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House of Commons Hansard
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Public Bill Committees
16 June 2020

Finance Bill (Seventh sitting)

The Committee consisted of the following Members:

Chairs: Siobhain McDonagh, † Andrew Rosindell

† Badenoch, Kemi (Exchequer Secretary to the Treasury)

† Baldwin, Harriett (West Worcestershire) (Con)

† Browne, Anthony (South Cambridgeshire) (Con)

† Buchan, Felicity (Kensington) (Con)

† Cates, Miriam (Penistone and Stocksbridge) (Con)

† Flynn, Stephen (Aberdeen South) (SNP)

† Jones, Andrew (Harrogate and Knaresborough) (Con)

† Millar, Robin (Aberconwy) (Con)

† Norman, Jesse (Financial Secretary to the Treasury)

† Oppong-Asare, Abena (Erith and Thamesmead) (Lab)

† Phillipson, Bridget (Houghton and Sunderland South) (Lab)

† Ribeiro-Addy, Bell (Streatham) (Lab)

† Rutley, David (Lord Commissioner of Her Majesty's Treasury)

† Smith, Jeff (Manchester, Withington) (Lab)

† Streeting, Wes (Ilford North) (Lab)

† Thewliss, Alison (Glasgow Central) (SNP)

† Williams, Craig (Montgomeryshire) (Con)

Chris Stanton, Kenneth Fox, Johanna Sallberg, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 16 June 2020

(Morning)

[Andrew Rosindell in the Chair]

Finance Bill

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Good morning, everyone. As you are aware, social distancing guidelines are in place, so I remind all Members to sit only in marked seats. Tea and coffee are not permitted in Committee Rooms. Will all Members please ensure that mobile phones are turned off and switched to silent mode during Committee meetings? The Hansard reporters will be grateful if Members email any electronic copies of their speaking notes to hansardnotes@parliament.uk.

We now continue line-by-line scrutiny of the Bill.

Clause 72

Excluded property etc

Question proposed, That the clause stand part of the Bill.

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With this it will be convenient to discuss clause 73 stand part. I call the Minister, Kemi Badenoch. [Interruption.] Sorry—Jesse Norman.

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Thank you, Mr Rosindell. My hon. Friend and I are sharing the duties on the Front Bench today, and it is I who rises to speak to clauses 72 and 73. The clauses make changes to ensure that additions of assets made by UK domiciled or deemed-domiciled individuals to trusts made when they were non-domiciled cannot be treated as excluded property. As that explanation indicates, it is a somewhat technical measure, which means that such additions are within the scope of inheritance tax.

The clauses have been introduced following a decision by the Court of Appeal. To give some background, the inheritance tax treatment of trusts depends on the domicile status of the person setting up the trust when it was made, known as the settlor, and the location of the assets. If the settlor is UK domiciled, inheritance tax is chargeable on their worldwide assets. By contrast, non-domiciled individuals do not pay inheritance tax on assets in trusts situated outside the UK.

The long-established position of Her Majesty’s Revenue and Customs has been that a settlement is made when a trust is created, and that a settlement is also made when assets are added to that trust. That means that assets would be within the scope of inheritance tax if they were added to a trust by an individual who is currently UK domiciled, even if the trust was set up when the same individual was non-UK domiciled. The Court of Appeal decision created uncertainty by ruling that a settlement was made only when assets were first added to the trust. That ruling meant that the domicile of the settlor for later additions to the trust would not matter. In turn, all subsequent settlements of assets into the trust would not be liable for inheritance tax in the UK. The measure was announced in the autumn Budget 2018, and stakeholders have had nearly two years’ notice of the change.

In July 2019, the draft legislation was published, which provided an opportunity to give feedback to Her Majesty’s Revenue and Customs. HMRC received feedback from a range of bodies including the Chartered Institute of Taxation, the Society of Trust and Estate Practitioners, the Institute of Chartered Accountants in England and Wales, the Tax Faculty and PricewaterhouseCoopers by the deadline for responses. HMRC then made a number of amendments based on the feedback provided, and stakeholders have since provided further feedback regarding the legislation.

Together, the measures will confirm that additions of non-UK assets by UK domiciled or deemed-domiciled individuals to trusts are chargeable for inheritance tax, even when the trust was originally set up while that individual was non-domiciled. The measures will also ensure that transfers between trusts made by a UK-domiciled individual are chargeable for inheritance tax. That will affect UK-domiciled or deemed-domiciled individuals who created an offshore trust when they were previously non-UK domiciled and have subsequently made additions of assets to that trust.

Although the measure will apply only to a small number of individuals, the tax saving for them could have been significant, and there have been claims for tax repayments as a result of the case. The clauses will ensure that the legislation is applied as intended and all tax is collected as expected. The changes introduced by the clauses will add clarity and remove any doubt from the legislation by confirming HMRC’s published and widely accepted views. I commend the clauses to the Committee.

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It is a pleasure to see you back in the Chair, Mr Rosindell. We regard the measure as a welcome imposition to provide for a fairer tax system. HMRC figures indicate that the number of individuals who live in the UK but pay no tax on their offshore income has fallen, with the number of UK-based individuals with non-domiciled tax status falling by 13% on the previous year. HMRC believes that that is explained by individuals switching to domiciled status and other individuals leaving the UK tax system. Thus the clauses reflect that particular change. However, there are some issues reported by stakeholders.

Responding to clauses 72 and 73, the Chartered Institute of Taxation states that among its members transfers between trusts are most commonly undertaken for family or related reasons, and without any intention to avoid inheritance tax or to circumvent the excluded property rules. It argues that the main thrust of the legislation should be to limit additions by the settlor after they become deemed or actually UK domiciled.

The institute expresses concern about some scenarios in which property could inadvertently be brought into the scope of inheritance tax because a change is made to a trust, not an addition of assets, that could be treated as a resettlement, or trustees make a transfer between two settlements, both set up when the settlor was non-domiciled. In neither case is inheritance tax avoidance being attempted. There are some situations where trustees, not the settlor, are involved in transferring between two settlements, both set up when the settler is foreign domiciled, or when the second is set up by the trustees of the first. We believe that there should be no loss of excluded property status because of the changing status of the settlor. I would be interested to hear the Minister’s assessment of those concerns.

Secondly, both the Institute of Chartered Accountants in England and Wales and the London Society of Chartered Accountants were critical of the potential for retrospection. The former argued that if clause 72 is

“to be treated as always having been in force, this will result in unexpected IHT charges arising as a result of past events.”

The institute says:

“Given that the clause is not countering avoidance but is changing long-standing rules that are familiar to trustees and are clearly stated in the existing law…new legislation on this point should not affect events that happened earlier than the measure is enacted, ie Royal Assent.”

Similarly, the London Society of Chartered Accountants believes that this

“clause changes the IHT status of trusts to which assets are added. This change will have effect from the time that the trust was set up, so is retrospective. However, as the clause is not an anti-avoidance measure but is just a change to the law, retrospection is not appropriate and the clause therefore does not follow Parliamentary convention.”

I understand that these comments presume that the individuals in question do not seek to avoid tax when transferring assets between trusts, but I would be grateful if the Minister responded to these concerns.

Last, I heard the Minister’s comments, but the Institute of Chartered Accountants in England and Wales has raised the lack of a consultation period or of any follow-up, despite being led to believe that that would happen after a meeting with HMRC in November 2018. It reported that

“trustees of offshore trusts are unlikely to have considered these changes in the necessary detail”

and had concerns that there would be

“insufficient time for trustees to take advice to help them understand the full implications and…whether they want to take any action to unwind structures.”

In working with the intention of the measures the Government have introduced, I would be grateful if the Minister responded to those concerns and addressed the lack of a consultation period.

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I am grateful to the hon. Lady for her questions and for her support on this technical but important measure.

The hon. Lady asks about unanticipated negative effects. I am happy to put on the record that HMRC has given reassurance that it will adopt a cautious approach if there is a case in which a taxpayer may accidently taint a trust that contains a mixture of excluded and non-excluded property. Hopefully, that will address many of the concerns about unexpected consequences that she touched on.

The hon. Lady asks whether this measure is retrospective. As she will be aware, we do not believe that it is retrospective. The key point is that HMRC’s application of the legislation, and therefore the legal position, was widely accepted in practice before the Court of Appeal decision put that position in doubt. The effect of it is going to be that individuals have been liable to the tax owed in the spirit of the legislation. Formally, clause 72 is not retrospective because it does not create any new changes pre-Royal Assent, but we recognise the concern that is raised. It is true that in some cases there may be what I would describe retroactable, and not retrospective, effects. That is precisely because HMRC and the Government are seeking to restore what might be referred to as the position as it had always been understood previously. That is the intended effect of the legislation.

The hon. Lady asks whether there should have been more consultation. As I outlined in my speech, the Government have had this in the public domain for a considerable period and discussed it, with plenty of occasion for people to conform their tax affairs to what is, after all, only a reaffirmation of existing tax law through legislation. There is also the counterpart problem, which the hon. Lady will understand: if the clause is not introduced now, it may allow opportunities for individuals to avoid paying inheritance tax on assets they put into trust or on properties transferred between trusts. I am sure she would not wish to abet or support those opportunities and that she would wish, overall, to join us in protecting revenue and providing certainty to taxpayers.

Question put and agreed to.

Clause 72 accordingly ordered to stand part of the Bill.

Clause 73 ordered to stand part of the Bill.

Clause 74

Relief for payments to victims of persecution during Second World War era

Question proposed, That the clause stand part of the Bill.

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This is a small measure, but a very important one. The clause exempts compensation payments received under the Kindertransport fund from an inheritance tax liability. In late 2018, the German Government agreed to provide compensation payments for child survivors of the Kindertransport. As you will know, Mr Rosindell, the Kindertransport was an organised rescue effort for Jewish children, who were transported unaccompanied from Germany to escape persecution from the Nazi regime. I must say, it is one of the most shining examples of effective humanitarian action in Germany’s history—and in our history—in a very difficult time.

The Kindertransport fund, launched in January 2019, awarding one-off payments of €2,500 to survivors is subject to specified criteria as set out by the German Government. The measure will ensure that Kindertransport payments are not subject to inheritance tax. Changes made by clause 74 will be backdated to take effect so that no inheritance tax is paid on payments from the scheme from its opening date on 1 January 2019.

The clause provides reassurance to the original survivors of the Kindertransport that any payment made in connection with or under this compensation scheme will not be subject to IHT. While no amount of money could ever remove the suffering those children and their families experienced, the Government remain committed to supporting survivors of Nazi persecution. I trust that all agree that it is fundamental that the clause stand part of the Bill.

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The Opposition welcome the provision. As the Minister says, it is a very important measure. Exempting from inheritance tax compensation payments made to the survivors of the Kindertransport is a just measure for those who had to face the devastating experience of being torn from their families as children in order to escape persecution. The House of Commons Library states that around 100,000 children were brought to the UK under the Kindertransport scheme, but of course many of those survivors have since passed away. It is only right that in the spirit of the Kindertransport fund all survivors receive their compensation payment in its fullest form and that that remains the case if the compensation is inherited.

According to the claims conference, to be eligible for payment survivors have to have been under 21 when the Kindertransport took place, between November 1938 and September 1939. However, the UK set an age limit of 17 for those transported. The oldest would therefore be born around 1921 or 1922, suggesting that they would be nearly 100 if they were alive today. The average age of the children who were transported was nine, so many would be in their mid-nineties today. Given those figures, we know that many people claiming compensation from the compensation fund will be survivors’ inheritors, so it is welcome that the payment is not subject to inheritance tax. However, I gently urge the Government to consider the issues that child refugees face today, and I urge Ministers to show the same level of commitment and dedication today that our country demonstrated in the past.

The Kindertransport survivor and incredible campaigner Lord Dubs worked tirelessly to protect child refugees following our withdrawal from the European Union, but the Government’s amendment of clause 37 watered down the UK’s commitment to protect unaccompanied child refugees in Europe who seek to reunite with their families in the UK. I hope that the Government will review their approach to child refugees and take seriously their commitment to protect child refugees fleeing violence and persecution in our present, just as they have taken seriously compensating child refugees of the past. Meaningful dedication to supporting child refugees requires both.

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I thank the hon. Lady for her comments. She spoke very well about the Kindertransport scheme. As the Committee knows, the Government stand by our position on child refugees, and this country has a proud record in that area.

Question put and agreed to.

Clause 74 accordingly ordered to stand part of the Bill.

Clause 75

Stamp duty: transfers of unlisted securities and connected persons

Question proposed, That the clause stand part of the Bill.

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With this it will be convenient to discuss clause 76 stand part.

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In the spirit of proper scrutiny of legislation, we should chew carefully on clauses 75 and 76. They are quite technical clauses, which address the use of contrived arrangements involving the transfer of unlisted securities to connected companies for an artificially low consideration in order to minimise stamp duty and stamp duty reserve tax liability on company reorganisations.

In the Finance Act 2019, the Government introduced a targeted market value rule to prevent the artificial reduction of the stamp tax due when listed shares are transferred to a connected company. That was introduced with immediate effect to prevent forestalling. The Government consulted on extending the rule to unlisted shares, to ensure that we fully understood the potential effect of the change on small businesses. That is why draft legislation is narrowly targeted only at companies that enter into contrived arrangements that are used to minimise stamp tax on reorganisations.

The Finance Bill 2020 therefore extends the market value rule to the transfer of unlisted shares to connected companies. This form of avoidance seeks to exploit the way stamp duty and stamp duty reserve tax are currently charged: on the payment given as consideration, rather than on the value of what is received. Some taxpayers have been using contrived arrangements that reduce the value of the consideration paid when they transfer unlisted shares to a company with which they are connected as part of a company reorganisation.

The changes made by clauses 75 and 76 will mean that when unlisted shares are transferred to a company and the person transferring the shares is connected with the company, the tax charge is based on the value of the consideration for the transfer or the market value of the shares transferred, whichever is higher. The new rule will apply only when there is an issue with shares by way of consideration, narrowly targeting the measures to the circumstances where contrived arrangements are used to minimise the share of the tax on the transfer of unlisted shares. The measures will have effect for stamp duty in relation to instruments executed on or after Royal Assent of this Bill, and for stamp duty reserve tax in relation to agreements to transfer made on or after Royal Assent.

Clauses 75 and 76 prevent the artificial reduction of the stamp tax due on share acquisitions when unlisted shares are transferred to connected companies. It is expected to raise £25 million over the scorecard, and I commend the clauses to the Committee.

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The Opposition welcome the measures implemented by these clauses to minimise the scope of continuing avoidance of stamp duties by extending the stamp duty and stamp duty reserve tax market value rule to the transfer of unlisted securities to connected companies. However, I raise a point regarding the impact of the clauses.

HMRC’s impact assessment of the policy notes that there will be a negligible impact on 250 to 350 businesses in the first year, disproportionately affecting small and microbusinesses. It estimates that the arrangements are most likely to affect private companies with a small number of stakeholders, such as owner-manager businesses, with an average value of £2.5 million. These may include family businesses, many of which we understand to be struggling in the face of the current pandemic. What assessment has the Minister made of this, and who is really the intended target of these clauses?

The Chartered Institute of Taxation expressed concern that unintended consequences could arise from clause 76 due to significant additional costs that are disproportionate to the tax at stake in many cases. It goes on to say that this

“may in some situations prevent commercially advantageous transactions, with no avoidance motive, from going ahead. The…vague description of policy rationale and the contrived arrangements being targeted has prevented stakeholders from assisting in designing a targeted rule so as to reduce the unintended consequences.”

Similarly, legal firm Cleary Gottlieb notes that

“the new rule is not limited to cases of stamp duty or SDRT avoidance, and it should not be assumed that transactions driven entirely by commercial considerations will fall outside its scope.”

I will be grateful if the Minister explains how the Government will seek to minimise unintended consequences of this measure being the targeting of businesses that are not seeking to avoid stamp duties.

Respondents to the consultation suggested that it would be preferable to introduce a targeted anti-avoidance rule into the legislation, or to extend the general anti-abuse rule or the disclosure of tax avoidance scheme provisions. What consideration have the Government given to inserting a targeted anti-avoidance rule into the legislation?

Last, the Chartered Institute of Taxation points out that, in relation to clause 77, there are a number of circumstances in which a shareholding of 25%—required for this exception to section 77A of the Finance Act 1986 to apply—will be an excessive hurdle, reasoning that it is not uncommon for a company to be owned equally by five or six entrepreneurs or a family group. It suggests that a requirement that the relevant shareholding is at least 10% would be more appropriate to cover a wide range of commercial scenarios. I will grateful if the Minister will address those concerns.

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I am very grateful to the hon. Lady for the questions she raises. Let me take them in order.

On whether these measures will affect most small businesses or organisations, as the hon. Lady highlights, a relatively small number of organisations will be affected. The measures were subject to consultation, and interestingly the respondents were satisfied that there would be little impact on commercial activity as the measures were suitably targeted, and expressed some pleasure that the concerns they raised during the policy consultation about the impact of a more wide-ranging measure had been heard. This is, of itself, a tightly focused measure. It falls—where it falls—on a relatively small number of organisations, as I said.

However, it is important to pick out the logic of what I think the hon. Lady is saying. We all recognise the importance of combating the pandemic. She will be aware that the Government have spent many tens of billions of pounds on supporting businesses, families and jobs during this process. This measure is about something else: avoid a form of tax avoidance, or rather heading off a form of tax avoidance; curbing and preventing it. I do not think people’s concerns about the pandemic should be allowed to obtrude on that.

The hon. Lady asked a question about unintended effects. Our analysis is that precisely because of the targeting that was noted during the consultation phase, unexpected effects, while they can never be ruled out, should be limited and minimal. It is also important to say that there will be a modest additional administrative burden that will decline over time as people become accustomed to the new rules.

The hon. Lady asked whether it would be better to address this with a more targeted anti-avoidance rule, but this is quite a targeted anti-avoidance rule. It picks out particular forms and is restricted to company reorganisations of a certain kind, and it builds on the existing approach for listed shares. I therefore think that it addresses her concerns.

Question put and agreed to.

Clause 75 accordingly ordered to stand part of the Bill.

Clause 76 ordered to stand part of the Bill.

Clause 77

Stamp duty: acquisition of target company’s share capital

Question proposed, That the clause stand part of the Bill.

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Clause 77 prevents a double stamp duty charge from arising on some company reorganisations, and follows on from clauses 75 and 76. During the consultation on extending the market value rule to unlisted securities, it was put to the Government that a double charge could arise on a type of company reorganisation known as a capital reduction partition demerger. We are very heavily in the long grass of tax intricacy. Such a demerger is where shares in a company are cancelled and shareholders are compensated with shares in a new company, rather than with cash. A corporate group may pursue this strategy where, for commercial reasons, it wants to split a group and ensure that the companies in that group are held separately by the original shareholders.

Currently, taxpayers who follow the rules can incur two stamp duty charges on such demergers, while other taxpayers use contrived arrangements to avoid paying any stamp duty on the same reorganisation. This clause, together with clause 75, ensures that one charge arises on most capital reduction partition demergers by more tightly targeting existing anti-avoidance provisions related to company reorganisations.

Stamp duty is a transaction tax. When a company is split using a demerger arrangement, there are a number of steps, two of which are potentially subject to stamp duty unless a relief applies. Usually relief applies on one step only, so that there is just one charge on the overall transaction. In some demergers, known as capital reduction partition demergers, relief is unavailable on both steps due to anti-avoidance provisions. Clause 77 will prevent a stamp duty double charge from arising, so that only one charge will arise on most capital reduction partition demergers. It does this by better targeting the existing anti-avoidance provisions. The measure applies to stamp duty instruments that are executed on or after Royal Assent.

Clause 77 works together with clause 75 to ensure that one charge will apply on most capital reduction partition demergers. This increases fairness and consistency. I therefore commend the clause to the Committee.

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I raised these points in an earlier debate, but I will do so again so that the Minister can respond.

On clause 77, the Chartered Institute of Taxation points out that there are a number of circumstances in which a shareholding of 25%, which is required for the exception to section 77A of the Financial Act 1986 to apply, will be an excessive hurdle. Its reasoning is that it is not uncommon for a company to be owned equally by five or six entrepreneurs or a family group. It suggests that a requirement that the relevant shareholding be at least 10% would be more appropriate to cover a wide range of commercial scenarios. I would be grateful to hear the Minister’s response on that issue.

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The hon. Lady raises a very specific circumstance. It would be appropriate for me to write to her about the specifics of the decision about percentages, rather than try to go through the argument here.

The discussion has already been had between HMRC and stakeholders, and therefore it has to some extent already been addressed through the consultation process, but I am happy to revisit the issue.

Question put and agreed to.

Clause 77 accordingly ordered to stand part of the Bill.

Clause 78

Call-off stock arrangements

Question proposed, That the clause stand part of the Bill.

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With this it will be convenient to discuss new clause 13—Call-off stock arrangements: sectoral review of impact

‘(1) The Chancellor of the Exchequer must make an assessment of the impact of section 78 on the sectors listed in (2) below and lay a report of that assessment before the House of Commons within six months of the passing of this Act.

(2) The sectors to be assessed under (1) are—

(a) leisure,

(b) retail,

(c) hospitality,

(d) tourism,

(e) financial services,

(f) business services,

(g) health/life/medical services,

(h) haulage/logistics,

(i) aviation,

(j) transport,

(k) professional sport,

(l) oil and gas,

(m) universities, and

(n) fairs.”

This new clause would require the Government to report on the effect of Clause 78 on a number of business sectors.(Alison Thewliss.)

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Clause 78 simplifies the rules for accounting for VAT on goods moving from the UK to member states of the EU or vice versa in advance of goods being “called off”, as it is known, for delivery. This is known as “call-off stock”. These changes represent a simplification for businesses that use call-off stock arrangements and provide common rules across the EU. They apply to goods removed from or to the UK from 1 January 2020, and will apply for the remainder of the UK’s transition period with the EU. We expect the changes to have a negligible effect on businesses that adopt them.

The clause transcribes EU call-off stock law—new article 17A to the principal VAT directive—into UK legislation. It sets out the conditions for the rules to apply and provides sellers with statutory obligations to adhere to strict record keeping and reporting requirements. These changes are an administrative easement; the primary benefit is to UK businesses that will no longer have to register and account for VAT in the customer’s country, and vice versa. However, the quid pro quo is additional reporting requirements as well as EU regulations, which have direct effect, that set out new record keeping requirements, as I have indicated.

There is no obligation on a business to restructure transactions so as to meet the conditions and fall within the new rules. We expect that they would use the simplification only because they might derive a benefit for their business. Businesses that do not meet the conditions and so do not fall within the new rules should continue with the current VAT accounting mechanisms for EU cross-border transactions.

The Government published the draft legislation and guidance on the operation of the rules in December. The legislation was laid before the House in the Finance Bill at Budget earlier this year. A resolution under the Provisional Collection of Taxes Act 1968 means that the legislation currently has effect.

Call-off stock are goods that are bulk-shipped by a supplier across a border to a warehouse from where they will be supplied, or called off, as the customer requires. Different EU member states previously had different VAT accounting rules for call-off stock. Some required the seller of the goods to register and account for VAT in the country where the goods were to be called off. The UK avoided the need for the overseas supplier to register for VAT here. We allowed the customer to account for the VAT when the goods first arrived and in advance of being called off. The measure implements the changes adopted by ECOFIN on 4 December 2018, which were designed to simplify the rules and make them more consistent within the single market.

In normal circumstances the new rules, like the existing UK rules, do not require the seller to register and account for VAT in the country where the goods are called off. The new rules delay accounting for VAT until the goods are called off. To avoid VAT fraud, suppliers are required to report the initial movement of the goods to their tax authority, and both the supplier and the customer are required to keep additional records of the stock. When the goods are called off, normal VAT accounting and reporting procedures will apply and the customer will account for the acquisition of VAT. The Government had some concerns over the potential burden on business of keeping the new records required under the new rules and pushed for the right of business to continue using the existing rules if they so wished. A business is not required to arrange its affairs such that the new rules must be used. A supplier and their customer can agree to continue to use the existing UK rules for goods called off in the UK.

HMRC has produced guidance reflecting the introduction of the changes, and the measure is expected to be revenue neutral. It constitutes a simplification for UK businesses. The measure updates UK law to take account of the approach in the EU. It simplifies the VAT rules for call-off stock transactions and avoids the requirement for the supplier to register in the destination state.

New clause 13 would require the Government to conduct a review on the impact of the new call-off stock rules on a variety of different sectors within six months of the Bill receiving Royal Assent. The new legislation provides a simplification for businesses that choose to meet the conditions for it to apply. With that in mind, we expect it would have a negligible impact on businesses. I can inform the Committee that recent figures show that fewer than 200 UK businesses have reported that they are using the new rules, and we are not aware of any being in the sectors mentioned in the amendment. I therefore ask the Committee to reject the amendment and commend the clause to the Committee.

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It is a pleasure to see you in the Chair, Mr Rosindell. I take what the Minister says about the measure affecting relatively few businesses at the moment, but as this develops, that might not remain the case. There is a certain irony in the EU providing mechanisms for simplifying and harmonising these rules and trading across the EU—people moving their goods around the place—when the UK stands to come out of the EU and lose some of those benefits for businesses in all our constituencies.

There is an irony as well that the Government have decided to adopt these new rules. I am sure the Brexiteers in the room are no less keen on being rule takers, but that seems to be what the Government are doing in this case. We want to see as much harmonisation and simplification for businesses, because that is to their benefit. That is why we think it is important to stay in the EU in the first place.

Figures from the Scottish Government suggest that Scottish GDP could be 1.1% lower after two years, on the current cumulative loss of economic activity from leaving the EU, and up to £3 billion over those two years, on top of the devastating effects of the coronavirus outbreak. There will be an impact without having a free trade deal or an extension, at least for Scotland’s agriculture, fisheries and manufacturing sectors.

We want to see a comprehensive assessment of how all the sectors listed in the amendment will be affected—leisure, retail, hospitality, tourism, financial services, business services, health, life and medical services, logistics, aviation, transport, professional sport, oil and gas, universities—because they could all be affected by this clause. It would be wise for the Government to look at the impact of what they are proposing. It is always wise for the Government to look at the impact of their proposals on anything, I suppose, and we encourage them to do that.

Because the measure is retrospective, will the Minister say what notifications have gone out to business that may be affected and what guidance has been given? He said that companies can opt to use these rules or not. How does that work, and how does the guidance ensure that people know what they have to carry out, whether they decide to use the rules or not? It sounds quite confusing from what the Minister said. Finally, because he did not make it clear, will he say what happens to these measures after the transition period?

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Let me begin by picking up on a point made by the Member for Glasgow Central about the provenance of clause 78. As we heard from the Financial Secretary, the clause transposes into UK law an EU directive that provides for simplified VAT treatment of call-off stock.

To begin, it is tempting to make the same point, and I know that repetition is not a novelty. Let me put it this way: it is very welcome to hear from the Treasury that divergence from EU rules and regulations is not considered by the Government to be an end in and of itself. I was curious last night, as I walked past the Annunciator in the Tea Room, to see the right hon. Member for Wokingham (John Redwood) making a lengthy speech on a fairly straightforward statutory instrument on electricity. I reviewed his speech this morning in Hansard, because it piqued my curiosity, and I received in passing from my hon. Friend the Member for Hove (Peter Kyle) a precis of the thrust of the right hon. Gentleman’s argument. It seems that a number of Conservative Members consider divergence from EU rules and regulations to be an aim in and of itself. Regardless of the merits of the case and the merits of continued co-operation, it is clear that, for a section of the House, there is a virtue in divergence.

I am glad that the Treasury does not share that view, although of course the Treasury looks at the numbers. We may not have had an impassioned exposition from the Financial Secretary of the arguments in favour of this particular alignment with EU rules and regulations, but what we did hear was a very clear argument from Her Majesty’s Treasury that, even having left the European Union, there are still benefits to be found for UK businesses from continued alignment, co-operation, simplification, axing bureaucracy and making things simpler.

I hope that that common-sense approach to our future relationship with the European Union prevails. As much as those of us who campaigned in a different direction in the referendum accept the result and the outcome, and accept that this is a settled political question, it is in all our interests and in our national interest that we maintain a future relationship with the European Union that is based on co-operation, where that is in the interest of our own country.

I turn to the specifics of clause 78. The Financial Secretary’s speech seemed to me to address some of the concerns expressed by businesses and chartered tax advisers, but I will raise them for the sake of clarity. Writing in Taxation, Angela Lang-Horgan, a German and British chartered tax adviser and lawyer, said:

“If businesses have continued to operate under the old simplification rule after 31 December 2019, VAT returns must be corrected once the new legislation is in place. This will add additional confusion to the situation. So far, HMRC has not indicated whether it would apply a soft-landing period. There is no transition period either because under EU law the UK was obliged to introduce the changes from the beginning of this year.”

Could I get some clarity from the Financial Secretary on those points? Will HMRC provide a soft landing period for the implementation of the new rules, or is a soft landing period not even necessary? If I understood him correctly—I may have misunderstood, in which case he will clarify—it seems that there is a degree of flexibility and choice on the part of businesses over whether to adopt this approach. Some clarity in direct response to the concern expressed by Angela Lang-Horgan would be welcome.

What efforts have the UK Government made to communicate with affected businesses in anticipation of the rules, which are effectively already in place? It is worth saying, although it is a mild digression from clause 78, that concern has been expressed—particularly by colleagues in the shadow Business team—that the Government are not communicating with businesses in a timely way with respect to changes in Government policy and their impact on businesses. I think that for some time there has been a cultural problem in government of not giving businesses long enough to anticipate and adjust to new rules; I wonder whether in this case that communication has been a bit more proactive.

The explanatory notes state that

“businesses could structure transactions to remain outside the scope of the new rules if businesses found them onerous.”

What proportion of businesses are expected to exercise that discretionary power?

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I am grateful to hon. Members for their comments. The hon. Member for Glasgow Central regards it as an irony that the Government are bringing forward this rule. I would not describe it as an irony; it is a simplification for those companies that wish to use it, and it is optional. Some companies will prefer the current arrangements as more settled and simpler, while others may not—I do not think that there is anything more to it than that. So far, 200 companies have already taken it up; of course, we cannot say in advance how many may have chosen to do so by the end of the transition period, but it is a relatively small number of companies, as I have indicated.

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Can the Financial Secretary tell us how many companies are using the previous rules?

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I certainly do not know the number of companies operating under the previous rules, but I would be happy to drop the hon. Lady a letter with any number that HMRC may have that can be publicly disclosed. The point is that there is a relatively small number of companies; they have seen this coming and it is an optional advantage for them. In reply to the point raised by the hon. Member for Ilford North, it applies only during the transition period, which will end at the end of this year.

We will be leaving the transition period on 1 January, which is not only stated by Government but is commonly understood. That goes to the question of divergence, which was raised by the hon. Member for Ilford North. We are bound by EU law while we are in the transition period. The Government certainly do not have any interest in divergence for the sake of divergence; the Government have an interest in the ability to set our own law, including our own tax law, as we as a sovereign nation see fit. That might or might not involve divergence, but this measure will not apply after the transition period.

The hon. Member for Ilford North also raises an important question about whether there is enough time for business to accommodate rules. I cannot comment on behalf of other Departments, but it certainly is a concern that has been raised in relation to the creation of tax law. Wherever possible, the Government try to abide by rules that we introduced after 2010 in order to have a more effective tax process. As he knows, it involves several stages and periods of consultation. We are coming up to an L day for legislation to be considered for the 2020 Budget, for the autumn Budget—if there is one—and for a Finance Bill next year. There is an orderly process, but I take his point about the importance of ensuring that it is as orderly and well structured as possible.

Question put and agreed to.

Clause 78 accordingly ordered to stand part of the Bill.

Clause 79

Post-duty point dilution of wine or made-wine

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I beg to move amendment 10, in clause 79, page 67, line 25, at end insert—

‘(3) The Chancellor of the Exchequer must review the expected effects on public health of the changes made to the Alcoholic Liquor Duties Act 1979 by this Section and lay a report of that review before the House of Commons within one year of the passing of this Act.”

This amendment would require the Government to review the impact of the proposed changes to alcohol liquor duties on public health.

It is a pleasure to serve under your chairmanship, Mr Rosindell. The amendment is quite simple and would require the Government to review the impact of alcohol duties on public health. It should come as no surprise, given that the SNP has long called for duty to reflect content, but we do not have the powers in Scotland to do that. Instead, we have to rely once again on the Westminster system in that regard. That is a real pity, because where we have powers in Scotland in relation to public health and alcohol, we have made great strides. For instance, we have seen the banning of irresponsible promotions and the lowering of the drink-drive limit. We ended multi-buy discounts, something that was certainly contentious at the time. As a young student, I was not overjoyed about the fact that I could not buy three crates of Tennent’s for £20. None the less, it was an important measure that no doubt changed the behaviour of many people, including myself at that time.

Of course, we have seen the overwhelming success of minimum unit pricing in Scotland. That was, again, an extremely contentious measure at the time, whereby we placed a 50p-per-unit charge on units of alcohol. The cumulative effect of all those measures has seen something that we all wanted to see in Scotland, where we have a difficult relationship with alcohol—one that was challenging to confirm but that we needed to confirm. We saw off-duty sales fall by 3.6% in the first year since minimum unit pricing was introduced. In England and Wales during the same period, off-duty sales increased by 3.2%. That is a very telling figure.

When I first came to Parliament, one of the very first debates that I took part in was in Westminster Hall. I cannot remember which hon. Member secured the debate, but it was about alcohol duty. I think the purpose of the debate was to galvanise hon. Members to stop the Government increasing alcohol duty and, hopefully, to reduce it. There was extreme passion in that Chamber and there were a lot of hon. Members present—more than are often seen debating any given matter in the main Chamber. There was a lot of passion about pints, but we cannot be passionate about pints without also having passion for public health and the consequences of the decisions being made. The stark reality is that the two are inextricably linked, and the UK Government need to be mindful of that fact. Supporting the amendment would be a good, positive first step on that journey to a more sensible approach that takes into account public health.

In that Westminster Hall debate, in which numerous Government Members spoke, not a single person mentioned public health, despite the consequences of alcohol in our communities. That is not good enough.

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Does my hon. Friend agree that the minimum unit pricing introduced in Scotland had the effect of removing from our shelves some of the most harmful drinks, including the high-strength industrial ciders that cause so much harm to so many people in our communities?

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Absolutely. My hon. Friend makes an excellent point. We did not have to walk far to find a shop in Scotland that sold ciders. White Lightning is incredibly strong. Often, individuals would buy it early in the morning, and by the afternoon the remnants were across our city. We were able to stop that, and that was important because it was having an impact on every single person who lived and worked there. This amendment gives the Government the opportunity to make sensible strides in recognition of the fact that public health and alcohol are inextricably linked.

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I shall begin by addressing the SNP’s amendment 10. It is important to look carefully at the relationship between alcohol taxation and public health. We have seen in other areas of taxation, notably the sugar tax, the huge impact that decisions taken by the Treasury can have on public health and public health outcomes. It is long past time for us to look seriously and sensibly at whether more can be done to reduce the impact of alcohol and alcoholism on people’s lives and communities.

Turning to clause 79, I have had the opportunity to do a much deeper dive into some of the issues, not least because of the determined efforts of my hon. Friend the Member for Chesterfield (Mr Perkins). Anyone who has ever been lobbied by him will know that when it comes to standing up for his constituents and for businesses in his constituency, there is no more determined, stubborn and irrefutable representation than that which he provides. He has raised serious concerns about the impact of the clause on businesses in his constituency. I shall outline some of those concerns, in the hope that Ministers will consider their bearing on Government policy.

We understand perfectly what the Government are trying to achieve with clause 79. The clause amends the Alcoholic Liquor Duties Act 1979, to introduce sanctions for post duty point dilution of wine or made-wine, which, if carried out before the duty point, would have resulted in a higher amount of duty being payable. That change has, in effect, already come into force and we are legislating for it this morning. The change is perfectly understandable. It is designed to bring more revenue into the Treasury that would otherwise be, and is being, lost. I understand the Government’s position that post duty point dilution carries significant legal and revenue risk for the Exchequer.

The Wine and Spirit Trade Association is against the legislation, claiming it would put hundreds of jobs at risk and place more pressure on the industry. Recently, thanks to the initiative of my hon. Friend the Member for Chesterfield, I had the opportunity to speak to Global Brands, a business based in his constituency that makes VK and Hooch, among other products. We know that covid-19 is having a huge impact on the licensed trade industry and on alcohol sales in particular, affecting not only pubs but the producers of wines, spirits and other beverages. Global Brands is concerned that, because of the financial burden placed on its business by the clause, combined with the impact of covid-19, it expects to make 50% of its workforce redundant, putting 200 jobs at risk as a result of this change. If I can characterise our discussions in this way, it would be accurate to say that Global Brands accepts that this change is inevitable, and that the Treasury has a settled view on it, but it hopes that the Treasury might consider a 12-month delay in implementation—from April 2020 to April 2021—arguing that this would give it time to recover from the covid-19 shock, leaving it better able to absorb the change.

Global Brands makes other arguments that the Treasury may want to take into account. In particular, Global Brands sells what were commonly known as alcopops, a low alcohol by volume product—typically around 4% ABV. It is concerned that the impact of the change will be that, ironically, its low alcohol product would be taxed higher per unit of alcohol than much higher strength products, which flies in the face of the Government’s stated policy of discouraging high-strength alcohol and its impact on public health.

It is also worth highlighting that the Government have already announced their intention to conduct a wider review of alcohol taxation. I wonder whether it makes sense, from the point of view of business resilience and of giving companies such as Global Brands more time to cope with the covid-19 shock before absorbing this change, for the Treasury to consider this delay alongside the range of other issues that it will consider as part of its wider review of alcohol taxation. We might have been minded to table an amendment to probe the 12-month delay, but we were advised that such an amendment would not be in scope because the foundation resolution is clear about the date on which this change takes effect.

That is another reason why—I gently make this point again to Ministers—we feel strongly about the way in which the Treasury has restricted the scope of amendments and the debate by not introducing an amendment of the law resolution, as has been the case historically. As well as denying Opposition Members the opportunity to table broad, sweeping, political amendments to the Finance Bill, that also has practical implications. I impress on Ministers and the usual channels the need to reconsider that for future Finance Bills.

Finally, when my hon. Friend the Member for Chesterfield and I spoke to Global Brands just the other week, I was particularly impressed not just by the jobs and economic activity it provides in Chesterfield, but at the fact that its wider supply chain is virtually entirely British. Its ingredients, packaging and labelling are all derived from a British supply chain. I do wonder whether the Treasury has really thought through the timing of the change, the impact that it will have on businesses such as Global Brands, and where it might position such businesses in relation to their international competitors that are not providing jobs in this country and do not have a supply chain rooted here.

Given the unemployment statistics out today, we know that structural unemployment will become one of the biggest political issues and economic challenges in our country. Structural unemployment in Britain will become a feature of our life in a way that, frankly, it was not 10 years ago, in the wake of the financial crisis, and has not been for decades. The Government must do everything they can to protect jobs, which is why we have called today for them to come forward not just with fiscal measures in July, but a full-on, jobs-first Budget—because we are worried about the impact of covid-19 on unemployment.

The representations on clause 79 from Global Brands and from my hon. Friend the Member for Chesterfield remind us of the risk of the unintended consequences of Government policy. Given the impact on jobs and the supply chain and the fact that the Treasury is in any case preparing to undertake a review of alcohol taxation, I wonder whether the call for the Government to delay the measure by 12 months is not eminently reasonable—and whether they might come forward with their own change to the Bill on Report.

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Clause 79 makes changes to alcohol duty legislation to introduce prohibitive sanctions for anyone who dilutes wine or made-wine once that product has passed a duty point. It will ensure fairness by providing equity of treatment across the drinks industry and will tackle future revenue risks for the Exchequer.

Post duty point dilution is a practice that enables wine and made-wine producers to reduce the excise duty that they pay by diluting the product after duty has been paid. Because the dilution increases the volume of wine and made-wine for sale, with no additional duty being paid, less duty is paid than would otherwise be due. UK legislation does not expressly prevent post duty point dilution for wine and made-wine, although it is prohibited for all other alcohol products. The practice gives certain wine or made-wine producers a tax advantage over those who produce other categories of alcohol, of which dilution is not permitted, and over others in their own sector who cannot make use of the practice.

Clause 79 will introduce new prohibitive sanctions for anyone who dilutes wine or made-wine once that product has passed a duty point on or after 1 April 2020. Introducing new sanctions to prevent the practice will maintain the principle that excise duty is calculated only on a finished product when it is released from production premises or on import. It will ensure fairness by providing equity of treatment across the drinks industry and will tackle future revenue risks for the Exchequer.

A review of the practice was launched at autumn Budget 2017, during which HMRC engaged extensively with industry and gathered a large amount of evidence to inform a decision. At Budget 2018, the Government announced the findings of the review and their intention to stop the practice being used for wine and made-wine, as is already the case for other types of alcohol. However, the Government also announced that that would not take effect until April 2020. That has given those businesses affected almost three years to prepare for the change, allowing them time to reformulate or diversify into the production of new lines.

Amendment 10 would require the Chancellor to review the public health effects of the post duty point dilution sanctions. When making changes to the alcohol duty system, the Government take into account a wide range of factors, including economic inequalities and health impacts. The new sanctions follow an extensive review by HMRC in 2017. Draft legislation was published in July 2019, alongside which a tax information and impact note was published on the gov.uk website, detailing the various factors that the Government have considered. The amendment is therefore unnecessary, as the Government have already published our assessment of the effect on public health. For the convenience of the Committee, I will reiterate that assessment. The Government expect that

“wine or made-wine may become slightly more expensive…there may be a positive health impact with less wine being consumed. However, this benefit may be offset if any increase in price leads to consumers switching to higher strength products.”

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I am sure the Minister has seen the graph that sets pence per unit against alcohol by volume. To say that it looks as though it was drawn by a child with a crayon is being generous to children with crayons. Will she consider a wider review of the duty per unit of alcohol by product type, because at the moment it makes absolutely no sense?

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I thank the hon. Lady for her intervention. I am not quite sure which chart she is referring to, and I do not accept her comments. We must remember that the purpose of the clause is primarily to close a tax loophole.

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I understand what the Minister says about closing a loophole and about the time that businesses have been given to prepare for the change, but does she not think that the impact of covid-19 has a bearing here? Given the representations that are being made about the impact of the double whammy, would she at least go away and consider the merits of a 12-month delay, and write to me and my hon. Friend the Member for Chesterfield to set out her thinking once she has had a chance to do that?

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I thank the hon. Gentleman for that question. That is something that I have considered. I have had representations from the hon. Member for Chesterfield, Global Brands and other Members of Parliament, and I will take into account the points made by the hon. Member for Ilford North made in his speech.

On job losses, the announcement was made with enough time for people to prepare. We may not have been aware of covid, but postponing implementation any further would mean that the companies that adapted to the announcement about prohibiting post duty point dilution would be disadvantaged compared with companies that have not prepared since the announcement. We do not believe that that is fair.

On the point about the low alcohol value and moving the measure to stronger products, that is something that we have factored in. We will have a wider alcohol duty review—the hon. Gentleman referenced that. The Treasury has considered all those things, and we still do not feel that they are appropriate.

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I am grateful to the Minister for being generous in giving way again. She will be pleased to hear that I will not labour the previous point.

As part of the Treasury’s review, will the Minister take into account the case for minimum unit pricing for alcohol? We have already heard the positive case from Scotland, and there is an active campaign for it. It would be useful for all of us involved in policy making if the Treasury review looked at the merits and the arguments against so that Parliament can make informed decisions.

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The Government are monitoring the emerging evidence from the introduction of minimum unit pricing in Scotland and, recently, Wales, and we have addressed public health concerns in the duty system. For example, in February 2019, duty rates on white ciders were increased to tackle consumption. We must remember that the UK operates a single excise regime, so it is not possible to devolve duty rates. It is worth noting that many of the problems that have been raised are actually caused by EU rules, according to officials. I can write to the hon. Gentleman and other Members who want further clarification on that point.

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Does my hon. Friend agree that, although this is a very interesting debate, we are here to talk about taxation, not public health policy on alcohol?

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I completely agree. I hope I have given enough answers to address the point raised by the amendment. We have already carried out an assessment on public health grounds, but this is tax legislation. I therefore ask that amendment 10 be withdrawn.

Clause 79 introduces a new sanction to prevent a practice that is currently available only in the wine and made-wine sectors and is used by only a small number of producers. Prevention of the practice by the use of prohibitive sanctions will address inequity of treatment across the alcohol industry and will create a level playing field so that alcohol products can compete more fairly in the marketplace. I therefore commend the clause to the Committee.

Question put, That the amendment be made.

Division 4

16 June 2020

The Committee divided:

Ayes: 7
Noes: 10

Question accordingly negatived.

View Details

Clause 79 ordered to stand part of the Bill.

Clause 80

Rates of tobacco products duty

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I beg to move amendment 11, in clause 80, page 68, line 5, at end insert—

“(3) The Chancellor of the Exchequer must review the expected effects on public health of the changes made to the TPDA 1979 by this Section and lay a report of that review before the House of Commons within one year of the passing of this Act.”

This amendment would require the Government to review the expected impact of the revised rates of duty on tobacco products on public health.

This amendment is in part very similar to the previous amendment, but it addresses tobacco duty, not alcohol duty. We want to review the impact of tobacco rates on public health. I take exception to the suggestions made in the previous debate that taxation and public health are not inextricably linked. The hon. Member for Ilford North said that we need a joined-up approach in the Treasury and across all sectors so that we can see the impact of taxation on other aspects of life. That certainly applies to tobacco as much as it does to alcohol duty.

Much like alcohol duty, tobacco duty is reserved to the UK Government. Again, that is deeply frustrating to those of us in Scotland, because it is the desire of the Scottish Government and the SNP to have a tobacco-free generation in Scotland by 2034. Obviously, tobacco rates will play a role in that, but that is not necessarily stopping us entirely and we are still making positive efforts to get there. The raft of different measures put in place by the Scottish Government include the 2020 ban on smoking near hospitals. There is also the regulation of electronic cigarettes and MVP devices, which will be an interesting and hot topic of debate in the coming years. A new national brand, Quit Your Way, was launched in 2018 and is being promoted on behalf of the stop smoking service. A Scottish ministerial working group on tobacco control is helping develop policy to reduce the impact of tobacco on Scotland’s health and to manage the register of tobacco and nicotine vapour product retailers.

That is all in addition to the Scottish Government’s previous efforts, including making prisons smoke free in November 2018, banning tobacco advertising in 2002, and banning smoking in enclosed public spaces in 2006, which is something that we all remember only too well. There are certainly many establishments in Scotland—I am sure the same is true in England—where one can still get the waft of the cigarettes that used to be smoked on those premises. A great deal of good has been and will be done, but ultimately the key lever of power lies, again, with the UK Government. That being the case, it is vital that consideration is once again given to public health and to the impact on it of decisions taken by the UK Government. I therefore suggest that the Government agree to the amendment, because it will be in their interests and in the interests of people across the United Kingdom.

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If the hon. Member for Kensington does not think that there should be a relationship between public health and taxation, I am afraid she is really going to hate what I have to say on clause 80 and the Scottish National party amendment. For the same reason as before, I think there is a real case for looking at these issues in a joined-up way, and ensuring that our public health objectives are reinforced by the Treasury.

In its January 2020 Budget submission, the UK Centre for Tobacco and Alcohol Studies, in partnership with Action on Smoking and Health, recommended that the minimum excise tax should be updated annually to ensure that the minimum tax for tobacco products is the rate due for products sold at the weighted average price. In the light of those representations, I wonder whether the Government will consider the advice of public health experts, and what consideration they have given to committing to updating the MET on an annual basis from the date of the passing of this legislation.

As the all-party parliamentary group on smoking and health has noted, the covid-19 crisis means that reducing tobacco-related health inequalities should be a priority, now and in the longer term, to improve population health and resilience to any future disease outbreaks. Differences in smoking prevalence and smoking-related diseases are an important factor in the differences in morbidity and mortality from covid-19. If we are not going to think seriously about some of these public health challenges in the middle of a public health crisis, when will we, frankly?

There has also been a rise during lockdown in people’s exposure to second-hand smoke in the home. Households with children are twice as likely to report second-hand smoke in the home. We have already heard about the Scottish Government’s determination in that respect, but the Government’s prevention Green Paper set the target of the UK being smoke-free by 2030, which is defined as a prevalence of 5% or less. If we are going to do that, we really have to commit to doing it and make changes across the board to support that important goal, which we across the House share.

The argument that public health and taxation are not intertwined does not hold water. It is not fashionable to be nice about George Osborne in today’s Conservative party—it is even less fashionable in the Labour party, but I already have a cross to bear in my own party—and his sugar tax was hugely controversial when it was introduced. I do not mind saying that as I sat watching the announcement in the Budget I was a big cynic, not least because I am generally in favour, as a point of principle, of progressive taxation. I worry about any new charges or levies that have flat implications for people and households with different levels of income.

Taxation by its nature ought to be progressive wherever possible, but the sugar tax has been shown, over the fullness of time, to have had a really positive impact on sugar consumption in this country. The evidence shows that a public health epidemic, which I think is what obesity is, particularly affects those from the poorest backgrounds. The same is probably true of smoking and its health consequences not just for smokers, but for the people—particularly children—who breathe the smoke around them.

The all-party parliamentary group on smoking and health, ASH, the British Heart Foundation, Cancer Research UK, the Royal College of Physicians and many others are calling on the Government to adopt their road map to a smoke-free 2030. That would include the creation of a smoke-free 2030 fund, into which tobacco manufacturers would be legally required to give funds to finance the action needed to achieve the smoke-free 2030 goal.

What consideration have the Government given to the road map to a smoke-free 2030 and, in particular, the proposal that there should be some kind of levy on tobacco manufacturers? In the same way as the sugar tax was hypothecated to tackle obesity, what consideration have the Government given to introducing a hypothecated levy to take action to eliminate smoking?

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Clause 80 increases the duty charge on all tobacco products by RPI inflation plus 2% in line with the tobacco duty escalator. In addition, the duty on hand-rolling tobacco will rise by an additional 4% to 6% above RPI inflation this year.

Smoking rates in the UK are falling, but they are still too high. Around 14% of adults are smokers. We have ambitious plans to reduce that still further, as set out by the Department of Health and Social Care in its tobacco control plan. That includes a commitment to continue the policy of maintaining high duty rates for tobacco products to improve public health. The UK has comprehensive tobacco control legislation, which is the envy of the world. However, smoking is still the single largest cause of preventable illness and premature death in the UK. It accounts for around 100,000 deaths per year and kills about half of all long-term users. According to Action on Smoking and Health, smoking costs society almost £14 billion per year, including £2 billion in costs to the NHS of treating disease caused by smoking.

At the Budget, my right hon. Friend the Chancellor announced that the Government were committed to maintaining the tobacco duty escalator until the end of the Parliament. The clause therefore specifies that the duty charged on all tobacco products will rise by 2% above RPI inflation. In addition, duty on hand-rolling tobacco will rise by an additional 4% to 6% above RPI inflation this year. The clause also specifies that for the minimum excise tax—the minimum amount of duty to be paid on a pack of cigarettes—the specific duty component will rise in line with cigarette duty.

The new tobacco duty rates will be treated as taking effect from 6 pm on the day they were announced: 11 March 2020. Recognising the potential interactions between tobacco duty rates and the illicit market, the Government announced at the Budget that they would publish a consultation on proposals for strengthened penalties for tobacco tax evasion as part of the track and trace system, including a £10,000 fixed penalty and a sliding scale for repeat offenders. In addition, the Government will strengthen the resources of trading standards and HMRC to help to combat the illicit tobacco trade, including the creation of a UK-wide HMRC intelligence-sharing hub. I hope the hon. Member for Ilford North will support that. I believe I have addressed quite a number of the points that he has raised.

I turn to amendment 11, which is designed to place a statutory requirement on my right hon. Friend the Chancellor to review the public health effects of changes to tobacco duty. The Chancellor assesses the impact of all potential changes in his Budget considerations every year. The tax information and impact note published alongside the Budget announcement sets out the Government’s assessment of the expected impacts. The Government are committed to improving public health by reducing smoking prevalence, and we co-ordinate these efforts through the tobacco control delivery plan 2017 to 2022, which also provides the framework for robust and ongoing policy evaluation. Accordingly, we review our duty rates at each fiscal event to ensure that they continue to meet our two objectives of protecting public health and raising revenue for vital public services.

I hope that reassures the Committee, and I ask Members to reject the amendment. The clause will continue our tried and tested policy of using high duty rates on tobacco products to make tobacco less affordable and continue the reduction in smoking prevalence, thus reducing the burden that smoking places on our public services.

On the point about a tobacco levy, I believe the Government laid out their position on introducing a levy in 2015. We do not believe a levy is an effective way to raise revenue or protect public health.

Amendment 11 negatived.

Clause 80 ordered to stand part of the Bill.

Clause 81

Rates for light passenger or light goods vehicles, motorcycles etc

Question proposed, That the clause stand part of the Bill.

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Clause 81 makes changes to uprate the RPI vehicle excise duty rates for cars, vans and motorcycles with effect from 1 April 2020. VED is paid on vehicle ownership, and rates depend on the vehicle type and first registration date. The Government have uprated vehicle excise duty for cars, vans and motorcycles with inflation every year since 2010, which means rates have remained unchanged in real terms during this time. As announced in the 2018 Budget, all vehicle excise duty revenues will be used specifically for the national roads fund from this year, to provide certainty for road investment.

The changes made by clause 81 will uprate vehicle excise duty for cars, vans and motorcycles by RPI for the 10th successive year. As a result, the rates are unchanged in real terms since 2010, and that comes on top of the Government’s decision to freeze fuel duty rates for the ninth successive year. By April 2021, this will have saved the average car driver £1,200 in comparison with the pre-2010 escalator.

From April 2017, a reformed VED system was introduced that strengthened the environmental incentive when cars are first purchased, with all cars paying a standard rate in subsequent years. The standard rate will increase by only £5, the flat rate for vans will increase by £5 and the rate for motorcyclists will increase by no more than £2. These changes will ensure that the Government continue to support motorists with the cost of living, and that the vehicle excise duty system continues to incentivise the purchase of lower emission vehicles.

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Does my hon. Friend agree that as the economy comes out of the dislocation of coronavirus, we need to build a greener and cleaner economy? Incentivising the use of low-carbon cars is part of that, and clearly we cannot do so just through the tax system; we also need a structure of electric charging points. I am glad to say that my borough is one of the top boroughs in the country in that regard. As we look to build a greener economy, I commend this clause and the related clauses.

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I thank my hon. Friend for her intervention, and I agree with her.

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Following a previous theme, we support this approach to incentivising the use of greener and more environmentally friendly vehicles. It shows how decisions taken at the Treasury can support the public policy aims of other Departments and promote positive consumer change. Clearly, we have to do a lot more to ensure that people are using environmentally friendly vehicles, which produce fewer emissions and have a less detrimental impact on air quality and the wider environment than other vehicles do. I, in common with many stakeholders, welcome the reduced rate applied to alternatively fuelled light passenger vehicles, including hybrids and those powered by bioethanol and liquid petroleum gas.

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I think that is a point we can all agree on. The Government are doing a lot to encourage the uptake of low emission and zero emission vehicles. As I mentioned earlier, the reformed VED system was introduced in 2017 for new cars. To elaborate, on first registration the owners of zero emission models pay nothing, while those of the most polluting pay more than £2,000. In subsequent years, most cars move to a standard rate, which is currently set at £145. The exceptions are electric cars, which attract a zero rate, and hybrids, which receive a £10 discount.

In the Budget, the Government announced a number of further steps to reduce zero emission vehicle costs, including exempting zero emission cars from the vehicle excise duty expensive car supplement; extending low company car tax rates for 2024-25, as we discussed earlier; and extending the plug-in grant scheme for zero emission cars and ultra-low emission vans, taxis and motorcycles until 2022-22.

Question put and agreed to.

Clause 81 accordingly ordered to stand part of the Bill.

Clause 82

Applicable CO2 emissions figure determined using WLTP values

Question proposed, That the clause stand part of the Bill.

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Clause 82 makes changes that ensure that CO2 emissions figures for vehicle excise duty will be based on the world harmonized light-duty vehicles test procedure—WLTP—for all new cars registered from 1 April 2020. Until 1 April 2020, the owners of new cars were liable to pay VED based on CO2 emissions figures provided under the new European driving cycle test procedure, which is otherwise known as the NEDC. That test underestimates real-world driving emissions by up to 40%. In the 2018 Budget, it was announced that from April 2020, VED would be based on WLTP, which closely reflects real-world driving emissions. Consequently, vehicle excise duty liabilities for new cars purchased from April 2020 may change.

In the 2018 Budget, the Government announced a review of the impacts of WLTP on vehicle taxes. In July 2019, the Government announced that as mitigation to help the industry manage the transition to WLTP, company car tax rates would be temporarily reduced, and that the Government would publish a call for evidence on vehicle excise duty. Draft legislation for the Finance Bill was published on L day 2019 to switch on WLTP from April 2020 and to implement the new CCT rates.

Clause 82 confirms that CO2 emissions figures for vehicle excise duty will be based on WLTP for all new cars registered from 1 April 2020, and that all cars registered before 1 April 2020 will continue to use existing NEDC CO2 values for VED purposes. As WLTP is more representative of real-world driving conditions, this measure ensures that VED is based on a more robust regime for measuring CO2 emissions. It will also allow motorists to make more informed purchasing decisions when considering the CO2 impact of their new car.

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I do not think that we need to dwell too long on this, but it is worth exploring a few points that were made during the Government’s consultation and to test some stakeholders’ arguments. Assertions are sometimes made, but it is important to revisit the arguments and see whether they stand up to the scrutiny of evidence. It will be interesting to hear the Treasury’s view on that.

There was a concern that the WLTP charging rates could lead to distortion ahead of April 2020, because consumers might bring forward purchasing decisions to avoid potential tax increases on new cars. Given that April 2020 has passed, it would be interesting to know whether such distortion has actually occurred. What assessment has the Treasury made of that?

On the environmental impact, some respondents stressed that company cars were more environmentally friendly than private cars. The argument goes that it is important to keep people in that market by adjusting company car taxation to reflect the lower impact. What analysis has the Treasury done of that claim? Does the Treasury think that that is a valid argument, or simply an assertion?

Finally, some concern was raised that under WLTP values, there could be an above-average increase in the reported CO2 emissions of cars with smaller engines, whereas cars with higher CO2 emissions would not be affected by the change to the same extent. How much does that argument hold water with the Minister?

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On the question of why we are treating cars registered before 6 April 2020 differently and whether that would create a distortion, the WLTP testing standards were introduced in 2017 and EU legislation required manufacturers to record the CO2 emissions for both regimes. We have not sought to change the tax treatment of existing cars; we aim to encourage people who purchase new cars to choose low-CO2-emitting models.

On the analysis that the hon. Gentleman asks for, it is probably too soon to tell. The impact is linear, and we published some findings in July 2019 when we set rates. I can have that information provided to him, and I can write to him on that point. I do not have the full answers for the analyses that he is asking for.

Question put and agreed to.

Clause 82 accordingly ordered to stand part of the Bill.

Clause 83

Electric vehicles: extension of exemption

Question proposed, That the clause stand part of the Bill.

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Clause 83 makes changes to exempt all zero-emission cars from the vehicle excise duty supplement that applies to cars with a list price exceeding £40,000 from 1 April 2020. The background is that the Government use vehicle taxes, including vehicle excise duty, to encourage the take-up of cars with low carbon dioxide emissions to help to meet our legally binding climate change targets. Vehicle excise duty incentives help to reduce the cost of zero-emission cars, which is one of the most significant barriers to uptake. From April 2017, on first registration, zero-emission cars paid no vehicle excise duty, while the most polluting cars paid more than £2,000. In subsequent years, while most cars move to a standard rate—£150 in 2020-21—electric vehicles attract a zero rate. Previously, however, all vehicles with a list price exceeding £40,000, including electric vehicles, paid a vehicle excise duty supplement of £325 in 2020-21 from years two to six following registration.

Under the changes made by clause 83, from 1 April 2020, all zero-emission light passenger vehicles registered from 1 April 2017 until 31 March 2025 will be exempt from the vehicle excise duty expensive car supplement. That will reduce vehicle excise duty liability for almost a third of zero-emission cars by an estimated £1,625. This demonstrates that the Government will continue to incentivise the uptake of zero-emission cars through the 2020s. The measure will incentivise uptake by reducing tax liabilities and aid the Government in achieving net zero. I therefore commend the clause to the Committee.

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Clause 83 is obviously a welcome measure; we have heard from industry representatives that removing the VED surcharge for electric vehicles will encourage uptake. The RAC’s head of policy, Nicholas Lyes, states:

“Our research suggests that cost is one of the biggest barriers for drivers who want to switch to an electric vehicle and the steps taken”

by the Government

“will provide clarity and certainty for both consumers and manufacturers.”

I wonder whether the Government are looking at what more they can do to reduce the cost burden for people switching to electric vehicles. People make choices all the time about the purchase of new vehicles, and price sensitivity is one of the biggest aspects of that. If someone uses their car every day for regular journeys—to commute to and from work, for example—and has access to charging points at home, at work or in the vicinity, switching to an electric vehicle will make a real difference. It can be cost-effective as well as an environmentally friendly choice, particularly in the light of the clause.

However, for lots of people who do not commute regularly but have a family car for use at weekends and perhaps over the summer holidays, the financial choice is not always as straightforward. Although the environmental factors may be compelling and people might want to switch to an electric vehicle, the financial barrier is still too high. I wonder what more the Government can do, through industry support or other means, to further incentivise the switch to electric vehicles, as it would make a real difference.

On infrastructure, it is important that more is done to ensure that electric vehicle charging points are readily available for use—that is really an issue for the Department for Transport and local authorities, but at some point they will come knocking at the Treasury’s door. The Minister is smiling; I am sure that she is very familiar with that experience. I wonder how favourably she is looking on those arguments, because although progress is being made to expand electric charging points—the Mayor of London cares strongly about the issue, and I discussed it recently with the Mayor of Greater Manchester, Andy Burnham—much more progress can still be made in all parts of the country, so Treasury support would be very welcome.

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The hon. Gentleman makes a point that we hear again and again about the cost of low emission vehicles. These changes are part of a wider package of tax and spend incentives—I have mentioned company car tax rates and the plug-in car grant.

On the question of what more we can do, the best mechanism is the call for evidence that the Government published at the Budget, which includes how vehicle excise duty can further incentivise the uptake of zero-emission cars. That is probably the best way for the industry and Parliament to suggest what more we can do to make low emission vehicles more affordable.

The hon. Gentleman is right that we get asked a lot about infrastructure and what more we can do to provide charge points. We understand that access to high-quality, convenient charging infrastructure is critical if drivers are to make the switch to electric vehicles confidently. That was why, at the Budget, we announced £500 million over the next five years to support the roll-out of a fast charging network for electric vehicles, ensuring that drivers will never be more than 30 miles from a rapid charging station.

Question put and agreed to.

Clause 83 accordingly ordered to stand part of the Bill.

Clause 84

Motor caravans

Question proposed, That the clause stand part of the Bill.

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Clause 84 reduces vehicle excise duty liability for new motorhomes to support British motorhome manufacturers and UK holidaymakers. From 12 March 2020, most new motorhomes pay a flat rate of VED at £270 annually. To ensure that, in the future, motorhome vehicle excise duty liabilities reflect environmental impact and to incentivise the development and uptake of lower emission motorhomes, from 1 April 2021, motorhome VED liabilities will be aligned with graduated van vehicle excise duty.

From September 2019, EU regulatory changes have required motorhomes to record carbon dioxide emissions on the vehicle type approval document. Previously, the majority of motorhomes attracted a flat rate of £265, but from September 2019, due to their high emissions, new motorhomes saw a significant increase in their first-year vehicle excise duty liabilities. Motorhome dealerships and the main industry body, the National Caravan Council, expressed concern about the changes. The sector argued that, as motorhomes are generally derived from vans, their VED liability should be aligned with vans, rather than passenger vehicles.

The changes made by clause 84 mean that, from 12 March 2020, new motorhomes are more closely aligned with vans for VED purposes. Manufacturers are no longer required to provide a CO2 emissions figure when they register the vehicle with the Driver and Vehicle Licensing Agency. As a result, all new motorhomes will move to a flat rate of vehicle excise duty. Most new motorhome vehicles will be included in the private light goods vehicle tax class, with the minority that weigh more than 3,500 kg included in the private heavy goods class. As a result, new motorhomes’ first-year VED liabilities will be reduced by up to £1,905. The change will affect owners of motorhomes first registered from 12 March 2020. There are typically about 15,000 motorhomes registered in the UK annually.

The change will reduce new motorhome vehicle excise duty liabilities, and better align them with vans, rather than passenger vehicles. It will support British motorhome manufacturers and holidaymakers using motorhomes throughout the UK. I therefore commend the clause to the Committee.

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This debate is particularly timely, given last night’s Adjournment debate, which was led by my hon. Friend the Member for Kingston upon Hull West and Hessle (Emma Hardy), who told the House that Hull is the capital of caravan manufacturing. Along with my hon. Friends the Members for Kingston upon Hull North (Dame Diana Johnson) and for Kingston upon Hull East (Karl Turner), she has been a doughty champion of the industry. That industry has been particularly hard hit by covid-19 because it relies so much on the leisure and tourism industry, which is still effectively shut down. Industry bodies and users were looking for this change, so I am happy to indicate that we support the clause.

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I welcome the measure. The Moto-Trek manufacturer in my constituency makes exclusive hand-built motorhomes, so I know that the clause is very much welcomed by the industry. It certainly makes sense to tax motorhomes as vans, since they are mostly built on van chassis and do not do many miles, although they do, of course, emit carbon dioxide. It is right that we incentivise the manufacture of low emission vehicles, but motorhome users are very much committed to UK holidays and do not fly as a result, which is very positive for the environment. As we come out of covid, it is really important that we do everything that we can for UK manufacturers, for UK motorhome vehicle sales and, of course, for tourism. I therefore very much welcome the clause.

Question put and agreed to.

Clause 84 accordingly ordered to stand part of the Bill.

Clause 85

Exemption in respect of medical courier vehicles

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I beg to move amendment 12, in clause 85, page 72, line 33, after “supplies” insert “, including human breastmilk”.

This amendment would ensure that vehicles carrying human breastmilk would benefit from the exemption from Vehicle Excise Duty.

I am delighted to continue my personal journey to ensure that breastfeeding is mentioned in every possible place in this House. I am chair of the all-party group on infant feeding and inequalities, so I declare that interest up front.

The measure I seek to add to the Bill would cost the Government very little, if anything at all, but would send a very strong signal that the Government support and recognise breast milk banks across the UK. Sub-paragraph 2(b) of proposed new paragraph 6A to schedule 2 to the Vehicle Excise and Registration Act 1994 refers to

“medicines and other medical supplies”.

I am not quite sure whether that would capture breast milk. I seek clarification from the Minister on that, because I do not think it is clear enough, which was why I tabled the amendment.

Human breast milk banks exist across the UK. Some do not exist quite to the size and scale that we would like, so the amendment would help to encourage them that there is Government support for what they are doing. I mention the Human Milk Foundation, the Northwest Human Milk Bank, Hearts Milk Bank and Milk Bank Scotland, which is based in Glasgow and the one that I know best. Having spoken to Debbie Barnett, its donor milk bank co-ordinator, I know that Milk Bank Scotland does not have its own vehicles at the moment, but relies on the Glasgow Children’s Hospital Charity volunteers, who transport the milk, after picking it up from donors, and take it out to those who need it. Having its own vehicles would be something for a future point, but the amendment would certainly support the milk bank, and others across the UK, in doing that.

Like blood, breast milk has to be properly processed, and there are procedures in place for doing so. Like blood, it needs special carriage to take it from donors to the milk banks for processing, and back out again. The National Institute for Health and Care Excellence guideline 93 on donor breast milk banks says that, when transporting milk to the milk bank, critical conditions for transport include

“temperature and time limit, to ensure that donor milk remains frozen during transport.”

The guideline also states that donor milk should be transported

“in secure, tamper-evident containers and packaging”

and that a range of procedures are in place for achieving that.

In chapter 33 of its guide to the quality and safety of tissues and cells for human application, on the distribution of and transport conditions for human milk, the European directorate for the quality of medicines states:

“During transport, milk should remain frozen and dry ice may be used for this purpose.

The use of validated, easily cleaned, insulated transport containers is recommended.

The transport procedure should be validated, and the temperature of the transport container monitored during transportation.”

All those measures are relatively similar to how blood and other blood products are transported around the UK, and would fit quite well with the medical courier vehicles exemption set out in the Bill. Many of these organisations are charities, and they would very much appreciate support in moving milk around the country.

I appeal to the Government to accept the amendment, which is uncontentious—and indisputable, really. Doing so would send a good signal that the UK Government support milk banks, the people across the UK who wish to use them, and the science behind them. They are particularly important in supporting premature babies in their earliest days. The World Health Organisation recently indicated the significance of breast milk during coronavirus, and that women should be supported whenever possible to feed their babies with human breast milk. Covid-19 is not present in breast milk, and the milk is therefore of huge benefit in supporting babies in their earliest days. I encourage Ministers to take on the amendment, if they can take on anything at all, and to show support for milk banks across the UK.

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Amendment 12 would extend the exemption so that it applied to people carrying human breast milk. I do not think that any of us would disagree with that, but clause 85 already covers the transportation of human breast milk. The purpose-built vehicles used by medical courier charities, which are exempted from VED by the measure, transport not just blood, but a wide range of medical products, including X-rays, MRI scans, plasma and human breast milk.

The inclusion of the amendment in the Bill would make things more difficult. Its wording is quite vague, it does not clearly define the vehicles that it is trying to capture, and it would create the risk of abuse. We believe that the matter is already covered by clause 85. Although the Government fully support the sentiment of the amendment, as breast milk is already captured under the clause, I ask the Committee to reject the it.

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I would like to press the amendment to a vote, to add to the clarity of the clause.

Amendment 12 negatived.

Clause 85 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(David Rutley.)

Adjourned till this day at Two o’clock.

Domestic Abuse Bill (Ninth sitting)

The Committee consisted of the following Members:

Chairs: Mr Peter Bone, † Ms Karen Buck

† Aiken, Nickie (Cities of London and Westminster) (Con)

† Atkins, Victoria (Parliamentary Under-Secretary of State for the Home Department)

† Bowie, Andrew (West Aberdeenshire and Kincardine) (Con)

† Chalk, Alex (Parliamentary Under-Secretary of State for Justice)

Coyle, Neil (Bermondsey and Old Southwark) (Lab)

† Crosbie, Virginia (Ynys Môn) (Con)

† Davies-Jones, Alex (Pontypridd) (Lab)

† Gibson, Peter (Darlington) (Con)

† Harris, Rebecca (Lord Commissioner of Her Majesty’s Treasury)

† Jardine, Christine (Edinburgh West) (LD)

† Jones, Fay (Brecon and Radnorshire) (Con)

† Kyle, Peter (Hove) (Lab)

† Marson, Julie (Hertford and Stortford) (Con)

† Phillips, Jess (Birmingham, Yardley) (Lab)

† Saville Roberts, Liz (Dwyfor Meirionnydd) (PC)

† Twist, Liz (Blaydon) (Lab)

† Wood, Mike (Dudley South) (Con)

Jo Dodd, Kevin Maddison, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 16 June 2020

(Morning)

[Ms Karen Buck in the Chair]

Domestic Abuse Bill

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I will not go through all the information that I gave at the beginning of last week’s sittings, but I will just remind everyone to switch their mobiles to silent mode. Also, can you ensure that your speaking notes are sent to hansardnotes@parliament.uk, for the assistance of the Hansard writers? We begin this morning’s sitting with clause 66 and Government amendment 40.

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On a point of order, Ms Buck. I know that it is unusual to do this, but I think it is quite important, so I am very grateful. Last week, the head of policy and advocacy for the Children’s Commissioner’s Office wrote to me to explain that she had been wrongly quoted during the previous debates. I do not seek at all to reopen any of the debates of the past, but I do think that this is an important message. If I may, I will read out the three relevant paragraphs. The message states:

“Dear Mr Kyle

I am writing to you and the clerks of the Domestic Abuse Bill Committee to correct the account of a comment I made to the Pre-Legislative Scrutiny Committee for the Domestic Abuse Bill.

When I gave evidence to the Committee I commented that the Children’s Commissioner does not have to send draft copies of our reports or annual reports to the Secretary of State for Education for review. I was making the argument that I felt the same independence should be given to the new Domestic Abuse Commissioner.

Unfortunately my comment was recorded as saying that the Children’s Commissioner did have…‘to send draft reports to the Secretary of State for Education before publication, and that the Secretary of State had to approve its annual strategic plan’, and I did not spot this mistake in the transcript at the time. I am writing to clarify this point although the argument you were making during the debate still stands—that this independence is something to be welcomed.

I don’t know if it is possible for the clerks to amend the report of the pre-legislative scrutiny committee to reflect this error but I wanted to alert you both…as soon as I was made aware of this.

Yours sincerely

Emily Frith

Head of Policy and Advocacy

Children’s Commissioner’s Office”.

I just wanted to set the record straight, not to reopen the previous debate.

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Thank you, Mr Kyle. That has now been placed on the record, and I hope that it will satisfy everyone.

Clause 66

Power of Secretary of State to issue guidance about domestic abuse, etc

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I beg to move amendment 40, in clause 66, page 49, line 36, after “64” insert

“, (Homelessness: victims of domestic abuse)”.

This amendment is consequential on amendment NC16.

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With this it will be convenient to discuss the following:

Government amendments 41 and 42.

Government new clause 16—Homelessness: victims of domestic abuse.

New clause 13—Homelessness and domestic abuse

“(1) Part 7 of the Housing Act 1996 (Homelessness: England) is amended in accordance with subsections (2) to (5).

(2) In section 177(1) and (1A) (whether it is reasonable to continue to occupy accommodation) for each instance of “violence” substitute “abuse”.

(3) After section 177(1A) insert—

“(1B) In this Act, ”abuse” means—

(a) physical or sexual abuse;

(b) violent or threatening behaviour;

(c) controlling or coercive behaviour;

(d) economic abuse (within the meaning of section 1(4) of the Domestic Abuse Act 2020);

(e) psychological, emotional or other abuse.”

(4) At the end of section 189(1) (priority need for accommodation), insert—

“(e) a person who—

(i) is homeless as a result of being subject to domestic abuse, or

(ii) resides or might reasonably be expected to reside with a person who falls within sub-paragraph (i) and is not the abuser.“

(5) In section 198 (referral of case to another local housing authority):

(a) In sub-section (2)(c) for “violence” substitute “abuse”;

(b) In sub-section (2ZA)(b) for “violence” substitute “abuse”;

(c) In sub-section (2A) for “violence (other than domestic violence)” substitute “abuse (other than domestic abuse)”;

(d) In sub-section (3) for “violence” substitute “abuse”.

(6) Article 6 of the Homelessness (Priority Need for Accommodation) (England) Order 2002, SI 2002/2051, is amended in accordance with subsection (7).

(7) In Article 6,

(a) after “reason of violence” insert “(other than domestic abuse)”;

(b) after “threats of violence” insert “(other than domestic abuse)”.”

This new clause amends Part 7 Housing Act 1996, concerning local housing authorities’ duties to homeless applicants, for England. It updates the definition of “domestic violence” to that of “domestic abuse” and removes the requirement that a person who is homeless as a result of domestic abuse must also be vulnerable in order to have a priority need.

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It is a pleasure to serve under your chairmanship, Ms Buck. I am pleased today to be able to bring forward new clause 16, which will amend the Housing Act 1996 to give those who are homeless as a result of being a victim of domestic abuse priority need for accommodation secured by the local authority. The Government believe that it is vital that domestic abuse victims who are homeless or at risk of homelessness are supported to find an accommodation solution that meets their needs and reflects their individual circumstances.

In April 2018 the Homelessness Reduction Act 2017 came into force. That Act, for the first time, puts prevention at the heart of the local authority response to homelessness, irrespective of whether those seeking support are a family or an individual on his or her own, and notwithstanding what has put them at risk. That means that all households that are homeless or at risk of homelessness should be provided with an offer of support from their local authority to find appropriate accommodation.

Since the 2017 Act was implemented, more than 200,000 households have had their homelessness successfully prevented or relieved. However, for those who need more support, it is right that the local authority should have a duty to house them immediately and secure accommodation for them. Under homelessness legislation, a person who is pregnant, has dependent children or is vulnerable as a result of having to leave accommodation because of domestic abuse, already has priority need for accommodation.

However, the Government are now going further. Through new clause 16, the Government will automatically give domestic abuse victims priority need for accommodation. That change will mean that consideration of vulnerability will no longer be required for domestic abuse victims to be entitled to accommodation secured by the local authority. If the authority is already satisfied that an applicant is homeless as a result of being a victim of domestic abuse, that victim and their family should not need to go through an additional layer of scrutiny to identify whether they are entitled to be accommodated by the local authority. The amendments to the Housing Act will help ensure that victims do not remain with their abuser for fear of not having a roof over their head. Alongside the announcement made in the spring Budget to extend exemption from the shared accommodation rate to victims of domestic abuse, that should support victims to move into a place of their own where they can feel safe and secure.

New clause 13, tabled by the hon. Member for Bermondsey and Old Southwark, who is not here today, would have the same effect as the Government’s new clause 16. The one difference is that the hon. Gentleman’s new clause would also extend priority need status to other persons residing in the same household as a victim of domestic abuse. I want to assure the Committee that such provision is not needed. Where an applicant has priority need, the Housing Act already requires local authorities to provide accommodation that is “suitable” for the household. There is therefore no need for each member of the household to have priority need. Amendments 40 to 42 are consequential on new clause 16.

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Diolch yn fawr, Ms Buck. It is my pleasure to speak to new clause 13, which outlines the need for more stringent housing support for those fleeing domestic abuse in their current households. Colleagues may recall—I certainly will not forget it, and will be dining out on it for a while—that last week the Minister kindly coronated me as the princess of Wales. I was most flattered by the proclamation and make no apologies for speaking up for people across Wales. I plan to use my new-found royal status to ensure that the voices of Welsh victims of domestic abuse are heard and protected in the Bill.

We all know that with great royal power comes great responsibility. I will be using my voice today to focus on themes that are relevant across the board in England. It is clear that domestic abuse has no boundaries; it does not care what nation you are from or what language you speak. It is imperative that we ensure that collaborative working between both nations covered by the Bill can continue if we are to strengthen the spirit of the Union.

I am delighted to speak to new clause 13. I pay tribute to the hard work of my colleague the hon. Member for Bermondsey and Old Southwark for prioritising the housing needs of survivors of domestic abuse. Sadly, he is unable to join us today, and I know that all Committee members wish him well.

The Government’s change of heart following the brilliant campaign by the all-party parliamentary group for ending homelessness is a welcome step, and these changes will undoubtedly save lives. The campaign was supported by MPs across the House, and a number of organisations in the domestic abuse sector were involved. I hope that colleagues will afford me the opportunity to list the organisations that played a vital role and that are standing together against domestic violence: Crisis, Women’s Aid, Refuge, the Domestic Abuse Housing Alliance, St Mungo’s, Surviving Economic Abuse, Shelter, Homeless Link, Depaul, Centrepoint, Hestia, Changing Lives, the Chartered Institute of Housing, The Connection at St Martin-in-the-Fields, and Latin American Women’s Aid.

It is clear that in England there is a gap in the support offered to those fleeing domestic abuse. These are very real people who are making the brave and bold decision to flee from an unsafe household. We must remember that, because it can be easy to lose sight of that as we sit in this place and discuss the technicalities of the Bill. They should be our priority, but the current system is failing them.

Research by the APPG last year showed that nearly 2,000 households fleeing domestic abuse each year in England are not provided with a safe home, because they are not considered to be in priority need for housing. Colleagues may be aware that during the APPG’s inquiry into domestic abuse and homelessness in 2017, there was clear evidence that local authorities in England were consistently failing to provide people fleeing domestic abuse with the help they need.

I was particularly concerned to read about the vulnerability test being used as a gatekeeper tool by local councils across England. I am pleased that we will now be able to reverse that trend and provide those who are fleeing domestic abuse with a real opportunity to rebuild their lives, yet the amendment still does not go far enough. Despite initial informal commitments from the Ministry of Housing, Communities and Local Government to adopt the APPG’s amendment word for word, there are now some key differences in the final amendment, which could undoubtedly lead to some domestic abuse victims in England who require housing support falling through the cracks.

The APPG’s amendment would ensure that anyone in a household who applies for homelessness assistance in England due to domestic abuse would qualify for automatic priority need and have a legal right to a safe, permanent home. It is extremely disappointing that the wording of the Government’s amendment means that survivors would be required to physically make the application for homelessness assistance themselves in order to receive automatic priority need. Both the domestic abuse and homelessness sectors have expressed concern that the Government’s amendment fails to guarantee adequate protection to survivors of domestic abuse.

Colleagues will be aware that a note from the APPG, containing more information, was circulated to Committee members recently. I am aware that the hon. Member for Harrow East (Bob Blackman), in his capacity as co-chair of the APPG, recently wrote to Ministers and received a reply indicating that the Government do not intend to change their position on this. The Government response states:

“Allowing a member of the household to make the application could allow a perpetrator to manipulate the situation and frame themselves as the ‘new partner’, using the victim to obtain accommodation for their own gain and allow the abuse to continue.”

However, the domestic abuse sector does not agree.

The APPG’s amendment makes it clear that priority need status for settled housing can be guaranteed regardless of whether the homelessness application is made directly by someone in the household who is experiencing domestic abuse. In comparison, the Government’s amendment would not allow for other members of the household to make the application. So many examples spring to mind of where domestic abuse victims could slip through the cracks under the terms of the Government’s amendment, such as children who have had to flee an abusive situation with their mother.

Specifically, this is relevant in a context where only the mother has been abused but the children are not able to reside with their mother, perhaps due to parental addiction or the children being adults. Similarly, if a mother and her children were facing abuse by an adult child against one or more siblings who are under 16, but not against the mother, they would not be entitled to seek urgent support. I hope colleagues will forgive my listing the technicalities of those situations, but they are very real and present in all the communities that each of us represents and serves.

Allowing a member of another household to make an application for homelessness assistance on behalf of an individual who is the victim of domestic abuse is a vital safeguarding mechanism for those fleeing abuse. The strength it takes to flee an abusive household is undeniable, but it will not always be safe or suitable for victims of abuse to make an application for assistance in person. In many cases it will be too dangerous for them to leave their home until they know that they have somewhere safe to seek refuge, or there could be logistical issues, such as where a victim is receiving hospital treatment. For other groups of people considered to be in automatic priority need for settled housing in England, it is already the case that someone else in the household is able to make the application—for example, if a woman is pregnant, their partner is able to make an application on their behalf. The same principle must be extended to people who are fleeing domestic abuse.

Having spent some time discussing the provisions needed in England, I will turn my attention back to my home nation of Wales, to highlight the impact that the truly groundbreaking Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015 has had. In Wales, the Labour Government have implemented legislation that puts a duty on the devolved public sector to prevent, protect and support. This has increased understanding and built referral routes to specialist support, allowing local authorities to work alongside and in conjunction with those specialists in order to ensure rapid support for those who need it. After a decade of funding cuts to local authorities across the UK, it is clear that those local authorities are under pressure, particularly when it comes to the housing crisis that we see up and down the country. I urge the Government to reconsider and allow more flexibility for domestic abuse victims who are seeking urgent housing support.

Finally, I hope that colleagues will indulge me as I use some key case studies to highlight the importance of a more accessible system for applying for homelessness assistance. At Women’s Aid, one service user said:

“After a year of fallout, I was still homeless and on my backside—it felt like I was worse off for going through ‘the system’.”

A key worker from Solace Women’s Aid—a fantastic charity based in the constituency of my hon. Friend the Member for Bermondsey and Old Southwark—said:

“A lot of women I work with have a secure tenancy. They really don’t want to leave the secure tenancy. But then often they might not have a lot of choice… some women will prefer to…take massive risks…than leave it.”

One case highlighted by Crisis was that of Danielle, who was made homeless when her relationship ended, after her neighbour called the police following a two-day beating. Despite visible bruising and a letter from her partner admitting the abuse, she was told by the council that she needed to provide further evidence of her vulnerability, and that she was not a priority. So she ended up homeless and sofa-surfing for more than two years.

An anonymous survivor said that he had escaped a three-year abusive relationship where, on occasion, his partner had locked him in a room for five days and beaten him so severely that he was confined to a wheelchair. When he approached the council, he was refused help with finding a safe home, which left him with no option but to sofa-surf for several months. Eventually, a charity that supports victims of domestic abuse helped him to deal with the council, and he is now socially housed.

It is clear from those testimonies that we have an opportunity to change the course of people’s lives and affect their ability to regain their independence following a period of domestic abuse. It is not unreasonable to allow for a more flexible system to ensure that victims can get access to the housing support they need. That additional power would improve people’s ability to flee, and could be hugely powerful as a lifeline for those in need. The new clause is well written, with substantive detail. I ask that the people I have talked about be made a priority.

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I thank the hon. Lady for her comments. In the spirit of the Bill, and of the Committee, let us welcome the fact that we are making changes in the area in question. It is fantastic that new clause 16 has been tabled.

There is a sliver of disagreement between the Government and the hon. Members for Pontypridd and for Bermondsey and Old Southwark, on the role of other people in the household. We have heard a great deal—just in the Committee Room, let alone in our experiences outside it—of the manipulative nature of some perpetrators and their ability to seize an opportunity against their victim, use it for their own ends and do incredible damage to the victim. Also, the children are often victims. Victims of domestic abuse may be vulnerable and at risk of such manipulation—of being controlled by the perpetrator, whether that is a partner in an intimate relationship, as described in clauses 1 and 2, or indeed a family member. It was against that backdrop that we drafted the clauses.

Our primary concern, on the sliver of disagreement between us, is that an abusive partner could apply for new housing under the approach suggested by the hon. Lady, to the detriment of the victim and the gain and advantage of the perpetrator. Clearly no one wants that.

I take the point about the need to ensure that the system is sensitive to the needs of victims. Indeed, I am pleased that my hon. Friend the Member for Harrow East, who has led the campaign with the hon. Member for Bermondsey and Old Southwark, wrote to my hon. Friend the Under-Secretary of State for Housing, Communities and Local Government, the Member for Thornbury and Yate (Luke Hall), who responded on 10 June. In the course of the correspondence and conversations, the hon. Lady’s concerns were clearly canvassed as well. My hon. Friend the Under-Secretary told my hon. Friend the Member for Harrow East that there is already the flexibility in the system to take care of cases where someone has difficulty making their own application, whether that is because they are in a hospital bed or because they are in a refuge that they cannot leave.

The homelessness code of guidance covers such circumstances. Paragraphs 11.13 to 11.16 make it clear that where a face-to-face appointment does not meet the applicant’s needs, assessments can be completed on the telephone or internet, or with the assistance of a partner agency. As for the case studies that the hon. Lady raised, I very much hope that, under new clause 16, Women’s Aid and the other fantastic organisations that we all support would be able to help the victims who could not make applications face to face because of their circumstances.

The hon. Lady raised the issue of secure tenancies. Again, that is addressed in the Bill, in clause 65. Our slight disagreement, as I have said, is on the point about a perpetrator’s ability to manipulate.

We want victims to have full control and ownership of their homelessness application and the accommodation offer from the local authority. That is what new clause 16 manages to achieve.

The hon. Member for Pontypridd also raised what she called the analogous example of pregnancy. Pregnancy is different. It does not—one would hope—involve the same relationship of abuse, manipulation, and coercive and controlling behaviour, and the assessment of priority need is pretty straightforward. One can assess that someone is pregnant without the need for expert evidence past a certain stage. I would argue that that is a different set of circumstances.

For these particular circumstances of abuse, we are clear that we want to give power back to the victim and to enable the victim to make the application with the sensitivities that I have set out in the homelessness code. We will update the homelessness code of guidance as part of this change coming into effect. We will take the opportunity to ensure that the guidance is clear about the need to ensure that victims are appropriately supported by local authorities to make this application. We will reinforce to all local authorities that all homeless applicants, including victims of domestic abuse, are able to be accompanied by a friend, family member or support worker, if they wish.

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The Minister used the term “all victims”. Does the new clause cover those victims who are working in this country but have no recourse to public funds?

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We will come to debate that set of circumstances tomorrow. In terms of homeless applicants, including victims of domestic abuse, we are dealing with this within the confines of the regulations as they apply at the moment.

Amendment 40 agreed to.

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I beg to move amendment 55, in clause 66, page 49, line 42, after “children” insert “;

(c) the support employers should provide to victims of domestic abuse, including through the provisions of paid leave.”

This amendment would ensure that employers are provided with guidance about the support they should provide to victims of domestic abuse, including provision of paid leave.

I did not do this last week, but I just want to say a massive thank you to the people in the Public Bill Office. The amount of work that has gone into these amendments might be clear from the number of times that I stand on my feet. It is important to thank the people who sit in the background doing all that work, having an argy-bargy with all of us as we try to table amendments. They are a godsend, so I want to say a massive thank you to them.

This amendment goes back to the Committee’s conversations last week about workplaces. In part, the Government’s announcement of a review of domestic abuse in the workplace potentially covers what this amendment seeks to do. It did not exist when I tabled the amendment.

This amendment is about workplace guidance, which would ensure not only that a victim is supported, but that secondary benefits are offered to other employees, who would be indirectly affected by the abuse happening at their workplace. Without guidance, we expect employers just to know what to do. In many cases, which I spoke of last week, they have considered terminating employment in order to protect their business and their employees, removing the only lifeline that a victim might have. Often, when we try to change things in the workplace—certainly in relation to an equalities framework—the argument we get back is, “This will be too onerous on big and small business.” Over the past couple of years, however, I have seen that businesses are truly interested in trying to do something about this.

I was called to one of those fancy things where lots of businesses sit around a table in a fancy building. It was so fancy that I saw Anna Wintour from Vogue in the lift—she was exactly as Members might imagine. Businesses from all over the country came to listen to me talk about what they might be able to do to help domestic violence victims in their workplaces. Various companies, such as Lloyds and Vodafone, have offered two weeks’ full pay to victims of domestic abuse.

Studies by those organisations—EY, for example, has done a specific study, such is the nature of its business—show that although that right was appreciated and used when needed, no employee had taken the full two weeks off as part of their paid employment. Those organisations are trying to be proactive. We have to make sure that that is available for everybody.

During my work on sexual harassment at work, I was often on the phone to fancy people in Los Angeles who ran the Time’s Up campaign. I constantly used to say, “We mustn’t forget about Brenda in Asda. We mustn’t forget that the person we are talking about is actually a woman called Brenda in Asda.” The same applies to the amendment, which seeks an element of paid leave as well as guidance for employers who want to do more than simply step forward and be the goodies and go to fancy lobby lunches to talk about these issues. We have to truly seek to change that.

The Government have suggested that they are going to hold a consultation and review what exactly that will mean. I have absolutely no doubt about what the findings will be. They will be the same as those reached over a number of years by different groups, including the all-party parliamentary group on domestic violence and abuse, working alongside the Employers’ Initiative on Domestic Abuse and the TUC. An unusual group of people have been working on this for a while. There are rabble-rousing union stewards working alongside some of the poshest organisations I have ever worked with. Those meetings are always a delight. We have taken evidence from New Zealand, for example, where that right already applies.

I will not press the amendment to a vote. It was tabled before the Government announced any sort of action in this area. It is merely a probing amendment, given that businesses have told us that they would not find onerous.

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The amendment brings us to the role that employers can and should play in supporting employees who are victims of domestic abuse. The Government expect all employers to show compassion when faced with cases of domestic abuse. It is important that the Government help employers to support victims. We recognise the excellent work of organisations that provide guidance to help employers to do more. The Employers’ Initiative on Domestic Abuse, for example, does great work and has increased the services that it can provide employers during covid-19, because it recognised its ability to send messages through its network of support. We very much support and applaud that sort of work.

Public Health England, in partnership with Business in the Community, which is a business-led membership organisation, provides an online domestic abuse toolkit, including advice on developing a workplace policy and guidance on practical workplace support. Although not specifically designated for victims of domestic abuse, some existing employment rights can help to support victims who face particular circumstances. For example, statutory sick pay may be available where the employee is suffering from physical injury or psychological harm. The right to request flexible working may also help in circumstances where working patterns or locations need to change. We committed in our manifesto to taking that further and consulting on making flexible working the default. In addition to the statutory right, many employers offer compassionate leave or special leave to their employees to enable them to take time to deal with a wide range of circumstances. That leave is agreed between the employer and the employee, either as a contractual entitlement or on a discretionary basis.

We accept, however, that that framework of rights may not work for every circumstance faced by victims of domestic abuse. There may be more that the Government can do to help employers better support those who are experiencing abuse. That is why the Department for Business, Energy and Industrial Strategy last week launched a review of support in the workplace for victims of domestic abuse. I always like to give the end date of such consultations so that colleagues are nudged into responding if at all possible: the end date is 9 September 2020. I ask colleagues to please submit their views and those of their networks of contacts, charities and businesses.

The review invites contributions from stakeholders, covering the practical circumstances that arise in relation to domestic abuse and work, best practice by employers, and where there is scope for the Government to do more to help employers protect victims of domestic abuse. We will also host events to build the evidence base further, before publishing the findings and an action plan by the end of the year. Our view is that the Government review provides the right framework for identifying how the Government can best help employers to support victims of domestic abuse. It creates a firm basis on which to make progress.

I am pleased that the hon. Member for Birmingham, Yardley has indicated that this is a probing amendment, so I invite her to withdraw it.

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I thank the Minister. If anyone in this room were faced with an employee—and I have been in this situation a number of times—going through a court case, I cannot imagine that anybody, no matter whether they were working here or elsewhere, would expect that person not to be paid or even to be paid statutory sick pay for that period. However, that is the reality for the vast majority of people. Victims of domestic abuse need access to a specific sort of leave. That would change the culture in an organisation, and including information about it in the big pack that people receive on their first day would be a real sign that they could speak to their boss about it.

Asking for sick leave or compassionate leave because you have been raped is completely different from doing so because your mother has died. It is much easier for someone to ask their boss for leave because a relative has died than to do so because they might have been raped the night before. If someone’s house was broken into, they would ring their boss in the morning and say, “My house has been broken into. I can’t come in today because the police are coming.” That is a different conversation from, “My husband beat me up last night. I’m sorry I can’t come in, but the police are coming over.” It is not the same. We need to change the culture from the top down, to make sure there is a marker that shows people that if they have to go to court—which can take weeks and weeks—and if they need to flee, something can be done.

The Minister mentioned different guidance. The TUC says that its guidance on domestic abuse is the most downloaded piece of guidance ever from its website. Let us hope that culture is changing and that the review mentioned by the Minister shows real courage on what needs to change in the workplace. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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I beg to move amendment 47, in clause 66, page 49, line 42, at end insert—

“(2A) The Secretary of State must issue separate statutory guidance on domestic abuse that also constitutes teenage relationship abuse and such guidance must address how to ensure there are—

(a) sufficient levels of local authority service provision for both victims and perpetrators of teenage relationship abuse,

(b) child safeguarding referral pathways for both victims and perpetrators of teenage relationship abuse.

(2B) The guidance in subsection (2A) must be published within three months of the Act receiving Royal Assent and must be reviewed bi-annually.

(2C) For the purposes of subsection (2A), teenage relationship abuse is defined as any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse, which can encompass, but is not limited to psychological, physical, sexual, economic and emotional abuse, including through the use of technology, between those aged 18 or under who are, or have been in a romantic relationships regardless of gender or sexual orientation.”

This amendment would place a duty on the Secretary of State to publish separate statutory guidance on teenage relationship abuse. The statutory guidance would cover not just victims of teenage domestic abuse but extend to those who perpetrate abuse within their own teenage relationships.

This cross-party amendment addresses teenage relationship abuse. It would place a duty on the Secretary of State to issue separate statutory guidance on how to support teenagers who either experience or may display abusive behaviour in their relationships. To be clear, the amendment does not advocate lowering the age limit for domestic abuse or criminalising anyone. We have to acknowledge that domestic abuse is not like a driving licence or a coming of age, because we know that it does happen to people before they turn 16. The amendment acknowledges that teenage abuse is a reality, and calls for the production of separate statutory guidance and recognition that young people, whether victims or perpetrators, need special referral pathways and service provisions that are appropriate for them and for their age.

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I am sure that the hon. Lady will greet the fact that this amendment would align English and Welsh legislation with safeguarding procedure in Wales, which presently acknowledges peer-on-peer abuse. That consistency of approach would be advantageous in enabling better service support to follow on from it.

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I thank the hon. Lady for that excellent and very well-made point. If the Bill is to be as successful as everybody wants it to be, this amendment provides an opportunity to take early action to support and encourage young people away from a path that could lead to an abusive or an abused life. It is also very much in the spirit of much of the evidence we heard during our first sitting and much of what we have said in this room about recognising the impact that domestic abuse has on young people and the need to protect them from it throughout their lives.

The Bill in its current form defines domestic abuse as taking place between two persons above the age of 16—as I have said, we can recognise that people do not miraculously change when they are 16—and yet the evidence shows that to define it in those terms is to miss out vulnerable, troubled and an abused section of our young people who are unseen, unheard and, as a result, unsupported.

We know, however, that abuse takes place between younger teenagers. According to the National Society for the Prevention of Cruelty to Children, 25% of girls—one in four girls—between the ages of 13 and 17 have reported some sort of physical relationship abuse. That is very similar to the rate in the adult population. Ministers will be aware that that sparked an awareness campaign by the Home Office and that prevention work was done in schools, but I am afraid to say that not much has changed since then.

More recently than the NSPCC, the Children’s Society undertook a piece of work between April 2018 and March 2020, which found that out of 218 young people whom the society worked with in a range of services, 25%—one quarter; again, one in four—had experienced physical abuse in relationships. At 57%, more than half had experienced some form of emotional abuse.

One thing stopped me short when I read the evidence: the majority of the victims were aged between 14 and 17, but some of them were as young as 10—these are children being damaged already. Age seemed to make little difference to the sorts of abuse that they experienced, the only difference being that, from 16, the statutory agencies recognise it as domestic abuse and in some cases offer specialist support. But it should not just start at 16. All young people need to have that availability. And although they need a different response from adults, that does not mean that they should be excluded from the Bill.

I know that the Minister evaluated the Government’s response to this form of abuse, but I think we need to draw different conclusions. I will outline why. The “Working Together to Safeguard Children” guidance, or how-to manual, for all agencies makes no reference whatever to teenage relationship abuse. That is an oversight. It has led to local policies, referral pathways and service provision that do not meet needs. Recent research by the Children’s Society found that just 21% of local authorities had a policy or protocol in place for responding to under-16s, and only one local authority could provide details of referral pathways. Surely that is not good enough.

Policies and guidance matter. They are the starting point for recognising and responding to forms of abuse and they enable all agencies to work with the same understanding. Without a multi-agency approach, organisations, schools, local authorities and others work in silos, and that minimises the impact that they can have. If they all work together—like we are doing—they can have a fantastic impact. Working in silos lessens the impact.

In education, a survey of just under 18,000 secondary school pupils in February of this year found that 51% said that they could spot the signs of an abusive relationship. I find it quite scary that 51% of teenagers said that. Some went on to say that they would not know how to leave an abusive partner, so clearly the lessons that they are getting are not working in education.

We welcome the introduction of compulsory relationship and sex education lessons. However, for some years many schools have already adopted school-based healthy relationship initiatives, and yet abuse among teenagers remains pervasive. We have to recognise that it is a problem, and education is just one piece of the puzzle. If there are no services available to understand and change abusive behaviour, we will not see the progress necessary to tackle that form of abuse; and, if we do not tackle such abuse, we allow it to develop as people grow and get older. That is the point at which we need to get it.

Brilliant work is being done by specialist independent domestic violence advisers, working with young people who experience abuse. They provided a response to the pre-legislative Committee, but only one third of services actually offer specialist support. The Children’s Society found that only 39% of local authorities commission the specialist service for under-16s and that just over half provide specialist support to 16 and 17-year-olds. That suggests that, despite 16 and 17-year-olds being brought into the scope of the definition of domestic abuse some four years ago, there are still significant gaps in the specialist services available to them.

This amendment would ensure that 13 to 18-year-olds experiencing abuse and presenting as abusive are seen, and that the abuse is understood so that specialist referral pathways and services are designed in an effective child-centred way. I know that the Government have expressed concerns previously about criminalising young people who display abusive behaviour. I agree. That is why support must be offered as early as possible to change that behaviour, to prevent them not just from being criminalised at a young age but criminalised as adults. Surely we want to avoid teenagers with a problem becoming adults with a problem.

Prevention must begin at the outset of displaying abusive behaviour, not when the behaviour has set in as adults. Early intervention specialist support is effective for young victims as well. One young person violence adviser said that the young girl she had supported in abusive relationships did not reappear in later life.

My question is, why would we not want to ensure that the Domestic Abuse Bill is preventive? Why would we not want to ensure that it reaches out to young people, some of them children, sets them on the right course and has the referral pathways for them? Surely that is so much better than having to pick up the pieces of broken young lives.

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I thank the hon. Lady for her powerful speech and for setting out the case for the amendment.

We know that domestic abuse in teenage relationships has the potential to shape adult lives. We know that it can be severe and can have many consequences outside the two people in the relationship. We are clear that the impact of domestic abuse on young people, including those in abusive relationships, exists and that we need to ensure that agencies are aware of it and of how to identify and respond to it.

The Bill’s definition states that behaviour is domestic abuse if parties are aged 16 or over. I note that that was supported by the Joint Committee and, indeed, by the evidence we heard from Lucy Hadley of Women’s Aid and Andrea Simon of the End Violence against Women Coalition at the evidence session of this Bill Committee. We are of the view that having a minimum age of 16 years does not deny that younger children are not impacted or affected by domestic abuse, including in their own relationships.

I have no doubt that the amendment is well intentioned. However, having established that minimum age as the threshold in the definition of domestic abuse, it follows that any statutory guidance issued under clause 66 of the Bill, which relies on the definition in clause 1, cannot and should not as a matter of law, address abuse between people who are aged under 16.

That is not to say that the guidance issued under clause 66, which addresses abuse between older teenagers, cannot have wider application. There are other sources of guidance for younger age groups. We intend to publish a draft of the guidance ahead of Report and, in preparing that draft, we have worked with the children’s sector, among others, to include the impacts of abuse in older teenage relationships within the guidance. Clearly, we will continue to work with the children’s sector to ensure that the guidance is as effective, thorough and accessible as it can be before it is formally issued ahead of the provisions in clauses 1 and 2 coming into force.

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As the Minister knows, I have concerns about this—I spoke to her when in listening mode. At the evidence session two weeks ago, for me the powerful evidence was from the Local Government Association spokesperson, the leader of Blackpool Council, whom I questioned specifically. He said that he felt that under-16s were dealt with under the Children Act. Does my hon. Friend agree that there are other ways of dealing with the matter?

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I thank my hon. Friend for her contributions, her canvassing of views sympathetic to the situations faced by teenagers under 16, and her work on that. She is right to point out the evidence of Councillor Simon Blackburn. He is an experienced councillor and also, in a previous life, was an experienced social worker. He contributes on behalf of the Local Government Association in all sorts of forums on which he and I sit—not just on domestic abuse, but on other areas of vulnerability.

I appreciate that it sounds rather lawyerly to focus on the age range, but we are careful not to tamper inadvertently, albeit with good intentions, with the strong safeguarding mechanisms in the Children Act. That is why we are not able to accept the amendment to the guidance, given that the guidance is based on the definition in clauses 1 and 2. However, other forms of information are available and as of September relationships education will be introduced for all primary pupils, and relationships and sex education will be introduced for all secondary school pupils. That education, particularly for primary schools, will cover the characteristics of healthy relationships, and will help children to model the behaviours with knowledge and understanding, and cover what healthy relationships look like. Of course, as children grow up and mature, the education will grow and develop alongside them, to help them as they are setting out on those new relationships.

In addition, the important inter-agency safeguarding and welfare document produced by the Department for Education called “Working together to safeguard children” sets out what professionals and organisations need to do to safeguard children, including those who may be vulnerable to abuse or exploitation from outside their families. It sets out various scenarios, including whether wider environmental factors are present in a child’s life and are a threat to their safety and/or welfare.

Finally, of course, the courts and other agencies should also take into account relevant youth justice guidelines when responding to cases of teenage relationship abuse, avoiding the unnecessary criminalisation of young people, and helping to identify appropriate interventions to address behaviours that might constitute or lead to abuse. As I have said, I appreciate the intentions underlying the amendment, but I return to the point that the age limit was on careful reflection set at 16 in the definition, and so the statutory guidance must flow from that.

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Having heard the Minister’s comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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I beg to move amendment 84, in clause 66, page 49, line 42, at end insert—

‘(2A) The Secretary of State must issue guidance under this section which takes account of evidence about the relationship between domestic abuse and offences involving hostility based on sex.

(2B) In preparing guidance under subsection (2A) the Secretary of State must require the chief officer of police of any police force to provide information relating to—

(a) the number of relevant crimes reported to the police force; and

(b) the number of relevant crimes reported to the police force which, in the opinion of the chief officer of police, have also involved domestic abuse.

(2C) In this section—

“chief officer of police” and “police force” have the same meaning as in section 64 of this Act;

“domestic abuse” has the same meaning as in section 1 of this Act;

“relevant crime” means a reported crime in which—

(a) the victim or any other person perceived the alleged offender, at the time of or immediately before or after the offence, to demonstrate hostility or prejudice based on sex,

(b) the victim or any other person perceived the crime to be motivated (wholly or partly) by hostility or prejudice towards persons who are of a particular sex, or

(c) the victim or any other person perceived the crime to follow a course of conduct pursued by the alleged offender towards the victim that was motivated by hostility based on sex;

“sex” has the same meaning as in section 11 of the Equality Act 2010.’

This is another cross-party amendment. Misogyny is the soil in which violence against women and girls grows. That was said by Sophie Maskell of the Nottingham women’s centre, but it is a sentiment that sums up much of what the Bill is about. The amendment is an attempt to attack the problem at its root. It would do two things. First, by requiring all police forces to record misogyny as a hate crime it would allow us to assess how it influences domestic abuse and begin to understand the nature of violence against women and girls. That way, we might begin to overcome it, not pick up the pieces. Protecting survivors, making sure support systems are in place and constantly looking for improvements are all important, but understanding the roots of the problem and attacking it there is crucial. If we understand the nature and motivations of violence against women and girls, we can begin to prevent it in the first place.

This approach is already proving successful in Nottinghamshire, and has the support of many women’s charities including Refuge, Women’s Aid, Plan International, Southall Black Sisters, Citizens UK, Tell MAMA, Hope not Hate, the Jo Cox Foundation and more. The Law Commission is about to launch a consultation on the issue, but that is no reason not to start to record data, monitor incidents and get a full picture of where and how violence against women happens, so we can influence its prosecution and understand the role misogyny plays in it.

The second effect of the amendment would be to strengthen the status of the legislation by seeking to ratify the Istanbul convention, which this country signed eight years ago last week but has still not ratified. For so many women’s organisations in this country, that delay is inexplicable.

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Given that this is a landmark piece of legislation, I am sure that many Members present share my concern about the fact that we are failing to ratify the Istanbul convention with it. Surely we should be taking the chance to do so through this amendment, as well as a measure we will be discussing tomorrow.

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I thank the right hon. Lady, and absolutely agree. We have a number of opportunities in this Committee to ratify the convention through this Bill. It is an international women’s rights treaty that this country signed, yet it is one of a handful of countries that still has not taken the steps the convention demands. Recognising misogyny as a hate crime would go some way towards achieving the goals of the treaty.

I will step back for a minute to explain why we should record misogyny as a hate crime, and what exactly I mean by a hate crime. Hate crime is defined as criminal behaviour where the perpetrator is motivated by hostility, or demonstrates hostility, towards a protected characteristic of the victim. Intimidation, verbal abuse, intimidating threats, harassment, assault, bullying and damaging property are all covered. Hate crime law is rooted in a need to protect people who are targeted because of their identity, and is defined as

“Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on”

a protected characteristic. Currently, those characteristics are defined as disability, transgender status, race, religion and sexual orientation under the relevant sections of the Crime and Disorder Act 1998 and the Criminal Justice Act 2003, and allow prosecutors to apply for an uplift in sentencing.

Where does misogyny fit into that and affect it? Women and girls from a black, Asian and minority ethnic background often experience hate crimes based on multiple characteristics, and if we do not take misogyny into account, we do not truly get an intersectional understanding of the crime. Sex was the motivation for more than half of the hate crimes women reported last year; age was the second most common, followed by race. Some women may be victims of a hate crime because of their ethnicity or religion, and also because they are women. Some 42% of BAME women aged 14 to 21 reported unwanted sexual attention at least once a month. Many women and girls with intellectual disabilities are also disproportionately subjected to street harassment and sexually based violence, for the dual reason that they are disabled and that they are women. Our laws have to protect them equally, and they cannot do so effectively while misogyny is a blind spot.

I have a personal theory. I suspect that all the women in this room are like me, and have always rejected the idea that they are not equal. That is how we come to be here: we do not accept the premise that we are not equal. I grew up in a household with three daughters, and had no reason to believe that we were not equal to anyone else. I have often had the opposite problem, actually. My confidence was taken for aggression that was not appropriate in a woman, because women are not aggressive, apparently. I remember once when the BBC was tackling sexual harassment problems among staff, it launched an assertiveness programme for women. I asked my boss if I could do this assertiveness programme. I could not understand why my colleagues all laughed when I came out. They asked, “How did it go?” I told them that when I asked, “Gordon, is it alright if I do this assertiveness programme?”, he said, “I wouldn’t dare say no.”

Many of us cannot understand how women come to be the victims of misogyny unless it actually happens to us. Although we might think that we are equal, we have all witnessed misogyny everywhere and been the victim of it. We might cope with it, but we have been the victim of it. Harassment and abusive behaviour are often linked to misogyny, which comes from deep-rooted contempt for women and the understanding that we should behave in a certain way, and the belief that if we do not do so, it is acceptable to slap us or abuse us.

I am sure we do not need a reminder, but if we did, Friday’s front page of a national tabloid newspaper reminded us all quite firmly: contempt for women, an in-built hatred, misogyny that says it is okay to slap us, bully us or harass us in the street because we are women.

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Misogyny is obviously appalling. A lot of us have experienced it. Does she agree that a consultation is really important, because it is a really complex area? Some of my experience and some research into abusive men has shown that a lot of them have borderline anti-social personality traits. They certainly have hostility, but a lot of it comes from things like lack of problem-solving skills, childhood abuse and personality traits, which need to be factored in.

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I agree that consultation is necessary, but I see that as making the point. Consultation is necessary and we need the data to be able to figure out how much of it is due to borderline personality problems and social background, and how much of it is misogyny. We can only do that by having the police gather the data.

Where misogyny has been identified as a hate crime by police forces, it has helped the way that they address the causes and consequences of violence against women and girls. The proposal in this amendment is not theoretical. Police forces around the country are already doing this, showing the positive impact it can have. In 2016, Nottinghamshire police were the first. Their proposals have gone some way to allowing the Nottinghamshire authorities to see exactly where there are problems and how to deal with them. For four years, women and girls there have been able to report crimes that they regard as hate crimes and misogynistic.

This amendment has, as I said, wide support from women’s groups. Let us not wait for the Law Commission before we start working on it. If misogyny is the soil in which domestic abuse flourishes, we have the opportunity with this Bill to root it out, not just to pick up the pieces. We have to support victims and survivors, and we have to encourage perpetrators away from the crime. But if we can identify the different causes of abuse, we can tackle the cause and begin to reduce and eliminate domestic abuse.

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The Government are clear that all hate crime is completely unacceptable and has no place in British society. That is why we have tasked the Law Commission to review current hate crime legislation. By way of background, I should say that the Law Commission was asked to review both the adequacy and parity of protection offered by the law relating to hate crime and to make recommendations for its reform.

The review began in March last year, since when the Law Commission has tried to meet as many people as possible who have an interest in this area of law; it has organised events across England and Wales to gather views. Specifically, the Law Commission has been tasked with considering the current range of offences and aggravating factors in sentencing, and with making recommendations on the most appropriate models to ensure that the criminal law provides consistent and effective protection from conduct motivated by hatred towards protected groups or characteristics. The review will also take account of the existing range of protected characteristics, identify any gaps in the scope of the protection currently offered under the law, and make recommendations to promote a consistent approach.

The Law Commission aims to publish its consultation, as the hon. Lady said, as soon as it can, and I again encourage all hon. Members to respond to it. Given that this work by the Law Commission is under way, we do not believe that the time is right for specific guidance to be issued on this matter. Our preference is to await the outcome of the Law Commission’s review before deciding what reforms or other measures, including guidance, are necessary. However, I point out that in clause 66(3) we do put the gendered nature of this crime in the Bill. It states:

“Any guidance issued under this section must, so far as relevant, take account of the fact that the majority of victims of domestic abuse in England and Wales are female.”

And of course the guidance itself will reflect that.

The hon. Lady raised the Istanbul convention. We are making good progress on our path towards ratification. We publish an annual report on progress, with the last one published in October 2019. Provisions in the Bill and other legislation before the Northern Ireland Assembly will ensure that UK law is compliant with the requirements of the convention in relation to extraterritorial jurisdiction and psychological violence, so we are on our way. I very much hope that on that basis the hon. Lady will feel able to withdraw her amendment.

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Following the Minister’s comments, there is just one reservation remaining. If misogyny is a hate crime, we can gather the data. Does the Minister accept or appreciate that perhaps we could start doing that before the Law Commission has reported?

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The Law Commission, in all its reviews, is incredibly thorough and of course independent. How long it takes is, I have to say as a Minister, sometimes a little bit frustrating, but that is because it is so thorough, so I cannot criticise the commission for that. I would prefer the commission to do its work so that we have a consistent body of evidence that I hope will enable the Government to draw conclusions as to the adequacy of the existing arrangements, and take steps from there.

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I wonder by which instrument the hon. Member for Edinburgh West and I might seek to ask the Government whether they will be implementing any recommendations from the Law Commission.

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I confess that I had not given thought to that particular detail. Far be it from me to suggest to ingenious Back Benchers how they can hold the Government to account. As I have said, we have the Law Commission review under way, and when the commission has reported, we will, of course, in due course publish our response to that review.

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Having heard the Minister’s comments, I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 66, as amended, ordered to stand part of the Bill.

Clause 67

Power of Secretary of State to make consequential amendments

Amendment made: 41, in clause 67, page 50, line 27, after “64” insert “, (Homelessness: victims of domestic abuse)”.(Victoria Atkins.)

This amendment is consequential on amendment NC16.

Clause 67, as amended, ordered to stand part of the Bill.

Clause 68

Power to make transitional or saving provision

Amendment made: 42, in clause 68, page 50, line 38, after “64,” insert “(Homelessness: victims of domestic abuse),”.(Victoria Atkins.)

This amendment is consequential on amendment NC16.

Clause 68, as amended, ordered to stand part of the Bill.

Clauses 69 and 70 ordered to stand part of the Bill.

Clause 71

Extent

Amendments made: 38, in clause 71, page 52, line 3, at end insert—

“() section 36(6A),”.

This amendment is consequential on amendment 33.

Amendment 39, in clause 71, page 52, line 6, at end insert—

‘( ) Section 36(6A) and this subsection (and sections 67 to 69, 72 and 73, so far as relating to those provisions) extend to—

(a) the Isle of Man, and

(b) the British overseas territories except Gibraltar;

and the power under section 384(2) of the Armed Forces Act 2006 may be exercised so as to modify section36 (6A) as it extends to the Isle of Man or a British overseas territory other than Gibraltar.

( ) The power under section 384(1) of the Armed Forces Act 2006 may be exercised so as to extend section 36(6A) of this Act to any of the Channel Islands (with or without modifications).”.(Victoria Atkins.)

This amendment is consequential on amendment 33.

Question proposed, That the clause, as amended, stand part of the Bill.

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Understandably, questions have been asked about the territorial extent of the Bill, so I think it right to explain it. This is a standard clause setting out the territorial extent of the provisions in the Bill, the majority of which apply to England and Wales, or to England only. Following discussions with the Scottish Government and the Northern Ireland Department of Justice, the Bill also includes some limited provisions that apply to Scotland and Northern Ireland.

Part 6 of the Bill extends the extraterritorial reach of the criminal courts in each of England and Wales, Scotland and Northern Ireland, to cover further violent and sexual offences. The provisions are a necessary precursor to enable the United Kingdom as a whole to ratify the Istanbul convention, as they will ensure that the law in each part of the UK meets the requirements of article 44.

Question put and agreed to.

Clause 71, as amended, accordingly ordered to stand part of the Bill.

Clause 72 ordered to stand part of the Bill.

Clause 73

Short title

Question proposed, That the clause stand part of the Bill.

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I would like to speak to this, as I have a sense of mischief today. The clause provides for the short title of the Bill.

Question put and agreed to.

Clause 73 accordingly ordered to stand part of the Bill.

New Clause 15

Consequential amendments of the Sentencing Code

‘(1) The Sentencing Code is amended as follows.

(2) In section 80 (order for conditional discharge), in subsection (3), at the end insert—

“(f) section36(6) (breach of domestic abuse protection order).”

(3) In Chapter 6 of Part 11 (other behaviour orders), before section 379 (but after the heading “Other orders”) insert—

“378A Domestic abuse protection orders

(none) See Part 3 of the Domestic Abuse Act 2020 (and in particular section 28(3) of that Act) for the power of a court to make a domestic abuse protection order when dealing with an offender for an offence.”” .(Alex Chalk.)

This New Clause makes two consequential amendments to the Sentencing Code as a result of Part 3 of the Bill. The first adds a reference to clause 36(6) to the list of cases where an order for conditional discharge is not available. The second inserts a signpost to Part 3 of the Bill into Part 11 of the Sentencing Code, which deals with behaviour orders.

Brought up, read the First and Second time, and added to the Bill.

New Clause 16

Homelessness: victims of domestic abuse

‘(1) Part 7 of the Housing Act 1996 (homelessness: England) is amended as follows.

(2) In section 177 (whether it is reasonable to continue to occupy accommodation)—

(a) in subsection (1), for “domestic violence or other violence” substitute “violence or domestic abuse”;

(b) for subsection (1A) substitute—

“(1A) For this purpose—

(a) “domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2020;

(b) “violence” means—

(i) violence from another person; or

(ii) threats of violence from another person which are likely to be carried out.”

(3) Omit section 178 (meaning of associated person).

(4) In section 179 (duty of local housing authority in England to provide advisory services), in subsection (5)—

(a) for the definition of “domestic abuse” substitute—

““domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2020;”;

(b) omit the definition of “financial abuse”.

(5) In section 189 (priority need for accommodation)—

(a) in subsection (1), after paragraph (d) insert—

“(e) a person who is homeless as a result of that person being a victim of domestic abuse.”;

(b) after subsection (4) insert—

“(5) In this section “domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2020.”

(6) In section 198 (referral of case to another local housing authority)—

(a) in subsection (2), in paragraph (c), for “domestic violence” substitute “domestic abuse”;

(b) in subsection (2ZA), in paragraph (b), for “domestic violence” substitute “domestic abuse”;

(c) in subsection (2A), in paragraph (a), for “domestic violence” substitute “violence that is domestic abuse”;

(d) for subsection (3) substitute—

“(3) For the purposes of subsections (2), (2ZA) and (2A)—

(a) “domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2020;

(b) “violence” means—

(i) violence from another person; or

(ii) threats of violence from another person which are likely to be carried out.”

(7) In section 218 (index of defined expressions: Part 7), in the table, omit the entry relating to section 178.

(8) In article 6 of the Homelessness (Priority Need for Accommodation) (England) Order 2002 (S.I. 2002/2051) (vulnerability: fleeing violence or threats of violence)—

(a) the existing text becomes paragraph (1);

(b) after that paragraph insert—

“(2) For the purposes of this article—

(a) “violence” does not include violence that is domestic abuse;

(b) “domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2020.”

(9) In consequence of the repeal made by subsection (3), omit the following provisions—

(a) in Schedule 8 to the Civil Partnership Act 2004, paragraph 61;

(b) in Schedule 3 to the Adoption and Children Act 2002, paragraphs 89 to 92.” .(Victoria Atkins.)

This New Clause makes two key changes to Part 7 of the Housing Act 1996 in relation to homelessness in England. First, it amends section 189 to give homeless victims of domestic abuse priority need for accommodation. Second, it amends Part 7 to change references to “domestic violence” to references to “domestic abuse” within the meaning of clause 1 of the Bill.

Brought up, read the First and Second time, and added to the Bill.

New Clause 4

No defence for consent to death

‘(1) If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing death, it is not a defence to a prosecution that B consented to the infliction of injury.

(2) Subsection (1) applies whether or not the death occurred in the course of a sadomasochistic encounter.”—(Jess Phillips.)

This new clause would prevent consent of the victim from being used as a defence to a prosecution in domestic homicides.

Brought up, and read the First time.

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I beg to move, That the clause be read a Second time.

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With this it will be convenient to discuss the following:

New clause 5—No defence for consent to injury

‘(1) If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing actual bodily harm or more serious injury, it is not a defence to a prosecution that B consented to the infliction of injury or asphyxiation.

(2) Subsection (1) applies whether or not the actual bodily harm, non-fatal strangulation, or more serious injury occurred in the course of a sadomasochistic encounter.”

This new clause would prevent consent of the victim from being used as a defence to a prosecution in cases of domestic abuse which result in serious injury.

New clause 6—Consent of Director of Public Prosecutions—

In any homicide case in which all or any of the injuries involved in the death, whether or not they are the proximate cause of it, were inflicted in the course of domestic abuse, the Crown Prosecution Service may not without the consent of the Director of Public Prosecutions, in respect of the death—

(a) charge a person with manslaughter or any other offence less than the charge of murder, or

(b) accept a plea of guilty to manslaughter or any other lesser offence.”

This new clause would require the consent of the Director of Public Prosecutions if, in any homicide case in which any of the injuries were inflicted in the course of domestic abuse, the charge (or the plea to be accepted) is of anything less than murder.

New clause 7—Director of Public Prosecutions consultation with victim’s family in domestic homicides

‘(1) Before deciding whether or not to give consent to charging a person with manslaughter or any other offence less than the charge of murder in an offence of homicide in which domestic abuse was involved, the Director of Public Prosecutions must consult the immediate family of the deceased.

(2) The Lord Chancellor must make arrangements, including the provision of a grant, to enable the immediate family to access legal advice prior to being consulted by the Director of Public Prosecutions under sub-section (1).”

This new clause would require the Director of Public Prosecutions to consult the immediate family of the victim before charging less than murder in a domestic homicide and provide the family with legal advice so they can understand the legal background.

New clause 10—Prohibition of reference to sexual history of the deceased in domestic homicide trials

If at a trial a person is charged with an offence of homicide in which domestic abuse was involved, then—

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination, by or on behalf of any accused at the trial,

about any sexual behaviour of the deceased.”

This new clause will prevent the victim’s previous sexual history being used as evidence to prove consent to violence in a domestic homicide case. This draws on the legislative measures in the Youth Justice and Criminal Evidence Act 1999 to prevent rape defendants raking up or inventing complainants’ previous sexual history.

New clause 11—Anonymity for victims in domestic homicides

‘(1) Where a person (“A”) has been accused of a domestic homicide offence and where the person (“B”) against whom the offence is alleged to have been committed has died in the course of sexual activity, no matter likely to lead members of the public to identify a person as B shall be included in any publication.

(2) The matters relating to a person in relation to which the restrictions imposed by subsection (1) applies (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—

(a) the person’s name,

(b) the person’s address,

(c) the identity of any school or other educational establishment attended by the person,

(d) the identity of any place of work,

(e) any still or moving picture of the person.

(3) If, at the commencement of the trial, any of the matters in subsection (2) have already appeared in any publication, the judge at the trial may direct that no further reference to any of these matters may be included in any publication.

(4) If any matter is included in a publication in contravention of this section, the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—

(a) where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) where the publication is a relevant programme—

(i) anybody corporate engaged in providing the programme service in which the programme is included; and

(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper;

(c) in the case of any other publication, any person publishing it.

(5) For the purposes of this section— “domestic homicide offence” means an offence of murder or manslaughter which has involved domestic abuse; a “publication” includes any speech, writing, relevant programme, social media posting or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings.”

This new clause will provide the victim of a domestic homicide with public anonymity.

New clause 14—Anonymity of domestic abuse survivors in criminal proceedings

‘(1) Where an allegation has been made that a relevant offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the survivor.

(2) Where a person is accused of a relevant offence, no matter likely to lead members of the public to identify the person against whom the offence is alleged to have been committed as the survivor shall during the survivor’s lifetime be included in any publication.

(3) This section does not apply in relation to a person by virtue of subsection (1) at any time after a person has been accused of the offence.

(4) The matters relating to a survivor in relation to which the restrictions imposed by subsection (1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include—

(a) the survivor’s name;

(b) the survivor’s address;

(c) the identity of any school or other educational establishment the survivor attended;

(d) the identity of any place where the survivor worked;

(e) any still or moving pictures of the survivor; and

(f) any other matter that might lead to the identification of the survivor.

(5) At the commencement of a trial at which a person is charged with a relevant offence, the judge may issue a direction for lifting the restrictions only following an application by or on behalf of the survivor.

(6) Any matter that is included in a publication in contravention of this section must be deleted from that publication and no further reference to the matter may be made in any publication.

(7) If any matter is included in a publication in contravention of this section, the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(a) where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) where the publication is a relevant programme—

(i) any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included; and

(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper;

(c) in the case of any other publication, any person publishing it.

(8) For the purposes of the section—

“publication” means any material published online or in physical form as any well as any speech, writing, website, online news outlet, social media posting, relevant programme or other communication in whatever form which is addressed to the public at large or any section of the public.

a “relevant offence” means any offence where it is alleged by the survivor that the behaviour of the accused amounted to domestic abuse.

“survivor” means the person against whom the offence is alleged to have been committed.”

This new clause provides lifetime press anonymity for survivors of domestic abuse, and reflects similar protections for survivors of sexual assault enshrined in the Sexual Offences (Amendment) Act 1992. It prevents identifiable details from be published online or in print, and creates a new offence for breaching this anonymity.

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I rise to speak not with my own voice, but with those of my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) and the hon. Member for Wyre Forest (Mark Garnier). I am better at doing one of those voices than I am the other, but I shall try to do justice to both.

The short term for this subject—given that we are debating short titles—is the “rough sex defence”. Other such terms are “Strangled to death in kinky sex romp,” “Woman shot in the vagina in a sex game gone wrong,” and, “Accused killed barmaid during kinky sex session.” Over the last few years, any one of us might have seen this type of headline. They are salacious, tacky and often used as clickbait. We all know that sex sells, but these headlines trivialise what is actually occurring. Women are being murdered and the men who killed them are exploiting a loophole in the law. The “rough sex defence”, as it has become known, is when a woman is killed in what the perpetrator defends as consensual violence. That means that, if your partner left you with 40 separate injuries, dreadful blunt force injuries to your head, a fractured eye socket and vaginal arterial bleeding, but explained that you had consented to such acts and that your death was simply a sex game gone wrong, there is a good chance that your murderer will end up with a lesser charge or a lighter sentence, or your death may not even be investigated.

The horrific injuries I just described were inflicted on Natalie Connolly. Her killer, John Broadhurst, left her to die at the bottom of the stairs, in a pool of her blood. She died of internal bleeding from 40 injuries that he inflicted on her body. He claimed that she insisted on rough sex, so it was her fault, not his. His lurid descriptions of what she insisted he do to her were unchallengeable. Not only did Mr Broadhurst kill Natalie, but he was able to entirely shape the narrative around her death, as she was not there to speak for herself.

That is why I support new clauses 10, 11 and 14. Currently, if a man assaults a woman during sex but falls short of killing her, she is in a much stronger position. She can tell the court that she did not consent, and the law gives her anonymity as a victim of a sex offence. The law bans him from using her previous sexual history in evidence of his defence, although that does not always work. But if he goes the whole way and kills her, she cannot give evidence, she has no anonymity, and his version of her previous sexual history is splashed all over the papers and compounds the grief of her relatives. This is a double injustice: not only does the man kill her, but he drags her name through the mud.

I cannot imagine the hurt and trauma of families who have already lost a daughter, sister, aunt or mother to have to hear the man who killed her describing luridly what he alleges about her sexual proclivities. Of course, she is not there to speak for herself; he kills her and then he defines her. We cannot allow that to continue to happen. We have the opportunity here to make these amendments, so that no victim is posthumously defined by their murderer.

Natalie’s case rightly caused widespread outrage, as her killer escaped a murder charge and was convicted only of manslaughter. He was sentenced to just three and a half years. We cannot have violence against woman and girls continually undercharged. Three and a half years! It is unfathomable.

New clause 6 would require consent from the Director of Public Prosecutions to charge anything less than murder in a domestic homicide. The rough sex defence has proved to be a powerful argument in court and has led to prosecutors backing down from a murder charge in favour of manslaughter, believing that they will stand a better chance of securing a conviction. New clause 7 would require the Director of Public Prosecutions to consult the immediate family of the deceased before deciding whether to give such consent and to provide them with adequate legal advice so that they can understand the legal background. Natalie’s grieving family said that they were not adequately supported in understanding why the charge was being dropped from murder to manslaughter, and what that would mean for the sentence.

We Can’t Consent To This found 67 recent cases of people in the UK who were killed during so-called sex games gone wrong; 60 of them were female. Following the deaths of those 60 women and girls there were 37 murder convictions, but in three of those cases, the deaths were treated as non-suspicious results of sex games until other evidence emerged—respectively, a confession to a friend, dismemberment of two other women, and a further review by a pathologist. They were not investigated as murder or even violent acts until, in one of those instances, the perpetrator had dismembered two other women. Seventeen cases resulted in manslaughter charges, with sentences of three years and upwards; five were subject to no charge, or found not guilty; and one case has yet to come to trial. In nearly half the cases, a murder conviction was not secured.

In the past five years, 18 women and girls have been killed in claimed consensual violent sexual activity. In 10 cases, the man was convicted of their murder; in six cases, the conviction was for manslaughter, and in one, there was no conviction. In one further case, there was a murder conviction only when the victim’s husband confessed to the crime; police had treated her violent death as non-suspicious. One woman’s death has yet to come to court. No one can consent to his or her own death, and it is time this defence was made no longer available.

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The hon. Lady is making an extremely powerful speech. There are far too many cases to name them all, but I wanted to pay tribute to my colleague and hon. Friend the Member for Newbury (Laura Farris), who spoke so movingly about this issue on Second Reading when she mentioned the cases of Laura Huteson and Anna Banks. I feel that both their names ought to be on the record.

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I could not agree more, and thank the hon. Lady for her intervention. Any opportunity to get women’s names on the record, especially those who have died, is absolutely fine with me.

New clause 5 arises from similar considerations, stating that where serious harm has occurred during sex because of the behaviour of one person, consent does not exist. We Can’t Consent To This found 115 cases of women who had been injured in non-fatal assaults that those accused said they had consented to. Examples of the non-fatal injuries that were claimed to be due to consensual sex include: being slashed in the back with a knife; two black eyes; being strangled; being punched in the stomach; being held against a wall and slashed with a knife, causing permanent disfigurement; being electrocuted with mains electricity; and a woman being throttled with a shoelace by a man she had met for sex—in that case, the strangulation was so severe that some of her brain cells died when the blood flow was interrupted.

In one case brought to the attention of my right hon. and learned Friend the Member for Camberwell and Peckham this year by a solicitor, prosecutors declined to pursue charges against a man accused of sexual assault because of fears he would claim it was consensual sexual behaviour. In deciding not to proceed, the CPS prosecutor said in a letter to the complainant,

“A prosecution could follow in relation to this offence, but the courts have shown an interest in changing the law so that the suspect could say that you consented to these assaults. This would be difficult to disprove,”

for reasons set out earlier in the letter.

“If I prosecuted this offence it is likely to lead to lengthy legal proceedings in which the background to the case would have to be visited as far as the sexual practices that led to and accompanied the infliction of the injuries. In my opinion it is not in the public interest to pursue this charge”

in isolation.

We Can’t Consent To This, the campaign group, has found evidence of 67 cases in the past 10 years. That defence should never have been open to those defendants.

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It is a world of difference, but talking about this sort of consent, I find my mind is thrown back 20 or 30 years to the original arguments about rape and consent. Does the hon. Lady share my disappointment that we have not moved on?

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I absolutely share the hon. Lady’s frustrations. The truth of the matter is that we are talking about specific cases where this defence could easily be leaned on, and we are trying to shut those loopholes. There are only really three defences in a rape case. One is mistaken identity: it was not the accused, but someone completely different. Another is that it just did not happen, full stop—luckily, science has moved quicker than social science. The final one is that she or he consented. That is usually the one that is leaned on, because, unfortunately, it is much more difficult to prove than it is to rape.

Pre-existing case law, R v. Brown, makes it clear that a person cannot consent to injury or death during sex. However, in 45% of cases where a man kills a woman during sex and claims she consented to it, this defence works. We cannot let that continue.

If a man can convince police, prosecutors, coroners, a judge or even a jury that the woman was injured during a consensual act, he may see the following outcomes: he is believed; police do not investigate it as a crime or no charges are sought by prosecutors; prosecutors opt to pursue a manslaughter charge, ensuring a far shorter sentence than for a murder charge; mitigation in sentencing due to no intention to kill. Extreme sexual and sadistic violence is not treated as an aggravating factor in sentencing because it is accepted on his say so that she consented to it. All those outcomes are entirely acceptable today.

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There are many aspects of the cases that my hon. Friend is outlining that are extraordinarily disturbing and painful to understand. There is another one: the impact on the victim’s family. For them to sit there, coping with the death of their loved one, and then to hear that their loved one consented to these kinds of brutalising factors must cause pain beyond comprehension. Should we not remember the victims in all of this?

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Absolutely. Even just from a personal perspective, the idea of my parents having to listen to conversations about me having sex at all is a harrowing thought, but we are talking about people who have lost their loved one having to listen to such things. The point about anonymity is made in rape cases, but there is no similar level of anonymity in this instance for a bereaved mother, father, brothers and sisters having to hear about vicious abuse, while somebody takes to the stand to say that the victim wanted it and loved it.

I have seen cases that would make most people’s toes curl, but I have to say that I have been deeply affected by this case. I have become a bit of an old hand at some things, but the Connolly case is so harrowing that I cannot imagine how her family have coped with it.

The law should be clear to all: a person cannot consent to serious injury or death. But the case law is not up to the task. When a woman is dead, she cannot speak for herself. Any man charged with killing a woman, or a current or former partner, should simply say, “She wanted it.” This is why we must change the law and urge the Government to accept these amendments.

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I rise to say a few words about new clause 14. It seeks to grant anonymity in the press to survivors of domestic abuse, should they request it. In recent days, the front page of one of our national newspapers covered an instance of domestic abuse in really quite grim terms. It failed to point out the consequences of it, and did not report any remorse whatsoever. That kind of most insensitive reporting still makes its way on to the front page of papers.

We know the counter-case, too. In the wake of the Leveson inquiry, we know that these issues are sensitive. We must be fully aware of the need for the press to do their job in as unencumbered a way as possible. The Independent Press Standards Organisation, the largest independent regulator of the newspaper and magazine industry in the UK, has no guidance whatever for journalists on how to report domestic abuse cases. There is only a short blog, which suggests that journalists heed to how domestic abuse charities would like cases reported locally. The industry has acknowledged the issues relating to the reporting of domestic abuse, but no action whatever has been taken.

It is clear that the Government and Parliament need to speak, and we need to guide the industry through legislation. The issue has become so pronounced because stories are published in which victims and survivors of domestic abuse are named, as well as family members and children. When these stories make their way on to websites, which is where the majority of people read news these days, victims have no anonymity. Underneath the story, there is a plethora of people discussing and naming people, saying, “I heard this”, or “I heard that she was that”; the irony is that they are all anonymous. They are benefiting from an anonymity that the victims do not have. These issues are cast in a new light in the modern era, whereas regulations are distinctly old-fashioned.

Journalists are struggling on how to deal with the issue. I recognise that, and have spoken to many of them. It is not wholly the responsibility of the press, because when it comes to other crimes and their survivors, it is set out in law how journalists are to respond. The keystone piece of legislation providing anonymity is the Sexual Offences (Amendment) Act 1992, which gives survivors of sexual assault the right to press anonymity, and lays out the circumstances in which that right can be waived.

The Government have already shown support for the spirit of the new clause in legislation for survivors of other crimes such as the Serious Crimes Act 2015, which grants anonymity to and protection for alleged victims of female genital mutilation. In section 2 of the Modern Slavery Act 2015, victims of any human trafficking offence are granted anonymity. The Government are willing to grant anonymity to certain types of people, and it is striking that a person has the right to anonymity if they are the victim of sexual violence, but not if that sexual violence occurs within a relationship and in a home. These proceedings cast that anonymity in a new light. The new clause would provide similar restrictions on how the press could report on survivors of domestic abuse, so that it would not be left to individual publications to make that decision. In today’s hyper-competitive media world, where there are shrinking readerships and a move to online news, the issue is more important than ever.

The domestic abuse charity RISE in my constituency has been vocal about the need for this change. It reports that if the survivors they care for are named in the press, they are less likely to report domestic abuse in the first place. One service user provided testimony about the impact on their life of being named in the press:

“My daughter had to be informed by the school after the article named me as all the parents at school were aware, as well as the children because it was all over social media. It made me feel that I was still being controlled, I felt vulnerable and exposed. I feel so much hurt for my little girl, she didn’t need to know, the impact on her is huge, she is hypervigilant and gets very scared on the bus if someone is on their phone as she believes they are filming her. I never want another child to go through what my child went through.”

Another said:

“None of my family knew, neither did my employer. I felt a lot of shame and then seeing my name in the article and the awful comments made below the article were dreadful, there was racial abuse online. I felt sad, ashamed, embarrassed and violated. Something that took a lot of courage for me to report and everyone got to know about it. Even now I find myself googling my name for fear of it popping up again. There is an added layer of shame when I already had enough to process with regard to being abused.”

The Government have shown, through the development and scrutiny of the Bill, that they want it to stand the test of time. I believe that, as we move forward, the press becomes more competitive; there are more online opportunities to name and discuss people, and to tread over the line—particularly when someone in the public eye is subject to domestic abuse and the opportunity for media to make money from using that name becomes overwhelming. Some journalists might feel some shame about it, but for some it might be a choice between making money or income, and protecting a victim. I do not think that individual journalists should be put in that position.

We have an opportunity now to equalise the law and extend the protection of the anonymity given in cases of violent sexual crimes that occur outside the home, so that it is also given when crimes occur inside the home.

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Diolch, Ms Buck. I will be brief. I do not want to repeat the powerful words of my hon. Friend the Member for Birmingham, Yardley, but it is important to make the point that previous sexual behaviour is not, and should never be, taken as evidence of consent to a particular encounter. Neither should experience of or interest in any particular act be used to suggest that it is possible for someone to consent to their own murder, as has been the case in the past.

My hon. Friend the Member for Hove said that the media are complicit in sexualising and sensationalising horrific acts of violence and causing huge further trauma to the families of victims. Those victims—mainly women—and their families need anonymity.

A BBC study in 2019 found that more than a third of UK women under the age of 40 had experienced unwanted slapping, choking or gagging during consensual sex. Of the women who experienced those acts, 20% said they had been left upset or frightened. It is vital that women’s voices should no longer be silenced.

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It is once again a pleasure to serve under your chairmanship, Ms Buck. I thank colleagues for those helpful and powerful contributions. I want to begin my remarks by echoing a point that was made: we should not be shy in this place about making observations that are sometimes uncomfortable.

It seems to me a fact that there is a worrying and increasing normalisation of acts that are not just degrading but dangerous. Because we live in a liberal, open, tolerant society we of course do not want to step into the bedroom. We do not want to intrude into people’s private affairs, but when what they do leads to someone’s death we should not have any compunction about taking the steps necessary, first to ensure that people are safe, secondly to ensure that justice is done, and thirdly to send a message: if someone wants to behave in that way, when the consequences come to pass, on their head be it.

I am grateful to the Opposition Front-Bench spokespersons for making the case for the new clauses. Before addressing those in detail, I pay tribute, as others have, to my hon. Friend the Member for Wyre Forest, who is the constituency MP of Natalie Connolly and her family, and to the right hon. and learned Member for Camberwell and Peckham. They have run a formidable campaign and have engaged closely and constructively with the Government. I pay tribute to them for that.

My fellow Minister, my hon. Friend the Member for Louth and Horncastle, has temporarily departed, but I also pay tribute to her. She has met the family of Natalie Connolly and taken a close personal interest. She really recognises the seriousness of the issue, which all of us feel.

Before going into the detail of new clauses 4 and 5, let me say this: it is unconscionable for defendants to suggest that the death of a woman—it is almost invariably a woman—is justified, excusable or legally defensible simply because that woman consented in the violent and harmful sexual activity that resulted in her death. That is unconscionable, and the Government are committed to making that crystal clear.

A note of caution: as the Secretary of State for Justice said on Second Reading, this is a complex area of law. The law of homicide is of labyrinthine complexity, so there is a need to ensure that any statutory provisions have the desired effect—an effect that I do not think is controversial—and that they do not lead to any unintended consequences. We need to ensure that any change does not inadvertently, although with the best of intentions, create loopholes or uncertainties in the law that may be exploited by unscrupulous individuals who seek to carry out the type of crimes that we are talking about.

I will develop those observations by reference to the wording of the proposed new clause. As I and others have discussed with my hon. Friend the Member for Wyre Forest and the right hon. and learned Member for Camberwell and Peckham, new clauses 4 and 5, while on the right lines, might not have the effect that they seek.

Take a moment to look at new clause 4, which is headed “No defence for consent to death”. The words that I would stress in proposed new subsection (1) are

“to whom they are personally connected as defined in section 2”.

Clause 2 defines “personally connected” as “two people” who

“are, or have been, married to each other…are, or have been, civil partners…have agreed to marry one another (whether or not the agreement has been terminated)…have entered into a civil partnership agreement…are, or have been, in an intimate personal relationship”—

I stress “relationship”—

“have, or there has been a time when they each have had, a parental relationship”,

or “they are relatives”.

Hon. Members will immediately spot the potential issue. What if people have not been in a relationship as defined in what will become section 2? One incident involved a British national in another jurisdiction, so I am necessarily cautious about referring too much to it, but what if someone is a Tinder date, for want of a better expression?

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The Minister is making a good point. As he knows, the opportunity to amend legislation does not come up often, and we often do not get the chance to amend the perfect piece of legislation. Using all his wit, experience and erudition, he is able to find the failings in the new clause, but a principle is at stake. If he is saying that this is not the ideal piece of legislation or method to achieve those aims, will he spend a bit of time telling us what is, whether he will back it and whether he will make it happen swiftly?

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I invite the hon. Gentleman to listen carefully to what I say in due course, and I hope that he will not be unhappy—

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Disappointed.

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Disappointed—thank you. Do you want to make the speech?

The concern with the new clauses, among other things, is that they do not necessarily replicate the dictum in Brown.  To those who are not familiar with this, a case more than 20 years ago, Crown v. Brown, laid down some case law—a point adverted to by the hon. Member for Birmingham, Yardley—that we recognise needs to be clarified. The point that I will develop in due course, which I think will find favour with the hon. Member for Hove, is that that is precisely what we intend to do. The concern is that these new clauses, for the reasons I have indicated—I will not go into any detail on new clause 5, because it is a similar point that I would seek to make—limit the application of the principles in Brown to offences that occur in a domestic abuse situation. I heard the hon. Member for Birmingham, Yardley say sotto voce, “Isn’t a Tinder date an intimate personal relationship?”. The reality is—I speak as someone who has defended as well as prosecuted—that the job of a defence advocate is to find whatever wiggle room there is in the law. Our job here is to close that down.

As I have indicated, the prosecution would have to show also that this activity was either not consensual, or was consensual and also amounted to domestic abuse. Again, defence counsel will be seeking to ask, “Is this really domestic abuse in circumstances where it is consensual?”. You can immediately see the arguments that would be made in court. The key is for us to close that down and give practitioners—but, more importantly, people—absolute clarity about what is and what is not acceptable. As I said at the outset, we need to ensure that any change made is clear, and does not inadvertently create loopholes or uncertainties in the law.

I invite the hon. Member for Hove to accept that despite the difficulties, we have been anxiously and actively considering for some considerable time how we can best ensure greater clarity in the law. We aim to set out the Government’s approach in time for Report.

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On behalf of the Opposition Front Bench, I thank the Minister for his comments and the considered way he made them. We particularly thank him for the timeframe he outlined. Making a statement before Report is incredibly important; we need to move swiftly. The Minister knows better than anyone that if the same thing happened to one other person in the coming weeks, it would be an absolute travesty, so we need to make sure that these loopholes are dealt with quickly.

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I hear what the hon. Gentleman has said, and I leave it where it stands. I understand and I agree. I turn to new clauses 6 and 7. Those who have argued passionately in respect of the so-called rough sex defence will acknowledge that perhaps this point is contingent on that. There are also real practical difficulties with new clauses 6 and 7. Let me develop them briefly.

New clause 6 requires the personal consent of the personal Director of Public Prosecutions where a charge or plea less than murder, for example manslaughter, is applied or accepted in cases of domestic homicide. That sounds unobjectionable. It would be perfectly sensible if the DPP was readily able or had the capacity to give that kind of personal consent. However, there are practical problems with it. Let me set out the context. A statutory requirement of this nature is, and should be, extremely rare. It should only be imposed where a prosecution touches on sensitive issues of public policy, not simply sensitive issues, which are legion in the criminal justice system. The only recent example of this consent function applies to offences under the Bribery Act 2010, and last year, a Select Committee undertaking post-legislative review of the 2010 Act recommended that the requirement for personal DPP consent be reconsidered.

We have to acknowledge that the Crown Prosecution Service handles a high volume of serious and complex casework nationwide, and it is important that prosecutors have the confidence to take their own legal decisions. Introducing requirements for personal DPP consent could serve to undermine or frustrate this approach. It would also, I am bound to say, potentially sit uneasily alongside other very difficult decisions that prosecutors have to make. Suppose, for example, in the context of a terrorist prosecution, that because of the way the evidence emerged, or because of new lines of enquiry, a decision was made to take the defendant off the indictment in respect of a bomb plot, but the prosecution said, “We are going to continue to prosecute him in respect of possession of materials that might be of assistance to a person planning an act of terrorism.” These are immensely difficult and sensitive decisions. However, there is neither the capacity nor the wherewithal for the DPP to make those personal decisions all the time.

It is sad to note that there is a high volume of cases involving domestic homicide, as the hon. Member for Birmingham, Yardley well understands. It means that charging decisions need to be made urgently, and sometimes at a speed, where no personal DPP involvement is possible.

These considerations apply equally to cases in which a lesser plea may be accepted. If pleas are offered in court, prosecutors are required to make a decision in an incredibly short period of time after speaking with the victim’s family, and the DPP could not be involved in that level of decision making. I invite the Committee to consider the circumstances, supposing it is in court: because of the way that the evidence has come out, there is the consideration of whether a lesser plea should be accepted. The hon. Lady pointed out that this does not always happen, but if the family have been properly consulted, it is no kindness to that family to say, ‘Do you know what? We’re not going to make a decision on this, which would let you begin to heal and put this behind you. We’re going to put this off for two or three weeks while the DPP has to consider it.’ Court proceedings will be suspended awkwardly, and the poor family will be left hanging.

Forgive me for stating the obvious, but it bears emphasising that the real remedy is for good prosecutors––the overwhelming majority are good and do their duty with diligence, conspicuous ability and conscientiousness– –to liaise with the family in a compassionate and inclusive way. I understand the desire for additional scrutiny in such significant and sensitive cases, but I assure the Committee that the Crown Prosecution Service already has systems in place to check and challenge decision making in these circumstances. Internal CPS policies require that chief crown prosecutors are notified of any and all homicide cases. It is likely as well that domestic homicides would be subject to a case management panel with a lead lawyer and either the deputy chief crown prosecutor or the chief crown prosecutor, so there is senior oversight.

The point that I really want to underscore is that because cases of domestic homicide inevitably have a lasting and dreadful impact on victims’ families, people deserve support and compassion, particularly as criminal proceedings can be upsetting and difficult to follow. Procedures are in place to ensure that is given. Where there is an allegation of murder, the police very often appoint a family liaison officer as a matter of course to assist with the process. I speak as someone who has prosecuted several murder cases. The role that liaison officers play is absolutely fantastic. Otherwise, the poor family turn up in court with no idea what an indictment is, wondering “What on earth is this examination-in-chief stuff? What is this plea and trial preparation hearing?”. The liaison officer role is invaluable, and needs to be supported by prosecutors speaking to family members, as they increasingly do.

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Like the hon. Gentleman, I have been involved in a number of murder cases, and he is right that family liaison officers are worth their weight in gold. Does he think that there needs to be a more formalised link between the prosecutor and the family liaison officer—a referral pathway, or standard of practice that had to be met in each case? It could help us work towards having a less patchy approach if we had a formalised target.

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There are, in fact, formal arrangements in both spheres. Family liaison officers have to operate within certain guidance, and in my experience, by and large, they do so extremely well. At the risk of stating the obvious, it comes down to the calibre, kindness and empathy of the individual. In my experience, they are very good at their job and play an invaluable role.

As for the prosecution, as little as 20 years ago, there used to be almost a benign disdain for witnesses. Prosecutors simply did not engage with them. That does not happen now; they meet witnesses and family members before the trial begins. Very often, they will speak to them at the end of the day to explain what has happened. The relationship between prosecutors and family liaison officers tends to dovetail extremely effectively. I do not think that there is a need for further guidance. The key is to ensure that both parts of the criminal justice system—the police and the prosecution—do their job. In my experience, people are increasingly extremely conscientious in that regard. That is important, because people’s sense of whether they have got justice will often depend on the conversations they have at the end of the day, when the matter has been explained to them.

Let me speak a little about new clause 6, which concerns the consent of the Director of Public Prosecutions at the time of charge. I invite the Committee to consider that there are practical considerations here. If somebody is arrested and brought into custody, they can initially be there only for 24 hours. The superintendent can extend that to 36 hours, or up to a maximum of 72 hours if a magistrates court provides permission. During that time, the police will be gathering evidence, taking witness statements, looking at CCTV, getting forensic evidence and toxicology reports, and so on. They need to move fast and to be in a position to make those difficult charging decisions with the CPS.

Consultation will be difficult in these circumstances in any event. It would not be possible for the CPS to discuss details of evidence in this case, as that could prejudice criminal proceedings. There would be an unfortunate situation with the DPP—who, first, has not got the time, and secondly, would not be able to sit down with the family and say, “This is why we are making this charging decision,” because they would not be able to reveal the evidence. That does not mean that bereaved people do not deserve the support of the CPS; they do, but it has to be given in a way that is practical. I could say more, but have probably made my point.

I turn to new clause 10. That is another clause in the armoury of provisions intended to prevent defendants from arguing that victims consented to the act that led to their death. Again, hon. Members may feel that this was a powerfully presented argument, which is also contingent on the issue of rough sex. The argument is that defendants will not be making these submissions if it avails them naught to suggest that the victim consented. It would not really be in their interests to start making all these salacious, damaging and upsetting remarks; it would not advance their defence. I have two observations to make. First, new clause 10 is not limited to cases where the defendant seeks to show that the victim consented; consent is not mentioned in new clause 10. Secondly, unlike section 41 of the Youth Justice and Criminal Evidence Act 1999, which permits the court to control when evidence on previous sexual history can be introduced, this provision prohibits doing that absolutely. It does so whether or not the reason for adducing such evidence is connected with the issue of consent, and prohibits evidence as to sexual history, even where that might potentially be relevant.

New clauses 11 and 14 relate to reporting restrictions. New clause 11 makes provision for reporting restrictions, preventing the naming of the deceased victim. That is based on the sort of protection that has long been given to complainants in crimes of sexual violence. It is often referred to as “anonymity”, which is slightly misleading, as the complainant will be referred to by name in court. I have the greatest sympathy for the bereaved families of murder victims, where the reputation of the person they have lost is besmirched or traduced by the defendant. I have made the point already that, if we are able to do something in respect of the principal issue, the scope for that is reduced. However, we must also recognise that there are difficulties in defining the point at which the protection applies and how long it should last. Another potential weakness is that the victim may well have been identified before any question of imposing reporting restrictions arises. Therefore any restriction might in reality be presentational. If, for example, the name has emerged because someone said it in an interview, it may not have the desired impact. That is something we will consider.

New clause 14 treats living complainants in domestic abuse cases in the same way as complainants in sexual cases, applying automatic reporting restrictions from the time when the allegation is made. That is the point that the hon. Member for Hove spoke to. We need to pause for breath here a little. Automatic restrictions such as these are an exceptional interference with open justice. Sometimes, exceptional interferences are necessary. However, the hon. Gentleman mentioned that there are principles of open justice, and he was right to do so. They exist because, if we take this too far and the press are unable to report on what happens in court, that creates real concerns. We would soon find that there was a campaign for open justice, with people saying, “Why have we got secret courts? Why have we got secret justice?”

Also, we do not make these arguments entirely in a vacuum, because of course we exist within the European convention on human rights, which we are committed to remaining a member of, and being within the convention means that we sometimes have to balance rights. One of the rights that we have to balance is freedom of speech under article 10, but we also have to balance the right to privacy and a family life, under article 8. Those are not absolute rights; they have to be balanced. And that is something we have to weigh in the judgment as well.

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I have never heard a journalist wanting the rule that prevents reporting from naming victims of sexual violence overturned. Has the Minister?

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What I can say, from my experience in court, is that it is not unusual for the press to seek to overturn reporting restrictions where they are imposed at the discretion of the court, so although the hon. Gentleman may be right that in fact there is not a particular drumbeat in respect of sexual offences, I hope that the Committee will not be gulled into thinking that the press do not very often seek to overturn reporting restrictions that are imposed. The arguments that are made are, “Why should we be having secret justice?”, and so on. Those arguments are very often dispatched by the court; they are considered not to be valid, and then they are sometimes taken on appeal and so on. The only point that I am seeking to make is that we must be careful in this area and strike a balance, so that we do not find ourselves bringing the law into disrepute.

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As a journalist and as someone who has taught law for journalists, I point out that although we might challenge discretionary interdicts and super-interdicts—I cannot remember what they are called in England—the principle of defending the anonymity of victims of sexual assault, sexual crimes, is never challenged in court. The only challenge is to discretionary non-identification where a public interest case can be made for that being overthrown. I find it difficult to believe that the press would actually want victims of domestic abuse named in the papers, unless there was some outlandish public interest.

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The hon. Lady is absolutely right that of course it is not open to a journalist to seek to displace the reporting restrictions that have been imposed by force of statute. I was seeking to make the point, which I do not think she disagrees with, that it is not uncommon for the press to suggest that a court, in imposing reporting restrictions in an individual case, has overreached itself, gone beyond the bounds, and misapplied the balance. Sometimes, by the way, those applications are upheld at first instance or on appeal.

There is a judgment to make, and we have to recognise that there is a particular public interest, when the allegation is of sexual violence, in taking the step of exceptional interference. That justification exists in relation to sexual offences. However, we have to take great care before extending it further, not least because—of course, domestic violence and domestic abuse are incredibly serious, for all the reasons that we have expressed—women, and it is usually women, can be victims of all sorts of other offences. Then it becomes a question of how far we go—where do we draw the line? That is something that requires careful thought.

I apologise to members of the Committee for taking so long to explain the Government’s position on the new clauses. As I have sought to explain, we fully understand the anguish and hurt felt by the family of Natalie Connolly and many others, and, as lawmakers, we will and should do what we can to minimise such anguish on the part of bereaved families in the future. For the reasons that I have set out, the Government cannot support a number of the new clauses, but as I have indicated before, we expect to set out the Government’s approach in respect of the rough sex issue in time for Report. In those circumstances, I respectfully invite the hon. Member for Birmingham, Yardley to withdraw the new clause.

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I will withdraw the new clause. I am very pleased to hear that there is an intention to deal with the matter on Report, and I speak entirely for the hon. Member for Wyre Forest and my right hon. and learned Friend the Member for Camberwell and Peckham in that regard. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Fifth sitting)

The Committee consisted of the following Members:

Chairs: † Sir Edward Leigh, Graham Stringer

† Davison, Dehenna (Bishop Auckland) (Con)

† Elmore, Chris (Ogmore) (Lab)

† Foster, Kevin (Parliamentary Under-Secretary of State for the Home Department)

† Goodwill, Mr Robert (Scarborough and Whitby) (Con)

† Green, Kate (Stretford and Urmston) (Lab)

† Holden, Mr Richard (North West Durham) (Con)

† Johnson, Dame Diana (Kingston upon Hull North) (Lab)

† Lewer, Andrew (Northampton South) (Con)

† Lynch, Holly (Halifax) (Lab)

† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)

† O'Hara, Brendan (Argyll and Bute) (SNP)

† Owatemi, Taiwo (Coventry North West) (Lab)

† Pursglove, Tom (Corby) (Con)

† Richardson, Angela (Guildford) (Con)

Roberts, Rob (Delyn) (Con)

† Ross, Douglas (Moray) (Con)

† Sambrook, Gary (Birmingham, Northfield) (Con)

Anwen Rees, Committee Clerk

† attended the Committee

Public Bill Committee

Tuesday 16 June 2020

(Morning)

[Sir Edward Leigh in the Chair]

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

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Obviously, we will maintain social distancing. Like last week, the Hansard reporters would be grateful if Members sent copies of their speeches to hansardnotes @parliament.uk. We will continue line-by-line consideration of the Bill—the selection list is available in the room.

Clause 5

Power to modify retained direct EU legislation relating to social security co-ordination

Question proposed, That the clause stand part of the Bill.

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It is a pleasure to serve under your chairmanship, Sir Edward. Given the nature of the clause, I will spend a few minutes outlining its impact to the Committee. The clause and associated schedules 2 and 3 provide an essential legislative framework to ensure that the Government can make changes to our social security system when the transition period ends, alongside the launch of the future immigration system. The provisions will enable the Government to amend the retained European Union social security co-ordination rules and to deliver policy changes from the end of the transition period.

The clause provides a power to the Secretary of State, the Treasury or, where appropriate, a devolved authority to modify the social security co-ordination regulations. Those EU regulations provide for social security co-ordination across the European economic area, and will be incorporated into domestic law by the European Union (Withdrawal) Act 2018 at the end of the transition period. Clause 5(4) gives the Government the ability to make necessary consequential changes to other primary legislation and other retained EU law to ensure that the changes given effect by the main power are appropriately reflected. That power may be used, for example, to address technical matters, inoperabilities or inconsistencies. Schedule 2 sets out the power of the devolved authorities under clause 5.

This social security co-ordination clause confers powers on Scottish Ministers and the relevant Northern Ireland Department to amend the limited elements of the social security co-ordination regulations that fall within devolved competence. It is important that we provide the devolved Administrations with the powers that they need to amend the aspects of the regulations for which they are responsible, just as it is right for the UK Government to have the powers for the laws that affect the UK as a whole. The powers are equivalent to those conferred on UK Ministers and will allow the devolved Administrations to respond to the UK’s withdrawal from the EU in areas of devolved competence, either to keep parity with Westminster or to deviate in line with their own policies.

Without the powers in the Bill, the devolved Administrations would need to bring forward their own parallel legislation to give them equivalent powers to amend the retained EU social security co-ordination regulations in areas of devolved competence. Before the Bill was introduced, letters were sent to the devolved Administrations to seek legislative consent in principle, in line with the Sewel convention.

Schedule 3 provides further detail on the form that regulations will take under the clause, whether as statutory instruments, statutory rules or Scottish statutory instruments. The schedule provides that the use of the power is subject to the affirmative procedure. It also gives clarity on the procedures that the devolved Administrations will need to follow. Paragraph 5 permits other regulations, subject to the negative procedure, to be included in an instrument made under the clause.

Without the clause and associated schedules 2 and 3, the Government and relevant devolved authorities will have only the power contained in the 2018 Act to fix deficiencies in the retained system of social security co-ordination, restricting our ability to make changes. I reassure the Committee that the power in the clause will not be exercised to remove or reduce commitments made either in relation to individuals within the scope of the withdrawal agreement, for as long as they remain in the scope of that agreement, or in relation to British and Irish nationals moving between the UK and Ireland.

We are currently in negotiations with the EU about possible new reciprocal arrangements on social security co-ordination, of the kind that the UK has with countries outside the EU. The clause will enable the UK to respond to a variety of outcomes in those negotiations, including when no agreement is achieved by the end of the transition period. The clause will be necessary to deliver policy changes to the retained regime that will cover individuals who fall outside the scope of the withdrawal agreement, to reflect the reality of our new relationship with the European Union.

The Government have been clear that there will be changes to future social security co-ordination arrangements, including, as announced at Budget 2020, stopping the export of child benefit. The social security co-ordination powers in the Bill will enable the Government to deliver on that commitment and to respond to the outcome of negotiations with the EU to deliver changes from the end of the transition period. I therefore beg to move that clause 5 stands part of the Bill and that schedules 2 and 3 are agreed to.

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Good morning, Sir Edward. It is a pleasure once again to serve under your chairmanship. Social security arrangements set out in EU regulation 883 of 2004 and elsewhere are currently directly applicable in the UK. They cover the co-ordination of social security, healthcare and pension provision for people who are publicly insured who move from one EU state to another.

The regulations ensure that individuals who move to another EEA are covered by the social security legislation of only one country at a time and are, therefore, liable only to make contributions in one country; that a person has the rights and obligations of the member state where they are covered; that periods of insurance, employment or residence in other member states can be taken into account when determining a person’s eligibility for benefits; and that a person can receive benefits that they are entitled to from one member state, even if they are resident in another.

The co-ordination regulations cover only those social security benefits that provide cover against certain categories of social risk, such as sickness, maternity, paternity, unemployment and old age. Some non-contributory benefits fall within the regulations but cannot be exported, and benefits that are social and medical assistance are not covered at all. Universal credit, for example, is excluded.

As we heard from Jeremy Morgan of British in Europe in his oral evidence to the Committee last week, most UK nationals resident in the EU are of working age. It is important to note that the number of people claiming the working-age benefits that are covered by the regulations—jobseeker’s allowance or employment and support allowance—has declined sharply since the introduction of universal credit. We might therefore expect social security co-ordination arrangements to apply to a declining number of working-age adults. The regulations will, however, still be of importance for a sizeable number of individuals, and not least for pensioners.

The co-ordination regulations also confer a right on those with a European health insurance card to access medically necessary state-provided healthcare during a temporary state in another EEA state. The home member state is normally required to reimburse the host country for the cost of the treatment. Under the European Union (Withdrawal Agreement) Act 2020, protection of healthcare entitlements is linked to entitlement to cash benefits.

Clause 5(1) provides an appropriate authority with the power to modify the co-ordination regulations by secondary legislation. The power is very broad, placing no limits on the modifications that appropriate authorities are able to make to the co-ordination regulations. By virtue of subsection (3), the power explicitly

“includes power—

(a) to make different provision for different categories of person to whom they apply…

(b) otherwise to make different provision for different purposes;

(c) to make supplementary…consequential, transitional, transitory or saving provision;

(d) to provide for a person to exercise a discretion in dealing with any matter.”

The power is further enhanced by subsection (4), which provides for the ability to amend or repeal

“primary legislation passed before, or in the same Session as, this Act”

and other retained direct EU legislation.

Since the UK left the EU at the end of January this year, the relevant EU regulations pertaining to social security, pensions and healthcare have been retained in UK law by section 3 of the European Union (Withdrawal) Act 2018. I accept that the Government need to be able to amend co-ordination regulations to remedy deficiencies in them resulting from the UK’s exit from the EU, but the 2018 Act already contains a power in section 8 to modify direct retained EU law. Indeed, the Government have already exercised this power for four of the co-ordination regulations. Any changes that do not fall within the scope of the power in section 8 of the 2018 Act must necessarily, therefore, not relate to any ability for the law to operate efficiently or to remedy defects, but be intended to achieve wider policy objectives. I think the Minister acknowledged as much in his opening comments.

I was, however, surprised that the Minister said that only the European Union (Withdrawal) Act 2018 provided such powers. My reading of the legislation is that the Secretary of State has further powers as regards social security, healthcare and pension rights for those who are protected by the withdrawal agreement under the European Union (Withdrawal Agreement) Act 2020. Section 5 of that Act inserts new section 7A into the 2018 Act so as to secure withdrawal agreement rights in domestic law, and that protection is buttressed by section 13 of the 2020 Act, which confers a power to make regulations in respect of social security co-ordination rights protected by the withdrawal agreement. Given the powers that already exist under the European Union (Withdrawal) Act and the European Union (Withdrawal Agreement) Act, as well as the fact that those powers have already been used by the Government, why does the Minister feel they are inadequate?

Paragraph 30 of the delegated powers memorandum is instructive. It states that the Government want to use the power in clause 5 to

“respond flexibly to the outcome of negotiations on the future framework and make changes to the retained social security co-ordination rules.”

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Does the hon. Lady agree that, given the proliferation of judicial reviews and the test cases that often come forward, it is better to adopt a belt-and-braces approach so that we underline the Government’s intention in both the Bill and the withdrawal Act?

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The issue is the mission creep and scope creep involved in using secondary legislation to amend primary legislation and retained EU rights, particularly a mission creep that now encompasses the ability to make significant policy changes.

As we heard in oral evidence from our witnesses last week, it is important to recognise the considerable importance of policy and legislation in relation to social security co-ordination. It is vital to labour mobility, and to protect the rights of EEA nationals who come to live in the UK and UK nationals who go to live in EEA member states. Policy in this area has the potential to impact the lives of millions, affecting their right to receive benefits to which they are entitled through national insurance contributions over periods of residency, and which they have a legitimate expectation that they will receive. Changes to policy in these important areas should, I submit, be given effect in primary legislation.

In response to the evidence that the Committee took from British in Europe last week, the Minister said that the Secretary of State could not make regulations that would breach an international treaty, and he offered some reassurances this morning to those who fall within the scope of the withdrawal agreement. However, as British in Europe pointed out last week, the powers in clause 5 mean that Parliament will not be able to properly scrutinise regulations that might breach our international treaty obligations—if not deliberately, then inadvertently.

The Minister also referred to the need to be able to reflect the ongoing negotiations with the European Union, and we heard from Adrian Berry of the Immigration Law Practitioners Association last week about the UK’s draft social security treaty, which is an annex to the Government’s proposed future trade agreement. Mr Berry highlighted the Government’s intention to continue the protection of the European health insurance card scheme for short-term travel and the uprating of old-age pensions, but noted that disability pensions and healthcare attached to pension rights are missing from the draft treaty. He also highlighted the limitations of the new EHIC, which would require those with long-term health needs to get prior authorisation from the UK Government, and that there would be no S2 cover, which enables people to obtain healthcare in the EU that they cannot get on the NHS in the UK. Will the Minister put on the record whether such changes could be introduced using clause 5, and can he confirm which classes of person they can be applied to?

The Government have argued that the use of the powers in clause 5 will be subject to parliamentary scrutiny, through the use of the affirmative procedure. Will the Social Security Advisory Committee have a role in scrutinising regulations introduced under this measure? Does he not in fact accept that changes in this important area require full debate and scrutiny in Parliament, and that the principles of any future policy should be set out in primary legislation?

Finally, clause 5(5) states that EU-derived rights cease to apply if they are “inconsistent” with any regulation made under the section, but the Government are under no obligation to specify where and when such inconsistencies arise. This creates considerable uncertainty for individuals who are affected, for their advisers, and indeed for politicians and the wider public. As we discussed last week on clause 4, such an approach is inimical to good lawmaking. The Government should spell out which parts of retained EU law might be affected by these provisions, and I hope that the Minister will do so in his response.

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It is a pleasure to serve under your chairmanship again, Sir Edward.

I am grateful to the Minister and to the hon. Member for Stretford and Urmston for setting out the nature of these regulations in quite some detail, and also for explaining why they are hugely significant for a large number of people.

We acknowledge that there is a need for the appropriate authorities to have some powers in this area, but those powers should be focused on making technical fixes rather than providing carte blanche. The powers in the clause are hugely broad. In fact, they are basically without any limit, either in terms of scope or time, and it is worth reflecting on what exactly clause 5(1) says:

“An appropriate authority may by regulations modify the retained direct EU legislation mentioned in subsection (2).”

There is no constraining test at all.

As Adrian Berry argued when he gave evidence last Tuesday, all these clauses should at least have the test of being “appropriate”, if not being “necessary”, as a qualification. Opposition MPs have been championing the “necessary” test, but the Government have always preferred the test of appropriateness. However, even that is absent from the clause. On paper, therefore, we are creating powers to make inappropriate regulations, which seems quite an unusual concept. More than ever, we need reassurance on what exactly the intended use of these regulations is, and we will look carefully at what the Minister said about that this morning.

I also want to raise an issue on schedule 2, which the Minister also referred to. Schedule 2 sets out who can make use of the powers in clause 5, and I want to flag up an issue in relation to devolution that needs to be addressed. It was flagged up by the Scottish Parliament’s Delegated Powers and Law Reform Committee last year in relation to the predecessor Bill. The Committee reported on that Bill precisely because there are implications for some devolved competences around social security.

There are three routes by which the clause’s powers could be used in relation to devolved social security competence. First, Scottish Ministers could exercise these powers, sometimes with the requirement to consult UK Ministers, if that were required where a different route was used to achieve the same means. The Committee found those powers acceptable.

There is also a route for joint exercise of the powers, which would be considered where a change is so significant that it would be appropriate for joint exercise and scrutiny. Again, while the Committee sought some clarity on precisely when that route would be used, it supported the idea in principle.

Thirdly, however, there is the route of UK Ministers acting alone, by laying regulations in the UK Parliament that could still relate to devolved competence. The Committee’s report says:

“The Committee emphasises that as a matter of principle the Scottish Parliament should have the opportunity to scrutinise the exercise of legislative powers”

by the Executive. However, it notes that the Scottish Parliament has no formal role in relation to the scrutiny of secondary legislation passed by UK Ministers acting alone.

The Committee went on to note that there was silence in relation to the circumstances in which it would be appropriate for UK Ministers to exercise powers in relation to devolved social security acting on their own. It noted that there was nothing on the face of the Bill requiring UK Ministers to seek the consent of Scottish Ministers prior to the exercise of the powers in that way by relevant UK Ministers or the Treasury. It repeated the view that it had provided in relation to the Bill that went on to become the European Union (Withdrawal) Act—that UK Ministers should be able to legislate in devolved areas only with the consent of the devolved Administration, also advocating for a role for the Scottish Parliament in that process.

As far as I can see, the issue raised this time last year has not been addressed in the Bill, which has simply been reintroduced as before. Will the Government comment on that and consider committing to amending the Bill so that there is at least a duty on UK Ministers to consult Scottish Ministers before choosing to exercise the clause 5 powers in relation to devolved social security competencies? I look forward to hearing what the Minister has to say in that regard.

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I thank hon. Members for their contributions. On the powers under clause 5, the Government have been given clear advice that they are necessary, particularly when we look at the ongoing negotiations. There are two parties to the negotiations, and the purpose of having a wider scope is to reflect whatever the outcome of the negotiations is. Hopefully, we will quickly be able to implement an agreement, in the same way that we have an agreement with Ireland bilaterally in terms of the co-ordination of social security, given the unique position of Irish citizens in the UK and UK citizens in Ireland, who are considered settled from day one. That is where we are.

One of the examples Opposition Members gave was of those protected by the withdrawal agreement. It is worth noting that this measure looks towards those who arrive after the end of the transition period and starts to look towards changes there, rather than at those who specifically have their rights protected by the withdrawal agreement.

In terms of the scope and whether the powers would be used in a devolved area, the UK Government continue to respect the devolution settlement. We are in discussions —officials certainly are, and I and my colleague in the Department for Work and Pensions wrote to the relevant Scottish Minister last week to set out where we are. We hope to have a legislative consent motion from the Scottish Parliament, but we have also set out what the position is if we do not get an LCM—for the Committee’s benefit, the Government would amend the Bill on Report to remove the powers in relation to devolved matters in Scotland.

Fundamentally, the clause is intended to ensure that we can implement powers and make the changes necessary, as outlined, to deliver the specific policy changes that we made clear in our manifesto, particularly around the export of child benefit, and also to ensure that we do not end up in a bizarre position where the UK is trying unilaterally to implement what is meant to be a reciprocal system, should we not be able to get a further agreement or if we have an agreement but are not able quickly and promptly to implement it.

Again, I would point out that using the affirmative procedure means that both Houses of Parliament will scrutinise any regulations and will have the opportunity to block them if they felt they were inappropriate. To be clear, if a Minister made wholly inappropriate regulations, such matters in secondary legislation, unlike primary legislation, can be reviewed in the courts as well.

It is therefore right that we stick with the clause as it is, certainly to ensure that we can implement whatever the outcome of the agreement is, including if we need to look at putting in place a system that reflects the fact that there has not been a further agreement.

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I just want to clarify whether the Minister would at least consider putting in a requirement that, before UK Ministers exercise these powers in relation to devolved competencies, they would consult Scottish Ministers. A cross-party Scottish Parliament Committee made that recommendation this time last year. It is surely at least worthy of consideration before Report.

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To be clear, we will continue with our position of respecting devolution in areas of social security, hence the respect we have shown to the Scottish Government by consulting them about the Bill. We have also set out the Government’s position, were there not a legislative consent motion from the Scottish Parliament, in the letter we sent last week to the relevant Scottish Ministers. Obviously, separate discussions are going on with the Executive in Northern Ireland.

This is the right process. Parliament still has the appropriate ability to scrutinise how the powers are used and, if it wishes, may block the use of those powers under the affirmative procedure. This is about ensuring clear certainty that we can deliver whatever we can agree with the European Union on, we hope, a continuation of a reciprocal arrangement, which we cannot do if we do not have the powers in the clause. In other areas, powers are more restricted.

These are wide powers, but that reflects the wide range of outcomes that are still possible in the next six months. It is right to have a functioning and effective social security system and co-ordination of it. That is why the Government have brought the power forward in this Bill, as in the previous one. We maintain that the clause and the attached schedules are appropriate to the Bill.

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Does the Minister anticipate, in the event of an agreement and treaty before the end of this year, a further piece of primary legislation to give effect to that? If so, would it not be possible at least to encompass the principles agreed into that primary legislation?

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A lot would depend on the nature of the agreement. If it is part of a wider treaty, we may well see further legislation. However, our understanding is that if we can achieve agreement on this area, we would look to implement it rapidly through regulation, which is why the power is in the Bill. Our priority would be to avoid a situation where something is agreed of benefit to both UK citizens going to live in the European Union and EEA citizens coming to live here, with which we and the European Union are happy, but we are unable to provide that benefit because we are still going through a parliamentary process to implement it. That is why we believe the clause to be appropriate. It allows us to react to circumstances as necessary.

Question put, That the clause stand part of the Bill.

Division 9

16 June 2020

The Committee divided:

Ayes: 8
Noes: 5

Question accordingly agreed to.

View Details

Clause 5 ordered to stand part of the Bill.

Schedules 2 and 3 agreed to.

Clause 6 ordered to stand part of Bill.

Clause 7

Extent

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I beg to move amendment 17, in clause 7, page 5, line 13, at end insert—

“(1A) Section 1 and Schedule 1 of this Act do not extend to Scotland.”

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With this it will be convenient to discuss new clause 33—Differentiated immigration policies: review

“(1) The Secretary of State must publish and lay before Parliament a report on the implementation of a system of differentiated immigration rules for people whose right of free movement is ended by section 1 and schedule 1 of this Act within six months of the passing of this Act.

(2) The review in subsection (1) must consider the following—

(a) whether Scottish Ministers, Welsh Ministers, and the Northern Ireland Executive should be able to nominate a specified number of EEA and Swiss nationals for leave to enter or remain each year;

(b) the requirements that could be attached to the exercise of any such power including that the person lives and, where appropriate, works in Scotland, Wales or Northern Ireland and such other conditions as the Secretary of State believes necessary;

(c) the means by which the Secretary of State could retain the power to refuse to grant leave to enter or remain on the grounds that such a grant would—

(i) not be in the public interest, or

(ii) not be in the interests of national security

(d) how the number of eligible individuals allowed to enter or remain each year under such a scheme could be agreed annually by Scottish Ministers, Welsh Ministers and the Northern Ireland Executive and the Secretary of State;

(e) whether Scottish Ministers, Welsh Ministers, and the Northern Ireland Executive should be able to issue Scottish, Welsh and Northern Irish Immigration Rules, as appropriate, setting out the criteria by which they will select eligible individuals for nomination, including salary thresholds and financial eligibility.

(3) As part of the review in subsection (1), the Secretary of State must consult—

(a) the Scottish Government;

(b) the Welsh Government;

(c) the Northern Ireland Executive; and

(d) individuals, businesses, and other organisations in the devolved nations.”

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Clause 7 sets out the extent of the Bill, so here we come to how it impacts Scotland and the other devolved nations. Amendment 17 would disapply provisions ending free movement to Scotland. The new clause simply calls for the Government to consult on, and to review, establishing a differentiated set of immigration rules focused on Scotland, Northern Ireland and Wales, and lists a set of issues that we want the UK Government to consult upon. The Government would then report and lay that report before Parliament. There is little here that is too onerous. It is a perfectly reasonable request of the UK Government.

We heard plenty of concern about the implications of the Bill during evidence last Tuesday. It is fair to say that that concern is felt acutely in Scotland and Northern Ireland, but also in Wales and some regions of England. Scotland needs in-migration, and free movement of people has been a significant benefit to that country. The Government’s own risk assessments indicate a huge impact on the number of EEA workers who would qualify under the proposed new salary and skills requirements of the new regime. That is before we take into account the visa fees and the red tape, which I regard as ludicrous, that businesses will be bound up in. That has profound implications for Scotland’s economy, demographics, public finances and devolved public services.

Scotland’s economy relies significantly on small and medium-sized enterprises, which, as we heard last Tuesday, will find the tier 2 system very difficult. Small tourism or food and drink businesses, for example, that have regularly relied on the EU labour market are finding it well-nigh impossible to fill posts domestically. Instead of being able to interview a Portuguese food-processing worker or a Polish hotel worker, there is a significant chance that they will not be able to employ them at all. If they are able to employ them somehow, processes will be very different indeed.

The worker will have to seek entry clearance from their home country, so recruitment practice will have to change. Business will have to shell out for a sponsor licence and possibly on legal advice on how to do all that. The worker will have to pay visa fees plus upfront NHS health surcharges, not just for the main applicant but for the whole family. A skills charge will also be levied. As we heard last week, that could take the costs to the applicant to many thousands of pounds.

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I understand the point the hon. Gentleman is trying to make, but would it not attract more people to stay and work in Scotland if it was not the highest-taxed part of the United Kingdom?

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That is factually not true, so that is the end to that point. If the right hon. Gentleman is referring to the changes to the rate of income tax that we have made in recent years, there is no evidence that they have made a blind bit of difference. In fact, there are more people in Scotland paying less income tax, and that is before taking into account council tax and various other matters, so that point does not arise at all.

It seems that a huge proportion of the burden of all these fees falls to be paid by the individual worker. Realistically, however, why would a Portuguese food-processing worker or a Polish hotel worker pay £10,000 for the privilege of working in Scotland when they face no charge to work anywhere else in the European Union? The lower income tax that we pay in Scotland would be attractive, but it does not outweigh the £10,000-plus they would have to pay just to turn up.

Scotland has become a country of regular net in-migration, largely thanks to the free movement of people. But for in-migration, our population would have again been in decline since 2015—something that is projected into the future, with more deaths than births. Ending free movement risks pushing Scotland back to a future of population decline. Like other countries, our population of older people is increasing. That is not unique to us, but unlike other countries, in the UK in particular, our working-age population will rise only fractionally in the years ahead, according to various projections.

That brings us to the issue of public finances and devolved public services. There has been a welcome devolution of tax-raising powers in recent years, to which the right hon. Member for Scarborough and Whitby referred. However, with those tax powers now in place, the problem is that we are suddenly seeing the tax base shrunk by immigration policies. That has a direct impact on income tax receipts and also on the economic growth and tax revenue that companies’ VAT.

Decisions on immigration policy also have a profound impact on devolved public services, on international students, on international recruitment for the NHS and social care, on international recruitment of academic staff and on various other areas. All that is a potent combination of factors that deserves much more Government recognition than it has received up until now. In fact, if anything, Home Office engagement on these issues seems to have gone backwards rather than forwards. The former Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), was publicly very open to the idea of somehow recognising regional differences in the immigration system. The right hon. Member for Romsey and Southampton North (Caroline Nokes) at least kept things under review—although that phrase seems to have become almost meaningless in the Home Office in recent days. At least she worked closely with the devolved Governments and regularly met with them.

I am not sure what has driven it, whether it is the Home Office, the Scotland Office or No. 10, but engagement now seems to have been reduced to almost nothing. All we get back is a soundbite that the Government are building a system that works for all the UK. The question that nobody bothers to explain is, how is the immigration system working for Scotland? As I said the other day, nobody in their right mind would propose this system if they were designing an immigration system for Scotland alone.

The Scottish Government’s expert advisory group on migration has produced a series of papers on this subject with a whole host of possible options. These are not made up on the back of an envelope. The group’s members include experts in the field. Other experts have prepared similar papers independently. Last week, the Committee heard oral evidence from Ian Robinson of Fragomen, a leading international legal practice specialising in immigration law. As I said then, Mr Robinson had previously worked at a senior level developing Home Office policy. My colleagues and I asked him and his firm to look at international experience and to assess what options might be open to the UK to provide a degree of flexibility to Scotland. He prepared a report learning from Canada, Australia, Switzerland and New Zealand. Again, a whole host of options was put forward based on international experience. That report is publicly available.

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Another report that is publicly available is the SNP’s White Paper ahead of the 2014 independence referendum in Scotland. Will the hon. Gentleman outline the proposals for immigration in that policy?

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I have no problem in outlining the paper. This point was got up on Twitter, as if it was a gotcha for the SNP. In that White Paper we advocated a points-based immigration system for those coming from outside the EEA, but we also advocated for the free movement of people. [Interruption.] The Minister looks as if I have been caught in some sort of trap. I am perfectly happy to support a points-based system for Scotland for people coming from outside the EEA. That is not a problem at all. But there are points-based systems and there are points-based systems. [Interruption.] People are chuckling away as if I am talking nonsense, but the Canadian points-based system is significantly different from the points-based system in Australia. The system proposed by the UK Government is barely a points system, and if hon. Members speak to anyone who knows the first thing about immigration law policy, they will say that there is barely a resemblance. Despite all the rhetoric, there is a tiny resemblance between what the UK Government are proposing and what the Australian points-based system is proposing.

On the issue of flexibility and regionality, the Australian points system includes some variation to take account of the different needs of different provinces. If the Australian points-based system is so wonderful, why has it not been replicated in any meaningful sense by the UK Government, including in respect of regional flexibility? Yes, the 2014 White Paper did refer to a points-based system for people from outside the EU—one that would be tailored for Scotland’s circumstances, not one that is completely inappropriate for it.

Ian Robinson and Fragomen, leading international practitioners, looked at the example of Canada, Australia, Switzerland and New Zealand and put forward a whole host of possible options. As they said last week, one of those options would be simply to allow the free movement rules to continue to apply in Scotland. If a hotel in the highlands of Perthshire is recruiting, it can continue to recruit from the EEA just as it does now.

However, there is a huge range of possibilities, from more radical suggestions, such as retaining free movement, all the way down to tailoring the points-based system to suit Scotland’s needs. That brings me to a very modest suggestion that I am bound to bring up; it is a suggestion from my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) that I think he may have raised directly with the Minister. It is simply to ensure that points are awarded in this system for Gaelic language skills as well as for English.

This is not just about Scotland, however. The challenges in Northern Ireland will also be unbelievably acute and perhaps even more so, given the land border that it shares with a country not only where businesses benefit from free movement of people, but that runs a completely independent immigration system, tailored to meet its own needs, while still being part of the common travel area. Business in Northern Ireland may face thousands of pounds in immigration fees just to try to attract the very same people who, a few miles down the road, could take up the position totally free of cost and bureaucracy. Merely saying that this system will work for all of the UK does nothing to address that problem.

Even if the Government do not want to properly engage in debate and discussion with SNP MPs or Ministers in the Scottish Government, I urge the Minister to listen to and engage with other voices who are speaking out on this issue. Businesses, business groups, think-tanks, civic society, universities and public sector organisations are all hugely concerned about it. The Minister just needs to do a Google search for commentary in Scotland and Northern Ireland in particular on their response to the Government’s most recent proposals.

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Is the hon. Gentleman aware that figures released only this morning show that the unemployment rate in Scotland is now the highest in the United Kingdom, at 4.6%, compared with a UK rate of 3%? That means that unemployment has risen by 30,000 to 127,000. Does he not think that those are the sort of people we should be getting into jobs in Scotland and that we should not be looking to the EEA to provide the people?

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The economic impact of coronavirus is of course a tragedy, and every lost job is an absolute tragedy as well. Yes, of course we will focus our efforts on ensuring that people are back in work as soon as we can do that, but we cannot design our immigration system for the next decades based on this calamity. If the only reason Conservative Members can come up with to support this system being implemented in Scotland is that we are going through a pandemic, that is pretty farcical, given that these proposals have been in existence for the last few months, so no, I do not accept that it is any reason for shying away from the points that I am making. The system will cause huge long-term damage to Scotland’s economy and Scotland’s public finances. It is not just me saying that; a whole host of organisations have real concerns.

Again, I am not expecting the Government to do a 180-degree U-turn today, but I do want at least some recognition that there are genuine issues that require more than just our being told that this system will somehow work for Scotland, Northern Ireland or any other devolved nation.

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It is a pleasure to serve under your chairmanship again, Sir Edward. Although the United Kingdom’s population is projected to rise by about 15%, it is reckoned that the population of our rural areas, including my own constituency of Argyll and Bute, will fall by as much as 8%. The situation is absolutely unsustainable because, despite Argyll and Bute being an exceptionally beautiful part of the world, we have an ageing and non-economically active population and our young people leave to spend their economically productive years outside Argyll and Bute.

To give credit to the council and to the Scottish Government, they are doing what they can to make Argyll and Bute a place that young people do not feel that they have to leave before coming back to retire—many of them do—but before that long-term goal reaches fruition, a cornerstone of Argyll and Bute Council’s plan for economic regeneration was predicated on continuing access to EU nationals and attracting them into the area. Regrettably, and through no fault of our own, that option has been taken from them; and the UK Government, having taken that option from them, now have a responsibility to provide a solution that will help those areas suffering from depopulation to recover. It is becoming increasingly clear that a major part of that would be the introduction of a regional immigration policy similar to that which works in Canada, Australia, Switzerland and other countries, and one that reflects the different needs of different parts of the country. There is no reason, other than political will, why that cannot happen here.

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Does the hon. Gentleman therefore suggest that if we had an independent Scotland, with its own immigration system, there would be a regional variation between Argyll and Bute and Edinburgh?

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Ultimately, that would be a decision for any incoming Scottish Government to make.

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What does the hon. Gentleman think?

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Personally, I think that the greater devolution of power, as widely as possible across any nation state, is an exceptionally good thing. Anything that can attract people to come, live, work, invest and raise families in our rural communities must be looked at and broadly welcomed. It was broadly welcomed in the recent Migration Advisory Committee report, which said:

“The current migration system is not very effective in dealing with the particular problems remote communities experience. If these problems are to be addressed something more bespoke for these areas is needed…The only way to address this question in the UK context would be to pilot a scheme that facilitated migration to these areas, then monitor what happens over several years and evaluate the outcomes.”

As my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East said, that idea was welcomed by the right hon. Member for Bromsgrove in a ministerial answer on 23 July 2019, where he accepted the need for the development of a pilot scheme. To date, there has been very little movement and we fear that there has been backtracking by the UK Government about what they plan to do next about setting it up.

The Minister knows that the Scottish Government stand ready to work with him to design and develop a solution that is tailored to meet Scotland’s needs. I can tell him that if the MAC is willing to provide the advice, and the Scottish Government is minded to follow that advice, then Argyll and Bute is prepared to put it itself forward as a pilot area for such a scheme. I spoke yesterday to the chief executive of Argyll and Bute Council, Pippa Milne, who confirmed that the council would be happy to work with the UK Government and the MAC to see how a bespoke regional immigration system would work in practice. Will the Minister act on the MAC recommendation, which was supported by the former Home Secretary, and help Scotland to fight the curse of depopulation?

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It is a pleasure to serve under your chairmanship once again, Sir Edward. I will briefly outline our position on amendment 17 and new clause 33. We are entirely sympathetic to amendment 17 for the reasons that have just been outlined, seeking to protect Scotland from the impact of this hard stop on free movement without a plan for mitigating the effects on key sectors. On more rural areas, our focus will continue to be on finding a solution for the whole of the UK rather than just Scotland. We understand that the Scottish National party has not given up on its aspiration of independence for Scotland, but I am afraid that that is where our parties diverge. To have an immigration system for Scotland that is different from that of the rest of the UK without that broader sense of a more regional approach affecting every area of the UK would open a raft of further questions around the management of that system and the means of enforcing it geographically. We say this in the spirit of loving Scotland and wanting it to stay and prosper as part of the United Kingdom. On that basis, we cannot support amendment 17.

We welcome the approach behind new clause 33 in principle, but again feel that it misses the opportunity to consult with the English regions as part of the process. Richard Burge of the London chamber of commerce said in last week’s evidence session that the MAC was slow and unwieldy. He said that it needs

“to involve business much more directly and that, it is hoped, will enable it to be much more responsive”.––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 12, Q18.]

Frustration with the MAC and a genuine and well-founded scepticism that, without radical reform, we would not be able to respond in anything like realtime to emerging workforce issues and skill shortages was a recurring theme in the evidence session and has been throughout our engagement with stakeholders ahead of the Committee. With this in mind, we are inclined to agree that one way of making immigration rules and shortage occupation lists more responsive would be to grant the devolved Administrations a greater say.

As I have already said, however, the glaring omission in new clause 33 is that it does not propose to consider the needs of the English regions in quite the same way. As a Yorkshire Member, it would be remiss of me not to reflect on the fact that the population of Yorkshire is comparable to, or greater than, those of the devolved nations. We hope that a report of the kind outlined in new clause 33 might take into account our needs and those of other regions, alongside those of the devolved Administrations. As a party, we will be looking to review the MAC and the shortage occupation list process in their entirety, shaping our own proposals for transformation in due course. On that basis, we broadly support new clause 33, but we will be shaping our own proposals in the coming months.

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I am grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and his hon. Friends for tabling the amendment and new clause. Having said that, there was a certain predictability about them given the SNP’s aim of separating our United Kingdom and wish for borders to be created across this island.

I turn to some of the more specific points. I have had direct contact with the hon. Member for Na h-Eileanan an Iar. He is very passionate about the Gaelic language and the role it plays in contemporary life. I have also had representations from Ministers and Members in Wales about the strong role that the Welsh language plays in our culture today, enriching our Union as a whole. Certainly, we will see what we can do to incorporate Welsh, Irish and Gaelic into our migration system. It is probably worth noting that the vast majority of fluent speakers of those three languages are either citizens of the United Kingdom or the Republic of Ireland, and therefore effectively not subject to migration control; they have rights to live and work within the United Kingdom and settle in any part of it they choose.

It was interesting to hear the comments of the hon. Member for Halifax, my Labour shadow, about how separate systems would be enforced. Like me, she does not want to see an economic version of Hadrian’s Wall between England and Scotland, although I recognise that others on the Committee perhaps do.

We are looking at how to make the Migration Advisory Committee’s role responsive and how it can choose some of its own reports—we will come on to that when we discuss some of the new clauses. The issue is not purely about a commission. I am thinking particularly about how the MAC can send out a more regular drumbeat of reviews, and commentary on reviews, for the shortage occupation list. That should fit in with our wider labour market policies rather than being considered apart from our skills and training policies. I hope we can find some sensible consensus on that.

The MAC has launched its call for evidence for the shortage occupation list and the advice that it is going to give Ministers about the new points-based system. I hope people will engage with that; there is certainly good strong engagement from many businesses. It would be good to see the Scottish Government promote the idea that businesses in Scotland should be getting involved and positively engage in the process—not least given that the MAC has indicated its intention for there to be shortage occupation lists for each of the four nations of the United Kingdom. It will probably not be a great surprise if many of those are very similar, given the similar types of skill shortages across the United Kingdom.

I was interested to hear the comments from the hon. Member for Argyll and Bute, in particular the idea that we could start having immigration policy for individual council areas. That is interesting. It is worth saying that the MAC suggestion was about remote areas. We both went to see the first HM naval base on the Clyde, in his constituency; as he knows, he is not exactly remote from the vibrant heart of culture and economy that is Glasgow—that is rather different from the concept of, let us say, eastern and western Australia in terms of distance.

I will be very clear: a range of powers is available to the Scottish Government. If the same pull factors that created the challenges today still exist, this look into the migration system is not going to provide a solution. With other Members from Scotland, including my hon. Friend the Member for Moray, we have looked at the fact that there is a determined drive—luckily, the Scottish Government have the powers around economic development—to create those strong opportunities in communities. Ultimately, if we create a migration opportunity but the pull factors are still there and have not been addressed, the situation will become a revolving door. That is why we have to look at those core issues first —why people are moving out—and not just look to a migration system as a magic bullet for those problems.

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At the risk of giving a geography lesson, I point out that when the Minister visited Argyll and Bute he visited the easternmost tip of the constituency, nearest to Glasgow. The constituency spreads over 7,500 sq km, has 26 remote island communities and is not part of the vibrant central belt hub. That is why it and many other areas of the highlands and islands of Scotland need a bespoke solution. The problems we face in Argyll and Bute are not those that many large conurbations in the United Kingdom face. There is a need to recognise that.

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Perhaps the point has been made, then, that this is not about having an immigration system based on a council area, but about having one for an area smaller than that of a council. I think that that would lead to confusion, with multiple areas.

There are many issues across large stretches of the highlands, and also rural parts of the rest of the United Kingdom. The fact that there are challenges in ensuring that younger people in particular have opportunities, and options to stay, is a facet of the issue that is not unique to parts of Scotland. However, if we do not deal with the core issues, most of which fall under the remit of the devolved Administration in Edinburgh, those pull factors will still exist, and the migration system is not a magic cure for them.

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It is a question of having strategies in place to address the challenges, but I want to pin the Minister down on the question of the remote areas pilot. That is a recommendation from the MAC. Can the Minister say categorically that this morning he is ditching it, and that there will not now be a remote areas pilot scheme? That would be really bad news.

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We made it clear in the policy statement that we put out in February that we were not planning a remote areas pilot. Again, the thing that we must focus on is that many of the pull factors exist. It is within the competence of the Scottish Government to deal with those issues, and to create something and tackle them.

I have seen how Members of Parliament in the north-east of Scotland, including my hon. Friend the Member for Moray and my hon. Friend the Under-Secretary of State for Scotland, the Member for Banff and Buchan (David Duguid), are pushing for the creation of those economic opportunities that they want in parts of rural Scotland. Perhaps the one hope that we have on this point is that there is a Scottish Parliament election coming next year. I hope that there will be a more business-focused, opportunity-based Administration in Edinburgh, which will be focused on developing Scotland, not separating it.

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I agree wholeheartedly with the Minister’s point about the number of factors that are within the remit of the Scottish Parliament and on which the Scottish National party Government of Scotland have failed.

We have heard from SNP Members that they want their own immigration system. Indeed, the hon. Member for Argyll and Bute said that they would design and tailor one. Does the Minister share my concern that we heard similar reassurances from the SNP Scottish Government about social security—yet they had to tell the UK Government that they could not take those powers because they could not implement the changes quickly enough in Scotland?

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My hon. Friend, as always, hits the nail straight on the head with his arguments. Yes, we had many demands for devolution of policy, but then the Scottish Government did not want to take them up. Suddenly there was a new group of Unionists wanting the United Kingdom Government to deal with something in Scotland.

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Will the Minister do us the favour of explaining how his immigration policies will make the challenges easier rather than harder for Scotland?

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The first thing that our immigration policy will do is provide a points-based system on a global basis, based on RQF3 and on having a shortage occupation list. Businesses in Scotland can recruit globally on that basis. Also, we can look at the first reform, which we have already carried out—a route that I was pleased to launch in Glasgow. I have seen it at first hand—the best talent being brought into our universities, and particularly into the University of Glasgow. Under that system, on a global basis, teams can be recruited to tackle and research some of the most challenging questions that mankind faces. On the occasion in question the issue was tackling malaria, and the huge impact of that.

Those are the sorts of benefits we want: high value and high skill—the attractions are there. It is a vision for Scotland, whose natural beauty is second to none, based on skills and the attractiveness of a high-skill, high-value economy—not on saying that the main thing Scotland’s economy needs is the ability to put more people on the minimum wage on a global basis.

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The Minister mentions his visit to Glasgow all the time. While he was there, did he speak with Universities Scotland, which is among the organisations that has spoken out in favour of a differentiated system? This is not just coming from the SNP. The Minister has also spoken about the benefits of his new system, but his own risk assessment says that it will cause levels of immigration to Scotland to fall. How is that in Scotland’s interests?

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We engage strongly with partners, particularly our high-compliance Scottish universities that are sponsors of tier 4 visas. We very much welcome the contributions they make, as well as those that they make as part of wider groups, such as the Russell Group, that operate on a UK-wide basis.

There are two visions, I suppose. There is one that my hon. Friend the Member for Moray and his colleagues from Scotland bring us: a high-productivity, high-value Scotland, an attractive place to live with a thriving economy, recruiting on a global basis. Then there is the Scotland that the Scottish National party brings us; the only reason someone would go there would be to pay low wages or recruit at, or near, the minimum wage on a global basis. That, to me, is not a particularly inspiring vision.

Many of the powers to deal with the pull factors that lead to depopulation in rural areas are already in the hands of the Edinburgh Administration. As with so many other things—this has been touched on in relation to social security—it is time to see the Scottish National party getting on with the job of governance, rather than the job of grieving or looking to separate the United Kingdom.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will not be surprised to hear that the Government’s position has been made very clear on this issue, but I will briefly set it out again. Immigration and related matters, such as the free movement of persons from the EU, are reserved matters, and the immigration aspects of the Bill will therefore apply to the whole United Kingdom. The Government are delivering an immigration system that takes into account the needs of the whole of our United Kingdom and works for the whole of it, not for the political needs of those whose goal is its separation.

We do not believe that it would be sensible, desirable or workable to apply different immigration systems in different parts of the United Kingdom, and the independent Migration Advisory Committee has repeatedly advised that the labour markets of the different nations of the United Kingdom are not sufficiently different to warrant different policies. That was an independent report—the type that people seem to want, but then do not seem to want to listen to.

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Will the Minister give way?

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No, I have given way many times. As we heard in the evidence sessions, the simplistic argument saying that Scotland is different from England for political reasons ignores the variation within Scotland itself, given the strength of the economy in Edinburgh compared with the economies of more rural areas.

I do not propose to address new clause 33 in detail; as I say, we have seen the MAC’s conclusions on this issue. The Government’s objection is one of principle: immigration is, and will remain, a reserved matter. We will introduce an immigration system that works for the whole of our country and all the nations that make up our United Kingdom by respecting the democratically expressed view of the people in the December 2019 general election and the 2014 vote of the Scottish people, which rejected separation. Both Alex Salmond and Nicola Sturgeon used the phrase “once in a lifetime” or “once in a generation” about that vote; now, only six years later, we see how short a generation has become. Free movement will end on 31 December, and we will introduce a points-based immigration system that ensures we can attract the best talent from around the world to Scotland, based on the skills and attributes they have, not where their passport comes from.

It will come as no surprise that SNP Members and I will have to agree to differ, as we regularly do on issues that relate to the constitutional future of Scotland. I obviously hope that the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Argyll and Bute and the hon. and learned Member for Edinburgh South West will withdraw their amendments—although I have a sneaky feeling that they may not—and I particularly hope that others on this Committee who have also voiced their opposition to separatist politics will join the Government in opposing these amendments if they are put to a vote.

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I sort of thank the Minister for at least making a contribution, but I have to say that, having shadowed about six or seven immigration Ministers for five years, I think that is probably the most regrettable speech I have heard from any of them at any time; the second most regrettable was the one the Minister made during the Opposition day debate a few months ago. It might play well with some MPs in this place, but I watched the faces of some Scottish Conservative MPs that night, and they were not impressed.

The Minister is speaking not just to the SNP, but to business groups and public service organisations—a whole host of concerned organisations in Scotland. He might get away with it in this Committee, but he cannot really get away with dismissing their concerns as “nationalist nonsense” or “separatist rubbish”. These are very serious people with very serious concerns about the implications of his Government’s migration system for Scotland. It seems to be not so much a case of, “We hope it will be all right on the night”, but one of, “We don’t care—stuff you!”

There was not a word about Northern Ireland, for example, where similar concerns are felt. There is the issue of a land border with a country that has free movement of people and a completely different immigration system. Employers on the other side of the border will have a huge advantage compared with employers in Northern Ireland.

I absolutely regret what we have just heard. We will have to go back to stakeholders in Scotland and say, “We have pushed for years on end, perfectly reasonably; we have prepared report after report, instructed experts, received expert advice and put out a range of options. All that has been rejected.” They will know that the only way they will ever see immigration powers in Scotland is through independence.

The Minister may want to chastise the Scottish Government about whether they are governing well, but they are in fact doing a pretty good job—and that is reflected in the opinion polls, which last time had us at 52%. I am quite comfortable to go to the country in the Scottish Parliament elections next year on that platform.

As I say, I very much regret the debate we have had this morning, and will be putting amendment 17 to a vote.

Question put, That the amendment be made.

Division 10

16 June 2020

The Committee divided:

Ayes: 2
Noes: 14

Question accordingly negatived.

View Details

Clause 7 ordered to stand part of the Bill.

Clause 8

Commencement

Amendment proposed: 12, in clause 8, page 5, line 40, at end insert—

‘(4A) Section 4 and section 7(5) expire on the day after the day specified as the deadline under section 7(1)(a) of the European Union (Withdrawal Agreement) Act 2020.”—(Holly Lynch.)

Question put, That the amendment be made.

Division 11

16 June 2020

The Committee divided:

Ayes: 7
Noes: 9

Question accordingly negatived.

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I beg to move amendment 11, in clause 8, page 5, line 41, leave out subsection (5) and insert—

‘(5) This Part of the Act shall not come into effect until a Minister of the Crown has laid a report before each House of Parliament setting out the impact of this Act on faith communities in the UK.

(6) A report under subsection (5) must consider in particular the ability of members and representatives of faith communities from the EEA and Switzerland to enter the UK for purposes related to their faith.

(7) A Minister of the Crown must, not later than six months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.

(8) In this section,

“faith communities” means a group of individuals united by a clear structure and system of religious or spiritual beliefs.”

This amendment requires the government to report to Parliament on the implications of this Bill for faith communities, including the ability of members of faith communities to come to the UK for reasons connected with their faith.

Some 18 months or so ago, the then Minister of State for Immigration issued a written statement announcing changes to immigration rules. Apparently, those changes were to ensure that ministers of religion could no longer apply for a tier 5 religious worker visa; instead, they would have to apply for a tier 2 minister of religion visa. As I understand it, that was done because of a fear at the Home Office that people were coming in under the tier 5 visa route and leading worship while not having the level of English that the Home Office decided would be necessary to perform such a function. The explanatory memorandum said:

“The Immigration Rules currently permit Tier 5 Religious Workers to fill roles which ‘may include preaching, pastoral work and non-pastoral work’. This allows a migrant to come to the UK and fill a role as a Minister of Religion without demonstrating an ability to speak English.”

For some reason, the Home Office also decided to introduce a cooling-off period. The explanatory memorandum said:

“The ‘cooling off’ period will ensure Tier 5 Religious workers and Charity Workers spend a minimum of 12 months outside the UK before returning in either category. This will prevent migrants from applying for consecutive visas, thereby using the routes to live in the UK for extended periods, so as to reflect the temporary purpose of the routes better.”

I have been in discussions with representatives of the Catholic Bishops’ Conference about migration to both Scotland and England. They tell me that most Catholic dioceses previously used tier 5 religious worker visas for priests to come here on supply placements while parish priests were away for short periods because of sickness, training or annual leave. Those supply placements were essential, as they allow Catholics to continue attending mass while keeping parish activities running smoothly. That allows the parish to continue to function while the parish priest is off through illness, going on a retreat or accompanying parish groups on outings, or even just taking a holiday.

A supply placement priest will lead the celebration of holy mass, including the celebration of the sacrament of marriage. He will lead funerals, including supporting bereaved family members, and visit the sick and elderly of the local community. In an age when social isolation and loneliness are increasing, the parish is a place where people can gather as a community to support one another and engage in friendship. It is not just about worship, but about the community hub that the church provides by offering spiritual and practical help and supporting the sick, the elderly, the needy and the vulnerable.

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In my own constituency there is a Coptic Christian community; it is a closed order, so they do not preach. The system already works very well for non-EEA residents. Is the hon. Gentleman suggesting that, if we do not extend the scheme to the EEA, there will be barriers for people coming to the UK in the way that he describes?

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I will come to that point in a minute. In short, the point made to me by the Catholic Church and other faith groups—we had a debate on this issue in Westminster Hall around the time of the changes—is that, actually, the system for non-EEA nationals used to work but does not work now, precisely because of the changes that the Home Office made 18 months or so ago.

The system is much more expensive now, and it is beyond most parishes’ ability to pay the fees for ministers to come in and lead worship. If they come in under tier 5, which is the much cheaper option, they are no longer allowed to lead worship or whatever else. They can perform a range of functions, but not the ones that are really needed, including leading worship.

The issue is already a problem now and it will be made infinitely worse, because at the moment parishes can still rely on priests or other leaders coming from the EEA. They do not have to pay for the expensive tier 2 visa; they can just come in under the free movement of people. When free movement comes to an end, the same regime will apply and parishes will have to pay all sorts of fees, even to have priests come in from France, Italy, Poland or wherever else. They are not looking forward to that prospect at all.

As I was saying, visiting clergy not only allow the local community to continue to function, but benefit and enrich the whole community, as the community gains from cultural exchange and from sharing the knowledge and experience of priests from other parts of the world. They educate new communities about life in their country, and they open up avenues for local parishes to support communities in need. What was most surprising about the changes was that, as far as the SNP was aware, there had been no problems with visas for the Catholic Church or any of the other faith organisations that made use of the tier 5 route. The new requirement introduced in 2019 for anyone preaching to use tier 2 minister of religion visas has instead more than doubled the costs incurred by parishes arranging supply cover. For some parishes that is unsustainable, compromising people’s opportunity to practise their faith.

Furthermore, they point out that seminaries conducting formation in English are not necessarily recognised by the Home Office as meeting the English requirement under the tier 2 route, meaning that many priests educated to postgraduate level in English are nevertheless required to take a language test, with the extra logistical and cost implications. The new arrangements more than double the costs, making supply cover essentially unaffordable. I have heard directly from religious leaders in my constituency that that is the impact of those arrangements. Unless reforms are made, the situation will be worsened by the end of free movement, as I said in response to the intervention from the right hon. Member for Scarborough and Whitby (Robert Goodwill). I simply ask the Government to engage with faith communities about the challenges that this is causing them to face, and to see if we might be able to come to a solution that makes these sorts of arrangements continue to function in the years ahead.

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As my hon. Friend said, the tier 5 religious visas were operating perfectly smoothly for the many Churches and religious organisations that relied on them until these unexpected changes were made. Catholic parishes throughout the UK—including my own in the Archdiocese of Glasgow—regularly used these visas as routes for priests to come to the UK on supply placements.

The changes that came into force in January are already causing something of a headache for a whole host of religious organisations that require clergy to visit to cover for periods of illness, holiday, religious retreat, or when priests or other clergy are away on pilgrimage. This is a time of a crisis in vocation, clergy are becoming increasingly elderly, and more and more parishes and dioceses are turning to priests from outside the UK to cover such absences, sicknesses and holidays, so it beggars belief that the measure would have been introduced in this way.

It is important that the Minister realises that the tasks of a parish do not stop when the existing or resident priest falls ill, or goes on a well-earned holiday or retreat. As pointed out by my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East, the church is more than just a place of worship, it is also a community hub providing both spiritual and practical support to the sick, elderly and vulnerable, as demonstrated by the great work of a number of organisations including the Society of Saint Vincent de Paul. The Bishops’ Conference of Scotland has been clear in saying that much of the positive work done in and around Catholic parishes which engenders that sense of community is being seriously undermined and compromised by these changes. The Home Office has to understand and recognise the benefits of allowing priests from other parts of the world to come in on a tier 5 visa. They enrich the whole community. It is a cultural exchange, it is a share of knowledge, a share of experience by priests and clergy from other parts of the world.

It is not just the Catholic church. Indeed, the Church of Scotland is on record as saying that it opposes the measure. Many of us are confused as to why these changes were deemed necessary. What grave issue has arisen that needed to be addressed in such a draconian fashion? The Scottish bishops said that for years they had sponsored priests through the tier 5 process, and they are completely unaware of any abuse of the system whatever. For years, priests came here, they worked and preached in Scotland and across the UK, and then returned home. Indeed, 25 years ago this summer at St Helen’s church in Shawlands in Glasgow, Father Stephens from Malawi was the celebrant who married me and my wife, rather successfully I am happy to report. But the question remains: why did this have to happen? What was the motivation behind it? Can the Government not see the harm they are doing to our religious communities, and can they not act to stop it?

Finally, exactly a year ago in a debate on that in Westminster Hall, my hon. Friend the Member for Glasgow North (Patrick Grady) invited UK Ministers to meet the Bishops’ Conference of Scotland. Did Ministers take up that invitation? Did that meeting ever take place and, if it did, what was discussed and what outcomes were agreed? If it never took place, why not?

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I support the sentiments expressed by the hon. Members for Argyle and Bute and for Cumbernauld, Kilsyth and Kirkintilloch East. There have been considerable benefits to our faith communities from their ability to take advantage of freedom of movement and welcome EEA nationals into their communities. Faith communities, especially Churches of all denominations, have congregations with many EEA nationals among their membership and they are also often individuals who act as pastors, counsellors, youth workers and musicians.

As we have heard, many faith organisations have needed EEA nationals to cover short-term or sometimes longer-term appointments into leadership positions. That is especially true in areas where it has been hard to recruit. Free movement has also allowed faith communities some flexibility in terms of shared mission work, with UK nationals working overseas, undertaking mission trips, musicians performing in Europe at faith-based events or running camps and youth conferences. Faith communities have been able to bring EEA speakers and volunteers to help communities and to run events without the associated costs and rules around visitor visas and the tier system.

There will be a number of consequences for those communities as a result of the loss of free movement. First, while many faith groups have been effective in pointing their members to the EU settlement scheme where that is relevant, uncertainty remains about the scheme, what it means for families, for continuity of residence and for faith communities who are trying to keep people in their communities.

Faith communities looking to employ or to bring in volunteers from the EEA will now have to navigate the tier system, as they would for non-EEA nationals. As we heard, that brings complexity. With the greatest of respect to the right hon. Member for Scarborough and Whitby, I do not think it is the case that all faith communities have found that an easy system to navigate or to get the relevant approvals. There are also significant additional costs for sponsorship licences and visas. Indeed, it will not be cheap, especially when we include the additional NHS surcharge. A religious worker will be able to stay for up to two years. The cost for a one-year visa before administration costs is around £244, plus the NHS surcharge of £624, added to that the sponsorship licence fee and associated costs. On top of that, the community will have to fund any dependant costs and may also be providing the cost of flights, accommodation and training for the religious workers, and sometimes a small stipend. For smaller faith communities, that starts to become a very significant expense.

Many faith communities that rely on overseas workers tend to be found in the poorer parts of the UK. Poorer communities and poorer congregations are part of a poorer overall landscape and so the faith organisation itself will be less well resourced. It cannot draw on a wealthy congregation. That has a particular impact on smaller denominations and diaspora Churches, which will find that the loss of free movement will mean that poorer communities, who could benefit most from additional pastoral support, will feel the impact the harshest.

Proof of savings is difficult for some orders, which have vows of poverty, making it difficult for individuals to prove they can sustain themselves even if the order will cover all their living arrangements. If a person is needed quickly to cover a gap—the hon. Members for Argyle and Bute and for Cumbernauld, Kilsyth and Kirkintilloch East talked about the potential absence of a priest for a range of personal reasons—the procedure will now mean that there will be delay in bringing in that cover. I am not talking here about roles that fall short of being a full minister of religion, but there are roles that will still involve some level of religious duty. For example, there continues to be uncertainty about those coming in to work with children, and about pastoral work and preaching, and an understanding of the definitions of what those roles encompass, which is a particular issue with some particular faiths of particular traditions.

There is also a concern, as I have said, among faith communities that bring in musicians who may be self-employed and who may work in multiple settings. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East pointed out, seminaries that conduct formation in English are not necessarily regarded as meeting the English language requirement.

I hope the whole Committee will agree about the benefits of facilitating religious workers to come in to support our faith communities. In that spirit, I will ask the Minister a number of questions. What assessment have the Government made of the level of upscaling needed in the Home Office to process additional sponsorship licences for the purposes of ministers of religion or religious workers, or charity workers and faith communities, due to the removal of free movement?

Echoing the hon. Member for Argyll and Bute, what conversations are the Home Office having with faith groups regarding preparation for the immigration system that will affect them post-December? What help will be provided with regard to navigating sponsorship licences and understanding the costs that faith communities will have to meet?

At times, non-EEA nationals who have wanted to come to the UK for a short-term conference or to speak at an event have been denied visas; I have seen that in my own constituency. What assurance can the Minister give to faith communities that EEA nationals entering the UK for a conference or event for short-term study will not be restricted from doing so, and that appropriate decision-making will take place?

Will the Minister commit to reviewing the definitions of “minister of religion” and “religious worker”, and actively consult a wide variety of denominations and faith communities? What will the Home Office do to improve faith literacy among decision makers? I have to say that the asylum system has not given me much confidence that religious literacy in decision-making is where it needs to be.

What assessment have the Government made of the impact on creatives, such as musicians used by faith communities? Will they still be able to come to the UK? Will those in a different visa route be able to transfer if they take on a role in a faith community? For example, could someone who has arrived in the UK as a student transfer routes if they become a religious worker? Will it be possible for individuals to come to the UK as volunteers in faith communities and, if so, what restrictions will be applied to their activities? What discussions have the Government had with faith communities about their responsibility to carry out right-to-work checks?

This is an important issue for an important element of all our communities. I do not think the Government intend the impact of the removal of free movement to harm the operation of our faith communities, but the changes will cause real difficulties across a range of faiths, and particularly in those communities that most need the support that visiting religious workers can provide. I hope the Minister will be able to reassure the Committee.

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I genuinely thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for tabling this amendment. He always speaks with real passion, even when we disagree, as we did in the last debate, and his comments on this amendment have been no exception. We can perhaps be slightly more consensual now, even if the Government do not agree with the amendment.

I will deal briefly with a couple of points that have just been raised. First, in relation to decisions that would be taken on visitor visas for EEA nationals visiting faith groups, we have already made it very clear that EEA nationals will be non-visa nationals. Therefore, those looking to make visits to the United Kingdom would not be required to apply for a visa. They would be able to come through the e-gates and their visiting experience would be very similar, for example, to that of a New Zealander, a Canadian or a Japanese citizen at the moment, who can come through the e-gates and be granted visit leave. In a moment, I will come on to speak in a little more detail about the range of activities that a visitor can perform.

As a constituency MP, I have similarly sometimes been involved in decisions about faith communities, particularly a couple of years ago, when there needed to be some representations about how the income of Paignton parish church was considered, and whether a medieval church was an established organisation. I was only too happy to vouch that a church built in the 13th century is an established organisation, and that it was not set up for an immigration purpose, for pretty obvious reasons. I am genuinely always happy to hear representations from particular communities about that, as I did in that instance as a constituency MP.

We published the impact assessment for the Bill. I am clear that a lot of the Churches’ right-to-work checks will be the same as now anyway, because they have to do that for EEA citizens and UK nationals. When there is a right-to-work check, every one of us should be asked to present evidence that shows our right to work, as with right-to-rent checks; I recently had to show my passport to comply with those requirements, and rightly so. We are clear that there should be no discrimination there; those checks should be applied irrespective.

On the other points made, similarly, many faith communities, and certainly the larger faith communities present in the United Kingdom, are already sponsors. Much of that will transfer into the new system, so in many ways the experience of non-EEA nationals—non-visa nationals, to be absolutely clear—will be transferred over with the various concessions and opportunities, such as pay, performance, engagement and other items.

On the specific point made by the hon. Member for Argyll and Bute, I do not have officials’ or my predecessors’ diaries to hand, in terms of meetings, but as I met other faith communities at the invitation of Members of Parliament, I am certainly more than happy to meet the Scottish Catholic bishops representatives and to engage and have a conversation with them. They are a key partner. I certainly recognise the valuable social role that many Catholic churches play in communities across the United Kingdom. I am always happy to have a conversation about some of the definitions, particularly around visitor, tier 5 and tier 2. Some things, as I will come on to in a minute, will actually be covered by our visitor provisions, as well as under tier 5. Again, I am happy to have a conversation with them on those points.

I am genuinely grateful to the SNP for initiating this debate, because it gives me the opportunity to put on the record how the Government value the role faith communities play in this country, and more importantly, the contribution that many people who have migrated here have made and are making to the functioning and wellbeing of our faith communities. Faith communities enhance our national life, and they are stronger because people from around the world come and contribute to every aspect of their work, not least in bringing their skills to leadership in communities across the UK, hence why, in our future points-based immigration system, there will continue to be routes for those connected with faith and religion to come to the UK. Within the current immigration system, there are two routes specially designed for them, and this will continue in the future, to assist with consistency.

As referred to already, the tier 2 route for ministers of religion—effectively a skilled worker route—is for religious leaders such as priests, imams and rabbis, as well as missionaries and members of religious orders, taking employment or a role in a faith-based community. They can come for up to three years initially, which they can extend to six years, and they may qualify for settlement—indefinite leave to remain—after five years. Again, those who receive indefinite leave to remain are then exempted from the immigration health surcharge and will also have a permanent unlimited status within the United Kingdom.

Additionally, we have the tier 5 religious workers’ route. It should be clear to the Committee that this was designed with a very different purpose in mind. It permits stays of up to two years and caters for those wishing to undertake supportive, largely non-pastoral roles. In common with all tier 5 categories, as it is temporary at core, there is no English language requirement.

That last point is crucial. As I indicated, we welcome faith leaders from around the world, and in many communities regular conversations and events bring faith communities together in opposition to those who wish to sow the seeds of division between them. It is therefore right that those who want to lead a faith community, which involves both preaching and helping the faith community to interact with the wider community in their leadership role, should have a proper command of English to enable this—especially the valuable inter-faith work that goes on in so many communities.

I think of what happens locally in Torbay, and of the type of exchanges facilitated in the midlands, particularly by Coventry cathedral, given its background in different faiths. Those exchanges really cannot be facilitated if there is not a good command of a working language within the local community.

Last year, we changed the rules to provide that those who come as ministers of religion should be required to use the tier 2 route. I accept that the fees are higher for tier 2 than for tier 5; that is because tier 2 migrants can stay for longer, with the potential eventually to settle here, as many inspiring faith leaders have done and as I hope they will continue to do. I am sure we can all think of examples in our own constituencies.

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Will the Minister pay tribute to John Sentamu, the recently retired Archbishop of York, who came from Uganda during the time of Idi Amin and has made a fantastic contribution to religious and general life in our country?

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I am only too happy to do so and to put the Government’s thanks to him on the record. He provided an inspiration and a ministry that will be remembered for a very long time, and he broke the mould of what people expect from someone in such a senior position in the Anglican communion. Such contributions are very welcome and we want them to continue. We want to see that sort of person, particularly from the worldwide Anglican communion, as well as from the See of Rome—we have seen some amazing people come and be part of that community here in the United Kingdom. It is well worth paying tribute to such an example of someone who has achieved amazing things and revealed what he saw as God’s purpose for him as Archbishop of York. I am sure that we all wish him a very long retirement—not from holy orders, of course, which are a calling for life, but from his duties as archbishop.

I have heard the concerns expressed today about those who come to the UK for a very short term to provide cover while the incumbent minister is on holiday. It is worth pointing out our visitor rules, which will extend to EEA nationals as they currently extend to non-visa nationals, as I indicated earlier. In the immigration rules, the list of permitted activities specifically states that visitors may

“preach or do pastoral work.”

That allows many faith communities to hear inspiring preachers or hear about their faith’s work in other countries, especially in support of overseas aid and development work. Visitors are permitted to lead services on an ad hoc basis, which may provide a solution for communities that wish to invite visiting clergy to cover short-term absences, although they may not be paid for it—in many religious communities, that would not necessarily be a bar to providing a period of short-term cover.

It is worth my reminding the Committee that we have confirmed that EU citizens, who are the focus of the Bill, and EEA citizens more widely can continue to come to the UK as visitors without a visa, without prior approval, and use e-gates, where available, on arrival in the United Kingdom.

I hope that the SNP will consider its position on amendment 11. I say gently that we all need to reflect on whether it is appropriate to have faith communities led by those without a command of English adequate for the task—not least at a time when we need to come together more, not be separated by barriers of language. I therefore believe that the review that the amendment would put in place is not necessary. I invite the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the amendment, but I am always more than happy to discuss further how we can ensure that our faith communities are supported and that there is clarity on the three routes that I have outlined for ministers and those involved in faith communities to come to the United Kingdom and play the role that many have done in an inspiring way over many years.

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I am grateful to my hon. Friend the Member for Argyll and Bute and the hon. Member for Stretford and Urmston for their detailed contributions to the debate, and to the Minister for his response. We are back in much more convivial and consensual territory, and I much prefer it; I feel much more comfortable there. I am particularly grateful for the Minister’s offer to meet the Bishops’ Conference, which I am sure will be very welcome. This debate has helped us clarify how close we are to making sure the system works for all interested parties.

I scribbled down the fact that the Minister highlighted two routes, but of course there are three. Tier 2 is much more about the longer term, and affects ministers who want to come and settle, and the tier 5 route is not for people who will lead worship. Then there is the visitor category, but, as the Minister said, it does not allow for payment to be made, and the organisations that I have spoken to say that if somebody is here for a couple of months, there are challenges if they cannot offer to pay.

We are close, but those three routes do not quite resolve the difficulties that we have highlighted. If the Minister is able to engage with the bishops’ conferences and other religious organisations, we may be able to tweak one of the three existing routes or come up with another one. It is probably better to fix the three than to come up with a fourth. I hope we will find a resolution, and I am glad that the Minister is engaging positively. For that reason, I see no reason to press for a vote, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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I have to be entirely neutral, of course, but it would be nice if the Government allowed us to have our religious services again, as has happened in the rest of Europe.

Clause 8 ordered to stand part of the Bill.

Clause 9 ordered to stand part of the Bill.

New Clause 9

Report on the impact to EEA and Swiss nationals

“(1) This Act shall not come into effect until a Minister of the Crown has laid a report before each House of Parliament setting out the impact of the Act on EEA and Swiss nationals in the UK.

(2) A report under subsection (1) must consider—

(a) the impact on EEA and Swiss nationals of having no recourse to public funds under Immigration Rules;

(b) the impact of NHS charging for EEA and Swiss nationals;

(c) the impact of granting citizenship to all EEA and Swiss health and social care workers working in the UK during the Covid-19 pandemic;

(d) the impact of amending the Immigration and Nationality (Fees) Regulations 2018 to remove all fees for applications, processes and services for EEA and Swiss nationals; and

(e) the merits of the devolution of powers over immigration from the EEA area and Switzerland to (i) Senedd Cymru; (ii) the Scottish Parliament; and (iii) the Northern Ireland Assembly.

(3) A Minister of the Crown must, not later than six months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.

(4) In this section, ‘health and social care workers’ includes doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff required to maintain the UK’s health and social care sector.”—(Stuart C. McDonald.)

This new clause would ensure that before this Act coming into force, Parliament would have a chance to discuss how EEA and Swiss nationals will be affected by its provisions, including no recourse to public funds conditions, NHS charging, the possibility of granting British citizenship to non-British health and social care workers, removing citizenship application fees and the potential devolution of immigration policy of EEA and Swiss nationals to Wales, Scotland and Northern Ireland.

Brought up, and read the First time.

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I beg to move, That the clause be read a Second time.

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With this it will be convenient to discuss the following:

New clause 10—Extension of registration for EU Settlement Scheme

“(1) The EU Settlement Scheme deadline shall be extended by a period of six months unless a motion not to extend the deadline is debated and approved by both Houses of Parliament.

(2) Any motion not to extend, referred to in subsection (1), must be debated and approved no later than three months before the deadline.

(3) In this section, ‘the EU Settlement Scheme Deadline’ means the deadline for applying for settled or pre-settled status under the Immigration Rules.”

This new clause would ensure the EU settlement scheme was not closed to new applications until Parliament has approved its closure.

New clause 11—Application after the EU Settlement Scheme deadline

“(1) An application to the EU Settlement Scheme after the EU settlement scheme deadline must still be decided in accordance with appendix EU of the Immigration Rules, unless reasons of public policy, public security, or public health apply in accordance with Regulation 27 of the Immigration (European Economic Area) Regulations 2016 (as they have effect at the date of application or as they had effect immediately before they were revoked).

(2) In this section—

‘an application to the EU Settlement Scheme’ means an application for pre-settled or settled status under appendix EU of the Immigration Rules;

‘the EU Settlement Scheme Deadline’ means the deadline for applying for settled or pre-settled status under appendix EU of the Immigration Rules.”

This new clause would ensure that late applications to the EU settlement scheme will still be considered, unless reasons of public policy, public security or public health apply.

New clause 25—Report on status of EEA and Swiss nationals after the transition

“(1) This Act shall not come into effect until a Minister of the Crown has laid a report before each House of Parliament setting out the impact of the Act on EEA and Swiss nationals in the UK.

(2) A report under subsection (1) must clarify the position of EEA and Swiss nationals in the UK during the period between the end of the transition period and the deadline for applying to the EU Settlement Scheme.

(3) A report under subsection (1) must include, but not be limited to, what rights EEA and Swiss nationals resident in the UK on 31 December 2020 have to—

(a) work in the UK;

(b) use the NHS for free;

(c) enrol in education or continue studying;

(d) access public funds such as benefits and pensions; and

(e) travel in and out of the UK.”

This new clause would require Government to provide clarity on the rights of EU nationals in the EU in the grace period between the end of the transition period, and the closure of the EU Settlement Scheme.

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With new clause 9, which stands principally in the names of my hon. Friends in Plaid Cymru, we turn to the central matter of the Bill: what will happen to EEA and Swiss nationals who are already here? The new clause simply calls on the Government to report on what the implications for EEA and Swiss nationals will be. That includes reporting on the impact of no recourse to public funds, NHS charging, the granting of citizenship to all EEA and Swiss health and social care workers working in the UK during covid-19, and certain fees. It also includes—we will probably not discuss this in great detail—the merits of the devolution of powers over immigration from the EEA and Switzerland to different parts of the United Kingdom. Those are all perfectly reasonable requests.

I want to focus on new clauses 10 and 11, which bring us back to the settlement scheme. We touched on that on Thursday, when Opposition Members made the case for a declaratory system, meaning that people would have their rights automatically enshrined in law. It would still apply to the settlement scheme so that they could prove their status and navigate employment, social security and other rights. I regret that the Government and the Committee rejected that proposal, but I have taken that on the chin and moved on. However, that puts the Government under a greater obligation to spell out what should happen to eligible individuals who do not apply for the settlement scheme by 30 June 2021. I have tried on a huge number of occasions to get them to reveal what work they have done to estimate how many people might not apply, even in broad-brush terms, and how they would respond.

As we heard in evidence, it is blindingly obvious that, even with all the good work that is going on, the Government will struggle to get above 90% of the target population. Getting above 90% would be a great success, given the international comparison. If the Government fall just 5%, 6% or 7% short of the target, hundreds of thousands of people will suddenly be without status and will lose any right to be in this country on 1 July 2021. By all accounts, this is a huge issue and we need to push the Home Office further to set out how it will address it. So far, all we have been told is that it will take a reasonable approach. That is fine, but it is not enough. We need much more detail, and new clauses 10 and 11 are designed to push the Government on that.

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Does the hon. Gentleman share my concern that extending the deadline by six months would encourage those who have been putting it off to put it off for another six months?

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Not really. People still have every incentive to apply for the scheme. On 1 July next year the deadline will have passed. People might put it off for six months, but I would far rather that than subject tens and probably hundreds of thousands of people to not having any rights at all. It is much the lesser of two evils. As I say, there are different ways in which we can do this. New clause 11 would allow people to apply after the deadline. I will turn to that in a moment. I want to set out exactly what new clauses 10 and 11 are designed to do.

New clause 10 would ensure that the EU settlement scheme was not closed to new applications until Parliament had approved its closure. We want to see what the plans are and scrutinise how the situation will be handled. Until we are satisfied, we will keep extending the scheme in order to protect people from the loss of their rights and from the hostile environment and the threat of removal. Why on earth should MPs give the Home Office a blank cheque to deal with this as it pleases? We will have that debate and the right hon. Member for Scarborough and Whitby can make his point that it will lead to a delay in people making applications, but I am firmly of the view that that is much the lesser of two evils.

On the closure of the settlement scheme, people who have not applied for a status will have no legal basis to remain in the UK after the grace period, no matter how long they have lived in the UK. They will be liable to removal and will face the hostile environment. After the grace period, a huge group of people will still not have applied. No similar scheme has ever reached 100% of its target audience. New clause 11 would bring back control of the situation to Parliament and allow us to be fully informed as to where the settlement scheme has got and what the Government’s plans are for dealing with this huge issue before we sign off on closure of the scheme. It is a modest proposal, but hugely important.

New clause 11 would ensure that late applications to the EU settlement scheme would still be considered unless reasons of public policy, public security or public health apply. In tabling the new clause, we are asking the Minister who he thinks does not deserve a second chance after 30 June next year. Who does not deserve the reasonable response that he has spoken about in the past? Under the new clause, applications made after the deadline could be ignored for restricted reasons relating to public policy, public security or public health. However, we want to know who, on top of that, the Minister thinks should be deprived of their rights and the ability to remedy the situation in which they find themselves. People will be unable to live in this country and they will be liable to removal. We need to know much more about the grounds on which people will be able to make a late application. What are the reasonable grounds that the Home Office will accept? They have yet to be defined. As far as we can tell, they will comprise only a very narrow list of exemptions, including, for example, for those with a physical or mental incapacity, and for children whose parents have failed to apply on their behalf.

As I have said many times, the deadline will be missed by many people for good reasons beyond those that I have just outlined. People will simply not be aware of the need to apply, and people with pre-settled status might forget to reapply for full settled status. I have set out a million times why people will not understand that the settlement scheme applies to them. Rules on nationality and immigration status in this country are hugely complicated. There will undoubtedly be people from all walks of life who think that they are British citizens and who already have a right of residence in this country. They will not appreciate that, in fact, they need to apply to the scheme. The consequences of making such a mistake can be dreadful. If we simply leave the Bill as it is, people will lose the right to be in this country and will be removed and subject to the hostile environment. Alternatively, we could at least leave open to them the option of being able to apply to the scheme after the deadline has passed. They would still have every incentive to apply, because they would need to evidence the rights that they access through the settled status process.

I ask the Government to look positively on these new clauses, and at the very least to provide much more information and assurance about how they are going to approach this issue. Up to this point, there has been barely a flicker of recognition that this is something that needs to be addressed, but we are talking about tens, possibly hundreds, of thousands of people being left in an appalling situation.

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I believe that it is appropriate to speak to new clause 25 as part of this grouping. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has already explained his commitment to and passion for new clauses 10 and 11. Our new clause 25 is not dissimilar to new clause 9. New clause 25 is tabled in the name of my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), who is the shadow Home Secretary, and myself and my hon. Friends.

New clause 25 focuses on the need to put to bed some of the anxieties of those who will not have had their status confirmed by the time the transition period ends at the end of this year. When free movement ends, eligible EEA and Swiss nationals will still have until the end of the grace period to apply for status through the EU settlement scheme, which does not close until the end June 2021. With this in mind, all the conversations we have had with those European citizens who have either applied or are planning on applying to the settlement scheme have centred on what their status will be between the end of free movement and their status being granted, which could happen up until the end of June 2021 and, in some cases, beyond that.

The new clause asks the Government to put together a report on the status and rights of people during that window and to lay it before both Houses for consideration. We are calling on the Government to recognise the genuine sense of vulnerability felt by people who may fall into that category and to provide some assurance, in a report to Parliament, guaranteeing that those people, who are eligible, will have a lawful status and not be disadvantaged during those six months.

I asked Luke Piper, immigration lawyer and head of policy at the3million, about this issue in last week’s evidence session. It is a top priority for him and his group. He told the Committee:

“The Bill brings freedom of movement to an end at the end of this year, but it is not clear what legal status people will have between the end of the transition period, which is at the end of the year, and the end of June—the end of the grace period. There has been no clarity about, or understanding of, what legal rights people will have. We have simply been told that certain checks, such as on the right to work, will not be undertaken, but it is not clear to us or our members how people will be distinguished, both in practice and in law.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 61, Q125.]

EU citizens in the UK have already endured a lot of uncertainty about their futures and are now also facing insecurity on their lawful status. The suggestion that employers or landlords should not be checking to confirm their personal status during this grace period seems to be an approach fraught with potential problems. I am keen to hear what engagement Ministers have with employers and landlords on this issue, and how any suspension of the hostile environment will be managed. Last December, the3million commissioned a survey on EU citizens’ experience of the settlement scheme. It was the largest survey of its kind and indicated that they are already facing barriers, with 10.9% of respondents saying they have already been asked for proof of settled status, even though it is not yet a requirement.

Although this new clause focuses on the rights of those who apply after the transition ends and who get their status before the EUSS deadline, there will presumably then be a group of particularly vulnerable people who apply before the deadline ends but who do not get their status until after the end of June 2021. What happens, for example, if they apply on 20 June 2021, which is before the deadline, but do not get confirmation of their status until 20 July, which is after the end the transition period and the closure of the EUSS? What are the rights and status of that cohort of people?

Although the numbers coming through are good, we know that lots of people are still yet to apply. As we have heard, we will never know exactly how many people are in that category. We will never know whether there is going to be a surge towards the end of the scheme, which will make this a bigger problem than many of us would like. When asked about the numbers and types of people who will struggle to apply on time, Luke Piper said:

“Much as with the number of people due to apply for the scheme, we do not know. We have no idea of the exact number of EU citizens who need to apply under the EU settlement scheme, so we will not have an understanding of the number of people who miss the deadline.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 62, Q126.]

Coronavirus has resulted in dedicated Home Office phone lines being closed, an inability to receive hard copies of documentation and specialist support services being stopped, impacting on the progress being made. The BMA has said that some doctors working tirelessly on the frontline may be in that cohort of people who have to leave things until next year, simply because they will be working flat out for the foreseeable future. After the transition period comes to an end, thousands of people might not have confirmation of their status.

Recent research by the3million on young Europeans living in London made some concerning findings. The focus group was the first time that some participants had heard about the EU settlement scheme, and a majority had not applied to it, despite being viewed as an easy to reach group because of their education and digital literacy. The new clause’s proposed report on that group’s rights between the end of the transition period and the EU exit deadline would be of great assistance in clarifying the status and rights of those harder-to-reach groups. It would also assist in getting them to submit their applications towards the end of the scheme.

It is important to note that, after the deadline, the EU settlement scheme will not close in practice, because people with pre-settled status will need to apply for settled status, and it will also be used by people will be joining family members in the UK after the deadline. Moreover, we will still be processing those applications that arrive on time but that will have to wait until the other side of the deadline for a decision to be issued.

Inevitably, the problem is the hostile environment and the long, dark shadow of the Windrush scandal. The fear brought about by the absence of a clear framework of rights and migration status for EEA and Swiss nationals between September 2020 and June 2021 is all too real. We therefore ask the Government to provide clarity on the rights of EU nationals in the UK during the grace period. EU citizens who have contributed and given so much to our society and country deserve to have security and confidence in their status.

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I very much sympathise with what the hon. Member for Halifax has just said. There is real concern that EEA nationals who have been working here, contributing not least to our health service, may find themselves missing the deadline. However, I do not agree that the way to address that is through new clause 10, as I made clear to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. Some like myself would always wait until the deadline before submitting an essay or article. By extending the period by six months, we might well just encourage people to put off the chore—as they see it—of applying.

I ask the Minister to reassure us that, as we approach the deadline, the Government will engage in a communications exercise and advertising campaign, particularly in some of the main EU languages, so that people are aware of the deadline and can submit their applications in good time for them to be processed.

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That is an important point, in particular in relation to those communities, such as the Roma community, that have been hard to reach with information about the scheme. The Government have made some funding available for community organisations to reach such communities, but it would be extremely welcome to follow the suggestion that a particular push be made to communicate with those more remote communities as the deadline approaches

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The hon. Lady is absolutely right. Indeed, while many EU migrants have made a real effort to integrate and to speak English in their homes, encouraging their children to speak English, others have not assimilated as well and are still speaking their native language, as is their right. It is important that we communicate in those languages.

Perhaps we should also look at how we communicate through schools, because the children of some families who have come from the EU speak very good English, although their parents struggle with it. The children’s secondary schools may be another good way to get through to such families. I hope that the Minister will pick up that point and reassure us that the Government will be making the effort to communicate with the general population, to ensure that we can help our work mates and so on.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.

Domestic Abuse Bill (Tenth sitting)

The Committee consisted of the following Members:

Chairs: Mr Peter Bone, † Ms Karen Buck

† Aiken, Nickie (Cities of London and Westminster) (Con)

† Atkins, Victoria (Parliamentary Under-Secretary of State for the Home Department)

† Bowie, Andrew (West Aberdeenshire and Kincardine) (Con)

† Chalk, Alex (Parliamentary Under-Secretary of State for Justice)

Coyle, Neil (Bermondsey and Old Southwark) (Lab)

† Crosbie, Virginia (Ynys Môn) (Con)

† Davies-Jones, Alex (Pontypridd) (Lab)

† Gibson, Peter (Darlington) (Con)

† Harris, Rebecca (Lord Commissioner of Her Majesty’s Treasury)

† Jardine, Christine (Edinburgh West) (LD)

† Jones, Fay (Brecon and Radnorshire) (Con)

† Kyle, Peter (Hove) (Lab)

† Marson, Julie (Hertford and Stortford) (Con)

† Phillips, Jess (Birmingham, Yardley) (Lab)

† Saville Roberts, Liz (Dwyfor Meirionnydd) (PC)

† Twist, Liz (Blaydon) (Lab)

† Wood, Mike (Dudley South) (Con)

Jo Dodd, Kevin Maddison, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 16 June 2020

(Afternoon)

[Ms Karen Buck in the Chair]

Domestic Abuse Bill

New Clause 8

Offence of non-fatal strangulation

A person (A) commits an offence if that person unlawfully strangles, suffocates or asphyxiates another person (B), where the strangulation, suffocation or asphyxiation does not result in B’s death.”

This new clause will create a new offence of non-fatal strangulation.(Jess Phillips.)

Brought up, and read the First time.

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I beg to move, That the clause be read a Second time.

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With this it will be convenient to discuss new clause 9—Offence of non-fatal strangulation in domestic abuse context

A person (A) commits an offence if that person unlawfully strangles, suffocates or asphyxiates another person (B) to whom they are personally connected as defined in Section 2 of this Act, where the strangulation, suffocation or asphyxiation does not result in B’s death.”

This new clause will create a new offence of non-fatal strangulation in domestic abuse offences.

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I apologise at the outset, because the new clause contains rather technical legalese and quite graphic language. The purpose of the new clauses is to correct the inadequate way in which the law is applied in practice on the ground. Currently, we do not criminalise behaviour that was not already criminal—obviously, it is already a crime to strangle somebody; I can confirm that in case anyone was worried that it is not. The new clauses address a systemic problem that is highly gendered, as I will demonstrate, and if the Bill presents a once-in-a-generation opportunity to make a law work for domestic abuse victims and survivors, this can make a real contribution.

It is worth mentioning that exactly the same debate has taken place in the United States, Australia and New Zealand, all of which—most recently New Zealand, in 2018—have introduced specific laws on non-fatal strangulation. I will discuss that in more detail later. Before speaking to the new clauses in greater detail, it is important to establish that what I am talking about is completely distinct from the rough sex defence dealt with in new clauses 4 and 5, which also include asphyxiation. I am talking about strangulation in the context of physical domestic violence rather than strangulation during sex. New clauses 4 and 5 deal with consent issues relating to injuries inflicted during sex. There is of course some overlap, which I will address briefly at the end of my speech.

Strangulation and asphyxiation are the second most common method of killing in female homicides after stabbing. Some 29% of female homicides in 2018— 43 women—were killed by that method, compared with only 3% of male homicides. However, the important thing to note about non-fatal strangulation is that it is generally not a failed homicide attempt, but a tool used to exert power and control and to instil fear within an abusive relationship. That has been explored in academic literature and in detailed interviews with survivors. Strangulation sends the message, “If you do not comply, this is how easily I can kill you.” Researchers have observed that many abusers strangle not to kil, but to show that they can kill, using strangulation as a tool of coercion, often accompanied by death threats. The result is compliance and passivity by the victim in the relationship in the longer term. It is worth noting that I have very rarely come across a victim of domestic violence who has not been strangled as part of their abuse.

It is widely recognised that non-fatal strangulation and asphyxiation, such as suffocation with a pillow, are a common feature of domestic abuse and a well known risk indicator. The standard risk assessment tool used by police and domestic abuse services, which is called the DASH—domestic abuse, stalking and harassment—checklist, includes a question about attempts to strangle, choke, suffocate or drown the victim. The questions in the DASH checklist were identified through extensive research on factors associated with serious domestic violence and homicide. Researchers found that a history of strangulation presents an eightfold increase in the risk of death.

Although there can often be a lack of visible injury, it is important to recognise the very serious medical consequences of strangulation, which are not immediately visible. Many of the medical effects would come as a surprise to most members of the public, including survivors of domestic abuse, who may not realise the true dangers. Strangulation or suffocation result in the blocking the flow of oxygen to the brain by preventing the person from breathing, and the flow of blood if the neck is physically constricted. Loss of consciousness can occur in 10 to 15 seconds and a lack of oxygen to the brain results in mild brain damage. Studies show that between 8.9% and 39% of those who are strangled lose consciousness.

Although there may be little or no visible injury, numerous long-term medical effects of strangulation are reported, many of them neurological problems. They include a fractured trachea or larynx, internal bleeding, dizziness, nausea, tinnitus, ear-bleeding, raspy voice, neurological injuries such as facial or eyelid droop, loss of memory, and even stroke several minutes later as a result of blood clots; there is also increased risk of miscarriage. In addition to the longer term physical impacts, reports describe strangulation as extremely painful, and the inability to breathe is obviously very frightening. It is described in one report as “primal fear”. Anybody who has not been able to breathe, for whatever reason, understands that fear and the control over you that it will have.

Not surprisingly, strangulation has been found to result in long-term mental health impacts. Post-traumatic stress disorder is closely linked to experiencing fear of imminent death. Four studies report the victim’s sense of existential threat—a firm conviction that they were going to die. Recent research included interviews with 204 woman attending an NHS sexual assault referral centre in Manchester who reported that they had been strangled. In response to open questions about how they felt, a high proportion stated that they thought they were going to die. Of those 204 women, 86, or 42%, had been assaulted by a partner or ex-partner. The others had been sexually assaulted by someone with whom they were not in a relationship, such as a first date, an acquaintance or a stranger. A survey of 13 studies of delayed psychological outcomes identifies depression, anxiety, suicidal ideation, nightmares, PTSD, dissociation and the exacerbation of existing mental health difficulties. Obviously, many of the women experiencing non-fatal strangulation were also experiencing other forms of domestic abuse, but the clear message is that strangulation certainly contributes to the psychological trauma.

Reports on prevalence of strangulation within intimate partner violence describes a hidden epidemic. A range of studies indicates that though the lifetime incidence of strangulation is between 3% and 9.7% in the adult population, that rises to 50% and 68% for victims of recurrent domestic abuse. Two studies of intimate partner violence and sexual assault where medical examinations took place found that strangulation was involved in 20% to 23% of cases respectively. Those figures vary, but one message is clear: non-fatal strangulation is widespread and a common feature of domestic abuse, not some kind of aberration.

Reports from frontline domestic abuse workers in England and Wales demonstrate a number of issues. There is a chronic undercharging and a failure by both police and prosecutors to appreciate the severity of non-fatal strangulation. That was also found in comparative studies in the United States and New Zealand. The seriousness of strangulation as a domestic abuse risk indicator is often missed. A separate category of offence would emphasise the importance of non-fatal strangulation when risk assessments are carried out by the police.

Strangulation is generally prosecuted as an assault. There may be a red mark or no physical signs at all, even after a serious assault, and the lack of observable injuries often means that offenders’ conduct is minimised, so that they are charged with common assault rather than with actual bodily harm. As Members will no doubt be aware, common assault is a summary offence, which can only be tried in the magistrates court, whereas ABH is a more serious either-way offence, which can be tried either in the magistrates or the in Crown court. All summary offences must be charged within six months—and that puts further pressure on a victim in this circumstance to deal with the issue in a certain time frame.

The Crown Prosecution Service guidance for prosecutors on offences against the person states that, when deciding whether to charge with common assault or ABH,

“Whilst the level of charge will usually be indicated by the injuries sustained, ABH may be appropriate”,

where the circumstances in which the assault took place are more serious, such as repeated threats or assaults on the same complainant, or significant violence—for example,

“by strangulation or repeated or prolonged ducking in a bath, particularly where it results in momentary unconsciousness”.

I added my own emphasis, by the way—that is not the emphasis in the CPS guidance. The guidance therefore indicates that non-fatal strangulation and suffocation offences would result in a charge of ABH rather than of common assault. However, that is not what happens in practice in a great many cases.

The Centre for Women’s Justice carries out training for local domestic abuse services around England and Wales. Over the past two years they have trained more than 32 organisations at 24 training days in London, the midlands, the north-east and north-west of England, the north and south of Wales, and the south-east. Their training includes the CPS guidance I have quoted. They state that in most if not all training sessions, domestic abuse support workers report that where cases involving strangulation are charged, this is generally as common assault. They say that they hear this consistently from support workers across the country, and therefore believe this to be a systemic issue rather than local, isolated failings.

They also interviewed the deputy district judge in the magistrates court who sits as a recorder in the Crown court and who reported that undercharging of strangulation incidents appears to be extremely common. She stated that a significant number of domestic abuse cases before the magistrates court that include some element of non-fatal strangulation are charged as a summary offence of common assault, instead of the more appropriate offence of ABH. This information is obviously anecdotal, but may not come as much of a surprise to those who work on domestic abuse cases within the criminal justice system. Undercharging has been identified as a problem in the US, Australia and New Zealand. It is an inherent problem, given that strangulation often results in no visible injuries or just a red mark, and police officers are usually focused on the severity of physical injuries when they deal with assault cases. It is a very unusual type of assault, in that serious violence does not result in the level of injury that can be seen and measured easily.

There is currently no distinct offence of non-fatal strangulation or asphyxiation. Section 21 of the Offences Against the Person Act 1861 contains an offence of attempting to choke, suffocate or strangle in order to commit an indictable offence. Therefore, this only applies when the strangulation is done in order to commit some other serious offence. For example, the Centre for Women’s Justice was told of a case in which a woman was raped and then strangled; she was told by the CPS that the section 21 offence could have been used if he had strangled her before he had raped her, as a pattern in order to rape her, but that this offence could not be used because the rape and strangulation took place in the wrong order. This is obviously ridiculous. The 2015 Law Commission report on the Offences Against the Person Act concluded that this offence was needlessly specific and should be abolished.

It is usually difficult to prove intent for an offence of attempted murder; as noted earlier, the intention is often to frighten and coerce rather than to kill, so a charge of attempted murder is not an option. Therefore, assault is generally the only option for the prosecution, either common assault or ABH.

In a very large number of cases of strangulation, suspects are not charged at all because the six-month deadline for summary offences such as common assault charges has passed. That time limit does not apply to either-way offences. When strangulation is treated as common assault rather than ABH, cases are closed by the police because the deadline has passed without referral to the CPS. If it were dealt with as an either-way offence, that would not be done, and those cases would be sent to the CPS. Police have the power to charge summary offences without a charging decision from the CPS under the director’s guidance on charging. We do not know whether in practice officers obtain input from the CPS in most of these cases.

Frontline support workers report that police officers tend to focus primarily on physical injuries when assessing domestic abuse situations. Strangulation and asphyxiation leave minimal injury, and are therefore easily dismissed as minor and relatively inoffensive. Even when cases are referred to the CPS, prosecutors are also responsible for undercharging and for undercharged cases proceeding to trial. A new offence of non-fatal strangulation must be an either-way offence rather than a summary offence, both to reflect the severity of the conduct involved and to remove time restrictions. That offence could be included in the Bill, along with a maximum sentence, if new clause 9 were added.

There are numerous side effects flowing from undercharging strangulation as common assault. Not only does the offence charged fail to reflect the gravity of the offending behaviour, but the sentencing options and potential for a custodial sentence are limited due to the initial charging decision. In addition, a summary offence deprives the victim and the defendant of the potential to benefit from the greater resources and attention devoted to the Crown court prosecution. Because the accused has an automatic right of appeal following a summary trial in the magistrates court, the victim may have to undergo the trauma of giving evidence a second time in the Crown court. That automatic right of appeal does not exist in the Crown court.

Finally, a summary conviction is inevitably given less weight than a conviction for ABH in future risk assessments and public protection decisions, including future bail applications, sentencing decisions—including dangerousness determinations—and Parole Board decisions. The underlying facts of offences are not always available when such decisions are made, and the information available to decision makers is just a list of previous convictions. A summary offence has a relatively low place in the hierarchy of criminal offending and is less likely to be fully explored. This ripple effect throughout the criminal justice system has a long-term impact on public protection, with a disproportionate impact on women. It can also affect the evidence before the family courts and decisions on contact arrangements, which are intended to prioritise the welfare and safety of children.

A separate offence of non-fatal strangulation will also help the police to identify this critical risk factor in the overall response to domestic abuse. Current risk assessments follow the DASH system, which involves 27 questions, with one asking whether the victim or assailant has ever tried to strangle, suffocate, choke or drown someone. A positive response results in one tick on a form, with 14 ticks required for an assessment of being at high risk. It is important to point out that, in the vast majority of local authority areas and in the vast majority of situations, only those who are considered the most high risk will get, for example, access to an independent domestic violence adviser. If someone has been strangled, they get one tick of a possible 14.

I have seen people who have been smashed in the face with a brick that morning and then been assessed as being at low to medium risk. Although there is room for professional judgment, domestic abuse workers report that many risk assessments by police officers are formulaic. Strangulation is treated as a single tick on a checklist, not as a red flag, as it should be, and does not usually result in a separate criminal investigation. It is just as part of the background history, assuming that the particular call-out that triggered a risk assessment was not a strangulation incident in itself. Creating a more serious offence should make this significant risk factor stand out in the assessment process, resulting in better protection. This is a real opportunity to save women’s lives.

It is well known that, on average, two women a week are killed by their partner or ex-partner. This was illustrated by the 2019 coroner’s report following the inquest into the death of Anne-Marie Neild. Anne-Marie died during a sustained assault by her partner, who had previously subjected her to non-fatal strangulation. Officers who dealt with the previous incidences failed to appreciate the significance of the strangulation as a risk factor, and graded the risk as standard, rather than high. No support was offered to her and she was not referred to a multi-agency panel. The coroner expressed concern that, at the time of the inquest, two and a half years later, there was still no reference to non-fatal strangulation in the police force’s domestic abuse policy, and that there was a lack of understanding of the issue among the officers involved.

Cases such as Anne-Marie’s have forced other countries to implement legislation recognising non-fatal strangulation as a separate stand-alone offence. In the US, 37 states introduced non-fatal strangulation offences; in Australia, the state of Queensland introduced the offence in 2016, with other states due to follow; and a new offence came into force in New Zealand in December 2018. If we pass over this opportunity to introduce a similar offence in the UK, we will be behind the majority of the rest of the English-speaking world on domestic abuse protection.

The UK has been rightly proud of its leading role on the world stage on gender-based violence over many years—for example, as far back as William Hague’s work on preventing sexual violence in conflict under David Cameron’s Government, which I believe was done through the Department for International Development, God rest it. It would be a great shame if we cannot extend basic protections for our citizens suffering serious domestic violence as other, similar countries have done. Creating a free-standing offence of strangulation or asphyxiation will require police to treat such cases with the gravity they deserve and to refer all cases to the CPS for charging decisions, and it will send a signal to the police and prosecutors about the seriousness of this form of offending, with training around the links between strangulation, asphyxiation, domestic abuse and homicide.

New clause 9 would address the situation that frontline domestic abuse workers report on the ground and would be a very welcome tool in the armoury against physical domestic violence.

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May I begin by thanking the hon. Member for Birmingham, Yardley for a characteristically forceful argument? At the start, I acknowledge this: non-fatal strangulation is a wicked crime and deeply unpleasant. It is unpleasant for the reasons the hon. Lady set out: it is calculated to degrade and to terrify, and in the course of doing so to ensure that the victim has that profound sense that this could be it—their time could be up. That is why it is such a cruel, offensive and unpleasant crime. I also say by way of preliminary remarks that I am aware of the Centre for Women’s Justice campaign for this new offence of non-fatal strangulation. I wish to put on record my gratitude for their written evidence to the Committee.

I understand the concerns that have prompted the new clauses and I will address them directly. Before doing so, I want to say a little about the existing provisions in the law. In fairness, the hon. Lady did refer to them but there are a couple of points that would assist the Committee if they were teased out a little further.

Several offences can already cover non-fatal strangulation and they range in seriousness from common assault, also known as battery—my hon. Friend the Member for Hertford and Stortford, a magistrate, will know that well—to attempted murder. Within that spectrum, there remain a number of other offences referred to by the hon. Member for Birmingham, Yardley. Strangulation could also be part of a pattern of behaviour amounting to an offence of controlling or coercive behaviour; I shall come back to that in a moment. There is also assault occasioning actual bodily harm, grievous bodily harm, or section 20 assault, and grievous bodily harm with intent, or section 18 assault.

I want to step back for a moment to consider a non-domestic context, just to make some of this clear. For the sake of argument, suppose there is a queue outside a nightclub and somebody wishes to queue barge. He steps in and decides to grab the victim by the throat, throttle them and push them up against the wall. As the hon. Member for Birmingham, Yardley indicated, if that left no marks but the complainant was prepared to make a complaint to the police in the normal way, it is likely that would be charged as a battery. She is right that the charge would have to be laid within six months. It would be heard before the magistrates court—again, she is absolutely right—and would carry a custodial penalty. Even if no mark is left, that assault—it could be a punch on the nose but it could also be strangulation—would be covered in that way.

It is worth emphasising that, if that throttling or that strangulation was carried out in a more extreme way such as to leave marks, it is likely that would cross the threshold of harm which is more than merely transient or trifling. That might sound like rather archaic language, but that is the threshold for ABH. Why is that important? Assault occasioning actual bodily harm is not limited to being tried in the magistrates court; it can be tried on indictment in front of judge and jury and there the sentencing power is a full five years’ custody.

The reason I mention that is because if there is one advantage that has come from these things, it means people are much better able now to gather evidence than they were in the past. It used to be the case that you had to go down to the police station, the force medical examiner had to photograph you and so on. Now, people can get those photographs at the time. The mere fact that two, three, four or five hours later those marks may have gone matters not a jot. If the individual can show that the assault occasioned actual bodily harm, that can lead to trial on indictment and a very serious penalty.

To continue with my example of what happens in the nightclub queue, if the throttling went further and it led to some of the dreadful injuries the hon. Lady referred to—a fractured larynx, tinnitus, neurological injury leading to droop or PTSD—although it is a matter for the independent prosecutor, it is likely that would be charged as grievous bodily harm. If it is grievous bodily harm with intent, because all the surrounding circumstances indicated that that was intended given the harm done, the maximum penalty for that is life imprisonment, and that is an indictable-only matter.

That is the law as it exists at present, and the same legal principles apply in a domestic context as apply in the non-intimate context of a fight in a pub queue. The hon. Member for Birmingham, Yardley made the point: “Well, that’s all terribly interesting, but what about elsewhere in the world?” It is important, while we are mindful of our peers, particularly those in the common law jurisdictions, that we got ahead of the game to a considerable extent with section 76 of the Serious Crime Act 2015. It is worth taking a moment to consider what that ground-breaking piece of legislation introduced—the coercive control stuff.

We are guilty in this place of sometimes saying, “Right, we’ve passed this. Move on. What’s the next exciting and shiny piece of legislation we can pass?” Section 76 is of enormous import in terms of providing prosecutors—I will come to the hon. Lady’s point in due course about whether prosecutors are doing the right thing—with the tools that they need to protect victims. Section 76 says that if the defendant

“repeatedly or continuously engages in behaviour towards another…that is controlling or coercive”,

at a time when the perpetrator and the victim are personally connected, and the behaviour has a serious effect on the victim and the defendant

“knows or ought to know that the behaviour will have a serious effect”

on the victim, that is a criminal offence, punishable by up to five years’ imprisonment.

I wish to dwell on that for a moment, because behaviour is said to have a serious effect within the meaning of that section. It can be proved in two ways. First, if it causes the victim to fear on at least two occasions that violence will be used, or it causes the victim serious alarm or distress, which has a substantial adverse effect on their day-to-day activities. I mention that point because if, as the hon. Lady says, and I am absolutely prepared to accept it, more often than not in an intimate context this is part of a pattern of behaviour—all too often an escalating pattern of behaviour—the tools exist, should the prosecuting authorities seek to use them, to seek the conviction, punishment and disgrace of the perpetrator.

The question then arises of whether police and prosecutors are using the levers available to them. That is a really important point, and it is the central message that I take from the hon. Lady’s speech, which was effectively saying: “I recognise that there are a whole load of statutory provisions here, but why don’t we create a new statutory provision to really focus minds and ensure that this appalling behaviour is prosecuted?” I understand that argument, but we have to ensure that we do not, in that sensible endeavour, risk confusion in the law.

I will say one final thing about the current state of play within the law. There is, as the hon. Lady indicated, a specific offence under section 21 of the Offences Against the Person Act 1861, which makes it an offence to

“attempt to choke, suffocate, or strangle any other person, or…to choke, suffocate, or strangle”

a person in an attempt to render that person

“insensible, unconscious, or incapable of resistance”

with intent to commit an indictable offence. Typically, that is strangling someone in order to rob them, to steal or whatever it may be. I am aware that there can be some evidential difficulties in prosecuting a section 21 offence, particularly if there is no evidence, or insufficient evidence, of injuries, such as reddening and minor bruising to the skin. However, that sits in a wider context of the legislation that exists. There are other options for prosecutors to fill the gap.

There is a risk too, I respectfully suggest, that creating a new offence could limit the circumstances covered, and create additional evidential burdens when compared with existing offences. In other words, we would potentially have a situation where we created a new offence, and prosecutors said, “Hang on—this look a bit like strangulation to me, so we need to look at this new offence. Do we have all the mental elements—the mens rea and the actus reus of the offence—and can we make them out? If not, we shouldn’t charge,” instead of saying, “Hang on—there are a whole load of offences that we could properly charge: common assault, assault occasioning actual bodily harm, and grievous bodily harm with intent. They might have existed for 150 years, but they do the job.”

The key issue, going back to the point that the hon. Lady raised, is whether police and prosecutors are recognising this as a serious matter, and I will come on to that briefly in a moment. Before I do, though, I wish to say something on the clause as drafted. It is always worth going back to the text. New clause 8 says:

“A person (A) commits an offence if that person unlawfully strangles, suffocates or asphyxiates another person (B), where the strangulation, suffocation or asphyxiation does not result in B’s death.”

Sometimes what is important is what is not said, as opposed to what is said. That on its own, if it suddenly came into law, would be deficient, because it says nothing about whether the offence is triable either way, is indictable only or is summary only. It does not say what the sentence would be. It would be sitting there in splendid isolation. That is not a criticism, but as it is presently drafted, that would be a problem. As I say, that is not a criticism, it is just an observation that we certainly could never pass it in its current form.

I said I would turn to the point about whether this is being taken seriously. Out of respect to the hon. Member for Birmingham, Yardley, I wanted to look this up while she was on her feet. I went to the CPS guidance on this matter and was pleased to see that it has been updated as recently as 28 April 2020. I am reading from “The Domestic Abuse Guidelines for Prosecutors”. It is a long document and I do not propose to summarise it. However, the key messages are, first, that domestic abuse allegations are in and of themselves incredibly serious. Secondly, the mere fact that a complainant might say: “Do you know what, I don’t want to pursue this case any more?”—which happens the entire time—is not a reason for the CPS in the public interest to drop a case because they recognise that that tactic from abusers is as old as the hills. They suddenly become all sweet and nice with a view to trying to obscure their offending behaviour or to pressure the victim into not proceeding with the case. The CPS is alive to that and seeks to prosecute it. Furthermore, it is an aggravating factor within the sentencing regime.