The Minister of State at the Department for Work and Pensions (Baroness Sherlock) (Lab)

My Lords, I will also speak to Motions E and F, with the leave of the House. I thank the noble Lord, Lord Vaux, for his continued constructive engagement on these issues. I hope that today we will reach a resolution with the amendments in lieu and assurances that I provide. I start with Motion E and Lords Amendment 84 on the treatment of information obtained using an eligibility verification notice, or EVN. As drafted, this amendment carries three key risks: first, it risks DWP not being able to use EVM information properly, even in those cases where it might be a strong indicator of potential fraud; secondly, it risks legislating for a person’s state of mind; and thirdly, it risks undermining the existing public law principle that staff at DWP take decisions on behalf of the Secretary of State. Government Amendments 84A and 84B in lieu are therefore presented as a substitute. These amendments address those risks, build on the amendments I tabled on Report and reflect the Government’s stated policy intent throughout; namely, that EVM information considered in isolation cannot constitute reasonable grounds for suspicion or indicate wrongdoing. These amendments focus on the actions which DWP staff must take following receipt of EVM information and clarify that where DWP has received it, staff must also have regard to all other relevant information held before taking further action. This approach would, first, require an authorised officer to consider all information held which is relevant to the question of whether to issue an information notice under new Section 109BZA of the Social Security Administration Act 1992, as well as the relevant EVM information. As a reminder, an information notice under that new section can be issued only where the authorised officer has reasonable grounds to suspect that a person has committed or intends to commit fraud, and the authorised officer considers the notice necessary and proportionate for the purposes of investigating that suspicion. The amendments in lieu make it clear that where EVM information is relevant to those considerations, the authorised officer must also consider non-EVM information that is relevant to the question of whether to issue the notice. Secondly, it requires that before a DWP staff member can suspend benefit payments, they must consider all information held which is relevant to the question of whether to do so, as well as the relevant EVM information. Finally, it requires that before a DWP staff member can make a change to an earlier benefit decision, they must consider all information held which is relevant to the question of whether to change that earlier benefit decision, as well as the relevant EVM information. DWP will always hold at least some further information on benefit claims, such as the presence or absence of relevant capital disregards, claimants’ declarations about capital or known vulnerabilities. This amendment provides the necessary assurance that DWP staff will consider this context carefully before taking further action. I think this reflects the intent of the original amendment from the noble Lord, Lord Vaux, as well as the Government’s stated policy intent. I am grateful for his engagement on this matter and hope that these government amendments in lieu offer the necessary reassurance. I turn to Motion C and Lords Amendment 43 on the requirements of the independent reviewer. The noble Lord, Lord Vaux, knows that I cannot accept his amendment; I shall go through each part to explain why. Officials in my department have discussed its proposed paragraph (d) with the finance industry, which agrees that it may place a significant burden on financial institutions if they are asked to report on costs every year. However, I have put it on record before, and reassure the House again today, that the Government are committed to keeping costs associated with this measure proportionate. I can assure the House that we will continue working closely with businesses as we implement these measures to ensure it is done in the most efficient and effective way. I have also previously committed to publishing a further, updated impact assessment within 12 months of Royal Assent, taking into account the ongoing work with industry through our test-and-learn period. I am happy to reaffirm that commitment to the House today. As for proposed paragraph (e), there is no reason for individuals to lose access to banking services solely because of information shared under EVM. We have been clear that this information does not imply any wrongdoing, and we have worked closely with the finance industry to provide clarity in the draft code of practice to prevent any such problems. The role of the independent EVM reviewer is not to review every process which DWP carries out; rather, it is to review the exercise and effectiveness of that specific data-gathering power and to consider the Government’s compliance with the legislation. I have stressed often before that DWP has strong support in place for vulnerable people. For example, all DWP front-line operational colleagues are trained to help identify and support our most vulnerable customers. This includes mental health training and the ability to provide reasonable adjustments. Amendments 84A and 84B reaffirm that further decisions will not be taken without considering all relevant information, in addition to EVM information. This would of course include any available information on vulnerabilities. Government amendments made on Report also introduced a specific requirement that the Secretary of State be satisfied that it is necessary and proportionate to issue an EVM, and clarified that the purpose for which an eligibility notice can be issued is to assist in identifying incorrect payments. As such, the independent reviewer can assess the Government’s actions against these requirements as part of their consideration of compliance with the legislation. We will work closely with the independent reviewer, especially in the test and learn phase, to identify any issues quickly and take steps to prevent or mitigate them. Turning to subsection (f), Government amendments tabled on Report address this point. They require the Secretary of State to provide the independent EVM reviewer with all reasonably required material. I hope that this duty, alongside the Government’s commitment to work constructively with the reviewer, is sufficient. My noble friend Lady Anderson made a commitment that Members will have an opportunity to meet with the PSFA’s independent reviewer. Today, I offer the House a parallel commitment that there will be opportunities for Members of this House to meet with the EVM independent reviewer, once they are appointed, and share their views with them. I turn to Motion F, and Amendment 97 from the noble Lord, Lord Vaux, which concerns DWP-authorised investigators’ use of reasonable force. As I have made clear to the House, the powers of search and seizure, including warrant applications and production orders, are drawn from the Police and Criminal Evidence Act 1984. This also includes the power of reasonable force, as set out in Section 117 of PACE. These powers will be used by expert DWP staff, trained to industry standards, to tackle only serious and organised crime against DWP. As I outlined on Report, I am not able to accept Lords Amendment 97 as drafted, although our stated policy intent is that DWP-authorised investigators would not use reasonable force against a person. The reason I cannot accept the amendment is that we cannot break down Section 117 of PACE to make the distinction between property and persons, and there is no precedent for specifying in PACE where or on what reasonable force may be applied. The Government’s preferred approach is for DWP to take powers of reasonable force from PACE, following precedents from other government departments. However, I have listened to the concerns expressed in the House and looked for another way to reflect the stated policy intent in the Bill. The Government have therefore introduced, as amendments in lieu, Amendments 97A, 97B and 97C to Clause 76, and Amendments 97D, 97E and 97F to Schedule 4. These reflect our stated policy intent and draw a distinction between the power of reasonable force, exercisable by DWP-authorised investigators, and police officers or others with constable powers. These amendments remove the power of reasonable force that was derived from Section 117 of PACE and instead create a stand-alone provision on reasonable force in this Bill. This provision restricts DWP-authorised investigators’ use of reasonable force to force against property only, while retaining the police’s power to use reasonable force where necessary against people and property. This delivers our stated policy intent but brings DWP’s power of reasonable force outside of PACE. I believe this reflects the intent behind Lords Amendment 97, and I hope that the noble Lord, Lord Vaux, will welcome it. However, this is a bespoke approach, and it is important that we maintain the same safeguards when DWP-authorised investigators exercise reasonable force. My department is working closely with the Home Office on this. To ensure that DWP-authorised investigators will still operate in the same way as others with powers of reasonable force under PACE, we will maintain compliance with PACE Code B, which governs the exercise of powers of entry, search and seizure. The Home Office has confirmed that, when parliamentary time allows, secondary legislation will be brought forward to ensure that the stand-alone provision in the Bill will be subject to PACE Code B. My department has also worked swiftly to secure assurances that inspection of the use of this stand-alone provision will be provided by HMICFRS and the IOPC. The other relevant powers of entry, search and seizure, beyond reasonable force, will still be drawn down from PACE, and are subject to the safeguards and operational standards I have outlined over the passage of the Bill. A different approach has been adopted for the provisions in Schedule 4 which apply to Scotland. These broadly replicate PACE search and seizure provisions to achieve parity but make some small, necessary adaptations for Scots law. Therefore, Amendments 97D to 97F make equivalent changes to powers of reasonable force in Scotland. I hope this reassures noble Lords and puts this question about the use of reasonable force beyond doubt, as DWP-authorised investigators now cannot use reasonable force against people. I hope that the House will support this Motion. I beg to move.