Amendment 25

Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee (2nd Day) – in the House of Lords at 5:30 pm on 9th September 2020.

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Lord Rosser:

Moved by Lord Rosser

25: Clause 4, page 3, line 8, at end insert—“( ) No regulations may be made under subsection (1) after the end of the period of one year beginning with IP completion day.( ) In this section “IP completion day” has the meaning given in section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”Member’s explanatory statementThis would provide that the regulation making powers under this section expire within one year of the end of the transition period.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

Amendment 25, to which my name is attached, would introduce a sunset clause limiting the use of delegated powers under Clause 4 to one year, beginning with the implementation period completion day at the end of the transition period.

Immigration involves fundamental rights on a regular basis: rights to liberty, respect for private family life, property rights, the right to non-discrimination, data protection rights and a prohibition on inhumane or inhuman and degrading treatment. Changes that could or would affect fundamental rights should be made by Parliament through primary legislation, not by Ministers through secondary legislation where there is no ability to amend or alter what is proposed.

As we have discussed already, the Lords Constitution Committee and the Lords Delegated Powers and Regulatory Reform Committee have both said that the provisions in the Bill

“include broad delegated powers, including Henry VIII powers, for which there is little policy detail as to their intended use; insufficient safeguards and scrutiny processes in relation to” how those powers are used. Other comments from one or both of these Lords committees are that

“The Bill effectively changes significant areas of immigration law from primary into secondary legislation, weakening the parliamentary scrutiny that will be required for any future amendment or repeal”,

and that “A Henry VIII clause”, such as Clause 4,

“that is subject to such a permissive test as ‘appropriateness’, and which may be used to do anything ‘in connection with’ in relation to so broad and important an issue as free movement, is constitutionally unacceptable” and undermines “fundamental elements”.

The Government maintain that the Henry VIII powers in Clause 4 are only to address necessary technical legislative changes to primary legislation arising from the ending of free movement. The same powers in Clause 5, say the Government—those are the subject of a separate amendment later on—are there, first, to enable consequential amendments to be made to primary legislation and other retained EU law if areas of the retained EU social security co-ordination regulations, co-ordinating access to social security for individuals moving between EEA states, have to be repealed because they are not covered in a reciprocal agreement with the EU following the end of the transition period; and, secondly, if consequential technical amendments to legislation are needed arising from any new reciprocal agreement with the EU.

However, the trouble is that the actual terms of the Bill give the Government much greater powers than they say they need and are asking us to accept would be the situation. The Delegated Powers Committee said that Clause 4 presents

“a very significant delegation of power from Parliament to the Executive”,

and on Clause 5, it said:

“Parliament is being asked to scrutinise a clause so lacking in any substance whatsoever that it cannot even be described as a skeleton.”

If it the Government only want these very significant delegated powers, including Henry VIII powers, for the reasons they have previously given, they will surely recognise the potential constitutional dangers of leaving powers which represent such a significant delegation of power from Parliament to the Executive permanently on the statute book. Accordingly, if the Government want to use these powers only for the reasons they have mentioned, they should have no difficulty agreeing to the sunset clause provided for in this amendment, which I beg to move.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

We on these Benches are most grateful to the noble Lord, Lord Rosser, for tabling this amendment, which I can describe as an insurance policy. I agree with everything he said about Clause 4 powers, which we have had a chance to discuss, but we have a hierarchy of aims, the top one being to persuade the Government that Clause 4 is really not fit for purpose, as our committees have helpfully advised us, and that they need to go away and think again about it. The second choice would be that they accept that the broad scope, the width, of the powers they intend to give themselves is far too vague and imprecise—“in connection with”, “affecting”, et cetera—and that they need serious discipline, rigour and tightening up. The advantage of the amendment of the noble Lord, Lord Rosser, is that if we fail in those ambitions, we would at least, I hope, have the fallback position of looking after a year at what improvements we could make.

This is not like the Covid regulations, where the Government are reacting to an emergency situation. That is the more normal scenario for a sunset clause, but, none the less, the clause has a huge impact and demonstrates that “taking back control” did not mean taking back control for Parliament, let alone the people, it meant taking back control for the Government. It was a clever slogan, but unfortunately it has been heavily misused, and Clause 4 sums up all the problems with the approach that has been followed in the past few years.

If we do not succeed in our other ambitions in relation to Clause 4, it is sensible to have this fallback position of a sunset clause so that at least we would have a specified review date when we could reconsider what use is being made of Clause 4.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

I thank the noble Lord, Lord Rosser, for moving Amendment 25, with its purpose to sunset the regulation-making power in Clause 4. As the noble Lord, Lord Kennedy of Southwark, said, this part of the Bill has already received quite a lot of attention, and I am sure will continue to do so in this and subsequent stages. As we know, Clause 4 enables regulations to be made

“in consequence of, or in connection with,”

Part 1, which relates to the ending of free movement and clarifying the rights of Irish citizens. The amendment would set the end date for using the regulation-making power as one year after the end of the transition period—that is, 31 December 2021.

As the Government have already put on record in the other place, we will endeavour to make all the changes required to primary and secondary legislation in the regulations under Clause 4 later this year, to come into effect by the end of the transition period, 31 December 2020. I am happy to put that on the record again today, and I can assure noble Lords that we would use this power to make further regulations beyond that only if it was absolutely required.

As has already been mentioned, there are important limitations on the use of the power contained in Clause 4. The power is already limited to making amendments as a consequence of or in connection with Part 1, and not in relation to the consequences of leaving the EU more generally. Changes cannot be made indefinitely, as they would not be in consequence of or in connection with ending free movement. The power is also limited as it cannot amend future primary legislation. The power will not and cannot be used to make changes to general immigration policies in the future.

However, in the event that we do identify the need to make further regulations relating to Part 1 of the Bill, it is only prudent—and, indeed, important—that we should have the power to do so, even if that is beyond the date suggested by the noble Lord. Any resulting regulations that amend primary legislation would, of course, be subject to the full scrutiny and approval of both Houses of Parliament.

For those reasons, I hope that the noble Lord will be content to withdraw his amendment.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 5:45 pm, 9th September 2020

I will be withdrawing the amendment. I listened with considerable interest to the Minister, and I am aware of what has been said previously. It almost seemed to me an invitation to come back with a sunset clause that would apply one month after the end of the transition period, because the Government are basically saying that they will get everything done within the next few months, after this Bill becomes an Act.

However, the Government’s view is that there might be things they miss which will need to be done. Therefore, they feel that they need to have this power on a much longer-term basis so that, if they do find things they have missed, they can still put them right without coming back for full parliamentary scrutiny.

The argument could be made the other way: a sunset clause which came into operation even earlier than the period of time I propose might give the Government the incentive to make sure that they jolly well did get things right first time, and did not have to use the argument that they missed something they should have put right under the terms of Clause 4.

I thank the Minister for his reply. I do not sense—from the nature of their stance on this issue—that the Government have too much confidence that they will use these powers within the few months that the Minister has indicated, and for the very technical purposes that they need them. If the Government did have that full confidence, they would not have any doubt, or any hesitation, about discussing whether there should be a sunset clause which was even earlier than I propose.

I beg leave to withdraw my amendment.

Amendment 25 withdrawn.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

We now come to the group consisting of Amendment 26. I again remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear during the debate.