Clause 19: Residential tenancy agreement
Moved by Baroness Hamwee
24: Clause 19, page 19, line 26, at end insert—
“( ) Before implementing a pilot scheme to preclude the making of a residential tenancy agreement to which a person disqualified as a result of immigration status is party, the Secretary of State shall—
(a) consult such persons as she considers appropriate as to the criteria to be applied in order to assess and evaluate the scheme;
(b) lay before Parliament a report on the proposed criteria.
( ) The criteria shall include the application of an equalities impact assessment.”
My Lords, this is the first amendment in a group also containing Amendment 25 tabled in the name of the noble Baroness, Lady Smith, along with several other amendments in her name. It is clear that there is widespread agreement that the provisions dealing with residential tenancies proposed in the Bill are complicated and risky—complicated in their operation and risky in the scope there may be for discrimination. However, I do not need to re-rehearse our previous debates today.
The Government have been very clear that—I am using a term that I hope will carry less baggage than some—the scheme will be tried out and tested in a single area from October this year, that formal evaluation will be produced, and that decisions on implementation more generally will be taken in the next Parliament on the basis of the evaluation via a negative resolution order. I have used pretty much word for word the language of my noble friend Lord Taylor in Committee on
It will be entirely obvious to the Minister what assurances I am seeking in my amendment: consultation as to the criteria to be applied to assess and evaluate the scheme. I acknowledge that I have of course pre-empted that consultation by reference to an equalities impact assessment. We can all think of a number of criteria, but we can also think of large numbers of organisations and individuals with expertise in the field who could helpfully have an input into the construction of the evaluation programme, and they should have an input. So my amendment proposes that,
“the Secretary of State shall … consult such persons as she considers appropriate”.
That is not a get-out because it is a well understood formula. I should say in parenthesis that I am glad that I have been allowed to say “she” of the Secretary of State and not “they”, which I understand is a new form of drafting that was imposed on me last week. The amendment would then require a report on the proposed criteria to be laid before Parliament, thus, if you like, hedging with precautions in advance. That is what the amendment is about. I hope that the Minister can reassure me that such arrangements as I have included in my amendment or others that are equally as reliable and transparent will be made. My amendment refers to a pilot scheme. I do not use the language of “phasing” or “rolling out” because I do not accept the implication inherent in those terms whereby, after the first application, further operation is unstoppable and that first application is to be in a single area.
I have two major concerns about the amendment of the noble Baroness, Lady Smith. It mentions,
“one or more pilot schemes”.
There could, therefore, be more than one pilot to start with, and we know that in the Commons the proposal similar to that made by those on the noble Baroness’s Benches would apply to a London borough, a local authority and a county in each of England, Scotland and Northern Ireland. Alternatively, it could mean successive pilot schemes, which is rather close to a rollout. I realised this morning that it is ironic that I am more sceptical about this than the Opposition Benches.
My second concern is that the detail of that pilot or pilots would be in secondary legislation because the noble Baroness’s amendments take out all the other clauses dealing with residential tenancies. Therefore, secondary legislation would have to deal with every aspect, every component and—importantly—every exclusion from the scheme. The legislation would have to come to Parliament in the context of a negative resolution order. There would be far less opportunity than we have had in successive stages of primary legislation to scrutinise the detail. In addition—this is a fundamental distinction—we have been able to discuss and arrive at changes, which is not something that one can readily do, if at all, with secondary legislation.
Therefore, a single pilot process—with codes of practice and exclusions, for example, for hostels, refuges and much other accommodation, including student accommodation—is a far less risky route. I am not given to quoting Members of the other House but my honourable friend the Member for Cambridge got it right when he said that if pilots were imposed on more than one area, if they went wrong, they would go wrong in more than one area. I beg to move.
My Lords, I should like to speak to Amendment 25 and to our other amendments in the group that are consequential.
Before I proceed, the comment that I should like to make to the noble Baroness, Lady Hamwee, is that if, under the terms of our amendment, the Government got it wrong over the pilot, their chances of getting a further extension of their scheme—bearing in mind that we have called for primary legislation if that were the case—would of course be extremely remote. That would be an incentive for a Government who wanted to see their scheme extended to get the pilot right and to get it fair. For that reason, the noble Baroness’s objections to our amendments are, to put it mildly, a bit thin.
This debate relates to the part of the Bill on which we spent the most time in Committee, because many noble Lords had questions about how the provisions would work in practice. However, despite the time spent debating the Government’s proposals, a great many of the questions remained unanswered. We agree with the principle of making it more difficult for illegal migrants to rent property. In Committee, we proposed a new clause seeking to put in place a pilot to be undertaken before the provisions could be put fully into effect.
We have now tabled amendments that would remove the entire chapter and replace it with a power for the Secretary of State to undertake a pilot along the same lines. If the pilot is successful, the Government could then come back to primary legislation to implement it fully. Given the substantial number of concerns that have been raised about the detail of this part of the Bill, and the need to ensure that it works well and receives proper parliamentary scrutiny, this is an eminently reasonable proposition.
A range of organisations have expressed serious concerns about the impact of the proposals on landlords and residential tenancies. The vast majority of landlords—82%—do not support the proposals, according to a survey by the Residential Landlords Association. Giving evidence in the Commons, the chairman of the National Landlords Association said:
“It is going to impose an administrative burden on landlords who are not experts in immigration … The principle of checking identity is not so much the worry as the logistics of how that is done and understanding the documentation”.
In the same evidence session, the policy director of the Residential Landlords Association said that,
“we think that the Bill and its provisions are not workable and will not be effective in achieving the objectives set out”.—[ Official Report , Commons, Immigration Bill Committee, 29/10/13; col. 43.]
Of course, one of the key concerns is whether these measures will be workable. The Government have published a draft code of practice for landlords. We asked a number of questions about this in Committee, including: who will be included in the provisions? How will tenants who have never rented out a property know about their obligations in relation to subletting? How will landlords familiarise themselves with, understand and recognise all the potentially relevant documentation?
We also asked questions about enforcement, including: how will it be established that a landlord had acted in breach of their duty? How will the fine be collected? Will provision be made for landlords who repeatedly break the law? Will Home Office staff become overwhelmed as a result of landlords using the telephone notification to the Home Office that they have conformed to the requirements in the Bill as a form of shield?
The Government’s replies on these points were, for the most part, very general and not very helpful. For example, on enforcement, it was stated that the provisions would be enforced,
“as part of the normal business of enforcing immigration law”,—[ Official Report , 10/3/14; col. 1653.]
that they would be applied on a “light-touch basis”, and that the Government would be relying on landlords or agents to give evidence that they have complied with the prescribed requirements.
One thing we asked for in the light of these concerns was for the code of practice to receive greater scrutiny, and we are pleased that the Government have listened and require the code to be laid before Parliament and be made by order, but they should have gone further and at least made it subject to the affirmative procedure. We are also pleased by the Government’s commitment that the code will be ready before the first phase of the rollout begins.
A further concern, which we also heard about in Committee from many noble Lords, relates to the impact on vulnerable citizens, including victims of domestic violence, those with chaotic lifestyles, and pregnant women. We know that landlords already avoid renting to groups they perceive as higher risk, and given the difficulty in identifying documents and the potential liability for landlords, it is likely that landlords will want to be on the safe side and ask for a passport in every case, but many vulnerable people do not have a passport.
On this, again, the Minister’s answers were not particularly helpful. He said that the Bill provides,
“discretionary powers for the Secretary of State to authorise a tenant who has no lawful status to rent property”.—[ Official Report , 12/3/14; col. 1798.]
How will that work in practice? There is a real danger that people, vulnerable people in particular, will either become homeless or be driven into the hands of unscrupulous landlords.
There is also widespread concern about the potential discriminatory nature of the proposals. These concerns have been expressed by a number of organisations, including Shelter, Liberty and the Catholic Church. We also heard them expressed in Committee. Again, we are pleased that the Government have listened and that the code of practice in relation to discrimination will receive greater scrutiny.
We had a debate in Committee between our proposition for a pilot and the Government’s phased rollout. As we said at that time, the key difference between our positions was the opportunity to pause and to fully reflect. We think that this policy needs to be tested before it can be implemented. This needs to be done in a thoughtful and measured way and, crucially, there needs to be an opportunity for Parliament to consider thoroughly the outcome of the pilot before it can be rolled out. That is necessary because of the many unanswered concerns and questions around these provisions.
We accept that the Government have moved some way in our direction on this—I do not seek to pretend otherwise. We are grateful and welcome the moves that have been made. Amendments have been tabled to protect students from the impact of the measures and to ensure that the codes of practice receive greater scrutiny and are in place before the first phase begins. The Government have also given further information about their proposals. They have said that the scheme will be initiated in October of this year in a single geographical area; that they will continue the discussions with interested parties on the codes of practice until then; that the evaluation criteria will be established for the first phase; that the Government will make a formal commencement order and publicise it to landlords and others; that a landlords’ checking service will be put in place for when the first phase commences; and that they will then evaluate the first phase. Then, seeing as the first phase, or pilot, will be initiated under the Government’s proposals in a single area, the Government will have to make a negative order in order to roll out the scheme nationally. Finally, they will publish an evaluation of the first phase for Parliament to scrutinise, and the Secretary of State will review the codes of practice after the first phase.
Before finishing with a couple of points on what the Government have said so far, I ask the Minister to clarify on the record that the Bill provides certainty that the scheme will not be rolled out after the initial pilot without bringing it back to Parliament. I understand that is covered by Clause 71(6) and (7). If that is the case, will the Minister make it clear that that is correct?
The changes in the Government’s position to which I have referred are welcome but there has been no satisfactory explanation as to why under the Government’s proposals the order to extend the scheme further will not have to be made by the affirmative procedure. We agree with the principle of preventing illegal migrants from accessing properties, but we need to ensure that the proposals that the Government have put forward actually work as intended before we go ahead with the scheme, since there are real doubts—which have been expressed in this House and by others outside this House—about the effectiveness and consequences of parts of the Government’s proposals. That is why the terms of our amendment require further primary legislation, since it is only through that process that there is certainty that the time will be made available for proper consideration of the evaluation of the pilot and the basis on which it is then proposed by the Government of the day that the scheme should be further extended.
My Lords, I have been engaged with the landlord and tenant clauses of the Bill through all the stages of its passage through your Lordships’ House. In Committee, I tabled nine amendments covering the duty for landlords to consider the immigration status of their tenants and, as a result, have had meetings with the Minister, the noble Earl, Lord Attlee, and the key civil servants from the Home Office, together with representatives of landlords and tenants. These sessions have led to a series of clarifications and alterations to the Bill on which I will now comment.
We have already heard the welcome news on student accommodation, where, very helpfully, the Government have moved a long way. Another key ingredient in our discussions has been the issue covered by Amendments 24 and 25. This relates to a pilot scheme, trial or pathfinder, which representatives of both landlords and tenants see as essential before the new measure is applied more generally.
I pay tribute to the Minister for his concerted efforts to take on board the anxieties of those from the Residential Landlords Association, Crisis, the British Property Federation and others at our meetings. It would not be true to say that the requirement for landlords to check the immigration status of their tenants is welcomed. Landlords do not want an extra administrative task, with a hefty fine if they get it wrong. Those representing tenants’ interests remain convinced that the measure will make it even more difficult than it is already for anyone who might possibly be thought of as a foreigner to get a decent flat. However, these organisations are a good deal happier today than they were at the start of the process. A whole series of undertakings and expressions of intent has now been set out. Some of the changes will appear in the Bill through the government amendments brought forward today. Others will come in the details in secondary legislation and subsequent guidance and codes of practice, including in relation to potential discrimination.
I now have a long list of commitments and clarifications from the Government which, in combination, waylay a good many of the fears we have raised about this duty on landlords. I will now summarise the most significant of these, not least to enable the Minister to correct me if I am mistaken in any respect.
First, as we have heard, lettings to almost all students are taken out of the equation, including in private sector halls and also in houses and flats. Secondly, hostels run by charities and housing associations for homeless people are excluded, as are refuges for women fleeing violence, and accommodation for vulnerable people in immediate need. Thirdly, those leaving prison will be able to rely on much simpler paperwork to satisfy requirements than was feared.
Fourthly, only in exceptional circumstances will there be any need to check on tenants after they have moved in during the period of their tenancy. Fifthly, landlords will not have responsibility for checking on anyone else moving into the property after the tenant moves in, provided any additional occupier does not pay rent to the landlord.
Sixthly, the Home Office will have a hotline to deal with queries within 48 hours. After I expressed some disbelief that this would actually happen, I received reassurances that, if the Home Office fails to provide an answer within 48 hours on working days, the landlord can assume the verification has taken place and will not incur any penalty.
Seventhly, any organisation which wants to take responsibility from landlords for verifying the status of tenants can act as an agency. I understand that a number of bodies, including some that currently conduct reference and credit checks, have already made approaches to the Home Office. No doubt such agencies could do the job more quickly and cheaply than most local managing agents by becoming real experts in the process.
Eighthly, a consultative group chaired by a Minister will be created and will involve relevant bodies including the British Property Federation, Crisis, the Residential Landlords Association and others. This group will look at the secondary legislation, codes of practice, regulations, draft instruments and so on that relate to this measure.
Ninthly, with particular relevance to Amendments 24 and 25 that relate to one or more pilots, we now know that there will be such a trial in one area and that it will be big enough to provide for a proper evaluation. The consultative group will be fully involved to assess the impact of this new duty, and there will be no rollout of this measure before the evaluation is concluded and any consequent changes have been made to the arrangements. Finally, in any case there will be no rollout beyond the one trial area before the general election next year. All of these changes, and perhaps in particular the emphasis placed upon the pilot, trial or pathfinder scheme, have been well worth the effort in pursuing negotiations with the Home Office.
The position we are now in feels very different from where we came in a couple of months ago. This says something about the value of this House in raising concerns and, I believe, in improving the legislation and influencing the actions of government that will follow from the legislation. My guess is that the noble Baroness, Lady Hamwee, will receive the reassurances she seeks by her Amendment 24. It would be churlish of me to do other than express appreciation at this Report stage for the way in which the Minister has taken matters forward. Indeed, I look forward to joining colleagues on the ministerial consultative group that will engage with the trial run of the new regime.
Therefore I cannot, in all fairness, support Amendment 25 and those that follow in the names of the noble Baroness, Lady Smith of Basildon, the noble Lord, Lord Rosser, and colleagues. However, I am grateful for the consistent support of the opposition Benches for all the changes that now leave the Bill in much better shape in this regard.
My Lords, the debates on the landlord provisions in the Bill have been good. I thank noble Lords for highlighting a number of very important issues, including the noble Baroness, Lady Smith of Basildon, for her notion of the importance of workability for the scheme which we discussed in Committee. I also reiterate the appreciation of the Minister’s efforts that was expressed by the noble Lord, Lord Best.
I welcome the phased approach to implementation that the Minister has put forward in discussion. This will ensure that the system works in practice and is well communicated. I welcome the good length of time which has been left for the trial, the imaginative changes that have been made relating to students, and the various other commitments so elegantly summarised by the noble Lord, Lord Best. I would add the assurance that the Minister kindly gave in discussions we had, about a simple, useable website for landlords and tenants on the new rules.
However, it seems that the amendments would confine legislation to a pilot, so there would be no promise of legislation in this important area if the first phase worked, as we hope it will. That would strike at the heart of the Bill. Moreover, I think that my noble friend Lady Hamwee is wrong to highlight only the equality impact assessment. The burden on landlords, the way that enforcement works and the operation of the fines are also important considerations that we need to assess after the trial. For all these reasons, I encourage noble Lords to support the government amendments and to reject the other amendments before us.
My Lords, in supporting Amendment 25 I will simply make two very brief points about what I hope the evaluation of the pilot will include. The helpful note from the Minister prior to today made clear that it will look at the impact on tenants, including the impact on vulnerable groups. I ask that children should be included among those vulnerable groups, given the fears about the implications for children’s rights under the UNCRC and about possible homelessness that have been voiced by the Joint Committee on Human Rights and others. There is also a possible knock-on effect on local authorities if, as feared, there is an increase in homelessness among families with children.
The second point refers to lodgers. I am not quite sure whether it was covered by the point made by the noble Lord, Lord Best, who mentioned landlords not having to check people who then move in. Will this include the tenants of landlords, or social tenants who take a lodger? Certainly in Committee it was said that they will be included. If they are included, it is very important that any pilot or any evaluation includes the impact on them. This could be a group of very vulnerable people, some of them affected by the bedroom tax, who take in a lodger in order to try to make up the shortfall from the bedroom tax. They probably do not think of themselves as landlords at all, and would then have to grapple with a long code of practice and act as mini-immigration officers. I fear that that may not work very well. Therefore, I hope that the evaluation will include that group.
My Lords, I had a number of concerns about this part of the Bill. The noble Lord, Lord Best, was absolutely right to say that landlords do not like it—I think that that was a point made also by the noble Lord, Lord Rosser. Well, of course, they do not like it, because it is asking them to do something, and nobody likes that—it does not matter what group it is.
The question we need to ask ourselves is: is what is now being asked of them fair and reasonable? The information that I have been given to help alleviate my concerns convinces me that the provisions now in the Bill are reasonable and will be made workable by the code of practice. I want particularly to thank my noble friend the Minister for his hard work in making certain that the concerns that have been raised by all sides have been taken into account as much as possible. It is never, of course, totally possible to alleviate everybody’s concerns, but what the Home Office has now said is very reassuring that this is a scheme which, although perhaps difficult in places, will be a practical solution.
If what is in the Bill is a practical solution, is what is before us in Amendment 25 any better? The answer to that, clearly, is no. I do not think that it helps the situation at all; it lacks definitions; and it would cause far more confusion than the Bill before us, as amended.
My Lords, I thank my noble friend the Minister for all his consideration, for meeting me and for his informative and constructive letter, which covered Kids Company’s concerns around young people who find themselves with non-immigration status. However, I would like to have put on record clarification around the residential tenancy provision, which is a tremendously important issue for this group and carries several implications for their well-being. Can the Minister confirm that the residential tenancy provisions do not apply in the case of a child with irregular status or any child who is under 18? If the young person, having turned 18, has applied for leave to remain in the UK and while the application is being determined, do the tenancy provisions apply? Finally, is the position the same in the provisions relating to bank accounts, which those young people will need in order to pay their rent?
My Lords, I made clear my support for the Government when I spoke on Amendment 23. Therefore, it will not surprise the House that I have some difficulty with the thinking behind this group of amendments. I shall not repeat my philosophical concerns, but where the matter comes to a sharp point is the position on overstaying and illegal migrants. We need to enforce immigration law. There is public concern about it. If we delay taking action, that public concern will increase and give rise to perhaps nastier people trying to ride that particular issue and gain publicity from it. I am interested in hearing how we minimise delays in moving this part of the legislation forward. When I heard the noble Lord, Lord Rosser, introduce Amendment 25 and how it could lead to a need for further primary legislation, it seemed to me that that could be a means by which the measure could be stopped altogether and the whole proposal would sink with all hands.
To a lesser extent, I have the same problem with the amendment in the name of my noble friend Lady Hamwee, which seems to add another cycle into the consideration of an issue which is very high on the public agenda. If we fail to address it, we will probably regret not having done so. I hope that my noble friend, as he has on other occasions having made concessions, will stick to his guns and make sure that we can move this secondary legislation forward in the very near future.
My Lords, we have discussed at length and, I hope, to some good ends the important objective of this part of the Bill. I want to restate some of the background for the benefit of the House.
We are seeking in this Bill to control illegal migrant access to the private rented sector, because we have listened carefully to the public’s concern about the need to prevent illegal immigration. That follows on very neatly from the contribution of my noble friend Lord Hodgson of Astley Abbotts. To this end, the Government are committed to remaining firm on border controls, but we can provide a complete response to illegal immigration only if we work in partnership with those offering employment, housing and other services to deny the practical means of remaining to those without permission to stay.
The landlord provisions have been carefully drafted to deliver a scheme which works, which defines the differing responsibilities of landlord, agent and tenant, and which provides clear, robust safeguards for both landlords and vulnerable groups in need of accommodation. The drafting mirrors the existing civil penalty scheme for employers of illegal workers, which we know works well in practice. The proposed opposition amendment would sweep away these carefully constructed clauses and replace them with a pilot provision lacking the necessary detail and clarity.
I understand the desire of noble Lords to ensure that the landlords scheme is “workable” and that the provisions are tested and carefully evaluated. Indeed, it is our intention to adopt a carefully phased approach to implementation and to ensure that we get the guidance and support services absolutely right before considering wider implementation beyond the first phase. As we have made clear, decisions on further implementation will be taken after the general election during the next Parliament. I should make it clear to the noble Lord, Lord Rosser, that we need no further incentive to get this right than to deliver a policy which we consider is important for the control of illegal immigration to this country.
I am grateful to my noble friend Lady Hamwee for tabling her Amendment 24. The Government have given a commitment to a carefully managed, phased implementation of the landlords scheme. The scheme will be implemented initially, as has been said by noble Lords, following on from commitments that I have already made, in a single geographical area, and the Government have committed to a full evaluation of the first phase. Any decisions on a wider rollout will be taken in the light of the evaluation after the general election during the next Parliament.
My noble friend’s amendment is intended to be supportive, and I have considerable sympathy with the objectives behind it—my noble friend seeks reassurance on issues that I know concern her. As the House will know, I have been discussing the landlord provisions with my noble friend Lady Hamwee, the noble Lord, Lord Best, and a number of expert groups, including the Residential Landlords Association, Crisis and the British Property Federation. I completely share their concern that the scheme should be introduced carefully, with the benefit of advice and input from expert groups.
I can therefore inform the House that, following these discussions and in the light of the contributions that noble Lords across the House have made in debates on these provisions, we have decided to convene a formal consultative panel to oversee the operation and evaluation of the first phase. It will be chaired by a Home Office Minister. The panel will be established within the next few months and its full composition will be finalised once a decision has been reached on the location of the initial phase—we need local knowledge to support the group. I have invited the noble Lord, Lord Best, and a number of groups to join the panel. It will also include local representatives from the area covered by the trial. The panel will provide transparency, objectivity and the necessary degree of expert input for the first phase, the location of which will be determined and published before the House rises for the summer.
We expect to announce the location for the first phase at that time and will then indicate the principal proposed themes for the evaluation, leaving it to the panel to lead work on the development of specific evaluation measures and metrics. Of course, there are obvious areas that it would be sensible for any proper valuation to cover, as the noble Baroness, Lady Lister, made clear in her contribution, including the ease with which landlords and tenants can comply with the new checks and access the necessary guidance and support services. I hope that I can reassure the House that one objective of such an evaluation is to eliminate any impact on vulnerable groups or the incidence of unlawful racial discrimination by landlords. The desired objective, which lies at the bottom of the whole policy, is to deny rented accommodation to illegal migrants.
However, Amendment 25, proposed by the noble Lord, Lord Rosser, would remove the framework from primary legislation altogether and place it wholly in secondary legislation, lessening the degree of parliamentary oversight. That simply ignores the fact that the provisions have enjoyed the closest scrutiny in this Parliament. We have, as far as possible, placed details of the proposed scheme in the primary legislation, reserving the use of regulation-making powers only where necessary. The amendment would not provide a clear legal basis to operate new landlord duties, even as a pilot. It provides no mechanism for landlords to object or appeal against a penalty, rendering the new
clause incompatible with human rights law. Neither does it provide transparency in the type of tenancy agreement to be exempt from the checking requirement.
The Bill makes those provisions clear in primary legislation, in the interest of providing certainty for vulnerable groups. The Government have worked closely with bodies representing landlords, students, the homeless and vulnerable and provided important safeguards in primary legislation. It would be understandable if they were concerned if those safeguards were no longer enshrined in primary legislation. The noble Lord, Lord Rosser, will know that the negative procedure provides for further scrutiny before any further rollout of the scheme.
The noble Baroness, Lady Lister, asked specifically about lodgers of social tenants. A social tenant who takes a lodger will be a landlord for the purposes of the scheme. The Home Office will work with social landlords to help their tenants understand their obligations.
The reason I raised the matter was to ensure that lodgers were included as part of the evaluation and, going back to the question of vulnerable groups, that children were specifically considered.
I hope that I made that clear. I think that the record will show that I said that that would form part of the evaluation.
Let us not forget that the amendment proposed by the noble Earl, Lord Listowel, on which we have not yet voted, but which I think the whole House welcomes, puts the welfare of children at the centre of the Bill in all considerations. So what I am saying includes children and vulnerable groups as part of the evaluation of the scheme. That is part of making it effective. I hope that that reassures my noble friend Lady Benjamin as well. Those with outstanding in-time applications will be allowed to rent. I have written to her on many points that she has rightly raised on behalf of an important sector of vulnerable people. I thank her for her correspondence.
I thank all noble Lords who have spoken. I refer to the noble Lord, Lord Rosser, my noble friend Lady Hamwee and the noble Lord, Lord Best, for whose support I am grateful not just in this debate but in continuing to make sure that we get this right. I assure him that his little list is an accurate reflection of commitments that we have made, which will be on the record. I have already mentioned the noble Baroness, Lady Lister. I mention also my noble friends Lady Neville-Rolfe, Lord Caithness, Lady Benjamin and Lord Hodgson.
I think we all agree that we have made a lot of progress since Second Reading, when lots of anxieties and concerns were expressed by noble Lords. Given that progress, I hope that the degree of reassurance that I have been able to give noble Lords will mean that my noble friend Lady Hamwee and, in turn, the noble Lord, Lord Rosser, will agree not to press their amendments.
My Lords, I was never going to persuade my noble friend not to use the words “phased” or “rollout”, but it is the substance rather than the language that matters, I think.
Like the Minister, I hope that the noble Lord, Lord Rosser, was not suggesting that the Government do not have an incentive to get this right. The noble Lord referred in his speech consistently to a pilot, but his amendment still talks about a pilot or pilots in the plural. As I said, one can read that as meaning either consecutive or concurrent—or possibly even both. Much of what the noble Lord said seemed to me to be an argument for what the Government are proposing, but I will thank him for one thing, because I am not normally called thin, so I am grateful for that. The matters for evaluation, to which two noble Baronesses have referred, are extremely important, and I was glad to hear the comments about them.
I do not want to take longer than another sentence or two, but I would say that the account given by the noble Lord, Lord Best, is the best evidence that I could have heard that the procedure that I seek is the one that will actually be followed, given the assurances from the Minister. I would say to noble Lords that I did not know that a formal consultative panel was to be proposed, and I am very glad to hear it. I beg leave to withdraw the amendment.
Amendment 24 withdrawn.
Tabled by Lord Rosser
25: Clause 19, leave out Clause 19 and insert the following new Clause—
“Residential tenancies: pilot
(1) The Secretary of State may by order make one or more pilot schemes under which landlords in a designated area must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status.
(2) An order under subsection (1) may make provision about—
(a) the principles by reference to which the pilot (or pilots) will operate;
(b) the circumstances under which a landlord may authorise an adult to occupy premises under the terms of the pilot (or pilots);
(c) descriptions of persons to be identified as landlords for the purposes of the pilot (or pilots);
(d) descriptions of applicable residential tenancy agreements for the purposes of the pilot (or pilots);
(e) descriptions of persons disqualified by their immigration status from occupying premises under the pilot (or pilots);
(f) applicable penalties for landlords in contravention of the terms of the pilot (or pilots) and enforcement of such penalties;
(g) excuses available to landlords and appeals against penalties; and
(h) the publication of codes of practice for landlords.
(3) An order under subsection (1) must specify—
(a) the area or areas in respect of which the pilot (or pilots) operates;
(b) the day on which the pilot (or pilots) comes into effect; and
(c) the period for which the pilot (or pilots) has effect.
My Lords, we have a number of amendments in this group but we will not move any of them. In a sentence, although the Government have certainly not moved as far as we would like, we welcome that they have moved closer to our position.
Amendment 25 not moved.
Schedule 3: Excluded residential tenancy agreements
Amendments 26 to 29
Moved by Lord Taylor of Holbeach
26: Schedule 3, page 65, line 32, leave out “comprises a hall of residence predominantly” and insert “is used wholly or mainly”
27: Schedule 3, page 66, line 1, leave out from second “is” to “hall” in line 4 and insert “a”
28: Schedule 3, page 66, line 5, after “paragraph” insert “and paragraph 11A”
29: Schedule 3, page 66, line 12, at end insert—
“11A An agreement under which accommodation is provided to a student who has been nominated to occupy it by an institution or body of the kind mentioned in paragraph 11(2).”
Amendments 26 to 29 agreed.
Clause 20: Persons disqualified by immigration status or with limited right to rent
Amendment 30 not moved.
Clause 21: Persons disqualified by immigration status not to be leased premises
Amendment 31 not moved.
Clause 22: Penalty notices: landlords
Amendment 32 not moved.
Clause 23: Excuses available to landlords
Amendment 33 not moved.
Clause 24: Penalty notices: agents
Amendment 34 not moved.
Clause 25: Excuses available to agents
Amendment 35 not moved.
Clause 26: Eligibility period
Amendment 36 not moved.
Clause 27: Penalty notices: general
Amendment 37 not moved.
Clause 28: Objection
Amendment 38 not moved.
Clause 29: Appeals
Amendment 39 not moved.
Clause 30: Enforcement
Amendment 40 not moved.
Clause 31: General matters
Moved by Lord Taylor of Holbeach
41: Clause 31, page 28, line 19, leave out subsection (6) and insert—
“(6) The code (or revised code)—
(a) may not be issued unless a draft has been laid before Parliament, and
(b) comes into force in accordance with provision made by order of the Secretary of State.”
My Lords, these amendments have been tabled in the light of comments made by the Delegated Powers and Regulatory Reform Committee. The committee recommended that the code regarding the prevention of discrimination should be laid before Parliament and then brought into force by negative resolution order. The Government accept this recommendation.
In relation to the code regarding general matters, the committee considered that this should be subject to no less a degree of parliamentary scrutiny than that which applies to the equivalent code relating to the employers’ civil penalty scheme. The committee further suggested that this code should be subject to the affirmative resolution procedure. We considered this carefully, but concluded that the negative resolution procedure would provide the appropriate level of parliamentary scrutiny. We have discussed this to some degree in the previous amendments. This code will provide technical guidance on matters of interpretation and practical operation, such as factors to be taken into account in establishing whether a residential tenancy agreement grants a right of occupation as a main and only place of residence and the factors to be taken into account in calculating the amount of a penalty that a landlord or agent should be liable to pay.
This is analogous to the equivalent code of practice relating to illegal working, which is brought into force by the negative procedure. For these reasons the Government believe that the new code should be subject to parliamentary scrutiny in a consistent manner. The amendment has been tabled accordingly. I beg to move.
I have only one brief comment to make; indeed, the Minister has already touched on it with his comment about the suggestions that have been made, in at least one case, that the affirmative procedure would be more appropriate. I am not quite sure why the Minister is arguing that he thinks that the negative procedure would be equally effective. If the Government believe that the negative procedure is just as effective as the affirmative procedure presumably they see no distinction between the two. Clearly there is a distinction. Clearly Parliament believes that the affirmative procedure is a more effective one, since it requires an affirmative resolution by Parliament in support of the proposition that the Government have made. Can the Minister put forward a more convincing argument than he has as to why they will not accept that it should be by affirmative procedure and why they think it should be by negative procedure?
I suppose we could argue about this for quite a long time if we chose to. I laid out consistency with the employers’ regulations, which are very similar in content. As I mentioned in the previous debate, the thing about the negative procedure is that it is open to any Member to bring the subject matter to debate in this House. Parliamentary scrutiny is not overridden. My hope is that it will be possible, by the time we get to this phase, that we will indeed have a situation where the House is well informed with the issues involved, well informed with the evaluation of the scheme, and well informed of the way in which the scheme is intending to work. I believe that at that point government and Parliament will be confident that they can proceed and that proper scrutiny has been provided. One would have to say that this has been very carefully considered by the Government and we have come to the conclusion that the negative procedure is the appropriate form of introducing this statutory instrument.
Amendment 41 agreed.
Amendment 42 not moved.
Clause 32: Discrimination
Amendments 43 to 45
Moved by Lord Taylor of Holbeach
43: Clause 32, page 28, line 37, leave out from “draft” to end of line 39
44: Clause 32, page 28, line 39, at end insert—
“( ) The code (or revised code)—
(a) may not be issued unless a draft has been laid before Parliament (prepared after considering representations under subsection (4)(b) and with or without modifications to reflect the representations), and
(b) comes into force in accordance with provision made by order of the Secretary of State.”
45: Clause 32, page 28, line 43, leave out subsection (6)
Amendments 43 to 45 agreed.
Amendment 46 not moved.
Clause 33: Orders
Amendment 47 not moved.
Clause 34: Transitional provision
Amendment 48 not moved.
Clause 35: Crown application
Amendment 49 not moved.
Clause 36: Interpretation
Amendment 50 not moved.
Clause 38: Related provision: charges for health services
Amendment 51 not moved.
Moved by Baroness Masham of Ilton
52: After Clause 38, insert the following new Clause—
“Exemption of charging for primary medical services where charging is not cost-effective or poses a risk to public health
(1) Section 182 of the National Health Service Act 2006 (remission and payment of charges) is amended as follows.
(2) After subsection (1), insert—
“(2) Insofar as any regulations under section 175 provide for charges to be made for the provision of primary medical services, they shall include provision for the remission in full of any charge that falls below the minimum threshold of service cost.
(3) In subsection (2), the “minimum threshold of service cost” shall be the cost to the provider of primary medical services below which no charge is to be made for the provision of those services.
(4) Where regulations under section 175 provide for a charge to be made for the provision of primary medical services, the provider of those services may waive the charge where he or she considers that the cost of recovering the charge is not economical or where the consequences of charging may put the public health at risk.””
My Lords, Amendment 52 is to do with public health protection. In Committee, the noble Baroness, Lady Cumberlege, spoke to this amendment, for which I was very grateful as unfortunately I had a long-standing commitment which I had to attend. The noble Baroness, like me, is passionate about health safety and knows that the Bill may cause danger to the health of the nation. Some people who have not paid the health levy may not seek help when they become ill because they fear being reported to the authorities and they may not have the money for tests and medication.
I am particularly concerned because, with the resistance to antibiotics and antivirals, diseases may be spread when people leave treatment too late. If they think they have to pay for medication, they will not go to primary healthcare for diagnosis. What will be the point?
As it is, it is very difficult to find some homeless people who need screening and I congratulate the organisation Find and Treat. I thank both Ministers for the recent meeting we had with the noble Lord, Lord Taylor of Holbeach, and the noble Earl, Lord Howe. It is important that departments work together over this complex matter with Public Health England. This amendment is to do with public health and cost-effectiveness.
The purpose of the amendment is to provide an exemption from NHS charges where the cost of imposing and recovering a charge is not cost-effective or where the imposition of a charge constitutes a risk to public health. Doctors of the World supports this amendment, as do other health organisations.
In its response to last year’s consultation, the Royal College of General Practitioners made clear that it,
“opposes any change to the eligibility rules for migrants accessing GP services”.
Among the reasons given for its opposition were risks to public health and the imposition of new administrative burdens. Dr Mark Porter, the chair of the BMA council, has described the proposed charges as, “impractical, uneconomic and inefficient”. The Academy of Medical Royal Colleges emphasised in its response to the consultation that any proposals adopted,
“should not … create a bureaucratic process and burden that outweighs any tangible benefits”.
The amendment does not prevent charging but provides some flexibility within the proposed system to make it more cost-effective. The requirement to set a,
“minimum threshold of service cost”,
introduced in proposed new subsections (2) and (3) of Section 182 of the National Health Service Act 2006, achieves this. It requires the Secretary of State to stipulate a figure in regulations. If the cost of providing primary care falls below the stipulated figure, there is to be no charge. Similarly, if the provider of primary care considers that it will not be cost-effective to recover the charge, the provider may waive the charge. This would be achieved by the amendment in proposed new subsection (4) to Section 182 of the National Health Service Act 2006. Section 182 concerns exemptions from charges, including NHS charges to be made under Section 175, to which Clause 34(2) of the Bill refers. To this extent, the amendment responds to the concerns of the Royal College of General Practitioners, the BMA council and the Academy of Medical Royal Colleges. The Department of Health has acknowledged that,
“the administrative cost may outweigh the recoverable charges for frequently used but relatively inexpensive services”.
The amendment would be limited to primary care, because in this setting the provision of healthcare is most likely to raise questions about the cost-effectiveness of imposing and seeking to recover a charge. Discrete secondary care interventions are likely to be generally more expensive. At a Commons Bill Committee, the then Immigration Minister, Mark Harper MP, said,
“we will not do anything that will worsen public health”.—[ Official Report , Commons, Immigration Public Bill Committee, 12/11/13; col. 310.]
Of course it is important for those who are in the UK, even if they are not here legally, to have access to public health treatment because it has an impact, not just on them but on the rest of the community. That is well understood by both the Home Office and the Department of Health. However, the Bill, and the charges for which it is intended to pave the way, will worsen public health.
The Bill extends the range of migrants who may be liable for NHS charges. Currently, those who are living in the UK lawfully for settled purposes as part of the regular order of their life have free access to NHS services. Clause 34 will mean that all non-European Economic Area migrants who do not have indefinite leave to enter or remain—that is, permanent residence—will be liable for NHS charges. The Government further intend to greatly extend the range of NHS services to which these charges apply.
Currently, primary care as accident and emergency treatment is free of charge. The Government are to introduce charging for primary care as accident and emergency treatment, although GP consultations are to remain free. It appears that any treatment that the GP may provide further to that consultation will be charged for. This is to contribute to the hostile environment that the Home Secretary says the Bill is intended to create for undocumented migrants. However, if undocumented migrants, including victims of human trafficking and refused asylum seekers, are to be charged for any treatment that they may need following a GP consultation, it seems highly unlikely that many of them will attend a GP. What will be the point if they cannot pay for any treatment that they may need?
As the RCGP emphasised in its response to the consultation,
“diagnosis of infectious disease is a core activity of general practice”.
The Department of Health has acknowledged this. The Government have committed to retaining free treatment for the specified communicable and sexually transmitted diseases but, as the RCGP said, often people suffering from infectious diseases do not know what is making them ill. It is likely that a significant number of individuals will be deterred from presenting at their GP practice for fear of charges and/or eligibility checks.
Similarly, we are concerned that limiting access to primary care would impact detrimentally on immunisation rates, as it would be more difficult to encourage presentation by parents from non-eligible migrant groups. We note that the royal college is right to be concerned about eligibility checks, particularly given the intention of the Home Office to extend its radar into the NHS via these checks, as revealed by the Home Office Permanent Secretary last year. That matter is not addressed by the amendment. However, the amendment would mitigate the potential deterrent effect of NHS charging by permitting a primary care provider to waive a fee where to do so is necessary on public health grounds. This would be included in proposed new subsection (4) to Section 182, referred to earlier. This would provide some amelioration of the concerns of the Academy of Medical Royal Colleges and the Royal College of Psychiatrists. It says:
“Although we welcome the statement that there should be exemptions from charging in respect of infectious diseases including all”,
sexually transmitted infections,
“we are concerned about the potential effect of the proposed legislation on migrants with mental health problems and/or those with developmental disorders and intellectual disabilities. There is a strong public health case for considering the needs of these vulnerable groups when making decisions about charging exemptions”.
The amendment would also permit a GP to waive a fee to treat a condition where the likely result of not doing so was that the condition would deteriorate to a point where urgent and much more expensive treatment became necessary. The NHS gains no advantage from not doing this, since the person who cannot pay for an early and relatively inexpensive intervention will be no better placed to pay for a later and very expensive one. An example was given by the Northern Ireland Law Centre in its June 2013 policy briefing of an asylum seeker who required an inhaler due to her asthma. When she was refused asylum she found herself excluded from healthcare, and without an inhaler her condition deteriorated so far that she was admitted to an intensive care unit and remained in hospital for five days. I beg to move.
My Lords, I appreciate that the charging arrangements are not ones for this Bill. I simply want to say that many of the concerns voiced by the noble Baroness are ones that we share. We had amendments on issues around this at the previous stage, and we look forward to discussing how arrangements brought in by the Department of Health will be implemented. However, I realise that that is a matter for another day.
My Lords, I very much hope that the Minister will have a deep discussion with his colleague, the noble Earl, Lord Howe, from the Department of Health, not necessarily about every single word of this quite lengthy amendment but about the general questions that it raises. I have in my hand a letter from the president of the Royal College of Physicians, Sir Richard Thompson, which was not one of those colleges mentioned by the noble Baroness, Lady Masham, but which raises serious questions about the public health implications unless we can look very carefully at them in the short while before Third Reading.
I think the noble Baroness, Lady Jay, who has played a crucial role in the whole area of sexual diseases, particularly AIDS, would bear out the argument made by Sir Richard. The major point he makes, and it is a very important one, is that there is considerable evidence that people who are invited to clinics, particularly the Doctors of the World Clinic in east London, to be tested for very dangerous and infectious diseases such as AIDS and drug-resistant tuberculosis—which is growing rapidly and now becoming a significant international threat to the good health even of people in relatively healthy countries such as our own—will see even relatively limited financial barriers as reasons not to attend. One of the prime difficulties is that when somebody attends a primary care facility, which is still generally available, or an A&E clinic and is referred on for testing to a hospital or another A&E clinic the real danger is that they will find this a reason not to attend. One has to accept that many people do not want to know what may be wrong with them. They are frightened of learning the results so any kind of hindrance is used as an excuse for not going.
The House will know, because it has had many discussions on infectious diseases and among its Members contains many experts in the field, the lethal consequences of people with AIDS or drug-resistant tuberculosis moving among the community where they live without being aware of the very serious, often lethal, consequences of passing on that infection. Sir Richard points out in his letter to me that one experience of that east London clinic is precisely that. There is a very rapid multiplying consequence of people not knowing what they have or knowing it and continuing to act as if they do not have to be treated. I simply plead with the House, from a non-partisan point of view, to look very closely at this amendment and consider what can best be done about it, in the interests of every citizen of this country and overseas visitors, to ensure that every possible step will be taken to ensure that highly infectious diseases are not passed on to innocent passers-by, friends or members of the family.
My Lords, I congratulate my noble friend on speaking so powerfully on behalf of a vulnerable group. This is an important amendment. I spoke on this issue at Second Reading and I am sorry to have missed the Committee stage, when I think the noble Earl, Lord Howe, gave another response, but I am still not satisfied that the Government have taken a serious interest in this. When I spoke at Second Reading the report of Médecins du Monde seemed to me very compelling. Has the Minister seen it? The noble Baroness quoted several authorities and I will not repeat them but I think this has serious consequences, not only for that group but for the population at large, especially in the field of mental health.
My Lords, briefly, when we look at the Second Reading and Committee debates, one area of the Bill where there has been the least clarity for noble Lords is in trying to understand the implications beyond what are now Clauses 37 and 38. It is not necessarily the words of the clauses but some of the rhetoric that the Government have used in describing the Bill, such as “health tourism”. I know that there are expectations of what this Bill was going to do and concerns about the implications. I think there is an opportunity for the noble Lord. The noble Baroness, Lady Masham, is to be congratulated on bringing this forward to give some clarity to what is involved. I have had several e-mails and letters from organisations that are extremely concerned. They are not trying to scaremonger; they are trying to understand the public health implications.
In a meeting I had with noble Lord, he was very helpful in explaining that he did not feel that there would be any public health implications and that people who needed treatment would receive it at the point at which they needed it. However, I think a little clarity would be helpful. The two issues of the public health of the nation and cost-effectiveness have exercised your Lordships in looking at this matter. If the Minister can bring some clarity to the two issues raised by the noble Baroness, Lady Masham, it would be extremely helpful and perhaps helpful to the wider audience outside your Lordships’ House, who have genuine concerns and are trying to ensure that they operate in the best interests of public health and within the law. There is considerable confusion as to what that will be.
My Lords, I agree that this is a very useful opportunity to inform the House of where we are on this issue. The noble Baroness, Lady Masham, will understand that the provisions in the Bill are one thing and the wider provisions for implementing health service charging are another. We had a really useful meeting with my noble friend Lord Howe where a number of noble Lords present came to talk about this issue. I think noble Lords will agree he is very much focused on the full implications of any changes. I reassure the noble Earl, Lord Sandwich, that Médecins du Monde corresponds with me on a fairly regular basis so I know what its concerns are and unfortunately it was not at the meeting with the noble Earl, Lord Howe. If it had been I think it would have understood better the way in which the health service reforms were being taken forward. The other thing which they would certainly have picked up is that it is absolutely clear that treatment for infectious public health conditions is free to all and will remain so. We should just make that clear; I hope that it reassures my noble friend Lady Williams and the noble Baroness, Lady Masham.
As we discussed at length when we were talking about this issue, any exemptions from the NHS charging of short-term visitors and illegal migrants are not really a matter for the Home Office. This is not a provision that is being enacted in the Bill and is not a question on which the Home Office would make a decision. Exemptions are a matter for the Department of Health. I know that they are being considered very sensitively. Let us not forget that, within the devolved remit, while there is one United Kingdom for immigration purposes there are four national health services within the United Kingdom. It is not for me from this Despatch Box to speak on their behalf. I have no wish to cause a constitutional crisis by inadvertently taking over responsibilities for which I have no responsibility.
My noble friend Lord Howe has agreed to meet again with noble Lords. I think that everybody felt that that was a helpful meeting. I want to keep everybody in the loop; I can act as a facilitator in this respect. When my noble friend’s department has developed more detailed proposals for reforming NHS overseas visitor charging arrangements—and it is that charging which is being looked at in particular, for people on short visits here—this will provide the appropriate time and context for discussions on the NHS charging arrangements for these groups.
Going back to the beginning, I confirm that treatment for infectious public health conditions is free for all and will remain so. I hope that that is a big reassurance. Given that reassurance, alongside our existing commitment that GP and nurse consultations will remain free to all and that that is not limited to the first consultation, I hope that the noble Baroness will indeed withdraw her amendment. I look forward to having further discussions with her and my noble friend Lord Howe in the future.
My Lords, I thank the Minister and all who have supported the amendment. What is confusing is that Clauses 37 and 38 cover the new charges and restrictions of healthcare access in this Bill. Therefore, it is surely an immigration and health matter. Therefore, unless there is a combination working together on this complex matter, there will be confusion and people may fall through the net. I hope that I have helped to get the message across that public health and protection are vital, especially when dealing with vulnerable people. I beg leave to withdraw the amendment.
Amendment 52 withdrawn.
Moved by Lord Rosser
53: Before Clause 43, insert the following new Clause—
“Recruitment agencies: local workforce
In section 5 of the Employment Agencies Act 1973 (general regulations), after subsection (2) insert—
“(2A) The Secretary of State may by order prohibit United Kingdom based agencies, as defined in this section, from including only people not ordinarily resident in the United Kingdom as their clients.””
My Lords, I am moving again an amendment which we moved in Committee which we consider to be key and ought to be in the Bill. Clauses 43 and 44 deal with the issue of work and would, first, streamline the processes by which an employer can object to or appeal against a civil penalty by requiring employers to raise an objection to the Secretary of State before making an appeal to the civil court. Secondly, it would make it easier to enforce unpaid civil penalty debts in the civil courts.
Immigration is a welcome and important part of our life and our country’s success over the years owes much to the people who have come here from around the world and have helped to make it a better place. However, we are all aware of the fact that immigration can bring with it certain pressures and certain difficulties for our communities. The Bill does not include any of the important work-related measures which we have been calling for, and we tabled a number of amendments for Committee stage as a means of raising these issues. Amendment 53 has the aim of ending the practice of some recruitment agencies excluding local workers.
To state what I hope is obvious, many or most recruitment agencies are a great asset to the communities in which they work, helping employers and potential employees find work, and keeping local economies in particular ticking over. However, there has been a problem with some employment agencies effectively taking on only foreign workers and excluding British people from their books.
That has become more of an issue because, over the past couple of decades there has been a significant growth in agency employment; I understand that the figures show a 500% increase in agency workers between the mid-1980s and 2007. A look at the figures shows that migrants are increasingly overrepresented within agency work, particularly at the lower end, with A8 accession country migrants constituting the largest single group of agency workers. In some sectors—the meat and poultry processing industry, for example—there are examples which have come to light of British workers facing difficulty registering for work with some agencies which exclusively supply migrant workers, generally eastern European nationals.
We have the evidence of the Equality and Human Rights Commission, which conducted a major survey in 2010 and found that one-third of agencies confirmed that they had acted unlawfully in sometimes supplying workers by judging what nationality the processing firm would prefer, or responding to direct requests often based on stereotypes about the perceived dependability of particular nationalities. There has been the example of an organisation advertising cleaning services with a message saying that it has a thorough vetting system for all its cleaners, and then going on to say that they all come from Poland and that several of them have had extensive cleaning experience in the United Kingdom. In 2010, we had the case of a British supermarket supplier accused of discriminating against local workers after insisting that new recruits had to speak fluent Polish. The firm, I believe, was one of Asda’s biggest suppliers—it was not Asda itself—and it maintained that the requirement was necessary to ensure that all employees could understand the same instructions. The condition was included in an e-mail advert sent out on behalf of the firm and dispatched to hundreds of potential applicants on that particular agency’s books. The advert read:
“Immediate factory work available! If you are available or have any friends available, work is starting tomorrow for induction training. Ongoing factory work (meat production) for 4-5 months, shifts are 7am-5pm or 9am-7pm. Transport provided. Applicants must speak Polish”.
The latter sentence would appear to indicate that it was asked for a certain category of potential employee, since I do not know that Polish is spoken very much in this country, apart from among Polish people.
My Lords, I would like to reinforce that point. In the previous election in Stoke, I found people complaining bitterly that you had to speak Polish and that all the health and safety instructions were in Polish in certain factories. There are other such stories, so it is a serious point.
I thank my noble friend for that helpful intervention. The idea that, in core sectors of our economy, recruitment agencies should exclude local workers and make a virtue of being able to offer—this is often the reason it is done—cheaper, more flexible and allegedly more compliant staff than those available locally is surely wrong. It cannot be fair on UK workers who do not have the opportunity to compete for those jobs, and it is certainly not going to help us rebuild our economy.
As I understand it, currently the only way for action to be taken is for an individual to bring about a discrimination case through an employment tribunal or for the Equality and Human Rights Commission to bring a compliance order. That is because recruitment agencies—or, rather, the recruitment agencies concerned; I do not want to suggest that it is all of them—are not legally prevented from acting in this particular way. We need to strengthen the law so that agencies are not able to operate such practices, either formally or informally. If this kind of practice is going to continue, then we need to start enforcing that law properly, with more prosecutions for agencies that flout discrimination laws. That is why we have tabled this amendment again on Report. In replying to this point in Committee, the Minister, on behalf of the Government, acknowledged that,
“there is a problem with a small number of unscrupulous employment agencies that source labour exclusively from overseas, particularly eastern Europe”.—[ Official Report , 17/3/14; col. 19.]
I believe the Minister said that he was “sympathetic” to the aims of the amendment. I am not sure that sympathy, although welcome, is really enough because sympathy does not put right what is surely a wrong that ought to be rectified.
Our amendment gives the Secretary of State the power,
“to prohibit United Kingdom based agencies, as defined in this section, from including only people not ordinarily resident in the United Kingdom as their clients”.
It is an order-making power, and the principle that it is seeking to establish is clear. If the Government are sympathetic to the terms of the amendment, it would of course be open to them to set out more of the detail in the order to ensure that it achieves its aims. Alternatively, if the Government accept the principle of our amendment, they could come back with their own amendment at Third Reading if they do not agree with its specific wording. Of course, we had an example of that happening very recently with the Defence Reform Bill, where an amendment was discussed on Report. The Government clearly did not like the wording but they accepted the principle and came back with their own amendment at Third Reading, which was duly carried. So that is a very recent example of the Government saying that they agree with the principle of an amendment, perhaps do not like its wording and agree to come back with their own wording at a later stage in the Bill, in this case Third Reading.
Therefore I say, simply, that there is a problem, and, as I understand it, the Government recognise that. This amendment gives the Government the opportunity to act now to rectify this problem by either accepting this amendment or, if they do not like its wording, by agreeing to come back with their own amendment on Third Reading to address the issue I have raised. I beg to move.
My Lords, I have enormous sympathy with the intention of this amendment. It is entirely wrong that local people in particular, but also many other people resident in this country, should be bypassed in the recruitment process and not even have the opportunity to seek work. I declare an interest as chair of the Equality and Human Rights Commission already referred to. We have done some work in the past on the meat-processing industry, where such practices were found—not prevalent, but found. We intend also to do some work on the cleaning industry.
However, I am not sure that the amendment as it stands will address the problem adequately. That is to say, it refers to recruitment agencies located in this country. It could very readily be bypassed simply by subcontracting with recruitment agencies elsewhere. Also, there are occasions where we wish to enable employers to recruit overseas exclusively. Think of schools that seek native speakers to teach French. They probably want to be able to advertise in France, to French students, and we do not wish to prohibit that. I will just echo the point that, if the Minister thinks something can be done, it will not be through this amendment as it stands. However, the avoidance of both unfair discrimination and the appearance of it is surely an important issue.
My Lords, I am pleased that the noble Lord, Lord Rosser, has brought this back, and it has been very useful to hear from the noble Baroness, Lady O’Neill of Bengarve, about her take on this issue. She raises some of the subtle things at the edge of any blanket restriction that might be made.
I said right at the beginning when we debated this issue in Committee that the Opposition and the Government are not very far apart at all in this area. It is a matter of time and place rather than the detail of the amendment. I think the noble Lord, Lord Rosser, accepts that the amendment may not be quite perfect. I cannot commit to come back on this issue at Third Reading. There is likely to be an announcement very shortly on this whole issue, so it would be more appropriate to wait until that announcement has been made, as it will make clear what the Government’s position is. I do not think that the Opposition or any other noble Lords will find themselves very far from the Government on this issue.
To look at where we are, the Government are committed to protecting the rights of UK workers. We have said that, and as I said in Committee, the Government have already taken tougher action against abuse of the national minimum wage, both as regards its enforcement and by increasing the financial penalty for breaches. We are taking a more robust approach to the employers of illegal workers, including through a doubling of the maximum civil penalty to £20,000, which has now been approved by both Houses.
We are ensuring greater collaboration across Government to increase our “enforcement reach” and the range of sanctions that can be brought to bear against exploitative employment practices. Furthermore, the Government have commissioned a report by the Migration Advisory Committee into the causes of low-skilled migration and its social impacts.
That is why we are trying to look at the bigger picture. The amendment identifies a particular problem—and I acknowledge that it is a problem—but there is a bigger picture: why is so much of migration into this country in low-skilled jobs? We know that the social impacts of this cause concern across wider communities. We are taking action to prevent abuse of our public services and benefits systems by migrants, including those who come from the European Economic Area. As I have said previously, employment levels have risen, since this Government came into office, by 1.3 million, of which 78% is accounted for by UK nationals. However, I recognise there is a problem with a small number of unscrupulous employment agencies that source labour exclusively from overseas, particularly eastern Europe, and subject their workers to exploitative conditions. We have to acknowledge that.
We are sympathetic to the intentions behind this amendment but, as it stands, it would not achieve its aims at all. It will need very careful review because an agency could evade its scope and be in the clear simply by signing up a single UK recruit. That will not address the problem which the noble Lord has brought to the attention of the House. The ordinary residence test is very weak and easy to pass. However, more does need to be done to tackle such unfair recruitment practices, a view which I think noble Lords generally share. Ministers are actively considering how best to protect British workers from this type of discrimination and, as I have said, the House may expect announcements to be made very shortly on this issue. In the light of the points I have made, I hope the noble Lord will agree to withdraw his amendment.
I am disappointed by the Minister’s reply. In Committee, he said that,
“more should be done to tackle these types of unfair recruitment practices. Ministers will actively consider how best to protect British workers from this type of discrimination and we will seek to bring forward proposals shortly”.—[ Official Report , 17/3/14; col. 19.]
We do not seem to have made any progress at all. The Minister is clearly not prepared to pick up what was inherent in my suggestion: that I would be happy to withdraw my amendment if he gave a commitment to come back with the Government’s own amendment at Third Reading.
I appreciate that I have not spoken in this debate but colleagues around me are confirming what I heard, which was that the Minister told us—for my part, I rather fear it—that we might hear shortly from the Government. Never in the years I have been in this House have I known “shortly” to be as short as a week or two. I have been listening carefully and I understand the problem, which everyone who has spoken on this has acknowledged. I wonder whether to have come back at this stage or be prepared to come back within a couple of sitting days, as it would be at Third Reading, would do justice to the severity of the problem that has been articulated.
Perhaps I may remind the House what I also said, which was that the Minister used the word “shortly” when we discussed it in Committee. This is not the first time that he has said “shortly”. I think that shortly is a rather longer period of time than the noble Baroness has just suggested. The other issue is that the Government have no doubt given much time to considering the provisions in the Immigration Bill as a whole. It is surprising that they do not appear to have given the same priority to the issue addressed by the amendment about the activities and practices of some recruitment agencies which do nothing to enable us to have a reasoned debate on immigration in this country. I think the Minister knows that that is an issue. We need to address today’s problems now and not at some unspecified time in the future, which really is all that the Minister has been able to say. I therefore wish to test the opinion of the House.
Moved by Lord Roberts of Llandudno
54: After Clause 44, insert the following new Clause—
“Permission to work
(1) The Immigration Act 1971 is amended as follows.
(2) After section 3(9) (general provisions for regulation and control) insert—
“(10) In making rules under subsection (2), the Secretary of State must have regard to the following.
(11) Rules must provide for persons seeking asylum, within the meaning of the rules, to apply to the Secretary of State for permission to take up employment and that permission must be granted if—
(a) a decision has not been taken on the applicant’s asylum application within six months of the date on which it was recorded, or
(b) an individual makes further submissions which raise asylum grounds and a decision on that fresh claim or to refuse to treat such further submissions as a fresh claim has not been taken within six months of the date on which they were recorded.
(12) Permission for a person seeking asylum to take up employment shall be on terms no less favourable than those upon which permission is granted to a person recognised as a refugee to take up employment.””
My Lords, full employment with a job for every person has been the ideal of every party here over generations. When I look at the Labour Benches I remember people such as Keir Hardie and those who, in 1908, wanted their party to be one which united the workers of the world:
“Workers of the world, unite!”.
Then, of course, being on these Benches, I remember the name—as a Welshman would—of David Lloyd George, who in 1928 published his “Yellow Book”, followed by We Can Conquer Unemployment. Looking at the Conservative Benches, we know that only last week George Osborne said that the aspiration was that every person should have a job and that we should have full employment.
Every person has potential. They have skills and dreams, so I suggest that it should be our direction in this House to make sure that we enable as many as possible of those dreams to be fulfilled. We should not shatter those dreams. Even those who are asylum seekers among us—they, too, have hopes and dreams. They are people just like us. There are 6,200 asylum seekers lawfully present in the UK who, because of present regulations, are denied that right—and more often than not, it is not their fault. It is because of the backlog of applications. So they get perhaps £36 a week, which is half the minimum amount recommended for UK citizens, and they are given an Azure card which forces them to buy their goods in the more expensive stores rather than the cheaper ones and the corner shops. Even if nothing else happens as a result of this debate, I hope that the Minister will look at the state of the Azure card. People should be able to buy their goods in the most competitive places.
Of course, some people will turn to crime or, like the Morecambe Bay cockle pickers, who were not asylum seekers, will have to work for £1 an hour. Those Chinese workers were caused to take on employment that destroyed their lives. I suggest that the present situation is not fit for purpose. What can we do? We can keep people in poverty and destitution for 12 months, which is the present statutory period. I would remind noble Lords opposite that it was in July 2002 that the term was increased from six months to 12 months. However, we could change the period—and, indeed we are the only European country not to have done so. We could reduce it to six months, and that is all I am asking for in this amendment.
There is no evidence whatever that doing this would blur the boundary between economic migration and asylum or that it would act as a pull factor. Other European countries do not find that to be the case. Also, there is no evidence that such a change would lead to unfounded claims. A pilot would show that. I have a Private Member’s Bill which requests this change, and possibly it will have to be reintroduced in the next Session of Parliament. I hope that the Minister will accept the amendment I am moving today—or, if not, that I will be assured of the Government’s encouragement if this proposal is presented in the form of a Private Member’s Bill in the coming Parliament. I beg to move.
My Lords, I am pleased to speak as a co-sponsor of Amendment 54, and I shall recap briefly the case that was made in Committee. The right to work is a human right enshrined in the
UN Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. Social policy in this country is premised on the importance of paid work as both a primary responsibility and the primary contribution that people can make. I drew attention to the damaging effects on asylum seekers and any children, and I cited evidence from a cross-parliamentary inquiry into asylum support for children and young people, of which I was a member, and a Freedom From Torture report which showed the hardship resulting from the policy of not allowing asylum seekers to take paid work for 12 months.
During the debate the Minister challenged the noble Baroness, Lady Williams, when she talked about people having to live on £5 a day by pointing out that families with children receive more than that. However, my understanding is that in 2013, 80% of applications for asylum were made by single adults, so the figure of £5 a day is in fact the typical sum on which someone has to live. That sum has been frozen since April 2011, and I wonder whether the Minister could explain the justification for freezing the level of support provided for one of the most vulnerable groups in our country. I also wonder whether he would be able to live on £5 a day, because I could not.
However, none of these arguments cuts any ice. I cannot say that I was disappointed by the Minister’s response in Committee because it was pretty much what I expected, but I was desperately depressed as a result. The response reflected an obsessive fear that providing this basic right could lead to a flood of economic migrants posing as asylum seekers. Why would anyone want to do that? If you want to come into this country illegally, it is not the best idea to go and make yourself known to the authorities. That argument seems odd.
What evidence is it based on? There is none—as, in fact, the Minister conceded in his letter to the noble Lord, Lord Roberts. The evidence we have points in the opposite direction when one considers that there is no relationship between other European countries allowing the right to work—admittedly often with conditions around it—and that right acting as a pull factor for asylum seekers. Indeed, I went back to the Home Office’s own study, which could find no evidence from which to reach the conclusion—upon which current policy is based—that providing the right to work after six months would act as an invitation to economic migrants to come here as asylum seekers.
I have not yet heard a convincing response to the argument that, far from protecting British workers, the policy pushes asylum seekers into the shadow economy, where they will be at the mercy of exploitative employers. Does the Minister have any estimate of the extent to which this is happening? Nor have I had any real response to the argument that the policy seriously disadvantages those who go on to be granted refugee status, because employers do not want to employ people who have no work experience in this country and no references from employers in this country. That was cited as one of the barriers by respondents in the Freedom from Torture study, who said that some of their problems began when they gained refugee status because they had not been adequately prepared, they did not have experience of employment in this country, and they had enormous difficulties making the transition from asylum seeking to full refugee status. We are making it harder for them. The Home Office’s own research has shown how the loss of skills and confidence, and difficulties getting qualifications, can mean unemployment or underemployment when refugee status is finally granted.
Governments like to talk about evidence-based policy-making, but when it comes to asylum seekers it seems to me that it is more a case of prejudice-based policy-making—despite the evidence that public opinion, which is so often prejudiced against asylum seekers, supports this policy. For me, this prejudice-based policy-making diminishes us as a country and makes me ashamed of how we treat those who seek sanctuary among us.
My Lords, the noble Lord, Lord Roberts, has one of the most prophetic voices in this House. He can see so far ahead of us that he can see someone in government accepting his amendment—just over the horizon but not yet. I am most impressed by his fortitude because this is an issue at which all the refugee agencies and people working with refugees have looked again and again. They have presented evidence that still has not convinced the Government because they have not got rid of the backlog. As soon as they have got rid of the backlog they will seriously look at this kind of proposal. They are therefore worried about the consequences of opening up what they see as an economic draw. I do not do so and I am absolutely convinced that the noble Lord is right about this, but these are things to come.
Perhaps I may again bring in the issue of assisted voluntary return that we discussed on Tuesday, when the Minister kindly responded to a question about why it was being withdrawn, because it is very pertinent to this subject. He kindly also offered to write to me about that. I formally accept the idea that he writes to me fully.
My Lords, I cannot resist speaking on this because I so admire what the Government are doing in encouraging people in this country into work: the work of the noble Lord, Lord Freud, and the Secretary of State on the introduction of universal credit. We may have concerns about the details of this policy but I think we all recognise that it is vital to encourage people off benefit and into work wherever possible.
I have a very long-standing acquaintance who, unfortunately, has mental health problems. I know him very well indeed. Thanks to the fact that he is taking benefit, he is obliged to work in a charity shop for half a day, four days a week. While this is very much against his wishes, he is being obliged to have contact with other human beings, which, I think, is a way to his recovery. I have to reflect on how deeply demoralising it must be for these people not to be allowed to work and what the consequences may be for their children to have their parents becoming depressed because they have nothing useful to do in their lives.
I hesitate to come in without being better informed about this particular debate, but I have a great deal of sympathy with what the noble Lord, Lord Roberts, and other speakers have said, and I hope the Minister may be able to offer some comfort to them.
My Lords, in answer to the noble Earl, Lord Sandwich, we need prophets and optimists, and I am glad that we have at least one.
I very much support what my noble friend has been urging us so consistently to do: for reasons of integration; for individuals to keep up skills and be able to practise their English in the context of work; and, of course, for the financial reasons that the noble Baroness has dealt with. Most of all, work is valuable for self-respect and mental health. I do not put the two situations on a par with one another but clearly we all value working: there are a lot of noble Lords in the Chamber this afternoon, and who have been in this building, who could probably have been taking advantage of what I understand has been quite nice weather outside but have chosen to spend the day working.
My Lords, when the Government brought in this law, withdrawing the right of asylum seekers who have been here for more than six months to work, I do not know what they intended to achieve, or what they have achieved so far by having that law. It does not prevent any people coming into the country. It is not an immigration issue at all. We are talking about people who are already in this country, asylum seekers whose applications are being dealt with. Through no fault of their own, their applications are taking longer than six months. We are still saying that they should not be able to work.
This law drives people into deep poverty. They are more vulnerable to exploitation. They should have a right to work, like everyone else, and they should be able to feel proud that they are not living on handouts but working for their families. This is one good thing that the children can be proud of as well. Therefore, the amendment moved by my noble friend Lord Roberts should be supported. I support it. I hope that the Minister will look into this and be sympathetic to the cause of the asylum seekers.
My Lords, I briefly add my support because, although I have listened very carefully to the argument made by the Minister, I genuinely do not understand why people should not be allowed to work for perhaps six months because of the backlog of cases. Perhaps there should be a time limit, so that if someone has not heard about their case then they have the right to work. However, we must think very carefully about what the implications of that may be. As was said by the noble Baroness, Lady Lister, maybe something should be put around that to keep the criteria very visible to the Home Office.
My Lords, I think the whole House will admire the heroic efforts of my noble friend Lord Roberts of Llandudno for making just one more try at this issue. I have listened very carefully to the arguments in favour of allowing asylum seekers to work if their asylum claim is not determined after six months instead of the current period of 12 months. I am not convinced that it is sensible. In the Government’s view, the proposed change clearly creates a risk that some people will make unfounded asylum claims in order to take advantage of the more generous employment opportunities. Indeed, the amendment as drafted would enable the person to take any employment of their choice, rather than be restricted to those on the shortage occupation list published by the Home Office.
I agree with my noble friend and with the House about the importance of being able to work. Although paid work might not be permitted except in certain circumstances, voluntary work is allowed, as I explained on the previous occasion when we debated this. My noble friend and the noble Baroness, Lady Lister, talked about the level of support provided. I remind the House that two levels of support are provided, to cover asylum seekers and failed asylum seekers. The noble Baroness asked me to justify keeping the support rate the same since 2011. The Government conducted a full review of asylum support levels last year, in June 2013. The review concluded that the payment levels were adequate to meet essential living needs. They are only to meet essential living needs.
Many noble Lords asked why we do not let failed asylum seekers work so that they can support themselves. It is important to maintain a distinction between economic migration and asylum. Failed asylum seekers, whose further asylum-related submissions have been outstanding for at least one year, may apply for permission to work. This is in line with our obligations under the 2003 EU reception conditions directive. We have considered the merits of reducing this threshold, but such a reduction could encourage those who are not genuinely in need of protection to enter the asylum system for economic reasons.
The noble Earl, Lord Sandwich, asked about the assisted voluntary return package, and my noble and learned friend Lord Wallace of Tankerness said that he will write to the noble Earl on this point. In answer to the noble Baroness, Lady Lister, the desirability of the UK as a destination for economic migrants is not in doubt; one only has to look at some of yesterday’s newspapers. The Government have been successful at reducing non-EEA net migration but EEA migration remains high, as those who benefit from EU free movement come here looking for work. We are dealing with the imbalances in European migration. Throwing open access to the labour market as proposed by this amendment would send the wrong signals, and damage the significant progress this Government have made in controlling migration.
My Lords, if they are a genuine asylum seeker, in some cases it will be easy to determine that they have a good case. Once asylum is granted, people are able to work straightaway. However, if the case is difficult, possibly because the asylum seeker has made it difficult, unfortunately it takes considerably more time to determine the application.
As I was saying before my noble friend intervened, we do not believe that it is worth taking a risk with the progress that we have made so far. It is true that some asylum claims take too long to consider, but the Home Office is addressing the issue. In year 2012-13, 78% of claims received a decision within six months.
It may be generally true that unfounded claims can be considered faster than other claims, but they still need to be considered individually, which takes time and resources. Consideration of these claims therefore slows down consideration of genuine claims, at the expense of people who need international protection.
The current policy strikes the right balance. Asylum seekers are provided with support and accommodation if they are destitute. If their asylum claims are undetermined after 12 months for reasons outside their control, they can apply for permission to work. This is a fair and reasonable policy and we should keep to it. In the light of these points, I hope that my noble friend will feel able to withdraw this amendment.
I thank the Minister for his reply and say how terribly disappointed I am, even though we have brought this issue up time and again, that that there is no movement whatever on the part of the Conservative Front Bench. I note that the Labour Front Bench has not intervened in this debate and am also very sad for that; I wish that it would join us in this campaign. I will not test the feeling of the House today, but I propose to bring forward a Private Member’s Bill again in the next Session of Parliament. I therefore, most reluctantly, beg leave to withdraw the amendment.
Amendment 54 withdrawn.
Amendment 55 not moved.
Consideration on Report adjourned.