Amendment 14

Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee (2nd Day) – in the House of Lords at 2:30 pm on 9th September 2020.

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Baroness Hamwee:

Moved by Baroness Hamwee

14: Clause 4, page 2, line 42, leave out “supplementary,”Member’s explanatory statementThis amendment is to probe the need for supplementary in addition to incidental provision.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, I shall speak also to Amendments 15, 16 and 17. These amendments take us back to the very wide provisions in Clause 4, on which we spent a good deal of time on Monday, when we debated the problems of a skeleton Bill and the reports of your Lordships’ Delegated Powers and Regulatory Reform Committee and Constitution Committee. From those respective committees, the noble Lords, Lord Blencathra and Lord Pannick, applied their different but devastating critiques. My noble friend Lord Beith asked the pertinent question about what instructions had been given to the drafters of these provisions. After all, responsibility to give instructions lies with Ministers.

Had the Minister accepted the earlier amendments to Clause 4, particularly those changing “appropriate” to “necessary” and deleting the phrase “in connection with”, some of the ground would have been taken from under my feet. However, she did not and it was not; nor was the insertion of the term “only” in subsection (3)—that is, “may only make provision”—accepted.

Subsection (3) purports to explain subsection (1). The power to make regulations includes powers as listed in paragraphs (a) and (b). It does not limit those powers but just gives examples, and all my amendments seek to omit words from this clause. The first concerns the term “supplementary”. Why is it necessary to make “supplementary” provision as well as provision that is “incidental” and “in consequence of”?

The second amendment would omit the term “transitory”. I would be interested to know what is meant by the term in this context. It must mean something different from “transitional” because it sits alongside that term. It is a narrative word that I would have expected to read in a piece of fiction rather than in legislation.

Amendment 16 would take out paragraph (b), which gives the power

“to make different provision for different purposes.”

I am very familiar with this phrase; it may mean bringing provisions in at different times or for different jurisdictions and so on. However, my antennae were well up by the time I got to Clause 4(3)(b), and I would be grateful if the Minister would share with the House the different purposes that may be required, particularly in a Bill so urgent that it needs to come into effect very quickly. I can see that it may be important to bring some provisions in as soon as the Bill becomes an Act and others—particularly with regard to the settled status scheme—at a later date. However, it would be helpful to have her comments on this.

Amendment 17 would leave out subsection (4) as a whole. The amendments to this subsection had already been dismissed and one begins to wonder whether it is necessary at all, but opposing this provision will be a good summary of our concern about what are, to our eyes, its many flaws. I beg to move.

Photo of Lord McColl of Dulwich Lord McColl of Dulwich Conservative

My Lords, I speak to Amendment 15. Clause 4 gives the Government substantial powers to make decisions about the future regulation of immigration without clarity about what these might be and what justifies such a wide power. Of course, we recognise that there needs to be an ability to do some tidying up of associated legislation when a Bill is passed, but the consequential amendments are normally set out in a schedule with a tidying-up clause that picks up anything that has fallen through the gaps. This does not seem to be the case in this Bill.

In August, the Delegated Powers and Regulatory Reform Committee said that this clause would

“confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous”.

The committee was very clear that transitional arrangements to protect the legal rights of EEA citizens should appear in the Bill.

Last week, the Select Committee on the Constitution also made strongly worded recommendations on the Bill. It agreed with the Delegated Powers Committee’s concerns about Clause 4. Other noble Lords have already raised questions about phrases in this regulatory power. Amendment 15 is an attempt to understand why the Government need a power that makes transitory provisions, provisions that are not permanent. I hope the Minister will set out examples of what transitory provisions the Government consider might be needed.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

My Lords, Amendments 14, 15 and 16 in the names of the noble Baronesses, Lady Hamwee and Lady Ludford, seek to bring more clarity to the powers that the Government are taking to make regulations, and that, for me, is a very good thing. As we have heard, words such as “supplementary” and “transition” and the phrase

“to make different provisions for different purposes” are very unclear, wide-ranging and open to interpretation. These probing amendments today will give the noble Baroness, Lady Williams of Trafford, the opportunity to add some clarity to the situation and set out for the record the intention and the scope of the powers that the Government are seeking from Parliament. As for Amendment 17, which would remove Clause 4(4), again an explanation from the Minister as to why the Government need the new power would be very welcome.

The noble Baroness, Lady Hamwee, made some very good points and made them very clearly. As she asked when referring to the noble Lord, Lord Beith, what instructions were given to the parliamentary draftspersons? We need to understand that because clarity is important when you are deciding on legislation. Without it you get yourself into all sorts of problems: courts can get involved and there can be all sorts of other difficulties. What we have been hearing from the other end of the Corridor—certainly the comments from the Secretary of State for Northern Ireland—about where we are going to be on certain things gives us particular worry. That is why clarity is so important. I look forward to the Minister putting the matter right for us.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, I thank noble Lords for speaking to the amendments in this short debate. I agree that clarity is absolutely necessary when scrutinising the scope and extent of any Bill, as your Lordships do. Amendments 14, 15 and 16 would restrict the scope of the power by removing what are standard provisions in regulating powers concerning transitory and supplementary provisions. Because both the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, asked what they mean, I shall go through them.

The current illustrative draft instrument does not contain a transitory provision, but it is standard legal drafting to include scope for such a provision should it be identified as necessary. Examples of supplementary provisions can be found where we are retaining some of the references to regulations transposing EU law in benefits legislation. Supplementary provisions update the references to reflect amendments to those regulations, so references to the Immigration (European Economic Area) Regulations 2006 become references to the Immigration (European Economic Area) Regulations 2016, et cetera. I hope that clarifies the provision on “transitory” and “supplementary”.

I come to Amendment 17. As I explained in response to Amendment 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 but who are eligible for status under the EU settlement scheme and are therefore still affected by the repeal of free movement. The regulation-making power in Clause 4 is restricted to matters that are as a consequence of or in connection with the ending of free movement. Subsection (4) needs to be read in conjunction with subsection (1). It 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. Amendment 17 would hinder our ability to make appropriate provision for all those affected by that appeal.

I hope that with those incredibly clear clarifications, noble Lords will feel happy not to press their amendments.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords) 2:45 pm, 9th September 2020

I have not received any requests to speak after the Minister, so I call—oh, it looks as though the noble Lord, Lord Kennedy, thinks he has given notice.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

I did email; I do not know where it has gone. Oh sorry, I did not email Question Diary.

I thank the Minister for explaining how certain words have been used in previous legislation, but it would be helpful if she could write to me and place a copy in the Library of the House with some examples, just so that we are absolutely clear. I know she was able to give an example now, but that would be very helpful.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I gave an example of “supplementary”; I did not give any examples of “transitory”. I will write a list and send it to noble Lords.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, I should be particularly interested to see examples of what “transitory” is. The noble Lord, Lord McColl of Dulwich, was also concerned about this. The noble Lord, Lord Kennedy, used the phrase “open to interpretation” and that is exactly the problem, because it allows activist lawyers to come and question. We are really on the side of the Government here, because the clearer the legislation, the easier it will be for them to enforce it, but there we go: that is not my business really, is it?

The Minister said that these are standard provisions. I had a very quick look at the internal market Bill shortly before this session started, because I had picked up that there are some issues in this territory—sorry, no pun intended. I could not find them, but it seems to me that the standard provisions get longer and longer. People get worried about whether a word is absolutely precisely on the point, and more words—adjectives, mostly—get added.

If the House agrees—we may come back to this at the next stage—that “appropriate” and “in connection with” are not appropriate for legislation because they are not clear enough and are too wide, as the rest of the clause comes under those overarching words, we will have got rid of the rest of the problem. But that is not for now and, for the moment, I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

Amendments 15 to 19 not moved.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords)

We now come to the group beginning with Amendment 20. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. I think there is a technical problem with that which I hope we can resolve in the next few minutes.

Anyone wishing to press this or anything else in this group to a Division should make that clear in debate. I should inform the Committee that if Amendment 20 is agreed to, I cannot call Amendment 21.