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General Committees

Debated on Tuesday 13 September 2016

Delegated Legislation Committee

Draft West Midlands Combined Authority (Election of Mayor) Order 2016

The Committee consisted of the following Members:

Chair: Mr Gary Streeter

† Aldous, Peter (Waveney) (Con)

† Blunt, Crispin (Reigate) (Con)

† Campbell, Mr Alan (Tynemouth) (Lab)

† Doyle-Price, Jackie (Thurrock) (Con)

† Foster, Kevin (Torbay) (Con)

† Harris, Rebecca (Castle Point) (Con)

Mahmood, Shabana (Birmingham, Ladywood) (Lab)

† Malthouse, Kit (North West Hampshire) (Con)

† Morris, Anne Marie (Newton Abbot) (Con)

† Morris, Grahame M. (Easington) (Lab)

† Percy, Andrew (Parliamentary Under-Secretary of State for Communities and Local Government)

† Smeeth, Ruth (Stoke-on-Trent North) (Lab)

† Spellar, Mr John (Warley) (Lab)

† Stuart, Ms Gisela (Birmingham, Edgbaston) (Lab)

† Sunak, Rishi (Richmond (Yorks)) (Con)

† Warburton, David (Somerton and Frome) (Con)

Clementine Brown, Committee Clerk

† attended the Committee

Fourth Delegated Legislation Committee

Tuesday 13 September 2016

[Mr Gary Streeter in the Chair]

Draft West Midlands Combined Authority (Election of Mayor) Order 2016

I beg to move,

That the Committee has considered the draft West Midlands Combined Authority (Election of Mayor) Order 2016.

It is a pleasure to serve under your chairmanship, Mr Streeter. The order was laid before the House on 30 June 2016 and, if approved, will create the position of Mayor for the West Midlands Combined Authority, with the first election being held in May 2017. It will also set the first mayoral term at three years, with the next election in 2020, and subsequent four-year terms.

The order is a milestone in the implementation of the devolution deal for the West Midlands, agreed between Government and local leaders on 17 November 2015. It follows the establishment of the West Midlands Combined Authority in June this year, which has, from that point onwards, brought together transport, economic development and regeneration functions across the West Midlands as part of the Government’s ambition and manifesto commitment to devolve more power to local communities.

The devolution agreement announced in November 2015 provided an offer of powers and budgets from Government, on the basis that the area would deliver certain reforms and measures, including adopting a directly elected Mayor covering the whole of the combined authority area. That agreement stated that the Mayor for the West Midlands would be responsible for a consolidated, devolved transport budget and franchised bus services, following the introduction of the necessary primary legislation. Those services will support the combined authority’s delivery of smart and integrated ticketing across the constituent councils—something I am sure local residents will welcome. The Mayor will also take responsibility for an identified key route network of local authority roads and for driving the delivery of housing and improvements to housing stock within the combined authority. The Mayor will, of course, work with the combined authority, which, in turn, will be responsible for the devolved funding to the West Midlands, which will be £36.5 million per year over a 30-year period—that is new money.

I can see that some of the duties and responsibilities of the Mayor in relation to housing stock are useful, but I am not entirely clear about what levers the Mayor will have to implement any of this.

The order is about creating the office of Mayor. We will set out the powers in a further order later in the parliamentary calendar, which will clearly define the exact roles of, and the levers that will be open to, the new Mayor as part of the devolution deal. For today, this narrow order is simply about creating the office of Mayor.

Do the words cart and horse not spring to mind? Given that it is unclear as yet—it has not been thought out and certainly not agreed—what powers, levers and various opportunities will be open to the Mayor, why are the Government going for the election of the Mayor in a few months without knowing what the job will be?

That is not an unusual way of doing things. We are simply creating the office of the Mayor today; the powers and functions will require a further order. All of that will be in place before we proceed to the election. The West Midlands Combined Authority consulted on the proposed powers only over the summer. That consultation concluded on, I think, 21 August and there is now a period in which the Department will consider it and then lay a further order. Before the election period commences, the full powers order will have been laid before the House and will need to be approved.

I was outlining the role that the combined authority will have and the powers it will exercise in relation to the Mayor. I mentioned the £36.5 million of gain share funding. That is new Government funding for the West Midlands over 30 years, responsibility for which will rest with the combined authority. We will also devolve 19-plus adult skills funding to the combined authority and look to co-design an employment support package for harder-to-help claimants, as well as a business support partnership. In delivering the full range of commitments in the devolution deal, the Secretary of State intends to make those further orders to which I have just referred, subject to statutory requirements and parliamentary approval.

As I have said, this relatively narrow order establishes the position of Mayor for the West Midlands, sets the dates of elections for the first and subsequent terms, and defines the duration of those terms. As required, all the constituent councils and the combined authority have consented to the order being made, the Government have laid the draft order having considered the statutory requirements, and we are now seeking Parliament’s approval of the order.

The order is about delivering on our promise to devolve power to local communities and to empower them to set their own policy agendas. The Mayor will be expected to—and indeed will—work closely with the local leaders who sit on the combined authority board, and together they will drive forward the economic opportunities presented by devolution. The Mayor will act as the chairman, or chairwoman, of the combined authority, providing a single, nationally prominent voice for the area that helps to drive forward the devolution agenda.

We have already made several similar orders in trying to progress our devolution agenda. An order establishing the position of Mayor of Greater Manchester was made in March this year, and orders have also been made to establish Mayors of the Liverpool city region, the Tees Valley and the Sheffield city region. I signed the Sheffield city region and Tees Valley orders shortly after being appointed as Minister. Elections are scheduled to be held in all those areas on 4 May next year.

In conclusion—welcome words in any debate on a statutory instrument—if the draft order is approved, it will open the way for full implementation of the devolution deal that has been agreed between the Government and local leaders. It is therefore a significant milestone in the devolution journey, and we hope that it will lead to greater prosperity, a more balanced economy, and economic success across the West Midlands and the country. We are making good on our pledge to seek to devolve more power to local communities.

It is a pleasure to serve under your chairmanship, Mr Streeter. As the Minister has already indicated, the order is narrow; it deals with the appointment of the Mayor, the area covered by the order, the date of the elections and the period of office. However, there are some matters that the Committee should consider, and I would welcome some clarification from him.

As the Minister has already indicated, we have discussed the statutory instruments for the election of Mayors for the Liverpool city region, Manchester, the Sheffield city region and the Tees Valley Combined Authority. I am conscious that the terms of the order are narrow and apply specifically to the West Midlands, so I am sure that hon. Members will be relieved to hear that I will not repeat anything that I have said previously.

Thank you, Mr Streeter. It is important that I point out that the Labour party firmly supports the idea of devolution, and has done in both government and opposition. We back calls and support measures to devolve meaningful powers and appropriate resources to local communities. For such devolution to work, it is essential that local government have both political accountability—referred to in the order—and financial capability, which is not covered by the order, to ensure that the powers can be adequately exercised. My concern—this has been pointed out by my right hon. and hon. Friends—is that without sufficient resources the Government’s devolution proposals will simply mean an unpopular top-down restructuring of local government without any meaningful changes for our constituents.

The Labour party does not oppose elected Mayors in principle but it strongly objects to their being imposed as a prerequisite of any devolution deal. It has been widely reported in the press that the new Prime Minister is not so closely wedded to the idea of the imposition of Mayors as a precondition as her predecessor was. Will the Minister, in his response, clarify the Government’s policy as to whether the requirement of an elected Mayor is to be dropped from future deals and whether the new arrangements will be applied retrospectively? Will a combined authority that previously had a Mayor imposed be able to implement an alternative government structure should that be desired? That is relevant to the order because, if there is a subsequent change of heart, or some application of flexibility, we need to know whether that flexibility could be applied retrospectively in areas such as the West Midlands.

I also note the concerns that have been expressed locally regarding the remit and powers of the position of Mayor in the West Midlands, which has been described variously, including as “a toothless tiger” by the police and crime commissioner.

The West Midlands Combined Authority has a strong export and economic base but it faces challenges in the years ahead, particularly as we navigate the uncertainties caused by Brexit. The west midlands has the reputation of being the workshop of the country. It is the third largest exporting region. It is strategically important, as home to important companies including Jaguar Land Rover, BMW and Rolls-Royce. More than 300,000 people are employed in manufacturing, many of them members of my union.

The West Midlands Combined Authority has, in the past, been unfairly referred to as “Greater Birmingham”. Given the terms of the order, that description perhaps is inaccurate and understates the size of the authority. It will be a huge combined authority with a population of more than 4 million, covering the metropolitan areas of Birmingham, Wolverhampton, Coventry, Dudley, Sandwell, Solihull and Walsall and some of the neighbouring more rural areas. With North Warwickshire, Rugby, Stafford, Shropshire and Warwickshire councils all set to join, it will become one of the largest of the new combined authorities.

Some of my right hon. and hon. Friends in the west midlands and, in particular, my right hon. Friends the Members for Warley and for Birmingham, Edgbaston, have raised concerns that the expansion might significantly alter the make-up of the proposed combined authority, which was originally intended to be a natural amalgamation of the seven concurrent metropolitan authorities. I took the trouble to look back at the 2015 Conservative manifesto and the mandate for the changes and proposals specifically refers to larger cities, so I would welcome some clarification from the Minister on that.

There are concerns, particularly from some Government Members, that the arrangement may lead to a disparity in the allocation of funding between the urban and rural counties of the combined authorities. In instances where the scope of the prospective combined authority has significantly changed since a deal was signed—originally it consisted of the seven concurrent metropolitan authorities, but it has since been extended to cover the areas set out in the statutory instrument—will there be an opportunity to revisit that if the order is passed?

We should take every opportunity to involve the public in the devolution process. Unfortunately, it seems that the Government do not share my party’s commitment, as significant concerns have been raised both nationally and in the West Midlands regarding the timing of the first mayoral election in May 2017. It is a significant issue if we believe in having a legitimate mandate.

The terribly low turnouts—sometimes 20% or less—for the police and crime commissioners elections have raised concerns about the legitimacy of such mandates. I hope the Minister and his advisers have considered that in proposing in the order an election in May 2017, as that may well affect turnout adversely. The election falls in an off-year for local council elections in the area covered by the order. Turnout may well be considerably lower than hoped for and may negatively affect the Mayor’s mandate once elected. Can the Minister confirm whether such local factors were considered when the decision to have the election in May was finally approved and drafted into the order?

I know the Minister is new in his post and I hope he makes this one of his priorities. I also hope he will work with me and the Opposition to deliver effective changes for local government and, in particular, for the people of the West Midlands.

I welcome the Minister to his post. I had hoped for better legislation on this outing, given our excellent record in writing the electoral provisions for the Turks and Caicos Islands, which enabled them to return to self-government.

The draft West Midlands Combined Authority (Election of Mayor) Order 2016 should, frankly, be renamed the “Cart Before Horse Supplementary Provisions Order”, or perhaps the debate should be moved to Westminster Hall as the George Osborne memorial debate, as this is driven by the obsession of a politically driven Chancellor. Many of the changes in the order—I will deal with them in detail—are driven not by effective devolution or a desire to make that work properly, but by political imperative. One would expect no more from a Minister who, according to the right hon. Member for Sheffield, Hallam (Mr Clegg), refused to build any more council houses because they just make Labour voters. The new Administration should get back to looking at what would work and what is in the interests of the West Midlands, as well as to talking to the combined authority.

In June, my hon. Friend the Member for Heywood and Middleton (Liz McInnes), speaking from the Front Bench, rightly pointed out that the decision to impose metro mayors on local areas and combined authorities as a precondition of devolution was “wrong and anti-democratic”. The Minister pointed out the £36 million per annum available to the local authorities. I do not criticise the local authority leaders, who have faced billions being taken out of west midlands local authority budgets in aggregate—not just from local council budgets; the police and fire services, which may subsequently come under the Mayor’s remit, have suffered the biggest cuts of any such services in the country. I do not blame those leaders. That sum is frankly a pittance, but I am not surprised that they signed up to that in the face of unremitting attack and pressure.

More than that—I do not think that the Minister addressed this—the National Audit Office published a report in April on English devolution that cast doubt on the West Midlands deal, suggesting that the plans for a devolved so-called super-authority are “untested” and “more complex” than those for the apparently similar deal in Greater Manchester. The NAO said:

“The first devolution deals, in Greater Manchester and Cornwall, were based on areas with established institutional arrangements and coterminous local enterprise partnership areas. More recent deals such as in the West Midlands set up more complex and untested arrangements.”

It went on:

“The arrangements are experimental and unlikely to work as intended in all areas and for all functions and services devolved.”

I come back to the point that we are looking at an accelerated election—I will come on to why that is undesirable, particularly given the dates—without the powers and details having been sorted out in advance.

That brings us to the odd arrangements for the ballot. The explanatory memorandum states:

“Holding the second mayoral election in 2020”—

that is, after three years have elapsed from 2017—

“will ensure that second and subsequent mayoral elections…are aligned with the majority of local council elections”—

absolutely right—

“and Police and Crime Commissioner elections”—

that is questionable, because there is talk of combining the functions—

“supporting improved efficiency and effectiveness of elections.”

That is absolutely right, just in administrative terms, let alone in terms of political credibility.

If that is true in 2020, it will be as true in 2018. Metropolitan authorities right across the country do not have elections in 2017, so there will have to be a whole separate mechanism for the mayoral elections—postal votes, polling stations and so on—all at significant extra cost. Will the Department bear that extra cost, or does it expect the hard-pressed boroughs, with much diminished central Government support, to bear it? The council tax payers of the West Midlands will want to know the answer to that.

My hon. Friend the Member for Easington was, in his usual manner, far too charitable about the turnout that we might expect in those elections. We do not have to speculate about what will happen, because we have the example of the police and crime commissioner elections. The first police and crime commissioner elections were, bizarrely, held in November. I understand that that was at the behest of the Liberal Democrats, who did not want to have the elections on the same day as regular elections, because they were afraid that Labour and Conservative voters would turn out. That did not do the Liberal Democrats much good, but that was the reason given at the time. Even so, the bizarre decision to have the election in 2012 led in the West Midlands Combined Authority area, with which we are concerned for the purpose of the order, to a turnout of 11.96%. Regrettably—he was a great police and crime commissioner and had a terrific reputation in all areas and among all parties—Bob Jones died suddenly and we had a by-election in 2014, for which the turnout was 10.41%. That will not be seen as a ringing endorsement of the process.

Leaving to one side the police and crime commissioner elections, is this the way to do business? We know that, when we have combined elections, we will probably be looking at percentage turnouts in the mid-20s or low 30s across the authority. Therefore, unless the only reason is political, that is an argument for having the election—if we are to have it—in 2018 rather than in 2017.

Along with the fact that the powers have not been defined, the area has not been defined either. We are not clear at what stage Shropshire or the rest of Warwickshire might be incorporated. I am not sure that there is an immediate logic to that. There is a political logic, and it is unfortunate if the Government are playing politics rather than considering what will work on the ground. However, quite apart from that, we are basically being asked to buy a pig in a poke because we do not know what the final authority will be and whether the existing boroughs will agree to it—I accept that they have to agree. We come back to the same dilemma as that posed by the then Chancellor of the Exchequer: “I have taken all this money off you. I am collapsing your services. I will give a bit back if you do it my way; otherwise it’s the highway”. We can readily see that that sort of pressure will be put on the authorities. I would not blame them if they acceded to it, but that is not the way to do business.

We should also remember, while talking about the democratic side of it all, that nearly half of those who will be in the new authority have already comprehensively and decisively, in spite of the best efforts of my right hon. Friend the Member for Birmingham, Edgbaston, rejected having an elected Mayor. In the referendum, Birmingham voted 57.8% against and 42.2% in favour of having an elected Mayor. Coventry was even more emphatic in its decision, with 63.6% to 36.4%. I know that the Prime Minister, and her adviser, are great fans of Joseph Chamberlain. Many people cite him as having been a dynamic Mayor, but they forget that he was not directly elected as such. He was an elected ward councillor, and on the day he was so elected he became the Mayor and, therefore, effectively the leader of the council. It was his control of the political machine that gave him that authority—his inspiring genius—not his having been directly elected as Mayor. There is no argument to say, “Let’s go back to those dynamic civic leaders like Joseph Chamberlain. They got elected in a roughly similar way to the elected Mayors now”.

At the end of it all, I merely say to the Minister, who is part of an Administration that, with the departure of the right hon. Member for Witney (Mr Cameron)—and who knows what will happen to the seat of the right hon. Member for Tatton (Mr Osborne)—are already questioning a great number of the previous Administration’s policies, that this is one that they should consider again. That is why I will vote against the order.

I thank Labour Members for their positive contributions. I take the shadow Minister at his word: I will be more than happy if he wants to work with us on our devolution agenda. We should, across the House, recognise, particularly after the referendum, that there is a feeling out there that people do not like the way they are governed. They feel that power is too centralised; they want more control over their lives and devolution is one way of giving them that. I thank him for outlining the Opposition’s support. The measure appears to be popular with certain Labour Members—they all seem to be scrabbling to become a Mayor somewhere.

I recognise the Minister’s new approach and give him credit for it, but I would like to point out, with respect, that particularly in rural areas, many of which are represented by Government Members, there are concerns that the best model for devolution is not necessarily a mayoral one. That is certainly a conclusion that has been reached in my own region. Will the Minister work with me to find an effective means, other than an imposed elected Mayor?

I will deal directly with that point in a moment, but I just want to deal with a couple of other points that the shadow Minister raised. On the geography of the area, it is absolutely clear that the seven authorities that signed the deal are the authorities he referred to. If the non-constituent council members wish to join at a later stage, that will require the approval of those local communities, the local council and the combined authority. It will also require a further order to be laid here. We are absolutely clear that the seven authorities that originally signed the deal are the constituent councils of the authority, and they will elect the Mayor next May.

On the timing—the right hon. Member for Warley also raised that issue—the analogy between next May’s elections and the PCC elections does not follow necessarily. That election was in November and turnout was very low. I think that was because of the timing. May is the usual time for elections in this country. Although there are not elections for the constituent councils on those days, there are elections for mayors in the other areas where we are delivering devolution deals. It is a fine balance. We want to ensure that there is democratic accountability in the process. Given that the West Midlands has already received its first gain share payments, which the combined authority is responsible for with the newly elected Mayor, on balance, we have decided that next May is the best time for an election.

In the case of Birmingham, which is the largest authority, 2017 is the one year when it is not having local elections. We used to have one-in-three local elections. Following the Kerslake review, we will have an all-out election in 2018 on new boundaries. Therefore, 2017 is just about the worst year to have that election in Birmingham.

We have looked closely at the matter. There are advantages and disadvantages, but the fact remains that, unless we get the Mayor elected, we cannot confer those powers that we all want to see conferred on the Mayor. It will be a three-year term, with the following election in 2020, which I assume is not an off-year for Birmingham. It is important we get the deal in place and that we do not wait another year before we elect the Mayor.

The right hon. Lady and the right hon. Member for Warley asked what levers will be available on housing. We have been clear that those are the powers currently available to the Homes and Communities Agency. The Mayor will also be given certain powers over the planning process. It is important that we have those things established as swiftly as possible, and that will all be laid out in a further order.

My right hon. Friend the Member for Birmingham, Edgbaston raised a significant point. The explanatory notes say that the reason for having a three-year term from 2017 is to coincide with the elections in 2020. She will correct me if I am wrong, but if the all-out election is in 2018, there will be a succession of all-out elections every four years, unless the wards will be three-member wards. The Department has set out its justification for having a three-year term and thereafter coinciding with the cycle. For a massive chunk—I do not know what the electorate is, but it is just over 1 million people in Birmingham—it will always be out of sync.

There will of course be a general election in 2020, which is the election with the highest turnout. We want to get the deal in place as quickly as possible. It is important that the powers are conferred on the Mayor as quickly as possible. I hope that the right hon. Gentleman, as a local Member of Parliament, would not want a further year to pass before the Mayor takes the powers and starts to deliver on those elements that will be devolved to them. We have looked very closely at the matter, May is the normal time for elections. We are not repeating the PCC experience by having an election in November. It is May, which is the usual month for elections.

On this particular point, if there is a general election in 2020—the Act now specifies a five-year term—and if there is a four-year term for the Mayor, then forever and a day, once we are past 2020, those will be out of sync.

The fact is that it is not possible, given the timing of elections, with some authorities on thirds—

Not just in this area—I am talking about devolution deals across the country—there will be some counties that are on thirds, some that include county councils and some that have districts that are on all-out, so it is not possible to create a bespoke election day that will satisfy all the interests the right hon. Gentleman has raised. We have been clear that 2017 is the date when we want to introduce a number of mayoral elections throughout the UK, making good on the devolution deals that have been signed. Remember that his local authorities and local constituent councils have consented to this and to having a mayoral election next year. The timing will not, as I have said, be as it was with the PCC elections; the election will take place during the ordinary period of an election.

On the other points raised by the shadow Minister, I think I have dealt with the particular planning powers and competences that the new Mayor will take over from the HCA. I want to deal directly with his challenge on elected mayors. We have been clear that, where deals have already been negotiated, and those deals include the West Midlands and the north-east, which had already consented to a directly elected Mayor, those deals should proceed on the basis of what was agreed. I thought long and hard over the summer about the issue of mayors. Having my accent, if we dropped mayors, it would perhaps be a little easier for me because “mayors” is very difficult to say with a Hull accent. I thought long and hard about the matter over the summer. It is very difficult to design a system that does not include a Mayor and gives the level of accountability that we require and expect, particularly given the significant powers that will be conferred as part of these devolution deals. We have been clear that we remain open to working with local authorities on deals and it is for them to come up with robust governance structures, which we will consider. We are also clear that, if a local community wants the scale of devolution that has been offered, the extra money and the extra powers that are part of the deals that have already been negotiated and that the north-east was a signatory to, we expect an elected Mayor to be part of that, as the strongest form of accountability.

I regret what has happened with the north-east, but I hope that those councils will continue to work with Government. As the Minister responsible, I am open to continuing to work with those authorities—

On the West Midlands, retrospection and whether these changes would apply to the West Midlands, or anywhere else, I respectfully point out to the Minister that it was the Tees Valley deal that was signed up to, not the North East Combined Authority deal, which was rejected.

I am afraid that that is not wholly the case. All the local authorities in the north-east consented to the mayoral element as part of the deal they signed. They consented to that—they were required to consent before we could move any further forward. On that issue, we are clear that deals that were negotiated must be completed as agreed.

The right hon. Member for Warley used the term, “forced”. We have not forced anybody to agree to this. If members do not wish to be part of this, they do not have to be. The constituent councils can choose not to be. Local councils have obviously signed up. I think that I have dealt with his concern about the issue of a Mayor—no one has yet provided me with an alternative structure in which there is strong accountability and a strong central figure. We have also dealt with the election issue and the criticisms of the PCC elections, which are not relevant, given the timing of these elections.

As for the area, again, as I have made absolutely clear, if this were to expand beyond the seven authorities, a further order would be required here in Parliament, as well as the consent of the combined authority and of those non-constituent councils that wished to become full members of the combined authority. Clearly, nothing would be forced on a local council unless it consents to it and wishes to be a part of the process.

With that, I think I have dealt with all the concerns expressed by the Members who have spoken, including the shadow Minister. We believe that the draft order represents the right deal for the West Midlands. We will make good on the deal signed between the Government and the West Midlands Combined Authority and on our pledge to devolve power to local communities.

Question put.


That the Committee has considered the draft West Midlands Combined Authority (Election of Mayor) Order 2016.

Committee rose.

Draft Human Trafficking and Exploitation (Scotland) Act 2015 (Consequential provisions and modifications) Order 2016

The Committee consisted of the following Members:

Chair: Steve McCabe

Alexander, Heidi (Lewisham East) (Lab)

† Anderson, Mr David (Blaydon) (Lab)

† Bridgen, Andrew (North West Leicestershire) (Con)

Bryant, Chris (Rhondda) (Lab)

† Crawley, Angela (Lanark and Hamilton East) (SNP)

† Davies, Dr James (Vale of Clwyd) (Con)

† Eagle, Maria (Garston and Halewood) (Lab)

† Ellis, Michael (Deputy Leader of the House of Commons)

† Hollinrake, Kevin (Thirsk and Malton) (Con)

† Jenkyns, Andrea (Morley and Outwood) (Con)

† McLaughlin, Anne (Glasgow North East) (SNP)

† Murray, Ian (Edinburgh South) (Lab)

† Opperman, Guy (Lord Commissioner of Her Majesty’s Treasury)

† Phillips, Stephen (Sleaford and North Hykeham) (Con)

† Robinson, Mary (Cheadle) (Con)

† Smith, Royston (Southampton, Itchen) (Con)

† Tami, Mark (Alyn and Deeside) (Lab)

† Tomlinson, Michael (Mid Dorset and North Poole) (Con)

Joanna Welham, Peter Stam, Committee Clerks

† attended the Committee

Fifth Delegated Legislation Committee

Tuesday 13 September 2016

[Steve McCabe in the Chair]

Draft Human Trafficking and Exploitation (Scotland) Act 2015 (Consequential Provisions and Modifications) Order 2016

I beg to move,

That the Committee has considered the draft Human Trafficking and Exploitation (Scotland) Act 2015 (Consequential Provisions and Modifications) Order 2016.

May I say what a pleasure it is to serve under your chairmanship, Mr McCabe? The draft order was laid before the House on 11 July 2016. If it pleases the Committee, I will briefly put the order in context before setting out what it does. I think that it will be highly uncontroversial, given that there is unlikely to be much air between the parties on the matter, but it is important.

The order is made under section 104 of the Scotland Act 1998, which allows for necessary or expedient changes to legislation in consequence of an Act of the Scottish Parliament. That is what has happened here: the Scottish Parliament has passed an Act and we are seeking to make expedient changes for its operation in England. The order is made in consequence of the Human Trafficking and Exploitation (Scotland) Act 2015, which was passed by the Scottish Parliament on 1 October 2015 and received Her Majesty’s Assent on 4 November. The Act consolidates and strengthens the existing criminal law in Scotland against human trafficking and exploitation, and it enhances the status and support for victims of those heinous crimes.

The 2015 Act that was passed by the Scottish Parliament is in six parts, which I will address briefly. Part 1 introduces two new criminal offences: one is a single offence of human trafficking for all types of exploitation; the other is a new offence of slavery, servitude and forced or compulsory labour. Those replace existing criminal offences in Scots law that deal with similar conduct. The maximum penalty of 14 years for human trafficking has now been increased to life imprisonment.

Part 2 provides for the support and assistance to which adult and child victims of human trafficking are entitled. Part 3 deals with the confiscation of property and the proceeds of crime. Part 4 introduces two new prevention and risk orders, as they are called, in Scotland: the trafficking and exploitation prevention orders, and the trafficking and exploitation risk orders. The Act also places a duty on Scottish Ministers to prepare a trafficking and exploitation strategy.

This order updates existing UK legislation to give the Scottish Parliament’s 2015 Act full effect; to reflect the new Scottish offences; to ensure that the relevant powers—this is a key point—of UK immigration officers are updated in line with what has happened under the Act in Scotland, so that they are able to detain vehicles, ships and aircraft when a person or persons have been arrested for the offence of human trafficking; and to reflect the new powers conferred on the police under the 2015 Act, which are welcome.

The proposed changes are consequential and have not raised any objections. For example, the order updates references to existing Scottish offences in relevant legislation applying in other parts of the UK. These changes, which are primarily to the Modern Slavery Act 2015 but also to the Immigration Act 1971 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, will refer to the new single offence of human trafficking and the new offence of slavery, servitude and forced or compulsory labour in Scottish legislation. They will then allow the repeal of existing offences.

The order will enable English and Welsh courts—it applies, of course, to England and Wales—to enforce the two new Scottish trafficking and exploitation prevention and risk orders. That will ensure a joined-up approach and robust enforcement, which is what we all want for such serious offences. It will also implement the policy intention of some aspects of the Modern Slavery Act that relate to Scotland, by ensuring the scope of the UK’s independent anti-slavery commissioner’s work, and the duty of large companies to report on transparency and supply chains, are both updated so that, in Scotland, these flow from the new Scottish offences.

Finally, the UK and Scottish Governments—Ministers and officials—have been working closely together, as would be expected, to ensure that the order makes the necessary amendments to UK legislation in consequence of the Scottish Parliament’s 2015 Act. There is mutual respect here and I believe that the order demonstrates the UK Government’s continued and very important commitment to working with the Scottish Government to make the devolution settlement work.

I hope that you will agree, Mr McCabe, that the order is an appropriate use of the powers in the Scotland Act 1998, and that the practical result is very much to be welcomed. I commend the order to the Committee.

It is a pleasure to serve under your chairmanship, Mr McCabe. I welcome the changes made in article 2 of this statutory instrument, which confer similar powers afforded to constables under section 13 of the Human Trafficking and Exploitation (Scotland) Act 2015 to immigration officers not below the rank of chief immigration officer. As far as article 3 is concerned, I accept the consequential modifications to the primary legislation in consequence of the creation of the two new statutory offences that the Minister has spoken about.

I hope that the Minister will be able to calm my fears and those of my Labour colleagues and other MSPs in Holyrood. Their concerns were expressed in a number of amendments that were tabled about the definition of slavery, servitude and forced or compulsory labour. My information from them is that those concerns remain, and I will come back to that in a moment.

I appreciate the will that the Scottish Government have shown to address concerns raised at stage 1—namely, the concern that the word “travel” would require a cross-border element, and that the emphasis on that word did not align with Scotland’s international obligations, including those in the EU trafficking directive, which does not place the same, or similar, emphasis on travel. Thankfully, as a result of these concerns, the Justice Committee asked the Government to look again at the definition to see whether it could be better aligned with international obligations. It also suggested that the Government consider the wording of the definition in relation to the word “travel”.

To be fair to the Scottish Government—I will always be fair to the Scottish Government—they took heed of this advice and brought forward amendments at stage 2 to remove the need to establish that a victim’s travel had been arranged or facilitated simply to allow this to happen. Instead they reframed the offence to criminalise certain defined and listed relevant actions.

Various amendments tabled by my MSP colleagues—in particular, Jenny Marra MSP—were denied, despite the support of every MSP in the Chamber other than those from the Scottish National party. I hope that amendment 12, in particular, does not come back to haunt the Scottish Government. It would have ensured that section 4 of the Scottish Parliament’s 2015 Act, which does not contain any definition of slavery, servitude and forced or compulsory labour, was capable of effectively prosecuting those who exploit children. Good examples that have been raised with me of the crimes that might not be covered include claiming child benefit fraudulently and forcing children to shoplift. I hope that the Minister will allay my fears on that.

The Scottish Government would also have shown an element of compassion if they had accepted amendment 16, which would have required them to publish guidance on the provision of support and assistance to victims of human trafficking offences. Again, that had the support of every MSP in the Chamber with the exception of SNP MSPs.

Overall, the Bill was an important one that had cross-party support at Holyrood. It is fair to say that a variety of amendments, some of which I have mentioned, possibly did not receive the consideration that they should have received at the time. Having raised those concerns, we will not oppose this statutory instrument today.

As has been stated, the key provisions of this order ultimately deal with tackling crime as a joint responsibility of the Scottish and UK Governments, incorporating joined-up working and best practice. The fact is that victims of human trafficking and exploitation face horrendous suffering and there is no place for it in modern society. The new legislation to which the order relates will create data protections and increase the maximum penalty for those who perpetrate this serious offence from 14 years to life imprisonment. That sends out an incredibly strong signal that Scotland and the UK is a hostile place for traffickers and that we will not tolerate trafficking and exploitation.

We will continue to work in partnership on international and UK levels. The Scottish Government will always aim to make Scotland a hostile place for traffickers and to identify better and support potential and confirmed victims. I welcome the order.

I very much welcome what the hon. Member for Lanark and Hamilton East said. It is reassuring to see cross-party support on something as important as this—there is very little controversy about the measure, and rightly so. We need to get it right and the authorities in Scotland have clearly worked hard to do so, in consultation with many.

I heard the shadow Minister’s representations on definitions and consultations. With regard to wider consultation, the reality is that the Scottish Parliament’s 2015 Act was the subject of numerous reports, inquiries and consultations. The Scottish Government drew on the analysis and recommendations in all those reports to inform the Act. I can assure him that they have taken the same approach with this order.

As for the hon. Gentleman’s point about the definition of the word “travel”, we are content that it is compliant with international obligations. The matters have been perused by the appropriate authorities, and the Scottish Government have indicated to the UK Government that they are content and that it meets international obligations.

I accept that the point about travel has been resolved and that the Government acted on the concerns that were raised. The issue was more about the definition of

“slavery, servitude and forced or compulsory labour.”

I hope that the Minister or his civil servants will advise that there is a definition in this place that covers the same things in Scotland, but I just wanted to make sure that we do not leave a loophole that could be exploited.

I am grateful to the hon. Gentleman for exploring the matter, because clearly it is crucial. Lawyers—I was one before I came to this place—will always look for loopholes where they can find them and definitions have to be very carefully considered and tightly demarcated, otherwise they provide undesirable opportunities to exploit any lacunae that might exist within them. I am very confident that the authorities have considered that carefully and that legal representations have been sought. I am assured that numerous reports, inquiries and consultations have taken place, and I can only assume that they will have included legal representations. I hope that reassures the hon. Gentleman.

Question put and agreed to.

Committee rose.