Expenditure on the Windrush Compensation Scheme

Windrush Compensation Scheme (Expenditure) Bill – in the House of Commons at 5:39 pm on 24th March 2020.

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Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control), Shadow SNP Spokesperson (Attorney General) 5:39 pm, 24th March 2020

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

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

Photo of Eleanor Laing Eleanor Laing Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following:

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

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

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

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

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

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

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

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

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

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

Clause stand part.

Clause 2 stand part.

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

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

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

New clause 2—Consultation on simplifying the application process—

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

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

New clause 3—Time Limit

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

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

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

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

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

New clause 5—Legal assistance—

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

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

New clause 6—Restrictions—

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

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

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

New clause 7—Standard of proof—

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

(a) loss of earnings

(b) reimbursement of private medical fees,

(c) reimbursement of international student fees, and

(d) loss of access to banking.”

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

New clause 8—Appeal to the First Tier Tribunal—

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

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

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

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control), Shadow SNP Spokesperson (Attorney General)

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

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

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

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

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

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

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

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

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

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

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

New clause 2 seeks simply to further improve and simplify the application process. That is all the more important if the Government continue to resist our calls for legal aid to be available. That brings me to new clause 5, which calls for the cost of legal support for making applications to be reimbursed. The forms may be as close to simple as they could possibly be, but even if that is the case, the process is still not an easy one. Assessing and proving losses of this type is not an easy process, as any civil litigation lawyer can attest. Again, it is not just about complexity: it is about the profound importance of the claims for those individuals and the necessity to give them faith in the process.

New clauses 3 and 6 contain important points of principle. New clause 3 says that the time limit for compensation claims should be removed. The Minister has already acted to push back the deadline, which I welcome, but given the extraordinarily slow rate of progress and the lack of trust that people still appear to have in the Home Office, I ask him to remain open to the idea of putting that date back further still. As both the lessons learned review and the earlier National Audit Office report pointed out, the Home Office is still not actively looking for victims outside the Caribbean countries. I hope that that will now change, but in the meantime it is eminently possible that there will be victims in other countries who will not discover that they have a claim until years down the line. That is why the cut-off date must be removed.

New clause 6 makes two important points. First, it challenges the Government to explain why compensation could be ruled out in some circumstances where the applicant has a criminal record. If I seriously injure somebody on the roads or at work, I cannot get out of paying compensation simply on the basis that the victim had a completely unconnected criminal conviction, regardless of how serious that conviction is. I should not have that excuse, and nor should the Home Office. I simply do not understand the logic behind that restriction, and I urge the Minister to try to explain it. The other part of new clause 6 challenges reductions to compensation payments on the grounds that losses could have been limited through early contact with the Home Office. Again, that takes us back to the issue of trust raised in connection with new clause 1, but here it is an even more powerful point. If even now people are expressing reluctance to go to the Home Office, imagine how much greater that reluctance would have been at the height of the crisis. People suddenly found themselves out of their job. It is easy for us to sit here today and say, “Well, if they had contacted the Home Office, they could have sorted out their status and everything would have quickly been fine.” But we know fine well that people contacting the Home Office were just as likely to wind up in immigration detention or subject to removal directions. If somebody has been out of work for six years because of the Windrush scandal, they should get six years’ worth of wage loss, and that should not be reduced on the basis that they could have asked the Home Office for help at an earlier stage and sorted things out.

New clause 7 might seem more technical, but it seeks to rectify what I thought was a startling section in the compensation scheme guidance for caseworkers. In the caseworker guidance for those making decisions about applications, there is a section on the standard of proof. I think most people would assume instinctively that the standard of proof would be the ordinary civil standard, and that section of the guidance opens with instructions to caseworkers:

“You should take a holistic view of the claim where there is a lack of supporting evidence and decide the claim on a balance of probability. This means you must be satisfied that it is more likely than not that the claimant meets the relevant criteria”.

So far, so good, but it then sets out four exceptions, as described in new clause 7, which include wage loss claims, for example, which are obviously a significant part of the process. The guidance at that point states:

“In these cases, the claimant must provide clear evidence and you must be satisfied so as to be sure that they meet the requirements for these awards. This means that you must be satisfied beyond reasonable doubt before making an award in these cases”.

It may be that that is a clumsy and poorly worded attempt at simply suggesting that the caseworker should seek more by way of supporting documents in such cases. If that is the case, then fine, but the guidance still needs to be fixed, because it cannot possibly be appropriate to be demanding the criminal standard of proof. If, by my negligence, I caused somebody significant wage loss, they would simply need to prove that wage loss in the balance of probabilities, even if that was a claim for millions of pounds. Day in, day out, up and down this land, massive payments of wage loss compensation are made subject to proof on the balance of probability, so it cannot be right that victims of the Windrush outrage are being pressed to meet a higher standard of proof. I call on the Minister to rectify that issue.

In conclusion, the amendments and new clauses contain suggestions that seek to enhance the compensation scheme, not to undermine it in any way at all. I will not be pressing any of the amendments or new clauses to a Division, but I hope the Minister will engage with the ideas on that basis.

Photo of Diane Abbott Diane Abbott Shadow Home Secretary 5:45 pm, 24th March 2020

We are debating this important Bill in the shadow of the terrible existential crisis of coronavirus. However, it would be wrong to let the debate go past without sharing the perspectives of large numbers of the Windrush cohort on the arrangements for compensation. As was said in the Windrush lessons learned review:

“Members of the Windrush generation and their children have been poorly served by this country. They had every right to be here and should never have been caught in the immigration net.”

When we talk about compensation for the Windrush cohort, it is important to note that we are not talking about an act of charity; we are talking about people who were always entitled to be here and are owed an apology, as Wendy Williams said, as well as compensation.

I begin by making the point that it is important in going forward with Windrush compensation that we look beyond the Caribbean. In the lessons learned review, Wendy Williams pointed out that the Department’s historical cases review focused solely on people from the Caribbean and excluded anybody with a criminal conviction and a sentence of more than 12 months. We have seen that the legislative changes that apply to the Windrush generation also apply to other nationalities from the new Commonwealth. While the Windrush scheme is open to all Commonwealth nationalities, the narrow focus of the historical cases review means that the taskforce did not proactively contact non-Caribbean nationals in the same way that it did Caribbean nationals. I will return to the question of the Windrush compensation scheme and its outreach in a few minutes.

The Windrush compensation scheme is to be applauded in principle, but its record in practice, I am afraid, is lamentable. The scheme was unveiled in April 2019. By most estimates there is £200 million in the scheme and no upper limit on claims. That is to be welcomed, but since it was unveiled in 2019, only 1,108 claims have been made and only 36 people have received money. I could probably find 36 members of the Windrush cohort in my own borough of Hackney, let alone the country as a whole. Only £62,198 has been paid out. Those are shameful figures, and in their response to the new clauses, I want to hear from Ministers what they intend to do about the shamefully low pay-out.

As was said earlier, it is not surprising that people are reluctant to come forward, because their experience of the Home Office has been a punitive one. Some of them may be frightened that they could end up in a detention centre or worse. We in the Opposition believe that the Windrush compensation scheme needs a proper national campaign to encourage engagement among possible Commonwealth claimants. After all, I think £4 billion was spent on the EU settlement scheme. We need to spend comparable sums on outreach for the Windrush compensation, because this is a cohort of persons who came to this country quite a few years ago, and unless we do the outreach—positively, and with more resources behind it—and encourage them to claim, the danger is that they may never get the compensation to which they are entitled. Although of course their heirs and estates may get some of it, that is not the same as people getting an apology in their lifetimes, but also compensation.

I have said to the Minister and officials that I am happy to help with that outreach work—not as an apologist for the Government, but as someone who is very anxious that people should get what they are entitled to. The reason I think it is so important that people get what they are entitled to is not the money. As I have said before in the House, in the end, the cruellest thing for the Windrush cohort was not the problems, the difficulties, the possibility of deportation and all those practical things. The cruellest thing for the Windrush generation was the humiliation of being told by the British state that somehow they were not British or were trying to mislead the state in that matter.

This is a generation—I know something of it as my own parents were part of it—who came here with their UK and Colonies passports and believed that they were British. I will argue that it is the humiliation that cut to the quick. I have had various meetings in this House with members of the Windrush cohort, and that is the thing I come up against time and time again: how humiliated and hurt they felt to be, as it were, rejected by what they had always regarded as the mother country—a country they came to after the war to help to rebuild.

It is important to stress how poor the take-up has been and to say that Ministers must do more to encourage better take-up. We think that Ministers should consider putting the compensation scheme on a statutory basis. We also think it is important to stress that it applies not just to persons from the Caribbean but to people who came from other Commonwealth countries before January ’73 and people who had a right of abode or settled status and arrived to live in the UK before 31 December 1988.

We also think it is important that, in moving forward on the compensation scheme, which is so important to the people who have suffered, we look at all the important aspects of family life that were severed by the Windrush scandal, whether that was people being deported, people’s children not being able to establish their right to be here or the misery of people seeing their parents thousands of miles away, having been consigned to deportation by what seemed to them a very cruel state. I remember visiting Yarl’s Wood detention centre last year. There were women there who were married to British men and had British children but who, because they were caught up in the Windrush scandal, found themselves quite unfairly, having committed no crime, in a detention centre, and there were very many such cases.

We will be supporting the compensation scheme, because we think it is important that the money gets to the victims as soon as possible. The Opposition are happy to help in any way with outreach to encourage people to claim. Clearly, with the current public health situation, we cannot have meetings about it and so on, but there are other means—provided, possibly, by new media—by which more could be done on outreach.

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

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department 6:00 pm, 24th March 2020

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

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

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

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

Photo of Diane Abbott Diane Abbott Shadow Home Secretary

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

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

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

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

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

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

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

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

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control), Shadow SNP Spokesperson (Attorney General)

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

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

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

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

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

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

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

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control), Shadow SNP Spokesperson (Attorney General)

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

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

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

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

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

Photo of Diane Abbott Diane Abbott Shadow Home Secretary 6:15 pm, 24th March 2020

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

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

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

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

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

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control), Shadow SNP Spokesperson (Attorney General)

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

Photo of Diane Abbott Diane Abbott Shadow Home Secretary

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

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

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third reading

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

Photo of Helen Hayes Helen Hayes Opposition Whip (Commons) 6:19 pm, 24th March 2020

It is very important, even in the context of the crisis we face, that the Government have made time to progress this piece of legislation. My constituency of Dulwich and West Norwood has a strong and direct connection to Windrush, since about 200 of the passengers on the original Empire Windrush came first to Clapham Common to find temporary accommodation in the Clapham deep shelter before finding their way to Coldharbour Lane in Brixton to find work.

From there, many of them found work locally at King’s College Hospital, where they helped to establish our NHS. It is particularly poignant to be debating the Bill at this time as many members of the Windrush generation, and indeed their descendants, still work still in that hospital, desperately seeking to save lives that are at risk from covid-19.

My constituency is home to many members of the Windrush generation and their families. It is also now home to the Black Cultural Archives, which sits proudly on Windrush Square. Later in my speech, I will return to the role that the Black Cultural Archives have played in the context of the Windrush scandal and compensation.

The impact of the Windrush scandal has been profound and devastating. In my team, we knew there was a scandal years before it was a story in the news. As my right hon. Friend Ms Abbott was absolutely right to clarify, the scandal affects people from across the Commonwealth and not only from the Caribbean.

Indeed, our first Windrush case was a constituent who had arrived in the UK from Sierra Leone, decades ago. She was asked to provide proof of her status in the UK when she applied for her state pension, but she had arrived at the age of 14 with somebody who may or may not have been a relative. She did not have any papers. Despite her whole life being in the UK, having worked all her adult life, raised five children and having no remaining connections at all in Sierra Leone, the UK Government threatened deportation. Her case was a scandal; we just did not know at the time that it was the Windrush scandal.

We saw many more cases and, eventually, the bigger picture was revealed. I pay tribute to the work of Amelia Gentleman in exposing, in such a forensic way, the extent and depth of the scandal up and down the country.

The consequences have been profound—not simply the grave injustice and material detriment suffered by thousands of people. It is a moment that gives rise to the need for deep reflection on our national identity and sense of community. That a group of people who have contributed so much could be treated so appallingly shows that something had gone badly wrong in our understanding of who we are as a country and, notwithstanding the compensation scheme, there is more work to do on that, particularly on reform of the history curriculum and what we teach our children about migration and colonialism. I hope the Government will give serious consideration to that.

My constituents’ experience of the compensation scheme to date has been very poor. The scandal itself was a fundamental breach of trust, and many people have not felt confident to come forward. Despite the Minister’s remarks in Committee, the form is complicated, and it is very easy to omit key details.

I sat down with one of my constituents to fill out the form on behalf of her mother, and it was only when we had worked through all 18 pages of it that I asked: “Is there anything else that you think your mother suffered as a consequence of being a victim of the Windrush scandal?” She then said, very quietly, “She lost her home. She was renting privately and, because she was not allowed to return to the UK, her home was repossessed by the landlord and she lost all her possessions, because there was nobody who could manage that and reclaim any of her belongings for her.”

That would not have been captured on the form had it not been for my prompting question at the end. Almost every one of my constituents who I have spoken has found it difficult to capture all the information on the form. Because of their experience with the Home Office, they fear the level of proof and the extent of evidence that will be required, and this is not an easy process for them.

The support that has been provided through the CAB has not been accessible or sufficiently expert, so it has been left to the voluntary sector, to pro bono lawyers and to organisations such as the Black Cultural Archives, which has done a heroic job but struggled to cope with the need. I welcome the proposals for a fund for grass-roots support that the Home Secretary recently announced, and I would welcome assurances from the Minister that some of that funding will be allocated to the BCA, which has done an extraordinary job—not only local but national in its reach—because it is trusted by the community.

My right hon. Friend the Member for Hackney North and Stoke Newington was right to highlight the need for a publicity campaign for the compensation scheme. I hope the Government will give serious consideration to the content of such a publicity scheme and to who fronts it. The first community meeting to launch the compensation scheme was organised in my constituency at a day’s notice. I was not informed as the local MP, many members of my community had no idea that the meeting was going ahead, and those who did were fearful of it being a meeting with the Home Office because of the breach of trust that I described earlier.

Finally, I wish to make a plea that has been made already in the public domain by Patrick Vernon, to whom I pay tribute as somebody who has campaigned relentlessly on behalf of Windrush citizens. Will the Government hand the administration of the scheme to another Government Department? The Home Office may have accepted the lessons learned review, and that is welcome, but it has not yet implemented the scale and depth of culture change that the review demands. As recently as last month, the Home Office was having to remove people from a charter deportation flight after a court decided that the Department had not followed due processes. The assurance that the Minister has tried to provide indicates a lack of understanding of exactly the extent of the breach of trust that has been caused by the Windrush scandal and the wider hostile environment. People are simply fearful of the Home Office and its capacity to ruin lives.

This has been an utterly shameful period in our history. The compensation scheme is welcome and important, but I hope the Government realise the breadth and depth of the work that they still need to do to change culture and rebuild trust. There is still a long way to go.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control), Shadow SNP Spokesperson (Attorney General) 6:27 pm, 24th March 2020

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

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

Photo of Diane Abbott Diane Abbott Shadow Home Secretary 6:28 pm, 24th March 2020

As I said in Committee, the Opposition support the Bill in principle, but it is unfortunate that we have had to discuss it before we have had a proper debate about the lessons learned review. One thing that that review said was that this was not a mistake: there were problems in the whole culture and leadership of the Home Office. I understand why, given the public health tragedy in which we are engulfed, it has not proved possible at this point to have a serious debate on the lessons learned review, but until we have done that and absorbed some of the lessons that Wendy Williams was at such pains to set out in her review, we cannot have complete confidence that the compensation scheme will, even with all the best intentions of Ministers, go ahead at pace and that people will get what they are entitled to.

Finally, I want to talk about the people in the community who campaigned long and hard on this issue, notably Patrick Vernon, a Hackney resident who is well known to me. All sorts of people in the community understood there was a scandal, even before Amelia Gentleman’s articles, and they continue to campaign. The compensation Bill means nothing unless there is delivery as well as intent.

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department 6:30 pm, 24th March 2020

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

Question put and agreed to.

Bill accordingly read the Third time and passed.