Moved by Baroness Hamwee
12: Clause 4, page 2, line 40, at end insert—“(2A) The power to make regulations under subsection (1) does not include power to make provision inconsistent with the withdrawal agreement as defined by section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”Member’s explanatory statementThis amendment would ensure that the power cannot be used inconsistently with the Withdrawal Agreement.
My Lords, in moving Amendment 12, I shall speak also to Amendments 18, 19 and 83.
There is nothing subversive in Amendment 12—there is no cunning plan. All the amendments in this group are intended to ensure consistency with the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020. It does what it says on the tin. In the light of Clause 4, which spells out the power to make regulations which “among other things” may modify primary legislation, these amendments seem to us to be necessary.
I was about to refer to the British in Europe group as a campaign group, but it is far more than that: it represents its stakeholders and argues very powerfully for the interests of British citizens in Europe. As the group puts it, the withdrawal agreement is the vital underpinning of rights created in UK law for UK citizens living in the EU and for EU citizens living here. In various debates over the past few months, noble Lords have tended to focus on the latter, because living here means being subject to UK law. But British citizens in the EU are British and must not be prejudiced by anything that is not in accordance with an international treaty.
I say that without having heard much news since this morning because of being, as it were, in the Chamber, but the news this morning was very much about not following through—not complying with—an international treaty. After all, we should all be entitled to rely on an international treaty.
Immigration law is so complex that to allow an inconsistency to slip through unintentionally is a real danger. Amendment 12, therefore, provides in terms that the power to make regulations does not include a power to make a provision inconsistent with the withdrawal agreement.
Amendments 18 and 19 aim to bring the clause into line with the two pieces of legislation that I have mentioned. Section 7(2) of the European Union (Withdrawal Agreement) Act 2020 provides that, if the Minister considers it appropriate, regulations under subsection (1) may be made so as to apply both to persons to whom the provision in question applies and—this is the relevant point—to persons to whom the provision does not apply but who may be granted leave to enter or remain in the UK by virtue of residence scheme immigration rules and who do not have such leave. Amendment 18 would replicate that.
Amendment 83 deals with Clause 5, and it may be appropriate to come back to it when we debate Clause 5. However, again, its purpose is to ensure that the power created by the clause can be used only in ways which are consistent with our country’s obligations under the withdrawal agreement. “Retained direct EU legislation” is the full gamut of EU legislation on social security co-ordination, and under the withdrawal agreement the UK is committed to applying this legislation to all those who come within the scope of Part 2. Among other things, the legislation covers the aggregation of social security contributions made in different countries, mutual healthcare arrangements, the payment of pensions and pension increases for pensioners living in different countries, and the regulation of other cross-border benefits.
In practical terms, the most important aspect for British citizens covered by the withdrawal agreement is the continued right for them to receive their pension and pension increases. Many noble Lords will recall debates regarding pensions and pension increases for people who have moved away from the UK, outside the EU, and whose pensions have been frozen. Other aspects are the continued right of pensioners to healthcare under the S1 scheme, which enables a pensioner residing in a country not responsible for their pension to receive healthcare in the country of residence at the expense of the country paying the pension contributions. This is a mutual arrangement that also applies to EU pensioners living in the UK. One aspect of this is the continuation of the scheme whereby those who have worked in the UK and one or more EU countries have their contributions aggregated, so that they do not fall foul of the national rules on minimum contribution periods.
One of the very big concerns of people who lose the right of free movement is the impact on their retention of rights and ability to move in the course of work as their careers develop and their jobs take them to different countries. Without this scheme, many people who have contributed for a full working life but have moved several times would end up without a pension at all. Again, we are faced with the possibility of a Government modifying—or worse, perhaps—these provisions by regulation alone.
All the points that have been made this afternoon and this evening about what could happen are relevant here. Social security legislation probably rivals immigration legislation in its complexity, so the point that was made earlier about unwitting breaches of the withdrawal agreement would apply as well. I assume that we will have similar answers to this amendment, but, although the points may be similar and parallel, they are no less important or worthy of being pressed and explored, as I am seeking to do with Amendment 83. However, at the moment, I will formally move Amendment 12.
My Lords, I have added my name to the amendments in this group. I echo the words of the noble Baroness, Lady Hamwee, who moved them clearly and explained the importance of what is being sought by introducing them.
As the noble Baroness mentioned, this seems timely, given some of the recent very troubling reports. Lately, the possibility has arisen that the Government are not satisfied with the withdrawal agreement in some way, having signed it recently in good faith, while working, hopefully, towards an agreed exit after the transition period at the end of this year. I hope the Minister will be able to reassure the House that there is no intention of trying to override the withdrawal agreement in any way and that our country will not be seen to be trying to renege on an international agreement, especially so soon after having signed it.
I hope that UK citizens living in the EU can be reassured that the measures in the Bill will not be affected deleteriously by future regulations that might change what they thought was already enshrined in this international agreement and that pensions, pension increases, other benefits and health care will be protected, as was intended and implied in the withdrawal agreement. I also hope that the measures in the Bill will remain consistent with the withdrawal agreement and that no powers under the Bill will be used to make provisions inconsistent with that agreement.
I know these are probing amendments and I hope that the reassurances or necessary changes can be made to satisfy the House. I support the intention of these amendments and look forward to my noble friend’s response.
My Lords, this group of amendments, led by my noble friend Lady Hamwee, is about ensuring that the Government cannot legislate by regulation, contrary to the withdrawal agreement. This is a prescient set of amendments, tabled when it might not have been thought that there was a particular danger of that happening. However, the pronouncements and press reports since last night—there is some backtracking going on, however, which we will debate in the Chamber tomorrow—raise serious fears about the Government’s reliability and integrity in respecting the withdrawal agreement, and, indeed, any other treaty commitments. It raises the question of whether they can be trusted.
We will be debating separately the question of the Government’s refusal to give settled status applicants a physical document, not just a digital code. I will raise a brief query here: whether a digital code alone would satisfy the requirement in Article 18 of the withdrawal agreement for
“a document evidencing such status which may be in a digital form.”
Those latter words were added at the UK’s insistence, as we understand it, but it still talks about a document evidencing status. I wonder whether a digital code is a document.
Not least as a feature of the settled status scheme which has been flagged up by the3million, which does excellent work and has provided some fantastic briefing—I shall use this occasion to thank that organisation along with the organisation, British in Europe—non EU-national family members get a physical document in the form of a biometric residence permit. Since Article 12 of the withdrawal agreement requires the Government not to discriminate on the grounds of nationality, it is odd that EU citizens do not get a physical document but those in the family who are not EU citizens have a biometric residence permit. That is rather strange.
In the context of group 1, I raised comprehensive sickness insurance. The Minister said that the Government would use their discretion in deciding whether the absence of CSI in the past would bar a person from getting UK citizenship. I know that this will come up again in a later group. However, it is important to note that the UK is regarded by the European Commission as being in breach of EU law by insisting on the term “comprehensive sickness insurance” as it is in the 2004 citizens’ rights and freedom of movement directive. The Commission insists, as indeed MEPs did at the time, that this means only that relevant persons should have access to whatever the health system is locally, so the Government’s insistence that they should pay for private health insurance is, as I understand it, the subject of ongoing infringement proceedings.
In 2017, Prime Minister Theresa May promised EU citizens that the CSI—I prefer to call it private health insurance because that is what we are talking about—for those who had been economically inactive would be dropped as a requirement for settled status under the new system. However, what is happening now is that those people applying for citizenship are at risk of having their applications refused because in the past they did not have private health insurance, even though they had been told that they did not need it for their settled status application. When they apply for citizenship, they are told that retroactively they will be barred if they did not have private health insurance in the past. This feels like moving the goalposts, playing cat and mouse and so on, and the Government will not make any friends by this. The Minister referred to a power of discretion, but I do not believe that any details have been made known about how that would be applied, so that leaves people in the dark and in a state of anxiety.
I should mention also that Article 10 of the withdrawal agreement states that those covered by the citizens’ rights provisions of the agreement include
“Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law”.
Union law—that is, EU law—means that the ability to use the NHS qualifies as “comprehensive sickness insurance”; that is the view of the European Commission, which as I say is following infringement proceedings. If the Government persist with this, I fear that they will come up against problems under the withdrawal agreement and there is a risk that they would be seen to be acting in bad faith. The amendments in this group therefore insist that the Government must abide by the withdrawal agreement in making regulations under both Clause 4 and Clause 5, and that should include doing away with the retrospective demand. I hope that the Minister will be able to give us some reassurance on that point.
A great deal of justified concern has also been expressed about children either in or leaving care. I do not have time to talk about this now because it will come up again at least in part in a later group, but it is a matter of great concern. Local authorities, even with the best will in the world, have found over the past six months with the challenge of Covid that they have not had or have not applied the resources to assist children who ought to be applying under the settlement scheme. They are finding it very difficult to get the evidence together, so I hope that the Government can give some reassurance about the assistance that they will be given. We will also talk later about the dangers of another Windrush.
My Lords, Amendments 12 and 83 provide that regulations under Clauses 4 and 5 respectively cannot make a provision that is inconsistent with the withdrawal agreement. Amendments 18 and 19 alter the language of Clause 4 to bring it in line with the 2018 and 2020 withdrawal Acts. The wording of the Bill does not appear to preclude the concerns which these amendments seek to address. Indeed, Clause 4(1) states that
“The Secretary of State may by regulations made by statutory instrument make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision of this Part”,
namely Part 1 of the Bill.
Clause 5 deals with the power to modify retained direct EU legislation relating to social security co-ordination, and again appears not to provide for the limitations sought in Amendment 83. Presumably it is not the Government’s intention to nullify or weaken the terms or protections of the withdrawal agreement, or the terms or protections of the withdrawal Acts, by regulations that avoid the full and proper parliamentary scrutiny and challenge that is achieved only in respect of primary legislation. That should become clearer from the Government’s response, which will be interesting in the light of media reports today of their allegedly negative attitude to keeping to the terms of the withdrawal agreement. Whether there is any significance to the wording in Clause 4(4) being different from the terms of the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 will also become clear.
My Lords, I thank the noble Baroness, Lady Hamwee, for speaking to this group of amendments, which concern the scope of the delegated regulation-making power under Clause 4 and, in the case of one of the amendments, Clause 5. As I have said, it is right that Parliament pays close attention to the provision of delegated powers, and to assist we have shared draft illustrative regulations to be made under Clauses 4 and 5, subject to Parliament’s approval of the Bill.
Amendments 12 and 83 prevent the Government from using the powers in Clauses 4 and 5 to make regulations which are inconsistent with the EU withdrawal agreement. We already have a legal obligation to comply with that agreement, which also has direct effect in domestic law in accordance with the European Union (Withdrawal Agreement) Act 2020. These amendments are unnecessary and would call into question why they are not included in every other item of legislation across the statue book.
I turn to Amendments 18 and 19. Clause 4(4) allows the regulation-making power to make provision for those who are not exercising free movement rights at the end of the transition period. This group may nevertheless be eligible for status under the EU settlement scheme and are therefore still affected by the repeal of free movement. Clause 4 does not allow changes to the statute book for migrants from the rest of the world, who are not affected by the repeal of free movement. The suggested amendments are unnecessary and would add confusion and hinder our ability to make appropriate provision for those affected by that repeal.
It is right that Parliament should set the scope of the power in Clause 4 in terms appropriate to the purposes of this Bill in ending free movement and protecting the rights of Irish citizens. It is also right that Parliament should retain the appropriate oversight over the exercise of that power. The Government’s intention here is simply to ensure absolute clarity of purpose.
The noble Baroness, Lady Ludford, mentioned some issues that I have already addressed, namely comprehensive sickness insurance and the form versus the digital form. Article 18(1) explicitly provides that a document evidencing status may be in digital form. She also talked about children and the EU settlement scheme, specifically children whose parents—or indeed institutions in which they live—may not have signed them up. We will provide for reasonable excuses; I believe that we will come to that later in the Bill.
My Lords, I am particularly grateful to the noble Baroness, Lady Altmann, with her knowledge of pension provisions, for contributing to this debate. My noble friend said that I must have been prescient in tabling this amendment. I think it was more about a continuing, underlying, and rather generalised sense of anxiety—not about resiling from the withdrawal agreement, which had not struck me as a possibility until a few hours ago.
The Minister has given us some reassurance; I hope that I have heard correctly over the airwaves about the legal obligation to comply with the withdrawal agreement. I suppose that this does not mean there will not be an attempt to change that legal obligation in some way. Anyway, that is not for tonight and certainly not for after 10.15 pm. Probably the best I can do at this moment is to beg leave to withdraw Amendment 12; I do so now.
Amendment 12 withdrawn.
Amendment 13 not moved.