My Lords, in moving Amendment 50, I will speak also to the other amendments in my name and those of my noble friends Lord Rosser and Lord Stevenson and the noble Lord, Lord Best, and our clause stand part debate.
It is already the case that local authority housing associations cannot let to illegal migrants. We agree with the principle of making it more difficult for illegal migrants to rent property but we have very serious concerns about the workability, effectiveness and possible unintended consequences of this clause. We want legislation that works. We do not want legislation that is ineffective and puts unnecessary, onerous and disproportionate restrictions and obligations on UK citizens but does not impact on the real issue.
We have tabled a number of amendments. As I said, the first is a clause stand part debate on Clause 15 to ensure a general discussion on all these parts of the Bill. Amendments 50 and 51 would put in legislation the principle of a pilot for these provisions. Amendment 56C would require the Government to make landlords aware of the code of practice. Amendments 55T and 56A would implement the recommendations of the DPRC to require that the code of practice be made by order, and Amendment 56E would question the dehybridisation provision.
We have a number of other groups—I think it is three—on the housing issue. It might be helpful if I address the principal points in this debate and comment only briefly on the other groups. My noble friend Lord Stevenson has already addressed concerns about how these proposals will impact on students. I hope noble Lords will forgive me if I speak a little longer on this group of amendments, but I do not intend to speak on the other groups of amendments, other than perhaps a very brief sentence or comment. So I will speak slightly longer than I would normally.
I have found it difficult to find anybody who is in favour of this clause who thinks that it will work in practice. The evidence sessions in the other place should have given the Government cause to pause and reconsider, given the views expressed. Opposition to these measures comes from a whole range of organisations that have to deal with the consequences, from Crisis and Shelter, which deal with housing for some of the most vulnerable in society, to the organisations that represent landlords.
The Residential Landlords Association survey identified opposition from 82% of its members. Carolyn Uphill, chairman of the National Landlords Association, said in her evidence to the House of Commons committee:
“It is going to impose an administrative burden on landlords who are not experts in immigration … The principle of checking identity is not so much the worry as the logistics of how that is done and understanding the documentation”.
In the same evidence session, Richard Jones, policy director of the Residential Landlords Association, said that,
“we think that the Bill and its provisions are not workable and will not be effective in achieving the objectives set out”.—[Official Report, Commons, Immigration Bill Committee, 29/10/13; col. 43.]
They are not questioning the principle, just whether the provisions are workable for those who have to implement them. I am still unclear whether the Government have fully assessed all the implications of this clause, including the unintended consequences.
In its most recent report on the work of the UK Border Agency, this time last year, the Home Affairs Select Committee said:
“The proposed new housing measures in the Immigration Bill must not produce a bonanza for unscrupulous landlords who already operate outside the law”.
The landlords’ organisations are not complaining about the principle of letting only to those who are legally in the country but about the workability of the measure, whether it places unfair and unreasonable demands on landlords to enforce it and whether it will also cause significant problems and hardship to many others seeking to rent a home.
I understand the concerns that have been raised by landlords because in effect this clause outsources immigration responsibilities to others, including landlords. The Government’s code of practice for landlords—I am grateful to the Minister for supplying it so we could look at it—is supposed to provide safeguards and reassurances when it comes to implementation. I wish it had done so but I am not reassured. I have read through the guidance in the code of practice and it seems to raise as many questions as it seeks to address—the issues have already been raised. It states that landlords should make checks on,
“person(s) with whom you are entering into a contractual agreement … and any adult persons who will occupy the premises under that agreement”.
Can the Minister be precise about exactly who is included in this? The code states that,
“the tenant who is sub-letting will be the responsible landlord for the purposes of this scheme”.
But how will they be made aware of this? Will there not be a loophole for unscrupulous landlords who collect rent via one tenant, thereby evading their responsibilities should there be further sublets? What about the tenant who allows guests to stay, even long term? Will they or will the landlord be responsible? It is not difficult to imagine how those who are not here legally could stay with or even rent from friends without the landlord ever knowing.
The draft code of practice also lists a number of documents which are acceptable—if the Minister reads the list, he will find that there is a mistake in at least one. This includes a passport or a birth certificate, but also a letter from the police confirming that the person has had their documents stolen. Even a UK firearms licence would be acceptable proof to a landlord that a person can rent. A number of documents are listed, many of which will not be familiar to most landlords. How will landlords be able to familiarise themselves with, and understand and recognise, all those documents, including how genuine they are? I think that the Government are trying to be helpful in broadening the number of documents, but what they have done in effect is cause even greater potential for confusion.
One of the Government’s retorts to these concerns has been to say that under employment rules businesses already check a person’s status and do so without difficulty. It is misleading to suggest that businesses, even very small businesses, which are required to undertake employment checks operate on a scale that is comparable to private landlords, some of whom may let only one property—it might even be just a room in a property. Seventy-eight per cent of landlords in the private rented sector own just one property that they rent out.
As we know, employers can make mistakes when acting with the best of intentions. The noble Lord’s former ministerial colleague, Mark Harper, made such a mistake when he found that he was employing a domestic cleaner who was an illegal migrant. He has made it clear that he did his best to undertake the appropriate checks required. He thought that he had done so, but he had made mistakes. Mark Harper was very clear: he had checked his cleaner’s passport; he had checked the documentation—the letter from the Home Office; and he copied them at the time. But more than six years later, when he was taking this Bill through the other place and quite reasonably and responsibly wanted to double-check the information that he had been given, he could not find it, and his cleaner was unable to provide her copies. It was only then, after checking with immigration officials through his private office, that he found that the information that he had been given but could not find was incorrect.
How many landlords can be confident that if they make a similar mistake, they will be believed and not face the penalties and fine? The danger is that some landlords will understandably play safe and ask everyone for their passport, thereby disadvantaging all those without a passport or without immediate access to it. In Mark Harper’s case, the passport and the letter from the Home Office were fake or perhaps belonged to someone else. How many landlords are going to worry about making a mistake and, in some cases, not rent out their room or property at all?
I am also unclear about enforcement. How will it be established that a landlord has acted in breach of their duty and how will the fine be collected? What provisions will be made for landlords who repeatedly and deliberately break the law but pay the fine each time—those unscrupulous landlords whom we want to discourage while encouraging responsible ones? What will be considered sufficient checks, as referred to in the legislation? If we look at what excuses landlords are allowed to use to avoid action being taken against them, we see that they include notifying the Home Office of the contravention as soon as possible, but could this lead to landlords using notification as a shield and then the Home Office being overwhelmed by the number of inquiries that they might receive? Another excuse is based on the premise of landlords understanding the period for which the immigration document is valid or for how long a person has been granted leave, but that is not always straightforward and it can be very difficult to understand that documentation. Under Clause 27, the code of practice, which should set out all the detail about this, is to be laid before Parliament. We have seen the draft and, given that many questions remain, we and the Delegated Powers and Regulatory Reform Committee think that that is insufficient and that the code should benefit from parliamentary scrutiny. That is why we have tabled Amendment 55T to give effect to that.
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Understandably and reasonably, those representing landlords are extremely concerned. I know that the noble Lord has tried to be helpful by providing information, but nothing that I have seen from the
Government gives them any comfort. It would be helpful if he could lay out for the benefit of your Lordships’ House what consideration the Government have given to the impact of the measures on UK citizens and others living legally in the UK, including the most vulnerable.
Given the difficulty of identifying documents and the potential liability for landlords, it is highly likely and not unreasonable that law-abiding landlords who want to stay within the law and, in the Government’s words, do the right thing, will stay on the safe side and ask for passports in every case as being likely to be the most accurate documentation. However, many citizens, probably about 17% overall, do not have a passport. That figure will be higher among low-income and vulnerable groups. A passport costs £72.50 and takes up to six weeks to process. That is beyond the reach of many on low incomes.
Landlords already avoid renting to groups that they perceive as high risk. Already, only 27% of landlords are willing to let to people on welfare or benefits. We know that homeless people often struggle to access local authority services because they do not have the appropriate ID to do so.
I shall set out two examples. I raised one case earlier with the Minister. He was not able to answer earlier; if he could now, that would be helpful. What about a 19 year-old thrown out of the family home, where there might be abusive parents? There is also the victim of domestic violence who leaves her home and flees the violence in a hurry, not worrying about packing her bags or making sure she has her passport and any legal documents. She just wants to get out of the way of danger. What happens to those people who cannot, when seeking to rent a property, show evidence that they are in the country legally or British citizens? What are they supposed to do? What about those with mental health problems? They may have a chaotic lifestyle; they cannot easily produce the evidence. I share the concern expressed by Shelter that the government exemptions do not include a number of particularly vulnerable groups, including post-16 children in the care of social services, post-18 care leavers who do not have status, the children of families without status and vulnerable adults requiring community care assistance.
The Minister may be able to satisfy me on that point; if he can provide clarification on those particularly vulnerable individuals, it would be very helpful. The worry is that there is a real danger that those people will either become homeless or be driven into the homes and rented property of unscrupulous landlords. Can the Minister give us more detail on what action the Government will be taking and how they will frame guidance or amendments to legislation to protect those who are vulnerable—those who are most at risk under the legislation? I made the point earlier about unintended consequences. The Government should be aware that there are British citizens and those with the right to live in this country who will be severely disadvantaged by the provisions. I am trying not to anticipate the Minister’s response too much, but I hope that he will not throw this issue back to landlords and expect them to deal with the problems. As I said,
we all know how easy it is to make a mistake, and many landlords are doing everything they can to avoid that.
There is also widespread concern about the potential discriminatory nature of the proposals. Those concerns have been expressed by many organisations, including Shelter, Liberty and the churches—a brief I received from the Catholic Church outlines that point in particular. Racial discrimination in access to rental accommodation already exists. The comments made by the noble Lord, Lord Patel, earlier, were extremely concerning. We would not want to return to such measures. I am pleased to see that the Minister agrees with me; I was sure that he would.
The recent investigation carried out by the BBC showed that letting agents in London are prepared to discriminate against would-be tenants on the grounds of race. That was in a programme on BBC News on 14 October 2012. We recognise and welcome Clause 28, which requires a code of practice to be published to ensure that checks are not carried out in a way that is discriminatory. What I am not clear about is how that will work in practice. First, the enforcement of the code relies upon tenants reporting a suspected case of discrimination. Secondly, I would like some assurance from the Minister that the code will be ready long before the measures themselves come into effect because they need to be fully considered and understood by the landlords and their representatives. I am not sure whether the practical issues of how it works have been addressed. I would really like to hear further from the Minister on that.
The other part I do not understand is why the code is not subject to parliamentary scrutiny. I would have thought that the Minister would welcome the input from your Lordships’ House and that the code would benefit from scrutiny. At present, the proposals are that it will be laid before Parliament but we entirely agree with the recommendations of the Delegated Powers Committee and have tabled Amendment 56A to require the code to be made by order, subject to negative procedure, and to require the Government to bring it to the attention of landlords. Regarding our Amendment 56C about dehybridisation, can the Minister provide us with information as to why that process has been proposed by the Government and how the interests of those groups affected by the Bill can be addressed? There is some confusion and lack of clarity on that point.
I have spoken for longer than usual and I hope that the Minister understands why. I tend to be brief in my comments but I wanted to deal with all the issues on this group of amendments. The only reason that I have spoken for so long and asked these questions is that these proposals are quite muddled. They are ill thought through and my questions are a genuine attempt to understand how the Government think that they will work. I know that the Government have already sought to address some of the concerns by providing more information, such as the code of practice. However, the problem is that every time I have received an answer to questions that I have posed, it has just begged more questions about the fairness to others, including British citizens who have a right to live and work in this country, and the practical implications and workability of this policy.
Those concerns explain the reason for our amendment to test the provisions before implementation: that is, we want to have a pilot. The policy has to be tested before it can possibly be implemented. At the moment, there are too many questions and concerns. In responding to our previous proposals the Government said that they see no difference between a pilot and their proposals for a phased rollout. However, there is a big difference. A phased rollout means that the Government can introduce phase 1 and proceed to phase 2, then go on to phase 3 without ever stopping to assess the policy in between phases. The Minister is shaking his head but that is what the legislation allows for. I am trying to get some clarity. If he is willing to have an assessment as it moves along, a pilot is the best way of doing so. By contrast, our pilot would provide for the opportunity to judge the effectiveness of the policy as it is gradually implemented and to respond to any problems and make changes by assessing whether it is workable in practice.
The Minister in the Commons said that the Bill,
“contains provisions to ensure that the scheme can be scrutinised to see how it … worked”.
He went on to say:
“Any commencement order that introduces the landlord provisions into a subsequent area, following the initial pilot, will be subject to the negative resolution procedure”.—[Official Report, Commons, Immigration Bill Committee, 7/11/13; col. 242.]
That is not enough. It needs far greater consideration and scrutiny. On Second Reading I said that we would have a national pilot, by which I meant pilots in different parts of the UK. Having looked at this again, what we are proposing today is not that but having just one pilot in one geographical area of the country. We are confident that we could get the right result and understand the impact of the policy from that one pilot.
I have spent quite a bit of time on the pitfalls and concerns around this clause. However, the issues that I have raised are not exclusive and there are many others. We will hear more about some of them but I want to emphasise the need for a pilot in this area. I have already made it clear that we support the principle of stopping illegal migrants from accessing properties but the real answer has to be to address the wider problem, not try to make landlords into immigration agents. Our concern is that this clause will not achieve its aims and it seems reasonable and sensible to ensure that it works before we go ahead. I appreciate the number of questions which I have put to the Minister but I hope that he can answer them and address the points that I have raised.