Expenditure on the Windrush Compensation Scheme

Part of 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

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.