Official Report (Hansard)
Date: 31 October 2012
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Committee for Social Development
Welfare Reform Bill: Northern Ireland Council for Ethnic Minorites (NICEM) Briefing
The Chairperson: Members, we are going to move on to the next briefing, from the Northern Ireland Council for Ethnic Minorities (NICEM).
I formally welcome representatives from NICEM here this afternoon. I apologise if you been have held up longer than was necessary. I am sure that you have heard that often enough, but there you go. I welcome Patrick Yu, director of NICEM; Karen McLaughlin, legal policy officer; and Jolena Fleet, manager of the Belfast Migrant Centre. I welcome you all here this afternoon. The floor is at your disposal, so without any further ado, please make your presentation.
Mr Patrick Yu (Northern Ireland Council for Ethnic Minorities): Thank you, Chair and Committee members, for giving us the opportunity to speak to you today on the Welfare Reform Bill. I will do a short introduction, and then Karen McLaughlin, our legal policy officer, will talk about the implications of the Bill for ethnic minorities, in particular, and the EU legislation. Jolena is the manager of the Migrant Centre, which provides a wide range of advocacy, advice and support services for all migrants. She will use two cases to illustrate the implications of the Bill for ethnic minorities.
I am pleased to follow yesterday's submission from the Northern Ireland Human Rights Commission, in which the chief commissioner gave a detailed account of the human rights implications of the Bill, with which we completely agree. However, the commission ignored the impact on ethnic minorities, which are protected by international human rights law under, in particular, the UN Declaration on the Elimination of all Forms of Racial Discrimination.
So, something was missing from the commission yesterday, and we are happy to fill in the gap today. We appreciate the opportunity to present our case, and we are very narrow on the race issue. A lot of submissions have already covered the wider implications of different aspects that impact on ethnic minorities, and we are one of the many groups affected by the Bill.
My key message to the Committee today is that the Bill might infringe a number of EU laws. My colleague Karen will give more detail about that effect. Under the Northern Ireland Act 1998, the Assembly cannot make any law that is incompatible with EU law and the Human Rights Act 1998. Our assessment is in line with that of the Joint Committee on Human Rights, which was very critical of the absence of a detailed human rights impact assessment on the same Bill, which is now being discussed in the Assembly. So, we have more or less copied and pasted everything from England, Wales and Scotland, and, in Northern Ireland, we do not have a mechanism similar to the Joint Committee on Human Rights to scrutinise. This Bill is so important and affects so many people. I ask the Committee to talk to the other Assembly Committees about whether they should put a mechanism in place to safeguard the legislative process in the future.
This Bill will affect the most vulnerable groups in our society. We are coming out of a conflict and have a high level of poverty and social deprivation. Without a full EU law and human rights impact assessment, the Assembly will be vulnerable to making law that is incompatible with EU law and the Human Rights Act. Any law that is incompatible with EU law will be void.
Therefore, we request that the Committee seeks a full human rights impact assessment and EU law impact assessment from the Minister before the Bill continues. It will be more expensive if the Bill is not done properly, and, therefore, it is better to do the right thing in a sufficient time rather than to rush it through. The Chair had very good experience when we engaged with him on the seafarers Bill that is proposed by the Office of the First Minister and deputy First Minister. That is exactly the same situation. History tells us that it will cause a lot of people anguish and, at the same time, create more unnecessary litigation. Therefore, I ask the Committee to consider our suggestion. I will pass over to Karen.
Ms Karen McLaughlin (Northern Ireland Council for Ethnic Minorities): Thank you, Patrick. At the outset, I want to point out that it is important to recognise that social welfare law is not developed in a legal vacuum. I have set out in section 2 of our briefing paper the number of international human rights standards, including the concept of progressive realisation, that prohibit the introduction of retrogressive measures, and I am sure the Committee has heard from a number of groups over the past number of days that believe that the Welfare Reform Bill constitutes a retrogressive measure.
As well as international human rights standards, NICEM is particularly concerned that the Welfare Reform Bill seems to have been developed in the absence of a thorough consideration of EU law. A number of sources of EU law should be taken into consideration, and I will go through them in four points.
First, the principle of non-discrimination on the basis of nationality is enshrined in article 45 of the Treaty on the Functioning of the European Union.
Secondly, the right to social security and the principle of non-discrimination is enshrined in articles 34 and 21 of the Charter of Fundamental Rights of the European Union.
Thirdly, a crucial issue for us is that the Race Equality Directive 2000/43 lays down a framework for combatting discrimination on the grounds of racial or ethnic origin and puts into effect the principle of equal treatment. According to article 3(e), (f) and (h) of that directive, social protection, including social security, social advantages and access to the supply of public housing, followed in the scope of the directive. The concept of discrimination in the directive includes three elements: direct discrimination, indirect discrimination and harassment.
Finally, it is important to bear in mind that social security is also an area of co-ordination in EU law, and it is governed by two EU law regulations, nos. 1408/71 and 884/2004. So bearing that in mind, I will briefly outline three of NICEM's key concerns in relation to the compatibility of the Welfare Reform Bill and programme with EU law.
It appears that some parts of the Bill are inherently discriminatory. For example, the provision for differential treatment of EU migrant workers, set out in schedule 1 paragraph 7 of the Bill is quite striking. That provides for EU claimants, who ordinarily fall under the non-work-related requirements to be instead placed into the work-related requirement category. As I have already mentioned, one of the core principles of EU law is equal treatment, and that forms the basis for the co-ordination of social security law in the union. This is a clear case of differential treatment of EU migrants that would undoubtedly be found to be discriminatory in court. Therefore, NICEM recommends that this provision be deleted from the Bill.
In addition, NICEM is also concerned that clauses 61 to 63 may discriminate against migrant workers, who may experience a change in their immigration status. These provisions introduce a new requirement for claimants to have an entitlement to work in order to claim certain contributory benefits. This is particularly concerning for non-European economic area (EEA) nationals, who ordinarily are not entitled to non-contributory benefits. So effectively, that would exclude non-EEA nationals even further from the welfare system. Bearing in mind the Limbuela case cited in the briefing paper, it is arguable that those clauses can have a potential to breach human rights, where migrants have lost their jobs and, despite having paid tax and national insurance contributions, migrants may find themselves being forced to live in destitution by the system that the state has put in place. Therefore, NICEM recommends the deletion of those clauses from the Bill.
Our second concern relates more broadly to the programme of welfare reform. Since the Welfare Reform Bill before the Committee is an enabling Bill, most of the details will be left to the regulations. NICEM is deeply concerned that Northern Ireland will adopt the same approach as Great Britain in drafting the regulations. The draft regulations in Great Britain, as well as indications by the Department for Work and Pensions (DWP), suggest that EU migrants may be paid benefits at lower rates. That again would constitute direct discrimination. The introduction of the requirement to seek work for 35 hours per week could also potentially discriminate indirectly against EU migrants, particularly in relation to paragraph 7 of schedule 1, as I have already mentioned.
So, in NICEM's view, clauses 8 to 10 of the Bill, which deal with the calculation of awards, and clause 22, which deals with work requirements, could potentially allow for Great Britain's approach to be transposed to Northern Ireland, and that would undoubtedly amount to discrimination.
Therefore, NICEM calls upon the Committee to put in place safeguards within the Bill to ensure that those provisions do not provide a pathway for discrimination in the regulations.
The DWP has indicated that a new residence test will be introduced for personal independence payments (PIPs): a worker must have been in the UK for two of the past three years. Such a test has previously been held to be in breach of EU law and, in addition, the Council of Europe's 'European Code of Social Security' prevents the state from setting a minimum time period to determine residency. The introduction of such a test could potentially lead to infringement proceedings by the European Commission against the UK, concerning the misapplication of EU law. In the briefing paper, I have referred to ongoing infringement proceedings against the UK in relation to the application of the right-to-reside test.
I have already mentioned potential breaches of international human rights obligations, but those are not legally binding. However, it is important to bear in mind that EU law is legally binding, and any breaches of EU law may result in infringement proceedings which could lead to hefty fines, as Patrick has already mentioned in his introduction.
That concludes my presentation and I will now pass on to Jolena to provide some cases studies to illustrate the ongoing issues faced by migrants on a daily basis. Given the fact that the Bill paves the way for differential legal treatment, this will undoubtedly have a knock-on effect on the administration of payments at the coalface.
Ms Jolena Flett (Belfast Migrant Centre): Chair and the Committee, thank you for the opportunity to present to you. I would like to set the context of what we are seeing in our advice services and how the changes are beginning to impact on individuals among the black and minority ethnic (BME) population.
NICEM has been formally providing advice since 1998, and to the migrant working population in particular since 2004, beginning with the floating support project. In 2010, we received three years of Big Lottery funding to establish the welcome house project, which has now become the Belfast Migrant Centre. The centre has one full-time adviser, two part-time advisers and an immigration adviser. Since 2010, the advisers have assisted in over 5,000 cases, with 41% of those related to welfare benefits.
Our increased capacity for advice services has allowed us to monitor trends and respond to the different needs of the migrant population. We have seen our caseload change from queries about filling out forms and simple questions about benefit eligibility to complex appeals in the alarming rate of people who are in crisis situations. The increasing demands on our services mean that we no longer have the capacity to meet the ever-increasing need. There is an increasing need for tribunal representation, which we do not have the resources to provide. There is also a difficulty in accessing that through other advice centres that do have the resources, as they are already oversubscribed.
There are further difficulties around language, as many advice centres have no funding to provide interpreters, and, even with the basic grasp of English, the terms used in assessments and tribunals are not feasible without the help of an interpreter. For example, a client who was doing an assessment to transfer from disability living allowance (DLA) to PIP was asked whether she had trouble communicating. She answered yes, as she could not speak good English.
We continue to be concerned about the access that our service users will have with the changes proposed under the Welfare Reform Bill. Migrants have increased difficulty in accessing social welfare as a result of a lack of local knowledge. Therefore, navigating the administrative system, sometimes without access to interpreters, leads to increased difficulties. We are deeply concerned by the indications that all applications will now be processed online and that claimants will need a bank account.
There are two case studies in the briefing paper that outline some of the difficulties people have faced. One of those refers to a 65-year-old man whose employment support allowance (ESA) was stopped after an assessment, which had the knock-on effect of stopping his housing benefit. That meant that he had to live off a credit card for six weeks and got into debt as a result. Help from our crisis fund helped him to pay his rent to avoid homelessness. The other case study looks at the impact of an assessment that was done by a GP without the use of an interpreter, which meant that the claimant's DLA was stopped. On appeal, she was awarded a new DLA award that was increased to high rate mobility and middle rate care and that effectively met her needs.
The other issue we have had, which I am sure you have heard about from other groups such as Advice NI, is about getting GP reports and having to pay for further information. That has further decreased people's access to what they need to get a proper assessment done.
We have received funding because there was a recognition of the gap in accessible and independent advice services for people from the black and ethnic minority community, particularly those who are migrant workers from EU and non-EU states. Difficult economic times, austerity measures and welfare reform have dictated that the need for the service will continue to increase. However, our funding officially ends in June 2013.
Issues of discrimination and harassment at work and in housing, increased redundancies and unemployment of migrant workers, delays in the benefits system due to a lack of understanding of eligibility and compliance investigations have put the BME population in an increasingly desperate situation. Many of the crisis situations we have supported have been caused by delays in the processing of tax credits and benefits, with an increasing number of our service users being referred to the compliance unit almost immediately after applying for what they are entitled to. That has led to an increase in depression and mental health issues and substance abuse. Our staff have had to train themselves in mental health awareness and suicide prevention, although counselling is not within their usual remit.
I hope that the increasing pressure on the independent advice sector is taken into account, especially the advice needs of those who are particularly marginalised in our society. We also hope that there will be recognition that people in those communities also suffer from disabilities and include older and younger people. Thank you.
The Chairperson: Thank you very much for your presentations. Before I bring in Sammy Douglas, you have, obviously, raised a range of concerns in your submission. Have you raised any of those with the Department?
Mr Yu: No, not yet. I think that you are aware that we have lobbied Departments like the Department for Employment and Learning (DEL) on the agency worker directive, which gave us a problem. We are in the same situation with this Bill. We also lobbied on the seafarer's regulation and the amendment of the whole race legislation. At the moment, we have so many things in one pot.
We will not let the Department off the hook. Our presentation of evidence to the Committee today is just the starting point. As we have done previously, we will publish a more detailed paper and present that to the Department. We will also circulate that to the Committee.
Mr Douglas: Thanks very much for the presentation. In your paper, you stated that:
"DWP has indicated that a new residence test will be introduced."
You went on to state that:
"Such a test has previously been held to be in breach of EU law" .
Patrick, I think that you said that you endorsed the Law Centre's presentation to the Committee.
Mr Yu: Yes.
Mr Douglas: OK. The Law Centre also raised serious questions about the potential discrimination of migrant workers as a result of paragraph 7 of schedule 1 to the Bill. What is your view on that? Should it go ahead, have you considered some sort of legal challenge to the Bill?
Ms K McLaughlin: I will take up the question on paragraph 7 of schedule 1, and I will leave the question of the legal challenge to Patrick. Was your question about the case that was found to be in breach of EU law?
Mr Douglas: It was about the potential discrimination of migrant workers.
Ms K McLaughlin: The way that it is set up, migrant workers, who would ordinarily not fall within the work-related categories, will now fall within them if such regulations come into effect. It is a cause of concern for us that that power even exists or that even the idea of differential treatment has been set out. Clearly, primary legislation should not set out differences between one group and another. EU social security law is based on the free movement of workers. It allows workers to move from one member state to another, and, equally, workers can move from here to another member state. They should be treated equally. So, that is quite concerning.
Mr Douglas: Are you saying that, as it stands, this is very much a misapplication of EU law?
Ms K McLaughlin: Yes, on the basis of the principle of equal treatment and the free movement of workers.
Mr Yu: We are not worried about the litigation issue now. We are going to our own lawyer to ask. This is what we have indicated as the prima facie cases at the moment. We just give them more detailed legal opinion on how far it may infringe.
As I said, EU law is quite straightforward. All the cardinal rules are already set up by the European Court of Justice. We will see whether the infringement will worry us. The Committee had very good experience of that when it dealt with the seafarers regulations.
Mr Douglas: Jolena, those case studies were very good. Anything like that is very helpful to us. We are going through all the clauses, but it is people’s lives we are talking about here.
Ms Flett: We have several case studies to illustrate all the different points. Anything that is needed is available for submission.
Mr F McCann: On the back of what Sammy said, the Equality Commission, the Human Rights Commission and the Citizens Advice all raised the problems that might be faced by ethnic minorities in relation to the Bill. It baffles me that there are clear breaches of European law ahead but DWP and others are still pushing ahead. The difficulty of dealing with an enabling Bill is that the devil will be in the detail. Most of the detail will come in the regulations, and you will probably find that it will be much worse once they start to lay the thing out. Although groups have individually spoken about that, is there a possibility of the groups coming together under the auspices of NICEM?
One of the questions we have asked every organisation was whether they have considered legal action on aspects of the Bill. I would not expect an organisation like yours, with the little resources that you have, to be able to tackle something like that. However, if you joined with the Law Centre, the Human Rights Commission, the Equality Commission and Citizens Advice you could, maybe, launch a united action once the regulations come out, based on all the stuff you said today. Many of the representations that have been made to us show that there is growing concern.
You heard me ask the people from Mencap and Disability Action who were here before — and I have asked the question a number of times at different levels — about how people are treated under the proposed legislation or the old legislation when they go into the offices. That can be related to migrant workers. Sammy is right about the need for clear examples. If there are other examples we can use in evidence or that you can put into evidence, those will be helpful.
Mr Yu: That is very important. We always keep a legal challenge in our minds. It is one of the many options that we should consider. We are highly likely to take a legal challenge in this case, because we are not happy about the whole benefit system. We have a lot of cases. Jolena gave just two examples, but have dealt with more than 4,000 cases on the benefit side alone. Most of those are all about discrimination.
You can see that the process will lead to the commission bringing infringement proceedings. The legislation has not yet come fully into effect. I imagine that the commission is watching the British Government very closely to see how they introduce the legislation. We will keep in contact with the commission and send our assessment to it to see whether it will take any action on the issue. The bigger issue is who should take the legal challenge. There is no doubt that, according to statutory duty, the Human Rights Commission and the Equality Commission have more and more powers, functions and resources. However, we, as a voluntary and community sector, are also very important. Any legal challenge must not be out of context. We need to produce a very good testing case and keep within our remit. You are talking about multi-layer partnership. Each of us does our bit to help the process if the law is not made right.
As I said clearly at the outset, it is very important that the Committee should consider, or raise with the Business Committee, the lack of mechanisms that our Assembly has to scrutinise the Bill to determine whether it is in breach of human rights or equality legislation. I remind the Committee that an additional duty applies to the Assembly under section 75. You must make sure that the legislation will not discriminate. You also need to promote equality of opportunity on so many different grounds. This Bill is more or less a wake-up call. That is why it is very important that we should have the scrutiny mechanism. Otherwise, like the Committee for the Office of the First Minister and deputy First Minister (OFMDFM), you will have more trouble later because of a law that was forced to pass.
Mr F McCann: Patrick, you are right. As Mickey often quotes, in 2007, this Committee put down amendments challenging the early stages of the Bill. Last Thursday, there was a proposal from this Committee to, under Standing Order 35, suspend the Committee and set up an Ad Hoc Committee to look at the human rights and equality implications of the Bill. It was a deadlocked vote, which meant that it was lost. Yesterday, the Chair mentioned bringing that proposal back to the Committee next week. Do you see that as a way forward in looking at the human rights and equality implications?
We asked the Human Rights Commission representatives yesterday whether they will consider legal action, and they were not as clear as you were. It was the same with the Equality Commission. There needs to be someone to pull all those groups together and say, “We have all said this. How can we deal with it? Rather than having singular cases, let us present a collective case.” What do you think about the proposal under Standing Order 35?
Mr Yu: I agree that article 35 is the first step towards rectifying the situation that we face. However, in the long term, we should also have that kind of parliamentary mechanism to properly scrutinise a Bill such as this, which is so important because it affects every section of society. You can imagine that there may be more such legislation in the future for which we will need to give over more time for scrutiny. My gut feeling is that this is quite simple. Just like the Human Rights Act, all Departments must attach to Bills their assessments of who will be affected by them. They need to do that before the Bills come to the Committees otherwise Committees will always need to second-guess or seek legal advice before they scrutinise Bills, and I do not think that that is fair to members.
Mr Brady: Thanks very much for the informative presentation. What Karen said bears out that the Welfare Reform Bill was formulated in Britain with complete disregard for European law. European law is legally binding. If this legislation goes ahead, and the draft regulations and guidelines have yet to come, there will, without doubt, be legal challenges. Patrick makes a practical point by asking who has the resources to do that. I am sure that larger organisations will come together to bring legal cases, because, as you said, the Bill contravenes various European laws. Britain just seems to have flouted EU law in pursuit of the ideology on which the legislation is predicated. We talked about invoking Standing Order 25 to set up an Ad Hoc Committee, but that is another discussion.
I was interested to see Citizens' Advice's proposed amendment to clause 24(7), which makes special provisions for victims of domestic violence. It wants that provision to be extended to those who suffer hate crimes and have to be rehoused. The wording is relevant to you and states:
"For the purposes of subsection (7)...'hate crime' has such meaning as may be prescribed and shall include grounds of ethnicity, sexual orientation, gender identity, religion, political opinion or disability".
The proposed amendment continues by explaining that a:
"'victim of hate crime' shall be defined by regulations under subsection (7)...'resulting in a need to be rehoused' shall be defined in regulations".
It goes in to say that the amended provision will apply to a person who has "recently been a victim" of hate crime. A lot of hate crime is racially motivated throughout the North, not just in Belfast and other places. It has happened in my constituency and in others. Provision for victims of hate crime could reasonably be enshrined in clause 24 in particular because domestic violence is seen as something that needs to be addressed, and hate crime is no different. What is you view on that?
Ms K McLaughlin: Picking up on the point that was made about EU law: I reiterate that infringement proceedings have been ongoing for a year in relation to the right to reside and those proceedings do not seem to have fazed the drafting of the Bill. So, there is a clear disregard.
Mr Yu: Before we go to Jolena, I would like to say that this is a very complex issue. I think that your intention to protect that grouping is good. Jolena will give you more practical examples. In the end, people are being excluded, or they will relocate to England instead of staying here, because they feel that enough is enough.
Ms Flett: Obviously, any further protection for victims of hate crime is welcome. There is also a lot to be said on the interpretation of who is a victim of hate crime, the under-reporting of hate crime and the police failure to report hate crimes as such. That is another discussion. If that line is to be followed, then a lot of work must be done on who falls into the hate crime category, how it is interpreted, and what the guidelines will be. There needs to be training and more understanding in the Departments about what a hate crime is and how it is reported.
Mr Brady: I wanted to flag that up because I agree that it is a very complex issue and can vary from individual to individual.
You talked about the right of residence. Habitual residence was introduced by the Tories in 1995 by Peter Lilley and was pure xenophobia. There was no other reason or logic to it because it contravened European Union law. However, it is interesting that the majority of people affected are people who were born here and lived here, went to America or Australia or wherever to work and came back. It is such a nebulous concept, because you could be here for a week and be accepted by the Department as being habitually resident and somebody else in another office could decide that it is three months, because the case law states that the longer you are here, the more habitually resident you become. That needs to be addressed.
Ms K McLaughlin: Definitely. That is the issue that we have with the two-year rule. In the South, they had a two-year rule, which had to be rowed back from because it was simply in breach of EU law. Any move towards that would be silly because it will be open to legal challenge immediately and will be an easily won case. It will draw out the process and lead to litigation costs for the Government.
Mr Yu: Another implication is that, once you infringe EU law, that part of the law will be void immediately, and there will be consequences for the implementation of the programme.
The Chairperson: I thank members. Are there any additional points, Karen, Patrick or Jolena, that you need to put to the Committee before the session ends?
Mr Yu: I want to raise a little bit of detail about the programme. Karen briefly mentioned indirect and direct discrimination. Part of the programme in the future will involve the use of online applications, and you are aware that such applications will exclude a lot of people. I tried to highlight that more than 65% of migrants from the EU cannot speak any English. How could they apply for benefit? A second element of the online application process is that a person must have a bank account. You are aware that we have anti-terrorist legislation, and that if a person wants to open a bank account, he or she needs to reside here for six months and show that they have a residence requirement and ID for that purpose. In particular, if the person does not have a tenancy, they will not get a bank account. A former colleague of mine from NICEM worked in Brussels for four or five years and then came back. She resided here before and has all the bank records, but she cannot get a bank account until at least six months have passed. As you can see, this is the trouble.
Most migrants from the EU work in meat-processing plants, and quite a lot are agency workers. I highlighted the same issue to the Committee for Employment and Learning, and there was a formal investigation by the Equality and Human Rights Commission in GB into the meat-processing industry. One effect is that there is multi-layered exploitation. One layer is that employers give people cheques but know that they can never cash them. They ask people to become self-employed and give them cheques. A lot of people then become doubly exploited. If they try to cash the money, they need to go to the Western Union, where they will pay a certain interest rate or fee in order to do so. As you can imagine, such people are very low paid already, so that kind of exploitation system is created. If you do not have the language and a bank account, and cannot apply for one, there is both direct and indirect discrimination due to language and the barriers created.
As well as ethnic minorities, you also have the vulnerable groups of people who are illiterate. We came across some Chinese people who can speak with a very good local accent but who cannot read or write. That group will most likely be in the benefit system. So, you will be excluding not only the ethnic minority but also those in the margins. You should think about how to improve the programme otherwise there will be a lot of legal challenges.
The Chairperson: Thank you very much for your written presentation and for your contribution today. You will understand that you have raised a number of issues with us, not least the last couple of points regarding potential direct and indirect forms of discrimination arising from the Bill. You gave us a number of case examples, and Karen gave us some more fulsome responses on that matter. You will have also determined from members' questions and other submissions that a range of concerns has been raised by others as well as those that you have raised this afternoon. It is very important that we receive concerns that are confirmed by a spectrum of organisations.
Thank you for your invaluable contribution, which will help us to scrutinise the Bill to the best of our ability. We look forward to completing our report by 27 November under the current schedule. Your contribution has been a big help to us in understanding the Bill and its consequences, and it will help to shape our response when we come to the clause-by-clause scrutiny.
Again, thank you very much, and we look forward to continuing our discussion with you in due course.