Amendment 1

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee (1st Day) – in the House of Lords at 4:00 pm on 7th September 2020.

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Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 4:00 pm, 7th September 2020

My Lords, we on these Benches—I am on them virtually—make no bones about how much we oppose the ending of free movement. That includes both welcoming EEA citizens—the collective term which includes the Swiss for this purpose—and their families to live and work in the UK, and the equal and opposite right for British citizens in the EU. For myself, it offends my politics, my emotions, my values, my logic and, you might say, my whole outlook on life. However, I will endeavour to keep my remarks within the scope of the Bill and not to seek to reopen what has irreversibly been decided—although “irreversible” may have gained a new definition overnight—nor do I want to make a Second Reading speech.

What is relevant is that the Bill does not set out what will be in place of the current arrangements. Like the noble Lord, Lord Adonis, I am with the noble Baroness, Lady Neville-Rolfe, regarding the importance of the integrity of the system. We might want different systems, but what we have should be robust.

The noble Baroness and the noble Lord spoke in terms of enforcement—a term used in the amendment. I prefer to talk in more inclusive rather than exclusive terms. She talked about so many of the issues that we are addressing now, or failing to address. One must use the opportunity to say that the best way to address them is to create safe and legal routes to the UK. I do not want to divert on to the wider question of those who seek sanctuary, but I have to disagree with her approach and some of the language that she used.

By no means all of the new, much-heralded immigration system which will apply to EU citizens is yet in the public domain. The noble Lord, Lord Adonis, referred to UK citizens in the EU; he may see that Amendment 23, which we will come to later, may give us more of an opportunity to discuss their position. When the system is in the public domain, however, we will not be able to rely on it in the same way as we can rely on primary legislation because of the flexibility—would that be a polite word?—provided by the Bill. So much of our system is contained in rules which Parliament cannot realistically amend, and indeed often it takes an awful lot of background knowledge and experience, application and concentration to understand those rules. It is no wonder that the Government had some years ago to require a particular level of expertise to advise on immigration. The rules are difficult for most of us—other noble Lords may say that they waltz through them with no difficulty; I do not—and they are often impenetrable to those directly affected. I have too often heard Ministers say, “It is on GOV.UK.” That is not everyone’s bedtime reading. Indeed, however detailed the rules and however much they flesh out the Bill, it remains a skeleton.

My noble friend Lady Ludford and I have three amendments in this group, all to Schedule 1. The noble Lord, Lord Pannick, referred to the coy but comatose draftsman—I may use that term on other occasions—and my noble friend Lord Beith asked an important question about what instructions had been given to the draftsmen and draftswomen. After all, the responsibility lies with Ministers.

Amendments 4 and 5 take out some of the most offensive words in Schedule 1, which I do not think I need to read into the record again, as others have referred to them. They are wide and imprecise; there are references to “application or operation of” provisions, and

“otherwise capable of affecting the exercise of functions in connection with immigration.”

If any of your Lordships on Opposition Benches were to produce amendments using that sort of terminology, we would quite rapidly be shot down, and rightly so, by the Government Front Bench.

A lot of functions are connected with immigration, and we will come on later to employment, renting property —the rest of the hostile environment. There are also all sorts of functions which I would accept are necessary but which I would not want brought within the repeal of

“rights, powers, liabilities, obligations, restrictions, remedies and procedures”,

to which Section 1 applies.

Amendment 6 in our names would add words to the schedule by not applying it to rights which do not arise under an EU directive. Directives which do not relate to immigration include, in our view: the protection for victims of trafficking in the anti-trafficking directive—there is an amendment specifically on that—the protection for asylum seekers in the reception conditions directive 2013/33, and the protection for victims of crime in the EU victims’ rights directive 2012/29. We do not suggest that we believe that these protections are at risk, but we do not know. If the Bill remains as it is when it becomes an Act, the only way to know for certain is to test the matter in the courts. The noble Baroness, Lady Neville-Rolfe, was critical in the context of removals from this country of applications to the courts. However, that is what they are there for, and they are applying law that has been made by Parliament, or by Ministers subject to the rather inadequate scrutiny that parliamentarians are able to give them.

On Amendment 6—this is something that has been identified by the Immigration Law Practitioners’ Association; the noble Lord, Lord Pannick, mentioned the comments on the Bill by its chair, Adrian Berry—the protections are potentially at risk as what the association describes as “collateral damage”. We hope that they do not fall within the scope of the Bill, but I think it is a matter for the Government to explain what the position is. This is all about the lack of clarity, the bad rule-making, to which other noble Lords have referred, all offensive to the rule of law.

To return to the first amendment in this group, I welcome reports to Parliament and parliamentary scrutiny. I am hesitant to criticise or comment on the wording of the clause, having learned from the noble Baroness that the clerks were involved in crafting it, but I am not sure that the provisions of Schedule 1 are correctly described as enforceable. A provision within six months would take us beyond the end of the year. However, I should not carp about that sort of detail because, whatever the language, I understand that the supporters of Amendment 1 are seeking to ensure that free movement ends and that Parliament is told how. We have made our views about the first part of that very clear.

Before I finish, I want to mention the amendment by the noble Baroness, Lady Prashar. I thought the points made by noble Lords were very telling regarding the reference to soft power. I was reminded of listening to the European Union Youth Orchestra a couple of years ago in Edinburgh. That was a very special experience and it rather goes to why we are so distressed by what we are having to go along with in the Bill.

I think I have said enough not to have to refer specifically to our opposition to Amendment 1.