Amendment 1

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee (1st Day) – in the House of Lords at 3:00 pm on 7th September 2020.

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Photo of Lord Pannick Lord Pannick Crossbench 3:00 pm, 7th September 2020

My Lords, that was indeed a passionate speech.

When I was a first-year law student at Hertford College, Oxford, we learned that apparently the Roman Emperor Caligula ordered that laws should be displayed in small letters as high up as possible to make it difficult for people to know their legal rights and obligations. Amendment 3 focuses attention on an extraordinary provision in this Bill—paragraph 4(2) of Schedule 1—which, if enacted, will make it impossible for people today to understand their legal rights and obligations.

Paragraph 4 is concerned with the EU regulation on free movement of workers. Paragraph 4(1) is a model of clarity; it says that Article 1 of the regulation “is omitted”. However, paragraph 4(2) displays the parliamentary draftsman at his or her most coy. It is so extraordinary that it must be read out:

“The other provisions of the Workers Regulation cease to apply so far as—

(a) they are inconsistent with any provision made by or under the Immigration Acts (including, and as amended by, this Act), or

(b) they are otherwise capable of affecting the interpretation, application or operation of any such provision.”

It is simply not acceptable that when people want to know whether a provision of an EU regulation continues to apply, they must ask themselves whether the provision is

“capable of affecting the interpretation, application or operation" of a provision of the immigration Acts. This is drafting so opaque that it puts a brick wall between the individual and the law which applies to him or her. It is drafting so lazy that it is comatose. The same woeful drafting technique also appears in paragraph 6(1) of Schedule 1, a provision addressed in Amendments 4 and 5 in this group tabled by the noble Baroness, Lady Hamwee, which I support. If the Government want to ensure that provisions of a regulation cease to apply, they should say so with clarity.

Amendment 3 is in my name, and in the names of two other members of your Lordships’ Constitution Committee, the noble Baroness, Lady Taylor of Bolton, our chair, and the noble Lord, Lord Beith. The Constitution Committee’s report, published last week, drew attention to paragraph 4(2) of Schedule 1 as unacceptably vague and inevitably productive of legal uncertainty. We quoted the evidence given to the Commons Public Bill Committee by Adrian Berry, the barrister chair of the Immigration Law Practitioners’ Association. He said of this provision:

“You need to make better laws. Make it certain and put on the face of the Bill those things that you think are going to be disapplied because they are inconsistent with immigration provisions.”—[Official Report, Commons, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 9/6/20; col. 52.]

I agree. Basic standards of legislative drafting need to be upheld. Paragraph 4(2) of Schedule 1 is way below what is acceptable. I can think of no precedent for such a provision.

I hope that the Minister says that she understands the objection to this provision and that she will bring forward a suitable amendment on Report. I give due warning that if the Government do not address this concern, and if other noble Lords share my concern, I will return to this topic on Report.