me who were applying to register, and the requirement that they had been in the country five years ago at the start of the residency period would sometimes cause problems. I do not know what I was doing five years ago today, and sometimes it would require a hell of a lot of checking to work it out.
There were the odd occasions where the Home Office kindly returned the applications, because it was going to have to refuse them as the person had perhaps gone abroad for a couple of weeks five years ago. If the Home Office had not done that, it could have just banked the fees and refused the application. The most profound implication is in relation to Windrush, but I think overall that this is a good thing to do anyway and a slightly broader discretion is welcome.
Anne McLaughlin
I want to acknowledge the people who were caught up in the Windrush scandal and their tenacity in hanging on in there and sticking it out. I also want to recognise all the different campaign groups, activists and supporters, friends and families of those who suffered so much because of the scandal. I want to take every chance I get to put that on the record.
I regularly talk about feeling frustrated in this place when I passionately argue the case for something or someone but almost never get anywhere—sitting here today, it is of course always going to be nine Members on the Government side and seven on the Opposition side—but I underestimated the importance that people place on MPs speaking up for them and acknowledging their injustice, and I never will again. I did not think it would make such a difference, but it really does make a huge difference to people. That is why, as the SNP’s immigration spokesperson, I take any opportunity to say that what happened to the people who came here as part of the Windrush generation was utterly wrong. Even the solutions went wrong, and there were delays and complications. This clause, today, is good, but that is only right.
Neil Coyle
Does the hon. Member share my slight disappointment that it does not go further? Other countries bestow naturalisation on citizens, in particular those who worked for health and social care services throughout the covid crisis. We have non-UK nationals who have worked in health and social care services who could have had their service acknowledged by the Government. The Government have chosen not to do that, despite multiple requests from many MPs of different parties.
Anne McLaughlin
I very much agree, because the people we are talking about came here because they were invited. My partner’s family were among them. Thankfully, they were not caught up in this scandal.
We needed people to come here and help rebuild after world war two. People living in the Caribbean were well used to having white people in charge of their country, but what they were not so used to was the racist abuse that would meet them when they reached these shores. They assumed they would be welcome because they were part of the Commonwealth. They fought in our wars. They were invited here. It must have been a huge shock when they got here and somehow that narrative changed.
The narrative is still being used—it is still being used by some people elected to this place—that somehow the gratitude in all of this should be their gratitude to us and that we are somehow doing them some sort of favour. In fact, lots of our wealth was built on the backs of the people we enslaved on those islands. I cannot remember what it is called, but there is such a thing as the collective, inherited trauma that people suffer from. Their descendants were then invited over here to do what we needed done and they were treated the way they were treated, and then they were treated by this Government in the way they were treated in the Windrush scandal.
In the first years, about 5,000 Jamaican nurses came here. We have heard about all of those people from overseas territories who came and supported our health service. Many of them have suffered greatly. Some died during the pandemic, because they put themselves at risk. We needed those 5,000 nurses who came from Jamaica in the first years for our health system, but Jamaica needed them as well. We took them out of the Jamaican health system. We should have been thanking them. We should have been on our knees with gratitude. I do not like the narrative that they are somehow supposed to be grateful to us. So, yes, I would have liked these measures to have gone much further, but I will say that taking away the five-year rule is at least doing something to hold our hands up and say, “We did something wrong, and you don’t deserve to have to wait the five years when you are not the ones at fault.”
Tom Pursglove
The hon. Member for Glasgow North East speaks for the whole House in saying that immigration has made an enormously positive contribution to this country over decades. As elected Members and in our communities across the country, we should continually make mention of that and constantly reflect on it—I am certainly very conscious of it.
Equally, I am conscious of the importance of righting the wrongs of what happened in relation to Windrush. There is an absolute commitment at the Home Office to do just that: follow up on Wendy Williams’s recommendations and make sure that they are delivered. As the SNP spokesman said, the clause has benefit beyond Windrush. I am really pleased that it seems the Committee can come together and support the clause.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 9
Citizenship: stateless minors
Question proposed, That the clause stand part of the Bill.
Tom Pursglove
The clause amends the provision for registering a child as a British citizen or British overseas territories citizen when the child was born in the UK or a territory and has been stateless since birth. Although it applies to both British citizenship and BOTC, it addresses an issue specific to the UK, so I am going to talk about British citizenship. However, parallel changes will be made in relation to BOTC.
It may help if I put the issue in the context of all children born in the United Kingdom. Since 1983, a child born in the UK will be a British citizen automatically only if one of their parents is a British citizen, is settled in the United Kingdom or, from 13 January 2010, is a member of the armed forces.
“Settled” is defined in the British Nationality Act 1981 as being ordinarily resident in the United Kingdom and not subject to an immigration time restriction on their stay. That effectively excludes those whose parents only have limited leave to remain or are here illegally. Those exempt from immigration control because of diplomatic service or as members of visiting forces are also not regarded as settled. Any child born in the United Kingdom after 1 January 1983 who was not a British citizen at birth has an entitlement to register as a British citizen if the parent becomes a British citizen or settled in the UK, if the parent joins the armed forces, or if the child lives here for the first 10 years of their life.
In addition, there is provision for children born in the UK who would otherwise be stateless to acquire citizenship. If a child is born in the UK to a parent who is a British overseas territories citizen, British overseas citizen or British subject and would otherwise be stateless, they will acquire the same nationality as the parent. Alternatively, if a child is born in the UK and is, and has always been, stateless, they can apply to be registered as a British citizen before their 22nd birthday based on a period of five years’ residence. Those provisions enable us to meet our obligations under the convention on the reduction of statelessness. That means that if a child is stateless and has had no other citizenship or nationality from birth, they can effectively be registered on reaching the age of five—rather than after the age of 10, like other children born in the UK.
The UK, like many other countries, allows for citizenship to be acquired by descent by a child born abroad to a parent who holds that status by birth. Under most countries’ citizenship laws that happens automatically, but some countries require the parents to register a child’s birth for the child to access citizenship. That is the case for India and Sri Lanka, where a child’s birth needs to be registered at a high commission if they are to be recognised as a citizen.
We are aware that increasing numbers of non-settled parents in the UK are actively deciding not to register their child’s birth at the embassy or high commission, and thus failing to secure their child’s entitlement to their parents’ nationality by descent.
Stuart C. McDonald
The explanatory note just says that there have been cases. This is a very serious change. Can the Minister give us examples of analysis that has been done and the types of circumstances in which such decisions are taking place? Tell us about the scale. I see no evidence of a significant problem, whereas I do see that the clause could cause significant harm.
Tom Pursglove
I am grateful to the hon. Member for prompting me on this. I have a fairly lengthy speech on this clause. I will come to those points, and will illustrate them with some specific case studies, which I hope will be of interest to him.
As I was saying, this results in the child remaining stateless from birth and enables them to be registered as a British citizen once they reach the age of five if they meet the other criteria. We have seen a significant increase in applications, from tens per year to thousands. In 2016-17, there were 32 applications to register stateless children on this basis. That increased in 2017-18 to 1,815 applications. This allows individuals, including those who have overstayed or entered illegally, to acquire British citizenship for their child, which can in turn benefit their own immigration status.
We do not think it fair that parents can effectively secure a quicker route to British citizenship by choosing not to register their child’s birth. In doing so, they are depriving their child of a nationality, which is about not only identity and belonging, but being able to acquire a passport or identity document, and the ability to travel overseas, such as to see family. They are also taking advantage of a provision that is intended to protect those who are genuinely stateless.
I will say, for the avoidance of doubt, that the process of birth registration is not impossibly difficult. It is simply a matter of completing a form and supplying supporting information about the parent’s identity, status and residence, and the child’s birth. The fee to register a child’s birth at the Indian high commission in the UK is £19; it is £53 at the Sri Lankan high commission.
In changing this provision, we want to maintain the ability for genuinely stateless children to benefit, but we want to change the registration provisions so that parents cannot effectively choose statelessness for their child and then benefit from these provisions. That is right and proper, and in line with our international obligations.
We think it is right that children who genuinely cannot acquire a nationality should be able to benefit under the stateless provisions of the 1981 Act. This change reflects our expectation that families should take reasonable steps to acquire a nationality for their child. We will set out in guidance the sort of steps that we think are reasonable, and applications will be considered on an individual basis.
The provisions are not intended to negatively impact children of recognised refugees who are unable to approach the authorities of their former country. Hon. Members may argue that it is important for a child to have a nationality. We agree. That is why we are a signatory to, and are committed to, the 1961 convention.
Why are parents choosing not to acquire a nationality for their child when they can, leaving the child without the ability to travel urgently if needed for five years? Let us look at a typical example that addresses the point raised by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East.
Neil Coyle
The Minister refers to a typical example, but I believe that the question put was about the overall number of cases. Will the Minister provide the House with the overall number of cases involved, and specifically the number of cases in which the Government suggest nationality is being deliberately withheld?
Tom Pursglove
Let me talk through the case studies in the first instance, because I think it is useful to set this in context. Child X was born in the UK, which their Indian parents had entered as students. The student route is not one that leads to settlement, so they could not have assumed they would be granted indefinite permission to stay. The college they were studying at had its sponsorship licence revoked, and the parents remained here illegally.
At the time of X’s birth, both parents were in the UK without lawful leave. Steps were taken to remove X’s parents, who absconded at one point. However, an application was made to register X as a British citizen, under the stateless minor provision, a few days after their fifth birthday. While they had not approached the Indian high commission to register X’s birth, the parents provided letters they had obtained from the Indian authorities stating that there was no record of the birth having been registered, so they clearly had no fear of approaching the Indian authorities.
X was registered as a British citizen, as the current wording of the British Nationality Act 1981 left us no other option. The parents then made an application to remain in the UK on the basis of family life, which was granted because it would have been harsh for the British child to leave the UK. I hope that Members across the House will agree that, while it is not X’s fault that their parents manipulated the system, it is not right that as a result they can acquire citizenship earlier than other children born here, whose parents have remained in the UK lawfully and been fully compliant.
We have heard the comment that parents should be able to choose which nationality their child has, but this is not about French parents living in the UK with settled status, for example, choosing whether to apply for a French or British passport, as the child holds dual nationality. Nor is it about parents who are dual nationals, such as a parent who is a British citizen by birth and citizen of Bangladesh by descent choosing not to register their child’s birth, which would have allowed them to acquire citizenship of Bangladesh in addition to British citizenship. No: this is about parents who are choosing not to acquire their own nationality for their child and leaving them with no nationality for a significant period until they can eventually qualify for British citizenship.
The United Nations High Commissioner for Refugees has published a document entitled “Guidelines on Statelessness nr 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness”. Those guidelines cover situations where it is possible to acquire the nationality of a parent by registration. They provide that the responsibility to grant nationality to children who would otherwise be stateless is not engaged where a child is born in a state’s territory and is stateless but could acquire a nationality by registration with the state of nationality of a parent, or a similar procedure.
The guidelines go on to say that it is acceptable for contracting states not to grant nationality to children in these circumstances if the child concerned can acquire the nationality of a parent immediately after birth and the state of nationality of the parent does not have any discretion to refuse the grant of nationality. However, that does not apply if a child’s parents are unable to register, or have good reasons for not registering, their child with the state of their own nationality. That must be determined depending on whether an individual could reasonably be expected to take action to acquire the nationality in the circumstances of their particular case. The effect of this clause therefore reflects the approach recommended by the UNHCR.
We understand that parents want the best for their children, and that a future in the UK represents that to them, but it is not right that they choose not to acquire a nationality for their child in order to facilitate that. We want genuinely stateless children to be able to benefit from our stateless child provisions, but we expect those who can easily acquire a nationality for their child to do so.
I will pick up on the point the hon. Member for Bermondsey and Old Southwark made, because I am sure he wants to prompt me on that, but I first wanted to get through those case studies and set out the Government’s rationale. Clearly, in some cases there is a perverse incentive, and it undoubtedly disadvantages those who are acting in accordance with both the letter and the spirit of the law. It is right to address that, and that is why we are taking the measures proposed in clause 9 to close that loophole.
Neil Coyle
Will the Minister provide the overall number of cases that the Government believe fit this category? Will the Government also publish the number of children involved in similar cases where the parents have been trying to regularise their status within the UK? We had examples this morning such as that of my constituent Ade Ronke, who was wrongfully accused by the Home Office of having a prosecution that she did not have—it was a case of mistaken identity. There are cases like that, and hers took seven years to regularise. I mentioned this morning that at least two cases in my constituency took 10 years. There may be many children across the country whose parents have been waiting very many years to sort their status, who could fit into this category, but are being mislabelled by the Government.
Tom Pursglove
The direct answer to the hon. Gentleman’s question is that we can provide details of the number of applications, but we cannot confirm the specific number of cases in the way he is requesting. We know this is happening, and we believe that there is a perverse incentive for people to choose not to acquire a nationality, so that the family as a whole can jump the queue.
Paul Blomfield (Sheffield Central) (Lab)
May I confirm that I heard the Minister right? Did he say that the Government and Home Office are clear that this is happening, but they cannot give any indication of the extent?
Tom Pursglove
As I have said, we are aware that this is happening. We think it is right to take steps through the Bill, so that those going through the process are not disadvantaged relative to those who are seeking to make use of this loophole.
Bambos Charalambous
We believe that clause 9 will disentitle many stateless children who were born and grew up in the UK from their existing statutory right to British citizenship. I have heard what the Minister said. I think it would require a fair bit of cunning and conniving to conceive a child, wait for five years and not register them before applying for citizenship. This applies not just to children aged five, but to children aged five to 17. There may be many children caught up in those circumstances. We therefore strongly oppose this clause and believe that it should be removed.
Let us be absolutely clear about what the Government are trying to change with this clause. The existing law in section 36 of the British Nationality Act 1981 gives effect to schedule 2 expressly for the “purpose of reducing statelessness”. Paragraph 3 of schedule 2 is designed to prevent children born in the UK from growing up without nationality. As Ministers made clear during the passage of the 1981 Act, the provision was needed to ensure continued compliance with our international obligations under the UN convention on the reduction of statelessness, to which the Minister referred. In accordance with that convention, the provision entitles someone under the age of 22 born stateless in the UK who has lived in the UK for five continuous years at the point of application and who has always been stateless to register as a British citizen.
Clause 9 inserts a new paragraph 3A into schedule 2 of the 1981 Act for stateless children aged five to 17, requiring the Secretary of State to be satisfied that the child was unable to acquire another nationality before the child is permitted to register as a British citizen. It considers that a child can acquire a nationality where the nationality is the same as that of one of the parents, the person has been entitled to acquire that nationality since birth, and in all circumstances it is reasonable to expect them, or someone acting on their behalf, to take steps to acquire that nationality.
We oppose clause 9 because it is unethical and puts children’s rights in jeopardy. It unnecessarily restricts a vital safeguard intended to protect the rights and best interests of a small group of marginalised children born in the UK. For those affected, statelessness can mean problems accessing rights and services, denied opportunities, unfulfilled potential and a sense of never quite belonging. As worded, the new provision would give the Secretary of State wide discretion to prevent a stateless child born in the UK from acquiring British citizenship, perpetuating their statelessness. The Opposition believe that clause 9 creates an additional and unjustified hurdle to stateless children’s registration as British citizens and to satisfying the Secretary of State that they cannot secure some other nationality. This is in addition to the child having to show that they were born stateless in the UK, have remained stateless throughout their life and have lived at least five continuous years in the UK at the point of exercising their statutory entitlement to be recognised as a British citizen.
For many years, the existing requirements have together proved a high barrier to stateless children securing citizenship of the UK, which is where they were born, where they live and where they are connected to. Clarification of the relevant law by the High Court in 2017 and awareness raising by the Project for the Registration of Children as British Citizens, the European Network on Statelessness and others have enabled several children to apply to be registered under statutory provisions that are expressly intended to reduce statelessness. Prior to this, applications were so few as to be negligible. That indicates the profound inadequacy of the Home Office’s previous operation of the provision, and the strong likelihood that there have been a growing number of children living stateless in the UK, in contravention of the original parliamentary purpose, and following the UK’s international commitment to reducing statelessness.
The purported justification for the draconian clause 9 bears no relation to any matter over which the child has any control or influence, or for which they have any responsibility. It is suggested that some parents may choose not to exercise a right to register their child with the nationality of another country, and may leave their child stateless for the purpose of securing British citizenship, but no evidence has been presented for the idea that some parents may choose not to exercise the right to register their child with the nationality of another country. In any event, an application for registration of a stateless child’s entitlement to British citizenship is a complex matter, and that itself has been an effective and unjust deterrent to the exercising of the right.
The UK Government have provided no evidence to justify restricting children’s rights in such a way. In fact, the leading organisations in the field have evidence to show that stateless children and young people born in the UK already face significant barriers to acquiring British citizenship under existing law, and that has a significant detrimental impact on their wellbeing. Young people have described how their inability to acquire British citizenship leaves them feeling alienated and excluded.
Stuart C. McDonald
I wish to echo everything the shadow Minister said in outlining why we passionately oppose the clause. As I said in earlier speeches, and has been illustrated by many hon. Members, citizenship is fundamental to a person’s identity. It provides a status and security that no visa or immigration leave can ever match. When talking about statelessness, we may sometimes be talking about people who have neither citizenship nor any immigration status. Organisations that work with stateless kids have provided myriad case studies and examples of the dreadful impact that it can have on them. In essence, they are one of the groups most deserving of our protection and consideration—those without any citizenship at all. Without citizenship, a whole host of other rights become almost impossible, leaving that person with a huge gap in their identity, security and sense of belonging.
We talk often about children who belong to recognised stateless populations, such as Kuwaiti Bidoon, Kurds, Rohingya or Palestinians. Also, there are children who suffer from discrimination under the nationality laws of other countries—the same type of discrimination that has existed and that we have been trying to correct in British nationality law. They could be children in state care, for example, particularly if one of the parents is not available or not co-operative in proving links or nationality.
As matters stand, stateless children and young adults under 22 can register as British if they were born here, have always been stateless and meet the five-year residency requirement. Even now, it is not always a straightforward process, as has been explained by the European Network on Statelessness. Lots of hurdles remain: we have touched on registration fees, as well as lack of knowledge and awareness of the rights of stateless children and challenges in providing proof. I would be keen to rectify that, but instead, for some reason, the Home Office is taking it upon itself to erect further hurdles, making it more difficult, not easier, for children under 18 to be registered as British. Clause 9 restricts access to registration of stateless kids, and is worded in such a way that it gives a broad discretion to the Secretary of State to decline applications, which we believe is in breach of international law.
We have not heard at all from the Government today what assessment they have made of the impact that will have on statelessness. There is no doubt in my mind that it will increase statelessness among children, but that does not appear to have been weighed up in the Government’s reckoning. That is absolutely contrary to the intention of the 1981 Act, which rightly set out to reduce statelessness.
There are three key points: first, the case has simply not been made. There is a bland assertion in the explanatory notes that there have been cases where parents have made that choice. But today, despite pressing for some sort of analysis of the scale of the issue, essentially what we have been given is one extreme case, as the shadow Minister said. I am utterly unconvinced that there are lots of parents going underground and running away from the Home Office all for the sake of trying to secure statelessness in this manner. That case has simply not been made today. That is a wholly inadequate explanation. It actually reflects where Home Office policy making sometimes goes wrong: isolated examples where the rules have arguably been used for purposes slightly beyond how the Home Office would like them to be used are identified, and then an utterly disproportionate response is forthcoming, which may be able to stop those isolated cases but also stops a lot of absolutely deserving cases, and impacts on totally innocent individuals. To put it succinctly, the baby is thrown out with the bath water.
We have called for greater detail: how many cases? We need more examples than one extreme case. What, ultimately, is the problem? There was a lot of talk about queue jumping, but it does not impact on others who perhaps have to wait 10 years for registration. Their rights are not impacted at all. At the end of the day, in one extreme case, a child who has done nothing wrong may end up registered as British five years before they otherwise might be.
Secondly, on international laws, the shadow Minister says that in our view this is in breach of the 1961 UN convention on the reduction of statelessness. The Minister made the case that the UNHCR guidelines on statelessness allow a small discretion for the state to withhold conferring citizenship where the nationality of a parent was available to the child immediately, without any legal or administrative hurdles, and could not be refused by the other state concerned. However, the wording of clause 9 goes significantly beyond what is allowed in the guidance. The clause will insert new paragraph 3A into the British Nationality Act 1981, with subsections 1(d) and 2(c) both going beyond what is permissible. The former appears to allow the Secretary of State some evaluative leeway about what is and what is not possible in terms of accessing another nationality. The question is: why not leave that as a pure question of fact? The latter subsection also introduces leeway where neither the convention nor guidance allows for it. Instead, the very limited exception that is allowed is where the other nationality is available to the child immediately, without any administrative impediments, hurdles, fees or similar obstacles, so I fear that the Home Office will end up in court again.
My final and most important point is that this will cause so much more harm than good. There has been no indication at all that the Home Office has undertaken any sort of balancing exercise. Whatever problem the Home Office is trying to fix—essentially, we have had an anecdote—the damage that will be done goes way beyond it. Families will not risk a huge fee if they have all sorts of doubts about what the Secretary of State will do with her discretion. We fear that many more people risk being unreasonably refused registration, prolonging their statelessness. Where is the assessment of the best interests of the children involved? Where is the assessment of the number of stateless kids who may be impacted by the Bill? There really has been a wholly inadequate justification for it.
I have a final plea to the Minister. Even if he will not revisit the need for some sort of response to the type of case that he has identified and spoken about today, will he at least revisit how far the clause is going? As I say, it is our strong view that it might have prevented that anecdotal case from happening, but it will cause all sorts of damage way beyond that. We also think that the wording is inconsistent with the UN guidelines that the Minister has cited. If he still feels compelled to do something, he should at least revisit how the clause has been worded. Otherwise, I think he will very much regret that the outcome will simply be thousands more stateless kids in the United Kingdom.
Anne McLaughlin
The UK is bound by the 1961 UN convention on the reduction of statelessness, as we have heard. That focuses on protecting the stateless child and preventing childhood statelessness. It requires only that the applicant is stateless, and not that they cannot reasonably acquire another nationality, as it says in the Bill. The UK Government say there is a problem that needs addressing through clause 9 and that would justify departing from the safeguards established by the convention, yet no evidence is offered.
As my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East has just said, he intervened on the Minister to ask for the evidence. The Minister said he had a long speech and would come to that, but he did not do so. He gave one piece of anecdotal evidence. I know that much of the Bill will have been drafted prior to his recently coming into the role, and I appreciate that this must be a baptism of fire for him, but I ask him to look more closely at the Bill. Why introduce it, if there is no evidence that there is an increase in abuse? There is no evidence. If there is no evidence, there is no problem, and if there is no problem, there is no need for clause 9. The UK Government really must not legislate to enable breaches of the commitment in the 1961 convention and the principle of the best interests of the child in UK domestic law.
Neil Coyle
I will not repeat the excellent points that have been made by colleagues, and I will try to be brief. My first point is about international law. It seems that most responsible countries strive to reduce the number of stateless children, but the Bill, and specifically clause 9, leaves people in limbo for a much longer period. It feels as though global Britain is acting in a slightly squeamish way about its international responsibilities on this issue and on other areas, so my first question to the Minister is: which other countries use a similar process, given what he has said today about how this is used in examples?
I agree with the comments just made. The Government are presenting a Bill and a clause that are based on hearsay. The Minister is asking us specifically to rely on hearsay and one anecdote. We all remember the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), talking about someone who was not evicted from this country because their human rights had been encroached because they had a cat. It turned out to be totally false; yet that was used by the then Home Secretary at a Conservative party conference to try to make a very similar point.
Tom Pursglove
We have had a very wide ranging debate in relation to these matters, with views expressed that are sincerely and strongly felt. I do not doubt that for a moment. Let me be clear that genuinely stateless children will still be able to benefit from the registration provisions. This change is to prevent people from benefiting by choosing not to acquire their own nationality for their child where they are able to do so.
Paul Blomfield
I thank the Minister for giving way, because it is important that he addresses the question that has been raised successively. The clause goes against the drift of the rest of part 1, which is rectifying anomalies. This potentially creates one, and one that will come to land heavily on the Home Office in the future, as well as those who will be affected by it. It is incumbent on him, before we vote on it, to explain clearly the extent of the problem. He has given only one anecdote as the justification for it. Will he use the opportunity to do that now?
Tom Pursglove
I am grateful to the hon. Member for his intervention. As Opposition Members will know, the way that I go about my work is to always try to be as constructive and helpful as possible. With that in mind, I will gladly write to the Committee setting out in greater detail our rationale for taking this approach, and as much information as I can to justify it.
As I say, there is a fairness issue here that we believe needs to be addressed. The MK case was cited, and it is worth recognising that in his conclusion Judge Ockelton made the comment that it opens an obvious route to abuse. We are satisfied that what we are proposing complies with our obligations under the statelessness conventions, and all our obligations that flow from that. I commend that the clause stand part of the Bill, with the very clear undertaking that I will provide the information that I have promised.
Question put, That the clause stand part of the Bill.
Building Safety Bill (Twelfth sitting)
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Eddie Hughes)
On a point of order, Mrs Miller. It is a pleasure to serve under your chairmanship, and I am just marginally embarrassed that I am starting that experience by making an apology. I would like to make a correction to the Committee. When we were debating clause 85 this morning, I said that the secondary legislation for the form and content of safety case reports will follow the affirmative procedure. That was incorrect; I should have said the negative procedure. That was purely a slip of a tongue, but I would like to assure hon. Members that consultation will be held before the regulations are finalised. An ongoing programme of work is under way to support the smooth introduction of the safety case regime.
The Chair
I am sure that the Committee is very grateful to the Minister for clarifying that at the beginning of the sitting. That neatly brings us on to further consideration of clause 85 stand part.
Clause 85
Safety case report
Question (this day) again proposed, That the clause stand part of the Bill.
The Chair
I remind the Committee that with this we are discussing clause 86 stand part.
Question put and agreed to.
Clause 85 accordingly ordered to stand part of the Bill.
Clause 86 ordered to stand part of the Bill.
Clause 87
Mandatory reporting requirements
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
Clause 87 creates requirements for mandatory occurrence reporting for occupied higher-risk buildings under the new building safety regime. The Government recognise the success of mandatory occurrence reporting systems in improving the safety of industries the world over, including the UK’s civil aviation industry.
We concur with the recommendation in the independent review that systems of mandatory occurrence reporting be set up under the new building safety regime, and the clause contributes to its implementation. It requires the principal accountable person of an occupied higher-risk building to establish and operate an effective system for capturing and reporting safety occurrences. Accountable persons will be required to report such occurrences to the Building Safety Regulator. A safety occurrence will be defined in secondary legislation; the intention is to capture any structural or fire safety event or situation that presents a significant risk to life.
Accountable persons will be responsible for taking all reasonable steps to ensure that mandatory occurrences are identified, and that when they are the Building Safety Regulator is informed as soon as is practicable. In addition to that immediate notification, accountable persons will be responsible for ensuring that a full report is submitted to the Building Safety Regulator within a specified timeframe. Once received, the Building Safety Regulator can choose to use a mandatory occurrence report as a basis for further investigative action if necessary. The situations or events that will constitute reportable occurrences, along with information needed in the reports and reporting timescales, will be prescribed in secondary legislation.
Safety occurrences will represent the most serious of safety-related incidents. Non-compliance with mandatory occurrence reporting will be a criminal offence. Mandatory occurrence reporting will ensure that the Building Safety Regulator receives the crucial intelligence needed to identify systemic issues in the management of a building’s safety and take effective enforcement measures.
We expect reports received by the Building Safety Regulator to contain valuable lessons learned and allow for identification of emerging safety trends across the built environment. The Building Safety Regulator will be able to share that useful information with industry to improve safety standards and best practices across the built environment. For example, lessons learned from a series of reported safety occurrences relating to fires may allow others in industry to amend their fire safety protocols and raise safety standards accordingly. Alternatively, a reported rise in a type of safety occurrence, such as a widely used fire door discovered to be defective, may prompt industry to identify otherwise unknown risks.
We also expect that the sharing of such information will further underline to industry the value and importance of reporting safety incidents, helping to promote a more positive, proactive culture around safety reporting. Mandatory occurrence reporting will ensure that incidents too serious for voluntary occurrence reporting are captured, reported to the Building Safety Regulator, and learned from. The two reporting systems, along with whistleblowing, will work in a complementary manner to engender a more proactive culture around safety reporting within industry.
Question put and agreed to.
Clause 87 accordingly ordered to stand part of the Bill.
Clause 88
Keeping information about higher-risk buildings
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
The Government are committed to bringing about the biggest improvement in building and fire safety for a generation. The clause creates a power to make regulations to require a golden thread of information for all occupied buildings in scope of the more stringent regime.
The golden thread is the information that allows someone to understand a building and keep it safe, and the information management needed to ensure that the information is accurate, easily understandable and up to date. The clause enables the Secretary of State to make regulations to require the people responsible for those buildings—the accountable person—to put in place and maintain the golden thread. The clause also creates the power to make regulations to set out the information and documents that must be stored in the golden thread, and to set out standards that the golden thread must be held to. The independent review recommended that a golden thread be put in place for all buildings in scope of the regime.
We agree with that recommendation, recognising that it is critical to ensure that buildings are safe. Currently, there is a lack of information about buildings in the new more stringent regime. That lack of information makes it difficult to manage and maintain those buildings safely and to ensure that they are safe for those who live and work in them. We are also aware that, even if there is information, it is often not kept up to date, is not accurate or is not accessible.
The clause will ensure that the information is recorded and that it is accurate, kept up to date and accessible to those who need it. Having accurate, up-to-date information is critical to ensuring that buildings are managed safely. Clause 88 is vital to ensuring that all buildings in scope of the new, more stringent regime are safe and remain safe.
Mike Amesbury (Weaver Vale) (Lab)
I welcome you to the Chair, Mrs Miller. I have one question for the Minister about the golden thread. How will it apply to buildings that are converted by permitted development and are in scope—that is, buildings of 18 metres and above or of seven storeys or more?
Eddie Hughes
Regardless of how buildings have ended up in scope—whether through permitted development rights or otherwise—they will be part of the regime. Therefore, the golden thread will apply. My understanding of permitted development rights, however, is that currently a permitted development right cannot convert to a building over 18 metres. Someone would have to apply for planning permission.
In the absence of further questions, this feels cheeky but speaking as someone who has managed buildings from construction to operation and seen documents handed over that are out of date, inconsistent or incomplete, I know that it is incredibly important to have that golden thread running through not only newly constructed buildings, but existing buildings. It will be invaluable to their safe management.
Question put and agreed to.
Clause 88 accordingly ordered to stand part of the Bill.
Clause 89
Provision of information etc to the regulator, residents and other persons
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
Clause 89 creates a power to make regulations to ensure that the information in the golden thread is shared with those who need it. This will help ensure that all buildings in scope of the more stringent regime are safe. It enables the Secretary of State to make regulations to require the people responsible for these buildings—the accountable persons—to share information with prescribed persons. Prescribed persons include the Building Safety Regulator, residents, other accountable persons in the building and owners of residential units within the building, among others.
Clause 89 enables the Secretary of State to make regulations to set out what information must be shared, when and how it must be shared and in what format. We know that it is currently difficult to access information about buildings in scope of the new, more stringent safety regime. Clause 89 will ensure that the appropriate information from the golden thread is shared with the people who need it. Having easily accessible information is critical to manage buildings safely, for residents to feel safe in their homes, for people to understand their responsibilities in keeping their home safe and for the Building Safety Regulator to be able to regulate effectively.
The independent review recommended that information on buildings should be available and that this would drive greater accountability throughout the system, which would support safer buildings. We agree with this recommendation, recognising that it is critical that information is available on buildings in scope of the more stringent regulatory regime. Clause 89 is vital to ensuring that information is available on these buildings.
Clause 90 requires the golden thread to be handed over whenever the person responsible for the building—the accountable person—changes. This applies to all occupied buildings in scope of the more stringent regime. The golden thread is the information that allows someone to understand a building and keep it safe, and the information management needed to ensure the information is accurate, easily understandable and up to date.
Clause 90 enables the Secretary of State to make regulations to set out what information is handed over, when and how the information is handed over, and in what format it needs to be. We know that currently there is a lack of information. This lack of information makes it difficult to manage and maintain buildings. The clause will ensure that the information is handed over and is not lost when the accountable person leaves their role. Regulations under this clause will ensure that the information is handed over in a timely and appropriate manner. The independent review recommended that a golden thread is put in place for all buildings in scope of the regime and that there are requirements to ensure the golden thread is handed over throughout the life cycle of the building. We agree with that recommendation, recognising that this is critical to ensuring that buildings are safe.
Question put and agreed to.
Clause 89 accordingly ordered to stand part of the Bill.
Clause 90 ordered to stand part of the Bill.
Clause 91
Residents’ engagement strategy
Mike Amesbury
I beg to move amendment 13, in clause 91, page 99, line 20, after “management” insert “and ownership structure”.
This amendment would ensure that residents of buildings receive information about the ownership of a building.
The Chair
With this it will be convenient to discuss clause stand part and clause 92 stand part.
Mike Amesbury
The amendment would strengthen the provisions laid out in clauses 91 and 92 by bringing the ownership of the building, as well as its management, under their scope. This issue has been raised by residents and leaseholders going through that ping-pong of building safety remediation. The amendment would enhance transparency and, ultimately, the building safety regime. I know that a number of colleagues will want to interject and contribute to the broader debate about residents’ engagement, drawing on my earlier comment on what makes a good residents’ engagement strategy.
Rachel Hopkins (Luton South) (Lab)
It is a pleasure to speak in this important debate under your chairship, Mrs Miller. I thank my hon. Friend the Member for Weaver Vale for pointing out vital it is that we understand the ownership structure. For example, I have been having talks with leaseholders in Luton South who live in buildings with dangerous cladding.
Residents often do not have much time to investigate complex ownership structures because they have jobs to hold down. It is absolutely right, however, that they should know who owns their building and how they can follow that golden thread of ownership when there are issues. It is important that the proposed resident’s engagement strategy hears their voices on every aspect that matters to them.
Constituents living in the Point Red building in Luton have told me of their difficulties in finding out where they need to go when issues become apparent, particularly given that the entity that built the property no longer exists. They have spent a lot of time trying to find out who now owns it, but that information has proved difficult to come by. Members on both sides of the House know how important our residents’ voices are—we hear them loud and clear.
I fully support the amendment, but, at the same time, the voices of residents and leaseholders are equally important to the overall engagement strategy.
Eddie Hughes
I thank hon. Members for raising this important matter, but I am afraid that the Government are not able to accept the amendment. However, having listened to the hon. Member for Luton South speak, I now understand more fully the intended purpose of the amendment. Personally, I feel that the role of the accountable person fulfils the intention that she seeks.
As we have touched on, ownership of buildings can be complex. We need to be able to point to the person or entity that residents can go to if they have the kinds of concerns mentioned by the hon. Lady. The accountable person fulfils that purpose and will be a useful addition to the needs of her constituents. Our assessment is that this amendment would not deliver improved building safety protections for residents in high-rise buildings.
Clause 91 requires that the accountable person must prepare strategy “for promoting the participation” of residents in decision making about building safety and decisions relating to the management of the building or performance of the accountable person’s duties. Inserting “ownership structure” in the clause would not require residents to be provided with information on the ownership of the building, but it would require an accountable person to include in their strategy ways to promote the participation of residents in decisions related to the building’s ownership structure.
I assure hon. Members that their intention of ensuring that residents have information on and are able to hold to account those responsible for their safety has been met by the Bill. Information about accountable persons will, by virtue of clause 73, be publicly available on the register of higher-risk buildings, which will be published by the Building Safety Regulator.
In addition, clause 77 requires important details about the identity of those responsible for managing building safety to be displayed in a conspicuous position in the building by the principal accountable person. This will further ensure that residents have information about key people responsible for their buildings. Clause 90 provides that where there is a change in accountable persons, the regulator must be notified and residents given updated information about their accountable person through the notice displayed conspicuously in the building. This ensures that when there are changes to who is responsible for a building’s safety, this is captured and residents will be informed. Therefore, I respectfully ask the hon. Member for Weaver Vale to withdraw the amendment.
Mike Amesbury
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 91 and 92 ordered to stand part of the Bill.
Clause 93
Complaints procedure operated by principal accountable person
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
The Government are committed to making sure that residents’ safety concerns and views are never ignored by those responsible for managing the safety of their building. Residents need to be able to hold the accountable person to account when things go wrong, and be confident that prompt, effective action is taken. Clause 93 places an obligation on those responsible for managing a high-rise building to establish and operate an internal complaints process to handle and resolve residents’ complaints about their building’s safety. This process should be clear, quick and effective.
In buildings that are managed by multiple accountable persons, a single complaints system will be established. Each accountable person will be responsible for safety concerns raised by residents in the area of the building for which they are responsible. The complaints system will provide residents of all tenures and owners of residential units in high-rise buildings with a clear process to raise safety concerns, and with a right not to have those concerns ignored. Residents will be able to further escalate their concerns to the new Building Safety Regulator.
The independent review found that residents did not have a strong enough voice in matters about the safety of their homes, and that residents struggled to get their complaints addressed. The Bill addresses this by placing an obligation on those responsible for managing high-rise buildings to establish and operate an internal complaints system for residents to raise their safety concerns.
In addition to an internal complaints system, residents will be able to further escalate complaints relating to building safety to the new Building Safety Regulator. This will be available where the accountable person has not resolved the safety concerns. We intend that secondary legislation will set out how the complaints process will operate, and what subsequent action the regulator must consider in response. The new Building Safety Regulator will consult the residents panel before establishing its complaints system and, subsequently, before any significant change is made. The accountable persons’ and Building Safety Regulator’s complaints processes are vital in increasing transparency. Strengthening building safety complaints handling in high-rise buildings is critical to providing residents with a strong voice.
Mike Amesbury
I seek clarity on clause 93(2), which says:
“The Secretary of State may by regulations make provision about the establishment and operation of complaints systems under this section.”
Should that be “will” rather than “may”?
The Chair
Can I check that no one else wants to speak? In that case, can I bring the Minister in to respond?
Eddie Hughes
You can, Mrs Miller, now that I have phoned a friend. I am delighted to inform the hon. Member for Weaver Vale that this is standard legal language. However, as we have set out, there will be an obligation on the Building Safety Regulator to provide that complaints process anyway, so that is mandated. It will also be mandated that accountable persons, or principal accountable persons, have a complaints process. Regardless of the semantics of the interpretation of that word, the hon. Gentleman can be assured that complaints processes will be in place for both those entities.
Question put and agreed to.
Clause 93 accordingly ordered to stand part of the Bill.
Clause 94 ordered to stand part of the Bill.
The Chair
We are going to have a vote in the Chamber shortly. We will start to consider the next clause, but I alert Members to the fact that when we have a vote, we will suspend the Committee for 15 minutes.
Clause 95
Duties on residents and owners
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
Clause 95 places three clear obligations on residents aged 16 years or over and on owners of residential units in high-rise buildings in relation to keeping their homes and buildings safe.
The first of those obligations requires all residents, irrespective of tenure, to not act or behave in a way that creates a significant risk of fire or structural failure in their building. Secondly, the clause requires residents and owners of residential units to refrain from interfering with safety items that form part of the common parts. By interfering, we mean damaging or removing the safety item or hindering its function without a reasonable excuse for doing so. Thirdly, residents will have to provide the accountable person with relevant information if it is reasonably required by the accountable person to fulfil their safety duties. We believe those obligations to be proportionate and reasonable.
Turning to clause 96, residents have an important part to play in keeping their building safe, and we know that the majority of people who live in high-rise buildings take their safety responsibilities seriously. As part of the new regulatory regime, our aim is to make sure that sufficient requirements, incentives and powers are in place to prevent and put right risks that are posed by behaviours that residents might engage in. The aim is for accountable persons to work with residents in the first instance, but with the ability to escalate issues to the county court where required. This will help to ensure the appropriate and effective assessment and management of building safety risks for all residents in high-rise buildings.
A contravention notice issued by the accountable person and served on a resident is a means to notify that resident of a breach of their obligations and give them the information they need to put it right. The notice will be issued only where it appears that a contravention has occurred. Where the breach involves interference with a safety item, a sum to either repair or replace that item—not exceeding a reasonable amount—may be requested from the resident.
We believe that to be a fair and proportionate approach, as the majority of residents will want to keep their home and building safe and will not interfere with safety items provided to help them do so. Getting this right is particularly important: it underpins the system of accountability for the accountable person responsible for mitigating fire and structural safety risks, as it provides a proportionate means to discharge their duties in relation to individual dwellings.
Ian Byrne (Liverpool, West Derby) (Lab)
It is an honour to serve under your chairship, Mrs Miller.
If an accountable person is potentially utilising their position to bully a resident, what recourse does that resident have to challenge the notice, which may end up in eviction? What safeguards are in place for the resident? I find it concerning that this seems to be an awful lot of power. We have talked about imbalances of power on the Housing, Communities and Local Government Committee. My worry is that this is a further imbalance of power, so what recourse will residents have to challenge a notice that is served by the accountable person?
Eddie Hughes
There are two assurances that I can give: first, the natural line of escalation would not be to eviction. The purpose of clause 96 is simply for the accountable person to be able to discharge their duty and keep the building safe. The first line of action would be for the accountable person, if they thought that a resident had done something to affect a safety item in the building, to try to deal with that on a lower level. If it was not immediately possible to do so or if the safety risk was greater, they would have to move to the issuing of the notice.
Eddie Hughes
I beg to move amendment 56, in clause 97, page 104, line 40, after “premises” insert
“who is aged 16 or over”.
This amendment provides that requests to residents to enter premises made under this clause may only be made to residents who are aged 16 or over.
Eddie Hughes
Amendment 56 is minor and technical. It will ensure that a request for access by the accountable person can be made only to a resident aged 16 or over. The age of 16 is used, as opposed to 18, because it is the youngest age at which a resident may be granted a tenancy. The amendment will bring clause 97 in line with clause 95, where duties on residents and owners apply only to those aged 16 and over, and I commend it to the Committee.
The purpose of clause 97 is to provide the person responsible for managing building safety in high-rise buildings—the accountable person—with a means by which they can access premises in the building. The Government are committed to ensuring that residents, their homes and their buildings remain safe from fire and structural risks. Clause 97 will enable accountable persons responsible for managing safety in high-rise buildings to carry out their duties effectively, minimising the risk of fire or structural safety risk.
The clause is closely linked to clause 95, which deals with duties on residents and owners. Residents aged 16 and over and owners of residential units are required to comply with the three duties. The duties require all residents, irrespective of tenure, not to act in a way or behave in a manner that creates a significant risk of fire or structural failure in the building; to refrain from interfering with safety items that form part of the common area; and to comply with a request made by the accountable person for information reasonably required to carry out their duties.
The accountable person can request access to premises only to assess or manage building safety risks or to determine whether a resident has breached their duties. To be enforceable, a request by the accountable person must be made in writing, with at least 48 hours’ notice, explaining why access is required and giving a reasonable time for when access to the premises is intended. If the resident refuses access, the accountable person can apply to the county court for an order requiring the resident to give access and, if necessary, allowing the accountable person to gather necessary information, such as by taking photographs or measurements.
Amendment 56 agreed to.
Clause 97, as amended, ordered to stand part of the Bill.
Clause 98
Duty on regulator to enforce Part
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
Clause 98 places a statutory duty on the Building Safety Regulator to enforce the provisions of part 4. As per the clauses we have already discussed, part 4 is concerned with occupied buildings. Among other things, it defines a building safety risk and it defines and places duties on the accountable person in relation to risks in their building, including duties regarding resident engagement.
Alongside clause 4, part 4 also makes it clear that the Building Safety Regulator will be the responsible regulator for the higher-risk building regime during occupation. The reason for placing the duty to enforce breaches of that regime in the Bill is, I hope, self-explanatory. It cements the position in law of the new Building Safety Regulator.
Clause 99 introduces a power for the Building Safety Regulator to ensure compliance with the new regime where a higher-risk building is occupied, through the use of compliance notices. The new regime imposes a range of new requirements for the management of higher-risk buildings, particularly on the new position of the accountable person. The accountable person has a significant role in ensuring that residents are kept informed with important building safety information and, most importantly, kept safe in their homes.
These compliance notices will provide the Building Safety Regulator with effective tools to enforce the relevant part 4 requirements where contraventions have occurred or are likely to occur, and will be available as urgent action notices with shorter deadlines where people in or around a building are at risk of imminent danger, where immediate action is required.
The use of compliance notices will also afford accountable persons the opportunity for correction before formal prosecution action. Nevertheless, the possibility of a custodial sentence upon conviction for breaching a compliance notice is designed to incentivise the accountable person to comply with their requirements and will further support the Building Safety Regulator to ensure that duties under part 4 of the Bill are being met.
The provision complements clause 37, which makes provision for the use of compliance and stop notices during the design and construction of a building, although there is no provision for stop notices in clause 99. Together, the clauses ensure building control authorities will have consistent enforcement tools available to them during the entire lifecycle of a building.
The compliance and enforcement measures in the Bill are appropriately tough. It is not enough that there is an accountable person for a building; the new regulator must be certain that the accountable person is carrying out their duties and responsibilities as they should, in line with the regime. The design of the new regime and the related requirements in part 4 of the Bill are only part of how we are making buildings safer. The most perfect regime could be created, but without oversight and enforcement, it would completely fail to function.
Clause 100 allows the Secretary of State to make regulations where necessary to ensure that compliance notices issued to accountable persons are as effective as possible. Examples of matters that the Secretary of State can make regulations about include the form and content of notices, or the amendment or withdrawal of notices. The provision allows for amendments where different regulatory bodies may need to be informed of compliance notices, where the period for compliance may need to be extended or where any other change is deemed necessary.
The flexibility the new regulations afford will allow the Building Safety Regulator to issue compliance notices that directly respond to the contemporary needs of the industry. The requirement on the Building Safety Regulator to inform relevant bodies where compliance notices have been issued will be important in ensuring that buildings of concern are on the radar of the relevant authorities. That will align regulatory action across those bodies to avoid the overlap of enforcement action and ensure that each regulatory body is taking appropriate action within its jurisdiction to enforce compliance.
Moving on to clause 101, more than four years ago the Grenfell Tower fire made clear to all of us the consequences that can occur when building safety requirements are not complied with. We have discussed in respect of previous clauses in this part why the Bill creates the new position of the accountable person to deliver safety for residents and others in and around higher-risk buildings. We have also discussed the various duties that this part of the Bill imposes on accountable persons and the provisions of the previous couple of clauses for enforcing those duties by means of compliance notices.
This clause underpins the new regulatory regime for occupied higher-risk buildings, reflecting the potential gravity and consequences of not adhering to the part 4 duties. It makes it abundantly clear that, where any of the duties are breached and have the potential to cause death or serious injury to those in or around the building, the Building Safety Regulator will not have to go through the compliance notice process but will be able to prosecute an accountable person straightaway.
That is in line with the enforcement principles that we set out in our consultation document in 2019 and in the Health and Safety Executive’s published enforcement principles—[Interruption.] I give way to the hon. Member for Liverpool, West Derby.
Eddie Hughes
There are two things I would say. First, I do not think it would be appropriate for me to comment regarding Grenfell, not least because, as somebody who listens to the BBC podcast every week to follow the proceedings, we are still a long way from the conclusion and completely understanding what went wrong and what the consequences of that were to be. It would be inappropriate for me to comment—[Interruption.] If the hon. Gentleman will let me answer his second point before he comes back with a third, that would be very helpful.
Regarding compliance with these notices, the total purpose of the Bill is to intervene at the earliest possible opportunity. I fully appreciate that the hon. Gentleman would say, because of the parallels he is drawing with Grenfell Tower, that two years does not seem an appropriate sentence, but, given that we are talking about intervening before things have gone wrong—somebody identifying a problem, seeing that an accountable person has not addressed it appropriately and therefore taking action at that point—I think two years is an appropriate sentence.
The Chair
Just for clarification, if people wish to intervene on the Minister, it is for the Minister and not the Chair to agree to that intervention. I take it from the Minister’s sedentary position that he was giving way to Ian Byrne.
Ian Byrne
I am not specifically asking about Grenfell per se, but an example like Grenfell that could happen again. That is what I am trying to draw out: is two years sufficient, and would the legislation target the people who would potentially be responsible for another Grenfell?
Eddie Hughes
The entire purpose of the clause, as I say, is to avoid our ever ending up in a position where we have another Grenfell. Therefore, the idea that the accountable person now completely understands their responsibility, and that that is set out in legislation, is increasing in and of itself the focus on safety within the sector. We are seeking to prevent any occurrences by focusing minds and ensuring that even in this new, stricter regime, if people are still prepared to be reckless and ignore the legislation, a custodial sentence can, and hopefully in certain circumstances will, follow. I completely understand the point that the hon. Gentleman makes.
That is in line with the enforcement principles that we set out in our 2019 consultation document, and in the Health and Safety Executive’s published enforcement principles. Those documents set out that minor infringements will normally attract informal action, which will be escalated as necessary. More serious breaches will probably attract more formal action, such as compliance notices. The most serious breaches envisaged by the clause will normally attract immediate prosecution. An offence can carry a maximum penalty of an unlimited fine and/or 12 months’ imprisonment if tried in a magistrates court, and an unlimited fine and/or two years’ imprisonment if tried in a Crown court. Either court may also issue a level 1 fine of £200 for each day the default continues after conviction.
The measures will help to ensure compliance with our new regime, and they reflect our strong stance on breaches and enforcement.
Mike Amesbury
What assessment have the Minister and his Department made of the effectiveness of section 21 notices under the Health and Safety at Work etc. Act 1974?
Eddie Hughes
In all honesty, I am not sure of the answer to that question. However, I would be reassured by the fact that the Building Safety Regulator, in its shadow form—[Interruption.]
Eddie Hughes
I offer the hon. Member for Weaver Vale the assurance that section 21 notices—and whatever else he thinks should be considered as part of this process—will be considered, because the Building Safety Regulator sits within the health executive, and all the knowledge on that subject sits in that department.
Question put and agreed to.
Clause 98 accordingly ordered to stand part of the Bill.
Clauses 99 to 101 ordered to stand part of the Bill.
Clause 102
Notification by regulator before applying for special measures order
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
The vast majority of accountable persons will meet their new duties under the more stringent building safety regime, but a small number may still fail to comply. The clause establishes the procedural steps that the Building Safety Regulator must take to put a failing building into special measures.
The Building Safety Regulator must notify persons of its intention to apply to the first-tier tribunal for the appointment of a special measures manager who will carry out functions in place of the accountable person. The clause details the persons who should be notified and sets out the information that needs to be provided, which must include the rationale for the special measures proposal. The persons who must be notified include every resident of the building over 16 years old, the fire and rescue authority for the area, and every accountable person for the building, among a number of others.
The Building Safety Regulator must make it clear how a person can make comments and observations about the special measures proposal. That ensures that those who may be affected are consulted and can make representations. Requiring that the rationale for the special measures proposal is contained within the notification gives the residents and those other interested parties clarity on why the notification is being issued.
The Building Safety Regulator must comply with the procedural requirements of clause 102 before making an application for a special measures order. Once the decision is made to make an application to the tribunal, a final notice needs to be given to those persons, detailing the rationale for that decision. The proposed terms of the special measures order must be included in the final notification if the Building Safety Regulator decides to apply to put the building into special measures. Clause 102 enables the Secretary of State to make regulations about the form of notices and the way in which they need to be given. It establishes a key procedural aspect of special measures, and is necessary so that affected parties have the opportunity to make comment and provide representations about the management of their building
The clause builds on that, giving the first-tier tribunal the necessary powers to make a special measures order. Special measures is a last resort intervention. In the majority of circumstances the Building Safety Regulator will be able to take other enforcement measures to direct compliance with the new regime. However, where that fails, the Building Safety Regulator may need to step in and appoint a special measures manager to take over the fire and structural safety management of the building to ensure safety for the residents. The clause sets out the grounds that the tribunal must have agreed to be met when making an order: there must have been a serious failure, or a failure on two or more occasions by the accountable person to comply with a duty or duties under part 4 of the Bill. Those are the same grounds that the Building Safety Regulator must consider when making its application to the tribunal.
The order will set out the functions of the special measures manager, which will have been proposed by the Building Safety Regulator in its application for the order. This will effectively “switch off” the fire and structural safety obligations in part 4 of the Bill of the recalcitrant accountable person. The clause ensures that the tribunal can bestow receivership functions on the special measures manager, allowing them to collect the building safety charge directly from leaseholders, so that the manager can fund the functions that they have been tasked with undertaking.
A special measures order can make provisions covering any matter relating to the special measures manager’s exercise of their functions, and any incidental or ancillary matter. That will be vital to ensure that the special measures manager can carry out their role. The special measures order continues in force until it is discharged. I will speak about the discharging of an order in more detail later.
An example of when a special measures order might be necessary is if an accountable person repeatedly fails to meet the statutory obligations under part 4 of the Bill. Yet if, after using the compliance and enforcement tools at its disposal, the Building Safety Regulator is still of the opinion that the safety of residents is at risk, they apply to the first-tier tribunal for an order to appoint a special measures manager. The special measures order would detail the identity of the special measures manager, the scheme and terms of management, including the specific functions that the special measures manager would be undertaking to make sure that obligations under part 4 of the Bill are met. In making such an order, the first-tier tribunal specifies that the special measures manager has the functions of a receiver of the building safety charge to pay for their own renumeration and functions in relation to undertaking their safety obligations. This clause provides for a hugely important failsafe for when the safety of residents is at risk.
Clause 104 supplements clause 103 in that it sets out further detail about special measures orders. It ensures that a special measures manager takes over the functions of the accountable person for the building as provided for under part 4 of the Bill. However, there are some exceptions to this in order to allow the accountable person to retain the right of appeal, or to make an application, to the first-tier tribunal. Furthermore, once the building is put into special measures, any requirements of a previously issued compliance notice are cancelled. But enforcement action can be continued by the Building Safety Regulator. Once a special measures order is made, the role of the building safety manager ceases and any appointment ends. A special measures manager is solely responsible for managing the fire and structural safety of the building until the order is discharged by the tribunal. My apologies; I thought that I had got to the end of this group of clauses, but I certainly have not.
Clause 105 enables the special measures manager to take over relevant fire and structural safety contracts that may be in place for the building, effectively stepping into the shoes of the accountable person. That ensures that the special measures manager can carry out their functions as set out in the order. The circumstances that led to the appointment of a special measures manager are likely to be so dire that any competent manager would want to replace contractors. There may also be the outstanding provision of works and services, or a breach of contract by a supplier of shoddy workmanship. The clause gives the special measures manager the legal remit to pursue those types of actions under contract.
In pursuing such claims the special measures manager may be liable to pay damages incurred for the actions of the accountable person or building safety manager prior to their appointment. If that happens, those persons will be liable to reimburse the special measures manager. That type of provision is common in receivership, where one party has to step in to take over the management arrangements to help a failing company, and it is necessary here to ensure that the special measures manager can carry out their job effectively. As with other such clauses pertaining to the remit of the special measures manager, our aim is to give them the requisite and necessary ability to effectively carry out their role. In such cases as the example relating to shoddy workmanship and replacement contractors, the special measures manager needs the remit to be able to take a hands-on approach in those issues.
Eddie Hughes
The functions that will be performed by the special measures manager will be the same or similar to those of an accountable person. As we have discussed on previous clauses, an accountable person could be a single person or an organisation, as in the case of a council or a housing association, so it would depend on the circumstances pertaining to the building in question. It might be that that person is simply an individual who has the competence and experience to discharge the role, or it might be that an organisation is brought in and the competences and experience are spread across several people.
Rachel Hopkins
Most of us have heard special measures mentioned in relation to schools and Ofsted, or where the Care Quality Commission has to intervene in health services. There is an element of public good, so when people can move around and come across from other parts of the system to become a special measures manager, so to speak, it is still after that same aim of public good. Given that many buildings that may be affected by this are in the private sector and by dint of that naturally competitive, does the Minister not see that there could be a potential conflict of interest sometimes, and how would he look to remedy that?
Eddie Hughes
I am not sure that the “special measures” description or title translates equivalently from the examples that the hon. Lady gave to this particular example. What we are talking about, and hopefully an incredibly rare occurrence, will be a significant failure on the part of the accountable person to discharge their duties, thereby putting the safety of residents at risk, so, regardless of who comes in to perform that duty, the main function and purpose of the clause in allowing this to happen is to ensure that the safety of residents is maintained, and that an appropriate person or entity with the appropriate skills, qualifications and experience takes over those duties to ensure a smooth transition.
Rachel Hopkins
I understand that the absolute objective is about safety, but what I was trying to get at is that with schools there is a very like-by-like aim of education. It may be that someone moves across, where functions have failed, to take on that role, but they could be, in the private sector, competing. They may not want to come across, so that we cannot find anyone to take it on because they are a rival building provider; or it may be that it is an assertive move to say, “We will rectify this but take it on.” How would the Minister keep the safety element for residents despite private businesses’ potentially using this as a mechanism to secure a greater place in the market?
Eddie Hughes
I refer again to the overarching responsibility of the Building Safety Regulator. That is the ultimate entity to which these people will be responsible. The Building Safety Regulator will have complete oversight, will understand and will be there to validate that the special measures manager is appropriate for the job.
With regard to the market for this, we now have so much more focus on building safety in this country and there has been an appropriate, commensurate growth in the services provided by some big providers, who understand the demand and need for this service provision. So I do not think we need to feel anything other than assured that there will be a smooth transition.
Shaun Bailey (West Bromwich West) (Con)
It is a pleasure to serve under your chairmanship again, Mrs Miller. Just to expand on the response that my hon. Friend gave, does he agree that with the preceding clauses we have created a building safety sector and profession that will ultimately have their own professional regulatory obligations? If someone is going in as a professional within that sector, is it really worth their certification or their job to put profit before the duties they have to their profession? It is no different—to use my experience as a lawyer, for example—from a solicitor going in with their overarching professional regulatory obligations and then trying, for some reason of malfeasance, to undercut that. Does the Minister agree that we have to look at the overarching professional obligations that these people will have?
Eddie Hughes
I completely agree with my hon. Friend’s point. What we have seen through the development of this Bill is that specific people will now be accountable for very specific functions: the accountable person, the building safety manager and, in the case of the building safety manager, a specific person identified with that responsibility. Now that there is a clear line of sight to who is ultimately to be held accountable, I think we will see increased professionalisation and the sector responding to that, in terms of developing the professional capacity of the people involved.
Mike Amesbury
I thank the Minister for his description of the new regime under the clauses. I do not know whether he remembers Mr Benn—he probably does—who could be something different every day, or several different things in one day. This reminds me of that, with the principal accountable person, the accountable person, the responsible person, the building safety manager and the special measures manager. Certainly, in a lot of cases, they will be one and the same thing if they have the competency, knowledge, experience and so on to do that. What would be incredibly helpful going forward—for us all, collectively—would be some kind of diagram. I know the Minister referred to things becoming clearer now in regard to accountability. I am not convinced that they are. That is not meant as a criticism, but I would find a diagram incredibly helpful.
I worry also that we are having almost a first and second-class approach to building safety. Again, I go back to the point about 18 metres or seven storeys. This whole regime, this whole professionalisation, that hon. Members have referred to is for the higher-risk buildings. There are still risky buildings from 11 metres up to 18 metres —below the seven storeys—that do not have this regime.
Eddie Hughes
I think the hon. Gentleman makes a point that may have passed me by. Because I started off as a civil engineer and have worked in construction all my life, I was excited by the prospect of serving on this Bill Committee. I am immersed in the detail and so it all makes sense in my head. But the hon. Gentleman makes a very important point: it is just not enough that it makes sense to people who are technically engaged in it; it is meant to make sense to residents as well. When we talk about the engagement strategy and the approach that is taken to working with tenants and residents, we need to ensure that they have a clear understanding of who is responsible for what and to whom they need to apply, depending on what their grievance might be, so it is a very fair point to make.
With regard to the Mr Benn element, I fully appreciate that that is possible for some people. It is possible for an accountable person to discharge the duties of the building safety manager if they have appropriate competencies, so it could be one and the same person. Perhaps some sort of diagrammatic explanation of how these things work would be appropriate.
Question put and agreed to.
Clause 102 accordingly ordered to stand part of the Bill
Clauses 103 to 105 ordered to stand part of the Bill.
Clause 106
Application by special measures manager for order under section 24 of Landlord and Tenant Act 1987
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
Clause 106 amends the Landlord and Tenant Act 1987 to enable a special measures manager to make an application to the first-tier tribunal for the appointment of a manager under section 24 of the Act. That will ensure that the special measures provisions of the Bill operate effectively with the existing landlord and tenant legislation for occupied higher-risk buildings.
Section 24 of the Act enables tenants to apply for a manager to take over the management of a building where the landlord is failing to manage the building properly. When a building is in special measures, we want to give the special measures manager the same right to ensure that they can replace any incompetent or unco-operative manager. The clause sets out the procedural steps that the special measures manager must take, by amending section 24 of the Act, including notifying persons such as the landlords, the tenants and the accountable person.
The clause also specifies the circumstances in which an application by the special measures manager can be made: the current landlord or manager must be in breach of an obligation owed to the special measures manager, detailed in the special measures order; and it must be just and convenient to do so. The tribunal can also make the order where there is no breach but it is satisfied that such other circumstances exist that it is just and convenient for an order for a manager to be made.
Without the clause, the special measures manager may be compromised and unable to carry out the functions as per the special measures order. The special measures manager needs to be able to work constructively with those involved in the management of the building to ensure that the building safety risks are adequately mitigated, which the clause is an important aspect of.
Clause 107 gives the first-tier tribunal the necessary power to amend an existing order to appoint a manager for a building made under section 24 of the 1987 Act. It ensures that the special measures provision of the Bill operates effectively with the existing landlord and tenant legislation for occupied higher-risk buildings. Section 24 of the Act gives certain leaseholders a right to apply for the appointment of a manager in a number of circumstances, such as when the landlord has breached their obligation under the lease. If a building is put into special measures and there is an existing section 24 manager, the tribunal may need to amend the order to ensure that the manager’s functions do not overlap with those of the special measures manager.
The clause also limits the section 24 order when a special measures order is in force for the building. A section 24 order may not provide for those fire and structural safety functions detailed in the special measures order. For example, a circumstance may arise where an accountable person has repeatedly failed to fulfil their duties under part 4 of the Bill. The Building Safety Regulator would then apply to the first-tier tribunal to appoint a special measures manager for the building. Proper management of a building and its safety risks is pivotal to the safety of the residents who occupy it. This provision ensures clarity and certainty with regard to the management of the building, and avoids confusion with regard to the responsibilities and duties between the respective managers.
Clause 108 is non-controversial and wholly procedural, and complements the provision of clause 103. It gives the first-tier tribunal the necessary power to provide directions to the special measures manager, or any other such person, to carry out actions to ensure that the special measures order is complied with. The direction would be given as a result of an application for such by the Building Safety Regulator, an accountable person or the special measures manager.
An application can be made in respect of any function relating to the exercise of the special measures manager’s functions and any incidental or ancillary matter. An example of this might include directing the special measures manager to arrange building insurance upon application by the Building Safety Regulator after it discovers that the building is uninsured.
The provision is important to ensure that the first-tier tribunal has adequate jurisdiction in relation to the special measures regime. It is also important for the safety and proper management of a building. As with the previous example, the lack of insurance on a building would be a serious failing that would need remedying expediently. The tribunal should rightly be able to direct the special measures manager to rectify such an issue.
Question put and agreed to.
Clause 106 accordingly ordered to stand part of the Bill.
Clauses 107 and 108 ordered to stand part of the Bill.
Clause 109
Notification by regulator before applying to vary special measures order
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
Clause 109 establishes the procedural steps that the Building Safety Regulator must take if it wishes to vary a special measures order that is in force on a building. The clause should be read in conjunction with clause 110, which provides more detail on variation or discharge of a special measures order.
The Building Safety Regulator must notify persons of its intention to apply to the first-tier tribunal for the variation of a special measures order. Clause 109 details the persons who should be notified and sets out the information that needs to be provided, which must include the rationale for the proposed variation to the special measures order. The Building Safety Regulator must make it clear how a person can make comments and observations about the variation. This ensures that those who may be affected by the changes to the management arrangements are consulted and can make representations.
The Building Safety Regulator must comply with the procedural requirements of clause 109 before making an application for a variation to a special measures order under clause 110. Once the decision is made to make an application to the tribunal for the variation of the order, a final notice needs to be given to those persons consulted, detailing the rationale for the decision. The proposed terms of the revised special measures order must be included in the final notification by the Building Safety Regulator if it decides to apply for the variation. Finally, clause 109 enables the Secretary of State to make regulations about the form of notices and the way in which these need to be given.
Clause 110 gives the first-tier tribunal the necessary powers to vary a special measures order. While the building is in special measures, circumstances may change and it may become necessary to change the functions of the special measures manager. Those who are responsible for the building should be able to vary the special measures order to ensure that it remains fit for purpose. The clause enables that and gives the first-tier tribunal the necessary remit to do so. Furthermore, the special measures manager may have fulfilled the functions that it has been appointed to carry out, and the building needs to be handed back to the accountable person. In this case, it would be necessary to discharge the special measures order, and clause 110 gives the tribunal the necessary powers to do so.
On application by the accountable person, special measures manager or Building Safety Regulator for a variation or discharge of the special measures order, the tribunal will normally be required to consider whether, in so doing, there is a likelihood of recurrence of the circumstances that led to the special measures order in the first place, and whether it is just and convenient in the circumstances.
Shaun Bailey
Speaking to what my hon. Friend has said, I appreciate that we are dealing with a very technical clause, but it is important that we have the opportunity to be as flexible as we need to be and enable variations to take place, because quite often in these circumstances orders can need to be varied. Although this is a very technical clause, it allows us to have the flexibility and fluidity we need in the special measures procedure. The one thing right hon. and hon. Members would not want to do with these technical provisions is to pin ourselves into any sort of corner, so we need the tribunal to have the ability to vary orders.
We also need to ensure that there is still an engagement piece as part of that variation, which is equally important. As we found earlier in our deliberations, it is a technical process and can seem quite disconnected, so it is important that there is a flow of information to key and vital stakeholders.
I welcome the provisions. It is absolutely important that we enable that fluidity, combined with communication, to complement the regulatory framework that the legislation will build.
Eddie Hughes
My hon. Friend has got to the heart of the technicality of the clauses, given that they need to be able to apply in multiple circumstances. If we were too prescriptive and there was no opportunity for flex in the system, it would be difficult for the clauses to apply to all the circumstances for which they may be necessary. On his second point about the flow of communication, it is of course expected that if a special measures order has been made on a building, a resident should be notified and made aware of the circumstances surrounding it. He is absolutely right on both points.
Question put and agreed to.
Question 109 accordingly ordered to stand part of the Bill.
Clauses 110 and 111 ordered to stand part of the Bill.
Clause 112
Appeals against compliance notice etc
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
Clause 112 sets out a right of appeal for accountable persons who have been served with a compliance notice. It makes clear that an appeal of a normal compliance notice will suspend its effect. An appeal of an urgent action notice will not suspend its effect, however. That appropriately reflects the gravity of issues giving rise to an urgent action notice, including imminent danger to people in or around a building.
The provision will enable the Building Safety Regulator and accountable persons to take the necessary steps to ensure that residents are kept safe at all times. Where individuals dispute the continued effect of an urgent action notice, they may apply to the first-tier tribunal for suspension, pending resolution of the appeal. The provision ultimately allows for a degree of flexibility where compliance notices are issued. That enables the Building Safety Regulator to be as proportionate as possible when taking enforcement action against non-compliant work.
Clause 113 creates routes of appeal for decisions concerning the registration and certification of higher-risk buildings. It also establishes a route of appeal where the regulator has given a direction to carry out an assessment of building safety risks. Those are significant decisions with wide impacts on costs and business operations. Where decisions are disputed, it is right and proportionate that there should be a statutory right of appeal.
That is why the clause sets out for part 4 of the Bill what can be appealed, who can lodge the appeal and on what grounds. The Building Safety Regulator may have declined to issue a building assessment certificate for a higher-risk building due to non-compliance with the duties specified in clause 75, for example. In this instance, if the accountable person considered the decision unreasonable, or erroneous on a point of fact, they could appeal to the tribunal. The clause reflects established procedures for access to civil justice.
Clause 114 provides future-proofing for the Government. It will allow the Secretary of State to create, through regulations, routes of appeal for decisions that the regulator makes for higher-risk buildings. The new building safety regime will require time to bed into the built environment. Ministers may want to alter or add requirements in regulations as the regime settles in over future years.
The clause provides a degree of flexibility so that where the Secretary of State creates new regulations, there is also a corresponding route of appeal for those directly affected. As such, the regulatory system can adapt to regulatory needs in the future. A decision by the regulator to treat an application for registration of a building as withdrawn will be in regulations under clause 73(5), and there may need to be a right of appeal against such a decision, for example. The clause relates to part 4 only, and also provides that regulations may prescribe who can make the appeal and on what grounds.
Clause 115 relates to appeals to the tribunal regarding decisions made by the regulator under part 4. It provides supplementary detail on what the tribunal can do on determining an appeal, and what evidence can be heard at an appeal. The clause also creates a provision so that the Secretary of State can, in regulations, stipulate what happens in the event of a specific appeal, including whether the appeal should suspend the effect of the regulator’s decision. For example, the regulator may decide to remove a higher-risk building from the register. On appeal, regulations may specify that the building remains on the register until the appeal decision is reached. Other decisions may not be suitable for a suspensive effect, and the clause allows the Secretary of State flexibility in that regard.
The first-tier tribunal has been given a significant role in underpinning not only the new building safety regime but the existing regime under the Building Act 1984, as the new chamber for nearly all building-related disputes in England. However, as the tribunals do not currently hold powers to enforce their decisions, apart from ordering the payment of sums, this provision enables the enforcement of tribunal decisions with the permission of and through the county courts. It follows existing practice, as it is usual to insert a provision in legislation to enable the county court to enforce tribunal decisions. As such, the clause ensures that the tribunals are able to sufficiently deliver on building safety-related disputes, and thereby support the effective functioning of the building safety regime for both building control authorities and service users.
Question put and agreed to.
Clause 112 accordingly ordered to stand part of the Bill.
Clauses 113 to 116 ordered to stand part of the Bill.
Clause 117
Guidance
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
Clause 117 sets out in one place the key powers of the Building Safety Regulator to issue guidance with statutory force on its functions under part 4, and the constraints on it doing so. If Members wish me to go into detail on any of the specific powers to issue guidance, I am happy to do so, but given that we have already discussed each of the clauses about which guidance may be issued, I do not propose to detain the Committee further.
I should point out that subsections (1), (2) and (5) enable the regulator to issue, withdraw or amend guidance, but only with the consent of the Secretary of State. Subsection (3) makes similar provision to that in the Building Act on the approved documents. That means that compliance with the guidance can be relied upon in court or tribunal proceedings as tending to establish compliance with the provision to which the guidance relates, while not following the guidance will tend to establish non-compliance with the relevant provision.
Question put and agreed to.
Clause 117 accordingly ordered to stand part of the Bill.
Clause 118
Cooperation and coordination
Mike Amesbury
I beg to move amendment 40, in clause 118, page 118, line 39, at end insert—
“(5) In the event that one or more accountable person or responsible person considers that another accountable person or responsible person is in breach of any requirement or duty imposed by this section then that dispute shall be determined in accordance with such arrangements as the Secretary of State may direct by order.
(6) For the purposes of subsection (5), a ‘breach’ includes—
(a) any failure to act on the duties imposed by this section; and
(b) any dispute about the extent of steps taken, or said to be required, pursuant to the duties imposed by this section.”
This amendment would require the Secretary of State to arrange a resolution in a dispute between accountable or responsible persons.
Mike Amesbury
This is a simple amendment, the reason for which has arisen in the oral and written evidence given by housing lawyer Justin Bates, which addresses what happens when the duty to co-operate between two accountable persons, where the accountable person is not the same as the responsible person, reaches an impasse. Our proposed solution is simply that the Secretary of State would arrange a resolution in a dispute between accountable and responsible persons—something that is currently missing from clause 118.
Eddie Hughes
I thank the hon. Member for raising this important matter. The amendment would give the Secretary of State the power to make arrangements by order to resolve disputes between accountable persons, or between accountable and responsible persons, in relation to the co-operation duties provided for in clause 118. Our assessment is that the amendment would not achieve the intended effect of formally resolving such disputes more than would be achieved through the provisions already in the Bill. The amendment would therefore not deliver improved building safety.
I must point out that the policy of the Office of the Parliamentary Counsel sets out that an order made by the Secretary of State would no longer be the suitable way to deliver the outcome sought by the hon. Member’s amendment; rather, it should be done by regulations. I must also point out that the primary objective of the Bill is to ensure that building safety duties, including duties to co-operate, are delivered through the robust regulatory powers that we are creating. Where a lack of co-operation will have, or is likely to have, a negative impact on building safety, we are confident that there are already sufficient provisions in the Bill to deal with that.
The hon. Member’s amendment would require the Secretary of State to create a further mechanism to deal with disputes regarding failures to co-ordinate and co-operate. This would not only undermine the power of the regulatory functions upon which we will rely, but might have the unintended effect of adversely impacting on building safety, through delays caused by adding another layer to the regulatory and enforcement functions that we are already providing for. I must therefore tell the hon. Member that the Government cannot accept the amendment. While we consider the policy intent of his amendment to be sound, I would like to assure him that we believe it is addressed elsewhere.
Mike Amesbury
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 118 ordered to stand part of the Bill.
Clause 119
Managers appointed under Part 2 of the Landlord and Tenant Act 1987
Question proposed, That the clause stand part of the Bill.
Eddie Hughes
We recognise the need to ensure that the building safety regime is compatible with existing legislation and provides clarity as to the avenues of redress for any breaches of building safety obligations. Clause 119 makes amendments to section 24 of the Landlord and Tenant Act 1987 to ensure that the new building safety obligations, as set out by the Bill, are kept separate from other general management functions for buildings.
The clause makes amendments that provide that a tribunal cannot appoint a manager under section 24 where the breach of obligations complained of by a resident is a breach of the accountable persons building safety obligations. This means that where a manager is appointed under section 24, the tribunal cannot confer upon that manager building safety functions, which are to be carried out by an accountable person.
Selaine Saxby (North Devon) (Con)
It is a privilege to serve under you, Ms Miller. I just want to ask the Minister on a point of clarification. What will you do to ensure that all accountable persons are bound by a special measures order where an accountable person changes after the order has been made, but while it remains in place?
The Chair
Order. Before I call the Minister, I remind everyone that we refer to other Members in the third person in general Committees of all types. It is not “you”, it is “him”.
Eddie Hughes
I thank my hon. Friend for her intervention. That may be something upon which we need to deliberate further, to ensure that the purpose that she described is addressed.
Redress for any failings on the part of the accountable person are to be dealt with by the Building Safety Regulator through the residents’ complaints mechanism. Having assessed the nature and seriousness of the complaints, the Building Safety Regulator can decide whether to make an application to the tribunal to appoint a special measures manager if there have been persistent or serious breaches of building safety obligations by the accountable person.
Question put and agreed to.
Clause 119 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Health and Care Bill (Fourteenth sitting)
Tuesday 19th October 2021
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 October 2021 - (19 Oct 2021)
The Committee divided: - Ayes: 10 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 11 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 5 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 10 - Question accordingly negatived.
The Chair
With this it will be convenient to discuss the following:
Amendment 69, in clause 87, page 80, line 7, at end insert—
“(2A) Regulations under this section which make provision affecting the functions of Scottish Ministers may not be made unless the Secretary of State has consulted the Scottish Ministers on that provision.”
This amendment would put a duty on UK Ministers to consult Scottish Ministers on regulations making provisions on conferring of functions on the Scottish Ministers or amending or removing functions from them in reserved areas before these regulation making powers are exercised.
Amendment 68, in clause 87, page 80, line 33, at end insert—
“(5A) Regulations under this section to which subsection (5) applies may not be made without the consent of—
(a) the Scottish Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Scotland,
(b) the Welsh Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Wales, or
(c) the Northern Ireland Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Northern Ireland.”
This amendment would require the Secretary of State for Health and Social Care to obtain the legislative consent of the devolved governments before powers in this clause are exercised.
Clause 87 stand part.
Amendment 70, in clause 88, page 81, line 17, at end insert—
‘(4A) Regulations under this section to which subsection (4) applies may not be made without the consent of the—
(a) Scottish Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Scotland,
(b) Welsh Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Wales, or
(c) Northern Ireland Ministers, if they contain provision for a body to exercise a function that is exercisable in relation to Northern Ireland.”
This amendment would require the Secretary of State for Health and Social Care to obtain the legislative consent of the devolved governments before powers in this clause are exercised.
Clause 88 stand part.
Amendment 71, in clause 89, page 82, line 13, at beginning insert “Subject to subsection (6A),”
This amendment, together with Amendment 72, would require the Secretary of State for Health and Social Care to obtain the legislative consent of the devolved governments before powers in this clause are exercised.
Amendment 72, in clause 89, page 82, line 19, at end insert—
“(6A) Regulations under section 87 or 88 containing provision by virtue of section 131(1)(a) and repealing, revoking or amending provision made by or under—
(a) an Act of the Scottish Parliament may only be made with the consent of the Scottish Ministers,
(b) a Measure or Act of Senedd Cymru may only be made with the consent of the Welsh Ministers, and
(c) Northern Ireland legislation may only be made with the consent of the Northern Ireland Ministers.”
See explanatory statement to Amendment 71.
Clauses 89 to 92 stand part.
The Minister for Health (Edward Argar)
It is a pleasure, as ever, to see you in the Chair, Ms Elliott. The existing arm’s length body landscape has remained largely unchanged since the Health and Social Care Act 2012 reforms. As the health service has evolved, this structure has led to a fragmentation of roles between different organisations, and sometimes competing priorities being disseminated to providers. We have seen ALBs, with all their differing functions and operations, responding as rapidly as possible during the pandemic. Building on this recent energy and innovation, and the value of working flexibly, this power provides a mechanism to support a more responsive and adaptive system than the current structure allows. Using these powers—to transfer functions to and from ALBs—the system will be able to respond to differing challenges more swiftly.
Clause 86 sets out the definition of “relevant bodies” that is used in part 3 of the Bill. This definition is relevant to clause 87, which provides the Secretary of State with a power to transfer functions between relevant bodies, and to clause 88, which provides a power to delegate functions of the Secretary of State to relevant bodies. The bodies covered by this definition are all public, sponsored by the Department and operating in the health sector. In many instances they have complementary functions where there could be material benefit to elements of joint delivery.
This definition does not include a number of health and care-related bodies, including the National Institute for Health and Care Excellence and the Care Quality Commission, which we have determined should not be covered by the powers in part 3 of the Bill due to the nature of their advisory, regulatory and/or public health functions. The clause therefore establishes the non-departmental public bodies in scope of the power to transfer functions set out in clauses 87 to 92.
I am grateful to the hon. Member for Central Ayrshire for tabling amendment 69, which seeks to ensure that Scottish Ministers are consulted before a transfer of functions in reserved areas is carried out. Clause 92 sets out the Secretary of State’s duty to consult any body to which the proposed change relates, as well as the devolved Administrations if the draft regulations apply in their jurisdictions and relate to matters that are within the legislative competence of their legislatures, or in respect of which their Ministers exercise functions.
If functions exercisable by Scottish Ministers are impacted, Scottish Ministers would, in our view, already be consulted under the current wording. We do not consider it appropriate, therefore, to consult a devolved Administration on reserved issues where it can be shown that they do not impact on it in any way. We have committed to setting out further detail in the memorandum of understanding, both in terms of early engagement and the formal consultation process, when it is appropriate.
Amendment 68 seeks to introduce a requirement for devolved Administration ministerial consent if a proposed transfer of a function includes a function exercisable in relation to a devolved Administration and involves a body with a requirement for representation of Wales, Scotland or Northern Ireland on its board. Clause 87 confers a power on the Secretary of State, through secondary legislation, to transfer functions between the relevant bodies listed in clause 86.
That is not a power to take away services that are currently provided by the relevant arm’s length bodies that are in scope; the power allows only for moving the existing functions around within the current landscape in order to provide greater flexibility. If it is used, it will be to make necessary and helpful changes to the ALB landscape, such as enabling professionals with complementary expertise to work more closely together, as they have in many areas in response to the ongoing pandemic.
Many functions relate to England only, and when bodies do operate in devolved areas it is often through mutual agreement. We fear that it would be disproportionate to require consent each time the power is used. We consider this to be primarily about improving administrative effectiveness.
We recognise that there are arrangements to ensure that devolved Administrations’ interests are recognised and represented at board level. Clause 87 makes explicit provision for the continuation of any existing board representation for devolved Administrations on the body to which relevant functions are transferred. We believe that that provision, alongside the current commitment to consult that is set out in the Bill, and underpinned by a detailed memorandum of understanding between the UK Government and the devolved Administrations, provides the opportunity to engage in a thorough and meaningful way throughout the entire process. However, as I alluded in my response to the hon. Lady’s previous amendments, I will continue to engage with Ministers in each of the devolved Administrations to further explore whether—to build on what I have already said—there is anything more we can do to provide reassurance ahead of Report.
Clause 87 confers on the Secretary of State the power to transfer functions between the relevant bodies listed in clause 86 using secondary legislation. Clause 87 sets out the conditions that would need to be met for the Secretary of State to use that power—namely, to improve the exercise of those functions with regard to efficiency, effectiveness, economy and securing appropriate accountability to Ministers, with the aim of improving patient outcomes.
The Secretary of State can, through regulations, modify the functions and constitutional or funding arrangements of the affected bodies, and, with the exception of NHS England, abolish a body if it has become redundant as a consequence of the transfer of functions. That will be done by way of a statutory instrument laid before the House under the affirmative procedure. The Secretary of State must also make provision for maintaining representation of the interests of the devolved nations where there is the pre-existing requirement in the constitution of the body from which the function is transferred. That provision, together with clause 88, ensures a more agile and flexible framework for key health bodies that can adapt over time.
Our arm’s length bodies want to work together more closely, and the covid-19 pandemic has demonstrated the value of working flexibly. Building on that recent energy and innovation, the clause provides a mechanism to support a more responsive and adaptive system than the current structure allows. Amendment 70 would introduce a requirement for devolved Administration ministerial consent if a proposal to transfer a function involves the transfer of a function exercisable in a devolved Administration and a transferring body with devolved representation on its board.
Clause 88 confers a power on the Secretary of State, through secondary legislation, to delegate functions that may be delegated to special health authorities to any of the relevant non-departmental public bodies listed in clause 86 instead. The clause gives the Secretary of State the power only to delegate the Secretary of State’s functions. It does not create any power for him or her to do anything in respect of the functions that devolved Administration Ministers direct those special health authorities to perform in the devolved nations. As with clause 87, clause 88 makes explicit provision for the continuation of any existing board representation for DAs on the body to which its functions are transferred.
I set out in our debate on amendment 68 the Government’s reasons for opposing the imposition of a consent requirement on the use of the power in clause 87. We oppose a consent requirement in clause 88 for the same reasons. A further reason for opposing a requirement for the consent of the devolved Administrations to the power in clause 88 is that the clause simply allows the delegation of functions of the Secretary of State. The Secretary of State already has the power, in effect, to move any of his or her functions between different special health authorities. That does not require the consent of the DAs. Clause 88 merely extends that provision, so that the Secretary of State may delegate their functions to one of the NDPBs. For that reason, I encourage the hon. Member for Central Ayrshire not to press her amendments, but I will wait to hear what she says when she speaks to them shortly.
As we have already discussed, clause 88 gives the Secretary of State the power to make regulations providing for a relevant body to exercise some of their functions. As with clause 87, that would be done by way of a statutory instrument laid under the affirmative procedure. Since special health authorities exercise functions of, and are subject to, direction by the Secretary of State, the Secretary of State already has the power to provide for a function currently exercised by one special health authority to be exercised instead by another. The special health authorities that currently exercise functions on behalf of the Secretary of State are the NHS Business Services Authority, NHS Blood and Transplant, the NHS Litigation Authority, now known as NHS Resolution, the NHS Counter Fraud Authority and the NHS Trust Development Authority, which is merging with NHS England as part of this Bill.
As outlined in clause 87, this clause sets out that, by virtue of clause 131, the Secretary of State can use that power to make consequential, transitional or saving provision to modify the functions, constitution or funding of either affected body. The Secretary of State must also make provision for maintaining representation of the interests of the devolved Administrations where there is the pre-existing requirement in the constitution of the body from which the function is transferred. This clause, together with clause 87, provides vitally needed flexibility for the health system.
I am grateful to the hon. Member for Central Ayrshire for tabling amendments 71 and 72 and thereby bringing these issues before the Committee for debate. These amendments seek to ensure that devolved Administrations have the power of veto over any consequential changes that may be needed to devolved legislation. I note that in her evidence to the Committee Baroness Morgan, the Welsh Minister for Health and Social Services, also expressed concern about this power, as well as the general power to make consequential amendments in clause 130, which she linked it to.
During my discussions with Lady Morgan about the Bill, I have set out why I believe these powers are necessary and appropriate. I hope I have been able to provide some reassurance to this Committee; it is my intention to provide further reassurances on this matter throughout the Bill’s passage, and I continue to talk to the relevant Ministers in the devolved Administrations.
The power to make consequential amendments to devolved legislation provided for by clause 89(6) is entirely limited to matters that are genuinely consequential upon regulations and will be largely technical in nature, such as name changes post transfer. The substantive power is to make the transfer of functions, and the consequential amendments flow directly from that. For the statute to work, those consequential changes should not be subject to consent requirements in their own right.
There are precedents for this type of power to make consequential amendments to devolved legislation in many other Acts, and indeed reciprocal powers for devolved Administrations to make consequential amendments to UK Acts of Parliament. It is worth noting, in the context of the ALBs that we are concerned with in these clauses, that Welsh legislation in 2013 made consequential amendments to the Human Tissue Act 2004 of this place. We fear that seeking to introduce new consent requirements on consequential amendments to devolved legislation would be unnecessary and could risk unbalancing current delicate constitutional relationships.
Clause 89 details the scope of those powers referenced in clauses 87 and 88, namely the powers for the Secretary of State to transfer functions to and from relevant bodies and to delegate the Secretary of State’s functions to them. Clause 89 sets out the detail of what may be done when using these powers, which gives useful clarity as to the powers’ scope. Subsections (1) to (3) set out what may be included in regulations when modifying the functions of a body, the constitutional arrangements or the funding arrangements.
The clause also sets out certain types of powers that may be repealed and re-enacted, but not created, at subsection (4). For example, the power cannot be used to create a new criminal offence, but can be used to repeal or re-enact an existing one so that it moves with a relevant function if appropriate.
As the functions of the relevant bodies are set out in primary legislation, it will be necessary to amend, repeal or revoke such primary legislation when providing for a transfer of functions. The power to do this is provided at subsection (5). Future legislation that relates or refers to the relevant bodies in question may also need to be amended.
It is also necessary for there to be powers to amend devolved legislation—I suspect this is where the hon. Lady and I may have a slight divergence of interpretation or of view, but we will see. There are references to the relevant bodies in devolved legislation, which may need to be amended in order to refer to a new body to which a function is transferred to ensure the effective operation in law of that transfer.
Regulations made under these powers will be subject to the affirmative procedure. That ensures that Parliament can scrutinise the use of the power, including any necessary amendments made to primary legislation, following consultation with the relevant parties, as set out in clause 92. It is an important provision that will allow transfers and delegations of functions to be made effectively.
Dr Philippa Whitford (Central Ayrshire) (SNP)
A lot of this covers the issues that we discussed in relation to data, consultation and consent. I respect that these are UK-wide bodies, whereas data is within the devolved systems, so that was an even bigger issue, but there must be recognition that although health is devolved, the regulation, licensing and registration of staff for bodies of this sort affect the devolved health services. There should at the very least be proper, genuine consultation, rather than changes simply being made.
As we discussed this morning, we saw how NHS Digital—in essence, an England-only service within NHS England—is now being turned into the Health and Social Care Information Centre, which is UK-wide. We already have the information and statistics division in Scotland, so changing the ability of the Secretary of State to change arm’s length bodies may indeed affect what happens in the devolved health systems. Reference is made to the Human Fertilisation and Embryology Authority and the Human Tissue Authority simply to respect that those health services are under the control of the Welsh and Scottish Parliaments and the Northern Ireland Executive, but decisions made here will have an impact on them.
I welcome the Minister saying that NICE would not be forced on Scotland—we have the Scottish Medicines Consortium, and the Care Inspectorate rather than the Care Quality Commission. However, that is people’s fear because it is not explicit here—either through consultation or consent—that bodies that have been set up for almost two decades, that are integrated with our health system and functioning well, could suddenly be rolled over. It is important that the Minister points out that clause 89(6) is merely consequential. It increases anxiety that the Minister here can, simply through regulations, revoke, repeal and amend Acts of the Scottish and Welsh Parliaments without consent or even consultation.
I do not see an issue with a name change, but there is an issue with a Bill of this size and complexity being published and Ministers in the devolved Administrations seeing it only the day before. That does not show respect between the Governments. That is something that I hope, as the provision is taken into regulations, will change. I do not plan to push the amendment to a vote because the Minister said that he is consulting the Scottish and Welsh Cabinet Secretaries, but it should not have come to this. Respect for devolution should have been implicit in the Bill from the start.
Alex Norris (Nottingham North) (Lab/Co-op)
It is a pleasure to resume with you in the Chair, Ms Elliott, and to move on to part 3. Of the various parts, it has possibly had the least impact on my mailbag, but it is important. I am a little troubled by some of the provisions and want to probe them a bit.
The Minister gave a good and characteristically cogent explanation of what is in the Bill, but not of why it is there. That explanation was much shorter, so I want to come back to that because I do not think it is clear what problem the Government are seeking to solve. Has a significant risk to the health and wellbeing of the nation been caused by the Secretary of Secretary’s inability to remove functions from one organisation to another more quickly? I do not think that is the case. The Minister made the point about a rather fractured service and the need to be able to act more swiftly. I will revisit those points shortly.
Clause 86 specifies the organisations that the Secretary of State can delegate or transfer functions to: Health Education England, the Health and Social Care Information Centre, the Health Research Authority, the Human Fertilisation and Embryology Authority, the Human Tissue Authority and NHS England. I was surprised not to see the UK Health Security Agency in that list and I hope the Minister will come back to that.
Clause 87 allows the Secretary of State to move functions between the organisations, and clause 88 provides for the Secretary of State to permit them to exercise functions on the Secretary of State’s behalf. Are we really saying that there are not decent, appropriate and effective ways to do that already? For example, the UK Health Security Agency is a relatively new body and it will take time for it to settle in and find its level. Do we really believe that there are no mechanisms to ensure that it can exercise functions on the Department’s behalf, or that there might be a public health information function currently exercised by NHS England that the agency might be better able to deliver in the future, but cannot because it is not covered by this legislation? I find that hard to believe. Are we saying that there will be an alternative route for that? I cannot understand why there would be a different way of doing that.
If that is really necessary, why is the Government’s instinct to do it by regulation? If there are problems today that perhaps the past challenging 18 months have revealed, we have got primary legislation here, so we could make whatever changes the Secretary of State wishes to make to the organisations on the face of the Bill. Obviously, that would not help with new and emerging problems, but what are they? What examples have happened recently? It feels as though we have a solution in search of a problem to solve.
Clause 87(3) basically prevents the Secretary of State from abolishing NHS England. Well, we would hope so—that seems wise—but what of the other agencies? The Health and Social Care Information Centre was formed by the Health and Social Care Act 2012; the Health Research Authority and Health Education England were created by the Care Act 2014; the Human Fertilisation and Embryology Authority was formed by its own Act in 1990; and the Human Tissue Authority was created by the Human Tissue Act 2004. Are we really saying that we need a more direct ministerial route to dissolve or amend these bodies?
We have recent precedent for this: over the course of the past couple of weeks, or certainly over the past few months, the Government have taken Public Health England apart, taking some functions for themselves and creating a new organisation with the remaining ones. They were perfectly able to do it in that case, which would seem to me to be a very drastic case. Now, we think that was a very bad thing to do—I will continue to make that argument—but what I cannot understand is why, if the Government were able to do that then, they would not pursue the same routes in the future.
I would not argue the case against clauses 88 to 91, which form the blueprint for these powers, but I would argue against the rationale for them existing at all. Amendments 68 to 72 again seek to protect the devolved settlement: as the Minister has said, clause 92 provides for devolved nations to be consulted on changes that are within their legislative competence, but I am concerned that that consultation might not go far enough. If we consider a policy area as a devolved matter, that surely requires consent. I have heard some response to that point from the Minister, but we may well hear a little bit more.
Clause 92 lists who the Secretary of State “must consult”. As well as devolved nations, it includes the organisation in question and then anyone else the Secretary of State wishes to consult. That list does not expressly include the public or experts in the relevant discipline, for example, and I do not think that is sufficient. In reality, the decision over Public Health England was a rash one, made in its early stages by individuals who are not really involved anymore. In all honesty, nobody would have made the decision that was made: it was a situation in which, despite our desperate attempts to give the Government room to do so, they never quite managed to climb down. However, talking to the public and to experts would have helped the Government make a much better decision in that case, and I am surprised not to see those groups included on the face of the Bill. I hope that we will get an assurance that at least in the Minister’s mind, “anyone else the Secretary of State wishes to consult” would involve some experts, if not the public. I very much hope it would.
To conclude, we have gone back and forth on this topic in recent days, and we cannot support the provisions in this part of the Bill. They are Executive overreach, and there are recent examples of why these powers are unnecessary, because the Government can already do these things. During the proceedings on the Bill, the Minister has frequently told us that our amendments are not necessary because they are already covered elsewhere. I am going to gently turn the tables and suggest that these powers exist elsewhere, and therefore these provisions are not necessary.
Edward Argar
I am grateful to colleagues for their comments and contributions. The short answer to the shadow Minister, the hon. Member for Nottingham North, is that comparing the UK Health Security Agency, for example, to what we are discussing here is in a sense comparing apples with pears. This is about non-departmental public bodies. UKHSA is an Executive agency, so it is already directly under the power of the Secretary of State, hence why the Secretary of State was able to make those changes. This is about the different categorisation of two subordinate bodies of the Department—NDPB versus Executive agency—which is why this section of the Bill deals with NDPBs, for which that power is currently not the same as it is for an Executive agency such as UKHSA. It is a technical point, but hopefully that gives the hon. Gentleman some explanation of the difference in approach.
Karin Smyth (Bristol South) (Lab)
I am grateful for that clarification, but I believe—perhaps the Minister will comment—that that makes the comments from my hon. Friend the Member for Nottingham North about Executive overreach even more pertinent and well made than they were in the first place. The fact that these are public bodies that are subject to the Commissioner for Public Appointments, which is something the Minister might come on to later, means that their quasi-independence is more significant, not less, and that they are governed accordingly.
Edward Argar
I will turn to that issue, but before I do I will address the question of why I think this is a proportionate and necessary change in the powers. As we have seen during the pandemic, there can be rapid changes and moves in the functions of those NDPBs, and we therefore cannot have a process that preserves in aspic a particular set of functions in primary legislation. I believe this is a proportionate measure that allows for flexibility around those functions around NDPBs, although in my view it does not encroach on the way they operate, hence the non-departmental public body point that the hon. Lady made. It strikes an appropriate balance.
The other point the hon. Member for Nottingham North made, which shades into the points from the hon. Member for Central Ayrshire, is that where a policy area is devolved, it should be that devolution settlement that takes primacy. The challenge is that, in a number of areas here, we see almost a hybrid of reserve powers and devolved powers.
We will come on to this after we have debated the Health Service Safety Investigations Body part, but it is a good illustration, so I will use it as an example here: if we look at reciprocal healthcare arrangements, which we will come to, the implementation or impact on the ground is to a degree devolved; it is about the organisation of health services in a particular area. However, the power to make international agreements is reserved.
Therefore, in spaces such as this, we come across complex challenges where there is no clear delineation for how to respect the devolution settlement and not intervene in aspects that are clearly devolved, while also striking a balance such that the devolved Administrations do not have a power of veto over a reserved matter. Those are the complexities we are wrestling with in a number of areas here, and I think that goes to the heart of the issues that the hon. Member for Central Ayrshire has been raising.
Dr Whitford
The Minister mentions the UK Health Security Agency, which was suddenly created in the middle of the pandemic—supposedly out of Public Health England, so I am not quite sure whether Public Health England still exists. There were comments made at the time by the then Secretary of State that this would now be a UK-wide body and would therefore override Public Health Scotland. Since the Minister raised this matter, I would be grateful if he could clarify, because that is exactly the nub of the issue, whether they are executive agencies or arm’s length bodies: it is suddenly enforcing a change in structure on the devolved Governments, when our Public Health Scotland is totally integrated with our health service.
Edward Argar
The hon. Lady makes a couple of points there. First, on the transition with Public Health England, to avoid a cliff edge—in the context of some of my conversations with the hon. Member for Nottingham North about different aspects of policy, that is perhaps not the best word—in the transition between two organisations, we have had for some months parallel running of the two. I believe, relying on my memory, that Public Health England finally transfers all its functions and ceases at the end of this month, and then we will see that transition. We have both in being for the time being, to ensure smooth operation of the actual functions they perform.
My understanding of the hon. Lady’s specific point about the public health arrangements that work in Scotland and that are a matter for the Scottish Government is that those relationships and that way of working will be able to continue. However, we saw in the European Union (Withdrawal Agreement) Act 2020 and the withdrawal agreement a way of working regarding the health security provisions that has a UK approach to working but fully involves each of the devolved Administrations, because we recognise that the threats are national—as in four nations—and we have seen that diseases and public health threats do not stop just before they get to Berwick, and vice versa. Therefore, we are keen to look at this in a four-nations way, and we have just been looking with the Scottish Government at the public health framework and how we work with it.
I am trying to reassure the hon. Lady that there is no intention to undo what works, but there is a recognition of the need for us to continue to work as four nations together on this. I hope she will be reassured that that helps to respect the devolution settlement; I suspect she may wish to probe me further in future debates, but that, of course, is what we are here for. I encourage hon. Members not to press their amendments to a Division.
Question put, That the clause stand part of the Bill.
The Chair
We now come to the Question that clause 89 stand part of the Bill, which has already been debated. With the leave of the Committee, I will put the question on clause 89 as a single question with clauses 90 to 92, which have also already been debated. The question is that clauses 89 to 92 stand part of the Bill. As many as are of that opinion say Aye.
The Chair
With this it will be convenient to discuss the following:
Amendment 127, in schedule 13, page 204, line 7, leave out “Secretary of State” and insert
“Chief Executive of NHS England”.
This amendment would give the Chief Executive of NHS England the power to appoint members and the chair of HSSIB.
Amendment 128, in schedule 13, page 204, line 18, leave out
“with the consent of the Secretary of State”.
Amendment 129, in schedule 13, page 204, line 21, after “HSSIB” insert
“, one of whom is to be the Chief Finance Officer,”.
Amendment 130, in schedule 13, page 204, line 32, leave out “The Secretary of State” and insert
“A majority of non-executive members following a vote”.
This amendment would give a majority of non-executive members the power to remove a person from office following a vote.
Amendment 131, in schedule 13, page 204, line 37, leave out sub-paragraph (4).
This amendment would remove sub-paragraph 4 from schedule 13 of the Bill, which confers powers on the Secretary of State to remove a person from office in HSSIB.
Amendment 132, in schedule 13, page 206, line 12, leave out “Secretary of State” and insert
“Chief Finance Officer of HSSIB”.
This amendment, together with amendments 133, 134, 135 and 136, would give the Chief Finance Officer of HSSIB power over remuneration for non-executive members of HSSIB.
Amendment 133, in schedule 13, page 206, line 14, leave out “Secretary of State” and insert
“Chief Finance Officer of HSSIB”.
See explanatory statement to Amendment 132.
Amendment 134, in schedule 13, page 206, line 16, leave out “Secretary of State” and insert
“Chief Finance Officer of HSSIB”.
See explanatory statement to Amendment 132.
Amendment 135, in schedule 13, page 206, line 19, leave out “Secretary of State” and insert
“Chief Finance Officer of HSSIB”.
See explanatory statement to Amendment 132.
That schedule 13 be the Thirteenth schedule to the Bill.
Edward Argar
I will endeavour to make progress before the Division in the House. Clause 93 is the first clause in part 4, which establishes the health services safety investigations body. This new body will build on the work of the Healthcare Safety Investigation Branch, which became operational in 2017 as part of NHS Improvement. Part 4 makes provision to establish an independent statutory body to investigate qualifying incidents that occur in England during the provision of healthcare services that have or may have patient safety implications.
Crucially, HSSIB’s investigations and reports are about learning from incidents across the healthcare landscape and will help to foster a strong learning culture. We want to ensure that we learn from what has gone wrong before, which ultimately will ensure that patients get the best care, which they rightly deserve. HSSIB’s investigations will not assess or determine blame, civil or criminal liability, or whether action needs to be taken in respect of an individual by a regulatory body. Instead, its investigations will identify risks to the safety of patients and address these by facilitating the improvement of systems and practices in the provision of healthcare services in England.
There have been calls for some time to put the Healthcare Safety Investigation Branch on an independent statutory footing. We previously introduced proposals to do that in the Health Service Safety Investigations Bill, which was introduced in the other place in October 2019. Unfortunately, that Bill did not progress past Second Reading because Parliament was dissolved for the general election. However, the Government are committed to reducing patient harm by improving the quality of health investigations and developing a culture of real learning. We are using this Bill to deliver that world-leading innovation in patient safety. I will take this opportunity to pay tribute to my right hon. Friend the Member for Mid Bedfordshire (Ms Dorries) for all the work she did on this when she was Minister of State for patient safety.
Clause 93 specifically establishes HSSIB as the body to take forward systemic patient safety investigations. It also gives effect to schedule 13, which sets out arrangements for HSSIB’s constitution and governance, and provides details of its membership and its financial and reporting obligations. I am proud that this will be one of the first independent healthcare bodies of its kind in the world carrying out systemic investigations. The independence of the new body’s investigations will give the public full confidence in its investigation processes and its ability to deliver impartial conclusions and recommendations. The aim will be to learn and not to blame.
On the practical side, schedule 13 also allows the making of transfer schemes to ensure a smooth transition when HSSIB is set up. The intention is that following the NHS England and NHS Improvement merger, which we have discussed earlier, the functions of the current Healthcare Safety Investigation Branch will sit with NHS England until such time as HSSIB is established as a separate statutory body, so the transfer scheme provisions in the schedule provide for a transition from NHS England to HSSIB.
The amendments that have been tabled focus largely on the membership and responsibilities of, and the appointments process relating to, HSSIB’s board. Amendment 127 would remove the responsibility of the Secretary of State to appoint the chair and non-executive members to the board, and would instead give that responsibility to the chief executive of NHS England.
HSSIB will be a non-departmental public body and will therefore meet the criteria to be added to the Public Appointments Order in Council, which lists those bodies whereby the non-executive member appointments are bound by the Cabinet Office’s governance code on public appointments, which are regulated by the Commissioner for Public Appointments. It is standard practice to have the Secretary of State appoint non-executive board members to a public body. Making that the responsibility of the chief executive of NHS England could bring into question HSSIB’s independence, especially when it is investigating issues that might involve or lead to recommendations for NHS England. That would risk reducing public trust in HSSIB, which I think we all agree will be paramount in gaining public support for the work it does, and it could undermine the acceptance of its recommendations.
The Chair
We are now going to go backwards, because it has come to our attention that some of the clauses were not actually voted on. We are going to vote on clauses 90, 91 and 92.
Clause 90
Transfer schemes in connection with regulations
Question put, That the clause stand part of the Bill.
The Chair
I remind hon. Members that with this we are considering amendments 127 to 135 and schedule 13. I call the Minister to carry on from where he left off.
Edward Argar
I am grateful to you, Ms Elliott, and I challenge colleagues to remember what I was saying just before the Division.
On amendment 130, having the non-executive members remove one of their own members—essentially, their colleague—could very likely create a conflict between board members, because I would not expect that to be an easy decision for any of them. Of course, we want an effective, cohesive and united board with the Secretary of State stepping in only when a real issue needs to be addressed.
We would not expect those powers to be used very often, and ideally they would never need to be used. However, it is important to have those safeguards, which would allow action to be taken quickly should there be concerns about a non-executive member of the board.
Finally, I will speak about amendments 129 and 132 to 135, which look to mandate the creation and role of a chief finance officer for HSSIB. If I have understood the wording of amendment 129 correctly, the intention is to ensure that the chief finance officer of HSSIB is one of the executive members. As HSSIB is an independent NDPB, the recruitment of the executive members will be led by the non-executive members. It will be for them to take decisions about the composition of the executive members of the board, taking into account the balance of skills and experience required to lead the organisation in its vital work.
If the non-executive members were of the view that a chief financial officer’s skills would help the board’s work and complement the knowledge, skills and experience held by the existing non-executive and executive members, this would be a board role. There is nothing in the Bill, as it is currently drafted, to prevent the non-executive members from doing that.
It will be important for HSSIB, as an independent body, to be fully on top of finance and accounting decisions, and that is already reflected in the Bill. The constitution, which is set out in part 1 of schedule 13, includes a number of requirements in relation to funding and finance to ensure that that is managed correctly by HSSIB. For example, paragraph 12(1) of schedule 13 expressly states that HSSIB must exercise its functions economically, as well as effectively and efficiently. Paragraph 16 relates to the use of income from charges, and paragraphs 18 and 19 relate to the accounts of HSSIB. It is for HSSIB to decide how best to ensure it fulfils these duties, but I hope it is reassuring that the constitution underlines the importance of running HSSIB economically and the requirements for annual accounts, as would be expected of a public body.
Amendments 132 to 135 look to remove from the Secretary of State the responsibility to set the remuneration for non-executive members of HSSIB, and to give that power to the chief finance officer instead. The amendments present some challenges, which I will outline here.
In respect of public appointments, the governance code for public appointments states that
“Ministers must be consulted before a competition opens to agree the job description for the role, the length of tenure and remuneration.”
A number of non-departmental public bodies follow this code, such as the Care Quality Commission, the Human Tissue Authority and the Human Fertilisation and Embryology Authority, to name a few. There is no reason why the arrangements for HSSIB should differ from those of other non-departmental public bodies.
We wish to ensure the independence of HSSIB’s board, and I know that hon. Members feel strongly about that, too. Giving a chief finance officer control over the remuneration of non-executive members means that the Secretary of State and, via the Secretary of State, Parliament would not have full oversight of how public money is spent. Although I am sure that the non-executive board members would act with the utmost integrity, we must ensure that the legislation supports them to do so as far as possible, and that we do not deviate from standard practice in public appointments. For those reasons, I ask hon. Members not to press their amendments, and I commend this clause and schedule to the Committee.
Justin Madders (Ellesmere Port and Neston) (Lab)
It is a pleasure to see you in the Chair this afternoon, Ms Elliot. I am grateful to the Minister for setting out the Department’s position on the clause and the accompanying schedule. The proposed amendments relate to the establishment of HSSIB. As he has said, it builds on the work carried out by the Healthcare Safety Investigation Branch, which was established without statutory basis in 2016 and became operational in April 2017.
The Public Administration and Constitutional Affairs Committee identified in April 2016—more than five and a half years ago—that this legislation was necessary, and I am pleased to see that it is finally being brought forward. The Health Service Safety Investigations Bill, which was introduced in the House of Lords in 2019, did not proceed because of the calling of a general election, on which the Opposition do not wish to linger.
As other members of the Committee may have done, I have raised with the Healthcare Safety Investigation Branch both system-wide issues and individual matters on behalf of constituents. My experience has suggested that there are wider issues that need investigating, so we welcome this opportunity to discuss and set out in legislation the powers and remit of the body.
Unfortunately, some details are lacking from part 4 of the Bill, which we think represents a missed opportunity to set them out a bit more precisely. We should not miss the opportunity to ensure that this body can truly improve healthcare, as we will demonstrate with our amendments, notwithstanding what the Minster has said. We are trying to do our utmost to ensure that HSSIB has the independence, the resources and the influence it requires to operate at its maximum potential. Lessons must be learned from the experience of the Healthcare Safety Investigation Branch, which has undoubtedly had some impact. However, in many ways, its work has not had the impact it might have had, because its reach has been limited for a variety of reasons that are entirely out of its control.
Keith Conradi, the chief investigator of the Healthcare Safety Investigation Branch, touched on that during the second sitting of this Committee, when he commented on how the branch had been operating in shadow form, without any real powers. We have discussed the powers of HSSIB, especially in terms of access to information and compelling people to co-operate with investigations. However, it is what happens after the final report, and ensuring that those recommendations are acted on, that will have the largest impact on patient safety and driving through improvements.
A recent example of the work of the Healthcare Safety Investigation Branch is its investigation into wrong site surgery, through the wrong patients being identified in outpatient departments. The reference for the investigation was evidence from the NHS national reporting and learning system that the incorrect identification of patients is a contributing factor in patients receiving the wrong procedure. The safety recommendation to NHS England was to lead a review of risks relating to patient identification in out-patient settings, and to assess the feasibility to enhance or implement systematic controls such as technological options or the use of the NHS unique identification number. NHS England responded by stating that the work would require an understanding of the true scale and impact of the risks through observational study, which would be resource heavy. It said that, without evidence of the risk, that would did not justify the cost. Hence, the recommendation was considered but not acted on.
Karin Smyth
It is a pleasure to see you in the Chair, Ms Elliott. I would like to address some comments to schedule 13, following on from my hon. Friend the Member for Ellesmere Port and Neston. It is not an interest, but I am a member of the Public Administration and Constitutional Affairs Committee, and much of the appointment issue is within our purview.
HSSIB is a really important new body and, as the Minister outlined, it must be of the highest integrity. It must absolutely be built on the highest standards of trust when it comes to the wider system and the general public. We will discuss how that will happen over the forthcoming clauses.
As the Committee knows, the issue of accountability is close to my heart. HSSIB being a public body, and I am afraid to say that the Government’s record in the last couple of years does not fill me and many others with great confidence in terms of how this body is being set up. Its leadership merits due consideration both by the Committee and when the Bill goes to the Lords and then returns to the Commons.
Edward Argar
We have had the opportunity in this clause and these amendments to range more broadly in setting out the landscape and issues relevant to our debates on the forthcoming clauses. A number of questions were raised in the context of this debate, and I will aim to answer as many as I can.
The shadow Minister, the hon. Member for Ellesmere Port and Neston, talked about budgets and resourcing in his opening remarks. As he will be aware, schedule 13 provides for funding to be given as the Secretary of State thinks appropriate. We are clear that we want HSSIB to be adequately resourced to exercise its functions, but it is right that when a public body is spending public money, there is democratic oversight, because that money comes from the public purse. We are determined to ensure that it has adequate resourcing, but I believe it is right that the Secretary of State plays a key role.
The hon. Gentleman also asked, I think—he can shake his head if I misunderstood what he said—about the impact of any recommendations or decisions on individual trusts or the NHS, and their ability to act on them without it disproportionately affecting their resourcing and their plans. We are confident that, as we have seen with previously identified failings—not necessarily through this process, but in the past—trusts are able to address those recommendations. However, in cases where there is a major incident leading to significant reform, as has happened—I suspect we all hope that it does not happen again—resources can be made available to address a particular systemic failing across a much broader landscape. I cannot pre-empt decisions made by the Secretary of State or the Chancellor of the Exchequer in those circumstances, but I hope that the principle of adequate resourcing is established, as we all want.
The shadow Minister also expressed concerns that, at their heart, were about the organisation either not being, or being perceived to not be, sufficiently independent of the Secretary of State, because of the nature of the governance arrangements put in place around it. I do not think that is the case. We are adopting a standard approach to managing public appointments to a body of this sort. I would be more concerned if the NHS were responsible for appointments or funding, because although I do not want to pre-judge its work, I expect that HSSIB will more frequently be looking into and reporting on NHS bodies.
On some of the specific points on the role of the Secretary of State and the appointment of non-executive members and the chair of the board, I can give reassurance that that will be managed in line with the Government’s code for public appointments, regulated by the Commissioner for Public Appointments. I hear what the hon. Member for Bristol South says; she will not be surprised that I will avoid being drawn on individuals, but she made her point and made it clearly.
Regarding the chief investigator particularly, it would be normal for boards to have more non-executive than executive members—we see that in both the private and public sectors—and that ensures that one-step removal from the executive operation the ability to challenge within that board. That is reasonable. The chief investigator is a key figure in this body, and I do not believe that the approval by the Secretary of State can call into question the independence of the HSSIB. The Secretary of State will not appoint the chief investigator—that is the responsibility of the non-executive board—but it is right that the Secretary of State approves that appointment, ensuring the route of accountability. I can go a little further and offer some reassurance to the shadow Minister, in that I envisage the chief investigator appearing before the Health and Social Care Committee—the most appropriate Select Committee—before the appointment is made.
The Chair
We now come to amendments 127 to 135, which have just been debated. Does the hon. Gentleman wish to move any of these amendments?
Justin Madders
The Committee will be relieved to know that I will not move every single one of them. What the Minister said about the pre-appointment process is helpful. As my hon. Friend the Member for Bristol South said, it is not a perfect solution—
The Chair
Mr Madders, the opportunity to debate was before. You just need to indicate which amendments you wish to move.
Justin Madders
I wish to move amendments 130 and 131, and I will not press amendments 127 to 129 and amendments 132 to 135.
Amendment proposed: 130, page 204, line 32, leave out “The Secretary of State” and insert
“A majority of non-executive members following a vote”.—(Justin Madders.)
This amendment would give a majority of non-executive members the power to remove a person from office following a vote.
Justin Madders
I beg to move amendment 131, in schedule 13, page 204, line 37, leave out sub-paragraph (4).—(Justin Madders.)
This amendment would remove sub-paragraph 4 from schedule 13 of the Bill, which confers powers on the Secretary of State to remove a person from office in HSSIB.
Edward Argar
This clause sets out what HSSIB will be doing. Its remit will be to investigate qualifying incidents in England occurring in the NHS and also in the independent sector. Its aim is to improve learning from events of harm and reduce the risk of reoccurrence for future patients across the whole health system. The Bill defines qualifying incidents as incidents that occur in England during the provision of healthcare services and that have or may have implications for the safety of patients. Based on its findings, it will be for HSSIB to recommend improvements to systems and practices.
I want to come on to an important point about the role of investigations. The aim of the investigations will not be to apportion blame but to foster a strong learning culture and make sure that, ultimately, patients get the best care they rightly deserve, wherever they are patients. For that reason, we have specified that HSSIB’s investigative function is not for the purposes of assessing or determining blame, civil or criminal liability or action to be taken by a professional regulator in respect of an individual. That important point is reflected throughout the HSSIB provisions, including in respect of the requirements and admissibility of HSSIB reports. I will expand on those points when we reach those specific provisions. I hope that being clear on those points in legislation will foster a culture of openness and continuous improvement and learning, so that the whole of society benefits.
Justin Madders
As we have heard, the clause covers investigations of incidents with safety implications, confirming that qualifying incidents must take place in England during the provision of healthcare services, with the investigations identifying and addressing risks by
“facilitating the improvement of systems and practices”.
I do not know whether the Minister can neatly sum up what “facilitating” actually means in this context, but as we will cover in other clauses, there are certainly some concerns about how exactly improvements will be delivered—some have been touched on already.
Keith Conradi confirmed during his appearance before the Committee that currently, recommendations are monitored “informally” by NHS Improvement, and he suggested that a “pan-regulation-type body” might be needed to consider
“whether the outcome…mitigated the patient safety risk.”––[Official Report, Health and Care Public Bill Committee, 7 September 2021; c. 61, Q79.]
That sounds like a suggestion that needs consideration, because it would ensure that recommendations made by HSSIB and the responses from NHS England, or whichever appropriate body is required to respond, are acted on and assessed.
If we are to improve patient safety, it seems unusual not to have any provision or mechanism to follow up on recommendations. Earlier, I referred to the recent investigation into the identification of outpatients, where, sadly, the recommendation was not acted on, largely because of the cost of complying with it. The Bill does nothing to clarify how funding will be made available to act on recommendations from HSSIB on improving patient safety. What mechanism will be in place for when recommendations are not followed, or for when they are followed but do not have the desired effect?
We must avoid the scenario in which HSSIB is essentially a toothless body whose well-intentioned recommendations are simply kicked into the long grass. In response to the Select Committee’s investigation into the safety of maternity services in England, the Healthcare Safety Investigation Branch stated that
“for various reasons, some trusts have struggled to recognise the information we are presenting to them or to prioritise the actions necessary to address the risks. We understand the many pressures on trusts and that maternity services are a product of systems not all within the full control of individual organisations; sometimes solutions do not appear easily achievable.”
In a nutshell, the Bill fails to set out how that very real problem will be addressed under HSSIB, which demonstrates why we have been arguing for further consideration of how monitoring and assessment of recommendations is to be delivered.
Edward Argar
I am grateful to the shadow Minister for his comments, at the heart of which was the question of who is responsible for implementing HSSIB’s recommendations, and how we can ensure that the wish for learning and improvement, which is the fundamental reason why we are doing this, has the desired effect.
We are clear that taking on the recommendations and implementing the recommended changes will be the responsibility of the organisation to which they are addressed. The Bill sets out what should happen when a report from HSSIB makes recommendations for future action. The addressees of the report must generally provide a response to the recommendations within the timeframe specified by HSSIB. That is not dissimilar to the way we are required to respond to reports by Select Committees, although occasionally we probably need to be a little bit more timely with one or two of those. The principle is the same: the recommendations are there and the body to which they apply will respond to them.
That response should set out the action that the addressee will take in relation to the recommendations. HSSIB may publish the responses to its recommendations. It is it right that HSSIB, as the independent body, may make that decision, because there may be reasons why it determines not to in a particular case. Without wishing to influence HSSIB, I hope that there will be transparency, where possible, in the recommendations and in the responses to them. I think that will foster learning across the system, rather than simply in the organisation within the scope of the recommendations.
I believe that is the appropriate approach and that it will see improvements, not least because I think those public bodies wish to improve. I hope that the culture created around HSSIB will continue to foster a willingness to learn and improve. I hope that offers some reassurance.
Question put and agreed to.
Clause 94 accordingly ordered to stand part of the Bill.
Clause 95
Deciding which incidents to investigate
Justin Madders
I beg to move amendment 101, in clause 95, page 86, line 37, at end insert—
“(10) Following any direction under subsection (2) the HSSIB may—
(a) request additional funding in order to carry out the investigation; and
(b) at the discretion of the chief investigator, decline to carry out the investigation.
(11) Following any direction under subsection (2) the Secretary of State—
(a) must have no further involvement with how the investigation is pursued;
(b) may not give a direction which directs the outcome of an investigation; and
(c) must have no involvement in the formulation of the investigation’s recommendations.”.
This amendment would ensure that HSSIB would maintain its independence following any direction from the Secretary of State to carry out an investigation and can request additional funding in order to carry out the investigation.
I hope my voice holds out, although I hope I will not be speaking for quite as long on this amendment. It addresses a familiar theme. It seeks to preserve the independence of HSSIB’s decision making, with particular reference to clause 95 (2), which gives the Secretary of State the power to direct HSSIB to carry out investigations.
The Joint Committee on the Draft Health Service Safety Investigations Bill raised concerns about the role of the Secretary of State in making representations about investigating an incident. The Government agreed to remove the mention of the Secretary of State to make it clear that the role would not amount to a direction by a Minister. In that light, it is difficult to understand why the Government have now decided to install a power on the Secretary of State to direct investigations. It is questionable whether such a power is even needed, if HSSIB falls into line with the practice of the Healthcare Safety Investigation Branch, which can accept referrals from anyone. If the Secretary of State has concerns relating to patients, he should surely be able to put those matters to HSSIB anyway, as anyone who has safety concerns can. HSSIB can then reach a decision based on the criteria that it has set out on whether to investigate, which we will return to later.
If HSSIB becomes the investigatory body for the Secretary of State, depending on how often the power is used, that could downgrade other safety concerns and also erode public, patient and staff confidence that HSSIB is a truly independent body. The Joint Committee on the Draft Health Service Safety Investigations Bill commented:
“Our witnesses were united in stating that HSSIB will be neither trusted nor effective unless it is, and is seen to be, independent of both health service bodies…and the Department of Health and Social Care. Only this will provide confidence that HSSIB will neither cover up failures by clinicians and trusts nor conceal issues that might cause political embarrassment.”
By allowing the Secretary of State the power to direct the investigations, trust in HSSIB is brought into question. The amendment would make it clear that if the power is needed—the Minister can try to convince us that it is—HSSIB could request additional funding in order to carry out that investigation, and the chief investigator would have the power to decline to carry out the investigation. It would also ensure that if the investigation does proceed, the Secretary of State has no further role once it has started. If this power is needed, we think the amendment would create sufficient safeguards to ensure the independence of HSSIB, by ensuring that the chief investigator cannot have its own judgment and decisions superseded by the Secretary of State.
Edward Argar
I am grateful to the shadow Minister for bringing this discussion before the Committee today. [Interruption.] I will talk for a little while to allow him enough time to have a glass of water to try to preserve his voice and mine for another few hours at least. As he set out, the amendment seeks to ensure that HSSIB would be able to make its own decision on whether to pursue an investigation requested by the Secretary of State and ask for funding; it would also ensure that if an investigation went ahead, the Secretary of State would have no influence on the detail of that investigation.
I reassure the hon. Gentleman that, as I said earlier, we remain fully committed to the independence of HSSIB, which is of course the reason why we want to establish it as a non-departmental public body with its own statutory powers. Under our approach, the Secretary of State would be able to direct HSSIB to carry out an investigation, but only if there has been an incident that has caused particular concern. The power to direct at subsection (2) is only in relation to carrying out an investigation; it is not about directing the outcome for an individual. That is an important distinction—we can ask them to do it, but it is not about directing the outcome. I believe that is right for the Secretary of State with responsibility for the health of the nation to have a power to direct the carrying-out of an investigation, so that he is able to respond to emergent or ongoing safety priorities or issues of concern, asking that they be considered.
The measure will ensure effective and proportionate accountability between the Department and its arm’s-length bodies, and between the Department and the House and the other place. However, while the Secretary of State may request an investigation, as I have said, he cannot direct the body on how to conduct any particular investigation and will have no role in it, as he does not have any such power. I hope that offers some reassurance to the shadow Minister. The measure therefore does not encroach on the independence of HSSIB’s findings, which are one of the key concerns that the amendments seek to draw out or shine a light on, so I hope I have provided some reassurance.
In addition, should HSSIB wish to discontinue an investigation, it may determine to do so, setting out the reason why it will not be investigating an incident. That would include any investigation, including one requested by the Secretary of State. HSSIB could discontinue an investigation, but would have to explain its thinking, which is not an unreasonable balance to seek to strike.
To turn to the question of funding, the amendment seeks to ensure that, in the case of a request by the Secretary of State to carry out an investigation, HSSIB may ask for additional funding. We have estimated, in our current analysis of workloads, HSSIB is likely to carry out up to 30 investigations a year, which allows sufficient flexibility to ensure that in the event that an investigation requested by the Secretary of State goes ahead, adequate resources remain.
On the process for the Secretary of State requesting an investigation, the limitations on the Secretary of State’s ability to be involved in the investigation, and the ability of HSSIB to determine whether it will pursue an investigation further, I hope that I have offered sufficient reassurance to the Committee. Therefore, I hope that the shadow Minister will consider withdrawing his amendment.
Dr Whitford
I want to raise with the Minister subsection (5), which calls on HSSIB to put out a statement on the issues that it is investigating with regards to an incident. However, that is right at the start of an investigation. Is he not concerned that, putting out a public statement of what the issue is at a point when no one has yet got to the bottom of that issue might be putting the cart before the horse? HSSIB might therefore twist the whole investigation into what its initial preconceptions are, instead of finding out the underlying cause.
Edward Argar
I take the hon. Lady’s point. That is not the intention, to prejudge or predetermine. It is what is sought with the investigation. I take the point about the language, which is important. The measure in essence requires HSSIB to notify the public that it is looking into a particular circumstance or complaint. I think “issues” still works, but I take her point that we cannot prejudge, and nor should HSSIB, where its investigation is going, which rabbit hole it will take it down, what it might find, but that is a point of language. I hope that I have reassured her, but I accept that we always need to be careful about the language.
Justin Madders
I am grateful for the Minister’s investigation, but I am still not clear why an additional power needs to be set out in the Bill. My understanding is that anyone can make a referral anyway, so why this has to be set out in black and white is a mystery to me. Despite what the Minister has said, it is important to have the amendment in the Bill, because it will give patients and the public confidence that there will not be interference or challenges that undermine the notion of independence. We will press the amendment to a vote.
Question put, That the amendment be made.
Justin Madders
I beg to move amendment 122, in clause 95, page 86, line 37, at end insert—
‘(10) The Secretary of State must by regulations lay out a process to challenge a decision made by HSSIB not to investigate a qualifying incident.”
This amendment would require the Secretary of State to put in place a mechanism through which any decision by HSSIB not to investigate a qualifying incident could be challenged.
We have had some discussion about the matters that may be chosen by HSSIB to be investigated, but it is probably more pertinent for the purposes of considering this amendment that we discuss what happens when HSSIB decides not to investigate. Amendment 122 would require a mechanism to be put in place so that any decision by HSSIB not to investigate a qualifying incident could be challenged. If the independence of the body and faith in its purpose are to be protected, it is essential that there is a mechanism whereby HSSIB decision making can be challenged. That is especially true when we consider the role of families in the investigation process.
My experience with HSSIB came when a patient safety concern was raised by a constituent, and after that concern was not investigated it brought home to me the distress and feeling of being let down by a refusal to investigate. Without a mechanism to challenge such a refusal, faith in HSSIB could be damaged by effectively creating a dead end to further inquiries.
I should point out that in the particular circumstances that I have just referred to HSSIB agreed to a meeting and it set out in more detail its reasons for not investigating, but that might not be possible in all situations. That meeting aided my constituent’s understanding of why their request was refused, but it did not actually mean that they agreed with HSSIB’s decision. Consequently, our view is that there needs to be some sort of process—we do not intend to set out today what it should be—set out in regulations to ensure that those who make a referral have the opportunity to articulate their concerns if that referral should not go on to be investigated. In conclusion, if the purpose of HSSIB is to improve patient safety, we should ensure that collaborative approaches are enshrined in legislation, and we believe that a mechanism along the lines of what we have set out in the amendment would go some way towards achieving that.
Edward Argar
I am grateful to the shadow Minister for setting out the background to his amendment, with which he seeks to ensure that a process is set out in regulations to allow the challenging of a decision by HSSIB when it has decided not to investigate a qualifying incident. However, I have to say that I do not think that this measure would necessarily be proportionate. The Bill already sets out, in clause 95 (8) and (9), that where HSSIB makes a decision not to pursue an investigation, it may explain the reasons behind that decision and communicate those reasons to those people with an interest.
It may be that the Government or others want to understand more about how HSSIB reached a decision, but setting out within regulations a fixed process to challenge HSSIB’s decisions would again risk being disproportionate. If HSSIB discontinues an investigation that it has started, then it must publish a statement that reports that it has discontinued the investigation and give its reasons for doing so. I believe that gives a high level of transparency in that circumstance.
I do not believe that it would be proportionate to take the same approach when an investigation has not even been commenced. The key theme running through these discussions, which we have heard about in our consideration of previous clauses, is the independence of HSSIB, and its ability to determine these matters and make its decisions in an independent way. I fear that this amendment sits slightly uneasily with that principle.
As I said, we intend HSSIB to carry out an estimated 30 investigations a year, so there is not the intention, even at the outset, that HSSIB should investigate all qualifying incidents. It is for HSSIB to determine that, so I do not think it would be the best use of HSSIB and its expertise to go through a formal process to explain why it has determined not to investigate incidents. We want HSSIB’s resource to go into investigating the qualifying incidents that it has determined to investigate.
I suspect we will return to this theme again in the course of our discussions, but I believe it is important that, as the expert body, HSSIB is given the autonomy to make its own decisions about what to investigate. Any such decision would of course need to stand up to scrutiny, and of course, as part of our own arrangements, we will need to ensure consistency, while at the same time ensuring that HSSIB’s autonomy is respected as it should be. That is a difficult balance, but it is one we need to ensure we strike. I therefore encourage the shadow Minister to not press his amendment to a Division.
Justin Madders
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
During our debate on amendments 101 and 122, we discussed a number of the key themes that run through clause 95. This clause sets out that, as an independent body, HSSIB will be able to decide its own priorities and determine which qualifying incidents it investigates. We would expect this to be the result of referrals it receives, but also its own intelligence. The clause also gives the Secretary of State powers to direct HSSIB to carry out an investigation when, for example, there has been an incident that has caused a particular concern, and it allows the Secretary of State to request a report to be produced by a specified date.
I appreciate that, as we have heard today, some could argue that the clause could be perceived to encroach on the independence of HSSIB. I hope I set out in my earlier remarks why I do not take that view, and why I believe it is right that the Secretary of State, who has responsibility for the health of the nation, has such a power and is able to respond to emerging, ongoing safety priorities or issues of concern. I believe that this measure strikes the right balance, providing the Secretary of State with that flexibility while ensuring effective and proportionate accountability. HSSIB is not bound to follow the instruction, but it is bound to explain why it deems it unnecessary, or why it has determined it should not pursue a particular investigation request.
Edward Timpson (Eddisbury) (Con)
As a point of clarification, I notice that clause 95(2) gives the Secretary of State the power to direct both an individual investigation and
“qualifying incidents that have occurred and are of a particular description”,
but I wonder whether HSSIB, off its own bat and as part of its independent investigation, is able—as we were when I chaired the national Child Safeguarding Practice Review Panel—to look at a number of incidents in which there is a theme that it would want to investigate. For example, we looked at a number of cases of co-sleeping with babies, which gave us an opportunity to look at that issue in the round, rather than individual cases. Is that something that HSSIB will also be able to do?
Edward Argar
I am very grateful to my hon. Friend for making that point, and I put on record my gratitude—our gratitude—to him for his work, which he alluded to. He is right: one of the key things we would hope HSSIB would seek to do, where it was supported by the evidence, is to join the dots where there is a systemic issue—not just in an individual trust, for example, but an underlying issue for the Department or the NHS as a whole—and be able to reflect that in its decisions on what to work on and how to broaden the scope if it deemed that to be necessary.
Clause 95 provides that whenever HSSIB decides to undertake an investigation, it is required to make a public announcement, setting out briefly what it will be investigating and what it expects to consider during the investigation. I take the point made by the hon. Member for Central Ayrshire: that announcement should give the public an indication of the fact that something is being looked at, but it should not limit which leads—for want of a better way of putting it—HSSIB decides are worthy of investigation and of following. HSSIB will also be able to get in contact in advance with anyone who it thinks may be affected by the investigation. This may, for example, include patients, families or any individual who has referred the incidents to HSSIB, a trust or other healthcare provider.
Finally, there may be occasions when HSSIB decides not to investigate an issue or to discontinue with an investigation. Clause 95 covers those scenarios. If HSSIB decides to discontinue the investigation of an issue, we have set out that it should make a public statement explaining the reasons for doing so. If HSSIB decides not to investigate a qualifying incident, it will be able to give notice of the decision to those who it considers might be affected by it and to explain the reasons to those who have an interest in it.
I hope colleagues on the Committee will agree that the provisions are necessary for HSSIB to be in control of the qualifying incidents and to investigate and to ensure transparency about what investigations are being carried out or discontinued by the agency. We expect that the Secretary of State’s power of direction will be exercised extremely sparingly but it can ensure that crucial patient safety issues can always be focused on where appropriate. I therefore commend the clause to the Committee.
Justin Madders
These processes will be critical if HSSIB is to function properly. The Minister has had three or four attempts to explain why the Secretary the State needs the power to direct when he can make referrals anyway, but we are still to understand why that power needs to be there. If the Secretary of State asked HSSIB to undertake an investigation, it would jolly well get on and do it. That aside, we will not be voting against the clause.
Question put and agreed to.
Clause 95 accordingly ordered to stand part of the Bill.
Clause 96
Criteria, Principles and Processes
Justin Madders
I beg to move amendment 123, in clause 96, page 87, line 22, after “State,” insert—
“(aa) trade unions,
(ab) patients,”
This returns to the issue of the criteria for investigations. If they were set out in the Bill, that would perhaps allow the power to direct to be mitigated in some way. We would then at least know whether the directions given by the Secretary of State were reasonable, judged against HSSIB’s own criteria. There is a void in the clause because it should set out unambiguously what criteria are applied when decisions are made. It is silent on that, and the response might be that that is deliberately so in order that HSSIB be truly independent. That might be a slightly stronger argument if the Secretary of State were not hand-picking most of the main positions in the body.
We have been asked to give HSSIB a blank cheque, but clause 96 says:
“The HSSIB must determine and publish—
(a) the criteria it will use in determining which incidents it investigates,
(b) the principles which are to govern investigations,
(c) the processes to be followed in carrying out investigations”.
We think it not inconsistent with the body’s independence for Parliament to have a role in setting out what those processes will be, particularly if they result from consultations with stakeholders, patient groups, trade unions and so on.
Although I appreciate that subsection (7) requires consultation with the Secretary of State and
“any other persons the HSSIB considers appropriate”
for there to be any revision to criteria, principles and processes, it does not set out a statutory requirement for wider involvement to take place. During consideration of the draft Health Service Safety Investigations Bill, the Royal College of Nursing recommended that consultation on criteria take place with healthcare professionals, patients and families to ensure that any investigation remained patient focused. Given the importance of the criteria in HSSIB’s function and the reach it will actually have, establishing the body without any such framework does not allow it to be scrutinised in the way that we would like.
To return to the point made by the RCN on investigations being patient focused, subsection (1)(d) does allow some limited focus to ensure that patients’ families are involved in investigations
“so far as reasonable and practical”
and that anything published is easily accessible and understood. That is welcome, and it enshrines the recommendations made by individuals, Healthwatch and the Nursing and Midwifery Council to the Joint Committee on the Draft Health Service Safety Investigations Bill. Matthew McClelland, the NMC’s director of fitness to practise, said it was critical to do that to
“put patient voices right at the centre of investigations”.
We wholeheartedly agree. That position is also supported by Healthwatch England, which commented that
“you can learn only if you really engage people properly in that process.”
However, we can see no set role for patient groups in establishing criteria, principles and processes. The Opposition think that side-lining such groups in the legislation sets the wrong precedent for their future involvement. Our amendment would change subsection (7) to create a safety net, ensuring that the patient voice and staff views are at the heart of any further consultations on changes considered by the branch.
Edward Argar
Clause 96 outlines that HSSIB must determine and publish certain criteria, principles and processes, including the criteria that it will use when deciding which qualifying incidents to investigate. The hon. Gentleman’s amendment would require HSSIB specifically to consult trade unions and patients when considering or reviewing criteria, principles and processes. I am not convinced that that is the most appropriate approach.
The clause, which I suspect we will turn to immediately after the debate, includes a number of references to “patients and their families”. HSSIB will need to set out how it will involve them in investigations as far as is reasonably practicable. It will also need to ensure that such processes are easily accessible and understood by families and patients.
I am sure that families and patients will be very much part of HSSIB’s considerations, as they are for the current Healthcare Safety Investigation Branch. However, the decision about who is consulted is best left to HSSIB, which will be best placed to determine who is appropriate. Again, that goes to the point of independence and flexibility to follow the evidence and determine where it thinks is the most appropriate place to go.
Similarly, on trade unions, as I have said in the Committee, while on occasion I suspect I may not agree with them, I recognise the vital role that they play in our country’s democracy. Again, it is important that HSSIB can judge when or whether to consult with them, depending on the issue involved. An approach where some groups are specified in legislation as needing to be consulted but not others may give the impression that some organisations or groups carry greater weight. It is important that, as HSSIB looks at each qualifying incident, it can judge what is the most appropriate balance for consultation.
The amendment would also mean that specific groups would always need to be consulted when it may not be appropriate in each case, dependent on the circumstances under consideration. I therefore think it is right that it will be for HSSIB to make decisions as to who it considers appropriate to consult. I hope that, in the spirit of striking the right balance in preserving HSSIB’s independence, the hon. Gentleman might consider withdrawing his amendment.
Justin Madders
The Minister is right; it should be up to HSSIB to decide who it consults. That is why it is seems superfluous to have a requirement in the clause that it must consult the Secretary of State. However, I cannot imagine a circumstance in which HSSIB would not want to consult him or her. Indeed, I cannot imagine patient groups and trade unions not being part of the conversation in most circumstances. We think we will need to keep an eye on this as matters progress. However, we have made our point and will not press the amendment to a vote, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 96 provides that HSSIB determines and publishes the criteria it will use when deciding which qualifying incidents to investigate, as well as the timescales by which investigations will be completed. The clause therefore ensures that HSSIB will be transparent in how it will work and will have the flexibility to determine the most appropriate investigation methods depending on the type of inquiry. The current body, the Healthcare Safety Investigation Branch, has a wealth of experience and has been conducting investigations since 2017, so it already has a solid base to build on to inform the criteria, principles and processes for its future investigations.
Justin Madders
As the Minister said, this is an important clause as it will ensure some transparency in HSSIB’s operation. Like him, Opposition Members welcome the emphasis on patients and their families and on making sure that the body’s processes are accessible and easily understood by them, because that is at the heart of making sure that HSSIB is a success. It will not be successful unless people can see and understand exactly how things have changed. As we know from many tragic cases in the NHS, one of the most important things that families want is to know that things have changed, so that whatever terrible incident happened to them and their loved ones does not happen to someone else in the future.
Question put and agreed to.
Clause 96 accordingly ordered to stand part of the Bill.
Clause 97
Final reports
Justin Madders
I beg to move amendment 124, in clause 97, page 88, line 15, leave out subsection (7) and insert—
“(7) The final report must be sent to the Secretary of State.
(8) Within 12 months of each final report being sent to the Secretary of State under subsection (7), a report must be laid before Parliament setting out the steps the Secretary of State has taken as a result.”.
The amendment seeks to ensure that each investigation report produced by the HSSIB is sent to the Secretary of State, who must report to Parliament on what steps have been taken as a result.
The clause deals with the final reports of HSSIB, which essentially will be about the manner in which improvements to systems and practices can be facilitated by the body. While the provision requires a final report to be published, only in subsection (7) is there a requirement for the report to be sent to the Secretary of State, and only in those cases where a direction has been given by the Secretary of State to investigate. Given the role of HSSIB, and to ensure that its functions are met, the amendment would require all final reports to be sent to the Secretary of State, who must present them to Parliament within 12 months outlining what steps had been taken. That would offer a safeguard and ensure some oversight from Parliament in considering HSSIB’s effectiveness and the improvements being made on patient safety.
As the Joint Committee on the Draft Health Service Safety Investigations Bill commented:
“There was widespread agreement among our witnesses that there would be more confidence in HSSIB’s independence were it to be accountable to Parliament rather than to the Secretary of State. When asked whether accountability to Parliament might not also be seen as political influence, Professor Toft responded that accountability through a cross-party committee was more likely to inspire confidence than to a single Minister, and that a committee was more likely to scrutinise and not to give directions.”
If there is to be faith in HSSIB, we must heed the Joint Committee’s warnings and ensure that the reporting mechanism is sufficient to ensure confidence in the body and to prevent reports from simply being filed away without scrutiny. I hope that the Minister will agree that confidence in HSSIB and its effectiveness to improve patient safety are integral and that he will support the amendment. There has been a little concern about placing requirements on the Secretary of State throughout proceedings on the Bill, so I hope that a requirement for him to present a report once every 12 months would not be too onerous but will be considered an appropriate and acceptable measure.
Edward Argar
Clause 97 deals with HSSIB’s final report following an investigation and sets out what a report should include, such as the overall findings, with analysis of what has happened. If the report concerns an investigation that the Secretary of State directed HSSIB to undertake, HSSIB will be required to send a copy of the report to the Secretary of State. I understand that the purpose of amendment 124 is to require the Secretary of State to consider the report and then report to Parliament within 12 months on what action has been taken as a result. Although I can certainly see that the purpose of the amendment is to ensure transparency, accountability and follow-up, I am not convinced that it is the right way to achieve that understandable and legitimate aim.
We expect HSSIB to conduct about 30 investigations a year, which means that the Secretary of State would need to report on 30 separate reports. I worry that that would be unnecessarily burdensome without delivering significant improvements in patient safety. The final HSSIB report will be published, and we expect that the recommendations will most likely be directed at and actioned by others. Organisations are required to respond to HSSIB’s recommendations, and HSSIB may publish those responses. Therefore, it is not necessary for the Secretary of State to publish an additional report, particularly if there is no action for the Secretary of State to take following HSSIB’s recommendations.
Parliament will be able to use its normal routes to hold Ministers to account and ask what progress has been made following these reports, which of course will be published by HSSIB and open to public scrutiny. I do not consider it necessary for HSSIB to send the Secretary of State a copy of the report, as this will be available to everybody without that additional step. I will therefore encourage the shadow Minister to consider withdrawing his amendment.
Justin Madders
The Minister makes some fair points, and we are aware that there are other channels to pursue these matters. However, it did seem a bit incongruous that the Secretary of State would have certain requirements on him if he directed a report but not otherwise. Again, we will see, as the body moves forward over the next few years, whether the scrutiny arrangements in place are indeed effective, so we will not press the amendment to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 97 deals with HSSIB’s final report following an investigation. It sets out that a report should include the overall findings, with analysis of what has happened. It is important that the emphasis of any such report is put on identifying risks to the safety of patients and addressing those risks by facilitating the improvement of systems and practices in the provision of NHS services or other healthcare services in England. Therefore, HSSIB should include recommendations about how any risks should be addressed. If an investigation has been commissioned by the Secretary of State, HSSIB will be required to send a copy of the report to the Secretary of State.
As I have mentioned previously, we are clear that the purpose of any investigation is to address issues so that we improve patient safety. We want to ensure that the NHS gains as much as it can from all investigations, even if they may not always relate to the NHS. The clause therefore sets out that if the investigation relates to an incident that has not occurred during the provision of NHS services, HSSIB must consider whether the systems and practices in the provision of NHS services could be improved.
The clause also sets out that there should be no assessment of blame, civil or criminal liability, or whether regulatory action should be taken against an individual in the report. That is not the role of HSSIB investigations, and any such assessment would discourage individuals from speaking candidly to HSSIB and could result in lessons not being learned. HSSIB plays a complementary but very different role from the police and regulators. Finally, the clause allows HSSIB to release protected material as part of the report if certain criteria are met.
The purpose of this clause is to set out the expectations on reporting from HSSIB following an investigation. I therefore commend it to the Committee.
Question put and agreed to.
Clause 97 accordingly ordered to stand part of the Bill.
Clause 98
Interim reports
Question proposed, That the clause stand part of the Bill.
Edward Argar
These clauses continue on the same theme as clause 97 and focus on HSSIB’s reports. I turn first to clause 98, which essentially allows HSSIB to publish an interim report with findings, recommendations and conclusions before the final report. The aim of the interim report is to address urgent risks to the safety of patients or issues that are known early in an investigation, so that swift action can be taken and lessons can be learned across healthcare systems as findings emerge.
Clause 99 requires HSSIB to share a draft of an interim report or a final report with those who are likely to be adversely affected by it, and to seek their comments—that might be NHS staff or other participants. HSSIB may also share a draft report with any other person who they believe should be sent a copy, which might include patients and families. That is to ensure that the interim and final reports are robust and an accurate reflection of what has happened, adding to the rigour of the investigation. It also gives individuals an opportunity to respond to adverse findings in advance of publication of the report.
Clause 100 describes what needs to happen once an interim report or a final report is published by HSSIB. It requires the addressees of the report to provide a response to the recommendations within the timeframe specified by HSSIB, and HSSIB may publish the response. The clause will ensure that it is clear and transparent what actions will be taken to address the recommendations. The clause is drafted to ensure that it does not encroach on the devolved competence of Wales. For example, the duty to respond to recommendations would not apply to any body that is or could be established by the Welsh Parliament. HSSIB may still make recommendations to persons in Wales, and certain types of organisations would be required to respond—for example, a private sector organisation in the health sector. The clause will ensure that there is follow-up to the recommendations in the report from HSSIB.
Finally, clause 101 sets out that unless the High Court makes an order to the contrary, final and interim reports prepared by HSSIB following an investigation, including drafts of the reports, are not admissible in proceedings to determine civil or criminal liability, proceedings before any employment tribunal, proceedings before a regulatory body—including proceedings for the purpose of investigating an allegation—and proceedings to determine an appeal against a decision made in any of the above types of proceedings. That is a demonstration of our commitment, as mentioned before, that we want the investigations to provide useful learning and foster a continuous improvement mindset for the benefit of all patients, rather than apportion blame.
There may be circumstances whereby a person involved in the above proceedings applies to the High Court for the report to be admissible. In that case, it will be for the High Court to determine whether it is in the interests of justice for such information to be made admissible, using the test set out in the Bill: whether the interests of justice are served by admitting the report and outweigh any adverse impact on investigations by deterring people from giving information to inform an investigation and any adverse impact on securing the improvement of the safety of healthcare services provided to patients in England. I suspect this is a theme that we will explore when we debate subsequent clauses and amendments. I know that the hon. Member for Central Ayrshire will wish to explore it further when we reach those clauses.
Clause 101 clarifies the circumstances under which a report can be used in legal proceedings. It is an important element of ensuring that safe space works in the way we intend, strikes an appropriate balance and encourages individuals to speak to HSSIB in a candid way. However, we rightly also provide the High Court order safeguard, so that the interests of justice can also be taken into account where appropriate. We believe that strikes an appropriate balance in this particular context, and that these clauses set out important provisions regarding HSSIB’s reports. I therefore commend the clauses to the Committee.
Justin Madders
I am grateful to the Minister for setting out the provisions here, and the ability to produce interim reports under clause 98 is welcome. We can all envisage circumstances in which such action would be of benefit. I note that the requirement to circulate the report to all interested parties in draft form also applies to interim reports. On clause 99, which is about draft reports, I agree that it is right that HSSIB should be able to judge for itself to whom it is appropriate for the draft report to be made available. Under clause 99(4), however, is there a need for comments that are not accepted in the draft stage to be published alongside HSSIB’s response, explaining why those comments have not been accepted at the same time as the final report is published? I do not think that is something that needs to be prescribed in legislation, but it may be something that HSSIB considers doing in some form, and I would be grateful for the Minister’s comments on the desirability or otherwise of such a move.
Dr Whitford
In clause 100 there is discussion about the response to the report, and that is crucial. If this ends up just being a job creation scheme within HSSIB, it will have failed utterly. Having spent more than three decades in the NHS and been involved in multiple designs, redesigns, stakeholder events and so on, a lot of things get filed in that little round filing cabinet in the corner. Therefore, the response to recommendations and their coming into effect is critical.
I was on the Joint Committee on the Draft Health Service Safety Investigations Bill under the hon. Member for Harwich and North Essex (Sir Bernard Jenkin), and we went through this in detail over months. In Scotland, our approach is the opposite. We start at the other end, which is trying to prevent. The Scottish patient safety programme has been working on that since 2007— reducing not just hospital deaths, cutting post-op mortality by 37% within two years of introduction, but expensive morbidity such as pressure sores or wound infections that have an impact on patients and on the NHS.
HSSIB is looking at the other end. Obviously, it does not apply in Scotland, but it is something that I really welcome, and that we will watch with interest. I will not go into disclosure now. That will come later, but not seeing action, as the hon. Member for Ellesmere Port and Neston referred to, with recommendations that have already been made, simply demotivates people to engage in it all. It is critical that we see a response, and that there is a mechanism to see an answer.
The admissibility of the report is also critical if we want staff to be candid, particularly where they may be admitting an error or something that they regret, and there has been a systematic failure of its being prevented. It is often said that we can design safety nets so that an error that someone makes at 2 o’clock in the morning because they are tired can be prevented. We therefore need people to be willing to admit that, and we need those reports not to result in action against them. As we will see when we come on to disclosure, that does not pertain if illegal action has been taken, but I think the two clauses are critical. I do not see in clause 100, or anywhere, what will happen after the reports come out, and how we ensure that it results in an increase in patient safety.
Edward Argar
I take the hon. Lady’s point. As I set out in response to earlier amendments and preceding clauses, I believe that we have struck the right balance on the obligation to respond and act, but I acknowledge, as I frequently do in these Committees, her expertise, particularly in this area, having sat on the Committee that previously considered the matter. I think that we have struck the right balance, but I am always happy to reflect further.
I can give the hon. Member for Ellesmere Port and Neston, within bounds, the reassurance, or agreement with what he is saying, that he seeks, with a caveat: I would hope that transparency and publication should be at the fore, but in doing that, and determining the other points that he raised, as he acknowledged that is for HSSIB to reflect on and consider within the context of its independence. I would hope, and expect, that it would consider extremely carefully exactly such points as those that he made, because they sounded like sensible points, as is often the case with him.
Question put and agreed to.
Clause 98 accordingly ordered to stand part of the Bill.
Clauses 99 to 101 ordered to stand part of the Bill.
Clause 102
Powers of entry, inspection and seizure
Justin Madders
I beg to move amendment 125, in clause 102, page 90, line 21, leave out subsection (6).
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clauses 103 to 105 stand part.
Justin Madders
Clause 102 deals with power of entry, which amendment 125 seeks to qualify somewhat. There is no doubt that these powers are necessary. The evidence that Keith Conradi gave to the Committee was that HSIB would have liked to have had the powers already, so it welcomes their inclusion in the Bill. One would hope that the need for compulsion and the use of force, as set out in the clause, will be rarely needed, but time will tell. Of course, we would expect such powers to be exercised proportionately and reasonably in any event.
Our amendment would delete clause 102(6), which once again appears to place significant powers in the hands of the Secretary of State, effectively enabling them to block any investigations or inspections that HSSIB might want to undertake under the clause on the grounds of national security. Of course, we are not suggesting for a minute that national security issues are not a legitimate issue for the Secretary of State to be concerned about, but I really am struggling to think of a situation where investigations in the NHS on issues of patient safety could also properly be considered matters of national security. If the Minister can provide me with a list of patient safety incidents in recent times in which investigations have not been concluded because national security implications have intervened, we will reconsider our objections to subsection (6). On the face of it, however, it just looks like another unnecessary power grab by the Secretary of State that again risks compromising the independence of HSSIB.
It is also a concern that there appears to be only one person who can decide whether something is a matter of national security. That person is the Secretary of State. He and he alone decides what is a national security issue and members of the Committee will see how that means that we have to place a lot of trust in someone who should not really get involved in these investigations. Why is it this Secretary of State and not the Home Secretary or the Defence Secretary who might be better placed to judge matters of national security? Why have this power at all? We are asking what the real or imaginary problem is that this power is attempting to solve.
Clauses 103 to 105 provide a power to compel individuals to co-operate. We hope that, as time moves on, we see the need for that power to be used less and less. I hope that we all want to see over time a shift away from the defensive culture that sometimes pervades the NHS. The adage that one volunteer is better than 10 pressed men applies here. Some of the softer issues that may arise around the organisation may come out more easily in the context of someone being able to talk candidly and voluntarily about their experiences. I accept that not everyone will feel comfortable doing that, which is why the powers may be necessary, but the key is not the power to compel people to give evidence but the power to instil confidence that there is a safe space for discussions on patient safety.
Dr Whitford
Does the shadow Minister agree that this relates to the whole issue, which we will come on to shortly, of protecting the safe space and the protective materials that go along with that? Some of the discussions may involve someone revealing their own errors or weaknesses or talking about interpersonal relationships. They are very sensitive issues that we cannot compel someone to talk about. We can make someone turn up, but we simply cannot compel them to discuss things that make them feel more vulnerable.
Justin Madders
The Scottish National party spokesperson sets out very well why we do not want the power to have to be used any more than is necessary. The quality of the investigations would not be as good as we would want and lessons may not be learned that could otherwise have been learned.
I have a few questions for the Minister on some of the specifics in the clause. Under clause 103(1)(a), the requirement is that a person must attend
“at a specified time and place”.
I would expect such a request to be given with reasonable notice and to take place at a reasonable time. It does not state that in the Bill, but one would hope that that is a given. Anything that the Minister can say on that would be helpful. It also raises the question about whether such a request could be blocked by an employer requiring a person to be in work at the same time. Clearly in those circumstances, the employer may have an interest in the investigation as well. Will the Minister say something about guidance being issued on the importance of ensuring that individuals who receive such requests are in fact supported by their employers to comply with them?
If someone attends an interview, do they do so alone or do they have the right to be accompanied by a work colleague, a trade union rep or even a lawyer? They may not want any of those people there but, given that one of the grounds for refusing to comply with a request under subsection (3)(c) is that documents are protected by legal professional privilege, I suggest there might be a role for the legal profession. I am not trying to generate more work for my former colleagues when I say that.
Is there a reason to challenge such a request? If we are in the realms of compulsion, the person will probably be not the most useful person from which to obtain information. They may have health issues or other legitimate grounds for declining the request, so what do they do in such circumstances? If the Minister could provide any insight on that, it would be useful.
Finally, I want to ask questions about the criminal offences set out in clause 105. It is probably right that there should be a sanction on those who obstruct and those who refuse to comply or, indeed, provide false or misleading information. Subsection (5) says there will be a fine, but what level of fine does the Minister envisage it will be? Does he have a view on whether an act that leads to a fine might also constitute professional misconduct if the individual were a member of a royal college, for example? A referral to the regulator might have a more powerful effect than a fine. Those are a few matters for the Minister to consider and I hope that he will address them in his response.
Edward Argar
Clauses 102 to 105 all relate to HSSIB’s powers when conducting investigations. Clause 102 sets out HSSIB’s powers of entry, inspection and seizure. They are important powers for any investigatory body. It is expected, however, that in most cases staff and organisations will co-operate willingly with the HSSIB investigators, and that includes giving consent to the investigators to enter premises and providing them with the relevant documents. Where consent is not given, clause 102(1)(a) gives HSSIB the powers to enter and inspect premises in England. They are similar powers to those held by other investigatory bodies in safety-critical industries, such as the air accidents investigation branch. To use a phrase that I have used far too many times in these debates with the hon. Member for Nottingham North, they could almost be described as a backstop for the body when that is deemed necessary. If the investigator considers it necessary for the purpose of furthering the investigation, it may enter and inspect premises in England, inspect and take copies of the documents at the premises, inspect equipment or other items at the premises, and seize and remove documents, equipment or items unless doing so would put patient safety at risk. The current investigation branch has no power of entry or ability to seize or require information from individuals or other bodies. It has, in some situations, therefore been hampered in its ability to investigate incidents, so we want to ensure that the new body has such powers that it will be able to use in a proportionate manner were it to need them.
The clause also sets out that the power of entry does not apply to premises that are used wholly or mainly as a private dwelling. An investigator can therefore enter a private dwelling only with consent. This could apply, for example, where domiciliary care is provided to a patient and would mean that an investigator would need to obtain consent from the resident before entering their home. It is an important and proportionate limitation of the power. The Government are committed to ensuring that private and family life is respected, including in relation to the exercise of the powers of entry, by ensuring that premises consisting wholly or mainly of private dwellings are protected from unnecessary intrusion. The power of entry contained in the Bill aligns with that important principle.
The Secretary of State can also restrict the powers if he or she believes that it is appropriate and, as the shadow Minister alluded to, in the interests of national security. On this point, I will deal briefly with amendment 125. As discussed, the powers in clause 102 allow HSSIB to enter premises in which there is a Crown interest. This is to ensure that the new body can inspect premises where NHS services may be provided on Crown land, such as in a prison or on land owned by the Ministry of Defence. To ensure that this power of entry does not interfere with the safe running of such premises, HSSIB must give reasonable notice to the occupier of the premises of its intention to enter and inspect the premises. As discussed, that ensures that the national security elements of any provision at those premises—whether a Ministry of Defence facility or base—are not compromised. This provision allows the Secretary of State to issue a certificate that may limit HSSIB’s powers of entry, inspection and seizure. Such a certificate may also cover premises in which there is not a Crown interest.
We do not envisage that such certificate would often be issued. Indeed, they would be issued very rarely, but they may be necessary to restrict entry in certain circumstances and we think it might be appropriate in the context of a high-security prison or laboratory. Here restrictions could be placed on HSSIB, such as preventing it from taking copies of sensitive or restricted documents if their reproduction or removal could pose a national security risk. We believe we have struck an appropriate balance and that it is right to do this, so it can be debated by parliamentarians during the passage of the Bill. It is not a new approach. Section 96(5) of the Health and Social Care Act 2008 introduced similar provisions in relation to the Care Quality Commission’s powers of entry and inspection. If the amendment were accepted, it could cause significant operational difficulties and risks to HSSIB staff and potentially, in very narrow circumstances, to national security more widely. We do not envisage the power being used frequently, but it is important that the there is no concomitant risk to national security from the powers being used. It is important that we keep the provision in the Bill as drafted.
What clause 102 sets out by way of powers of entry, inspection and seizure can only benefit HSSIB as the current investigation branch is hampered by the lack of such powers. These powers will greatly improve the way investigations are conducted, but we also consider them to be proportionate and justified, given the aim of improving patient safety. Importantly, HSSIB investigators will operate in accordance with the Home Office code of practice on powers of entry under section 48 of the Protection of Freedoms Act 2012.
As I have said, while we expect most organisations and staff in most cases to co-operative voluntarily with HSSIB, it is important that in the course of its investigations, it collects all the information that it needs. Clause 103 sets out its powers to require such information. Specifically, it gives powers to HSSIB to require a person to attend an interview and to provide, by a specified deadline, documents, equipment or other information needed to help with the investigation. HSSIB must also give an explanation of the consequences of failure to comply with the notice. For example, it could be a criminal offence as set out in clause 105. On receipt of the information, HSSIB may retain information and if the safety of the patient is at risk, it can share this information. The clause specifies, however, that the person is not required to provide anything on the risk to the safety of the patient if that would incriminate them or if the information is normally covered by legal professional privilege.
Clause 104 is a short clause that allows a person to disclose information, documents, equipment or other items to HSSIB without being asked if they reasonably believe disclosure is necessary to enable HSSIB to carry out its investigation function. This could, for example, enable a member of hospital staff to provide information to the new body when they had concerns about a patient safety incident. It is exactly the kind of co-operative behaviour that we would want to encourage so that improvements can be made promptly. As such, it is important that the clause is included in the Bill.
Finally, clause 105 sets out offences relating to investigations. The hon. Member for Ellesmere Port and Neston raised a couple of specific points and I will deal with them before I conclude. First, my understanding is that the fines are potentially unlimited in scale. He asked about the process in carrying out investigations and whether the person could be accompanied by a legal or trade union representative or someone of that ilk. The Bill does not preclude an individual from being accompanied at an interview. Although it is important to note that HSSIB will set out in more detail what its processes will be to ensure that they are transparent, the aim of the interviews will be to encourage free and open discussion. Therefore, I would be cautious about individuals feeling that they always have a need to be accompanied by a legal or trade union representative. The Bill does not specifically prohibit that, but I hope that HSSIB will develop its processes and will be transparent about how they will work.
On the hon. Gentleman’s point about reasonableness, I very much hope that were the powers to be needed, we would see all that all avenues of co-operation had been exhausted and that they were, to coin a phrase, the backstop. I hope that meetings, conversations and interviews would be by consent and co-operation at a mutually agreed time that reflects the individual’s circumstances.
Clause 105 sets out that it would be an offence intentionally to obstruct an investigator when exercising their powers of entry, inspection and seizure or for someone to fail without reasonable excuse to comply with a notice to provide information. It would also be an offence to provide false or misleading information to an investigator. While we very much hope that the powers and the associated offences will never need to be used—as I have said, we expect voluntary co-operation to occur in most cases—it is important that the Bill includes such powers and sanctions. That will ensure that HSSIB can fully carry out its important investigation functions with the full co-operation from the necessary parties at all times. The clauses are all important to ensure that HSSIB can effectively conduct its investigations. I therefore commend them to the Committee.
Justin Madders
In the light of the Minister’s comments and his expectation that the powers will rarely be used—we will hold him to that—I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 102 ordered to stand part of the Bill.
Clauses 103 to 105 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned—(Steve Double.)