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 Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 4:00 pm, 7th September 2020

My Lords, this group of amendments seeks to address the issue of the lack of clarity in the Bill, not least in Schedule 1. I am sure we have reached the stage now where noble Lords want to hear the Government’s response. I wish to comment briefly on three of the amendments in this group, although all of them raise issues of significance, as my noble friend Lord Adonis has said. That has become clear from noble Lords’ contributions, even though noble Lords have not all been coming from the same direction.

Three days ago, we were sent a letter from the Government sharing illustrative drafts of regulations that they propose to make under the powers in Clause 4 of the Bill. One wonders why at least some of the terms of these draft regulations could not now be or already have been incorporated in the Bill and thus be open to proper parliamentary scrutiny.

Schedule 1 revokes Article 1 of the EU workers regulation, which provides freedom-of-movement rights. Paragraph 4(2) of that schedule provides that other parts of the workers regulation cease to apply so far as they are

“inconsistent with any provision made by or under the Immigration Acts” or

“capable of affecting the interpretation, application or operation of any such provision”.

This is a very broad drafting. Amendment 3, to which the noble Lord, Lord Pannick, spoke with his usual considerable authority, would remove paragraph 4(2), as it is so broad and lacks clarity. We share the concern that that amendment seeks to address.

No doubt the Minister, in giving the Government’s reply, will be giving a pretty comprehensive list of examples of how and why, in the Government’s view, other parts of the workers regulation might credibly become, first, inconsistent with provisions made by the Immigration Acts and, secondly, capable of affecting provisions made by or under the Immigration Acts.

My name is attached to Amendments 4 and 5, to which the noble Baroness, Lady Hamwee, has already spoken. Alongside those specifically repealed, Schedule 1 provides that other EU-derived rights and powers cease to be recognised and available in domestic law so far as they are

“inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts … or … they are otherwise capable of affecting the exercise of functions in connection with immigration.”

“Capable of affecting” in particular is very subjective and generalised wording that could be interpreted to cover a multitude of circumstances and situations.

Amendments 4 and 5 would tighten up the wording to a degree, so that only parts of the EU-derived rights that are inconsistent with provisions made by or under the Immigration Acts can cease to be recognised or available under domestic law. Once again, these two amendments provide the Government with an opportunity in their response to persuade the House, through a clear explanation of the specific circumstances in which the power would be applied, that the wording in paragraph 6(1) of Schedule 1 is not in reality “catch-all wording” enabling the Government to do whatever they want without further full parliamentary scrutiny in relation to the recognition and availability in domestic law of EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures related to immigration.

As has been said, our Delegated Powers and Regulatory Reform Committee and our Constitution Committee have expressed themselves in pithy and forthright terms about the sweeping powers that the Government are seeking to grab under this Bill. We await the Government’s response to this group of amendments with interest.