Amendment 32

Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Report (3rd Day) – in the House of Lords at 6:30 pm on 6th October 2020.

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Lord Pannick:

Moved by Lord Pannick

32: Schedule 1, page 7, line 26, leave out sub-paragraph (2)

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, last but I hope not least, Amendment 32 is in my name and in the names of the noble Lords, Lord Rosser and Lord Beith, and the noble Baroness, Lady Hamwee.

Amendment 32 addresses a very odd provision in paragraph 4(2) of Schedule 1. As currently worded, it states that provisions of the EU regulation on free movement for workers cease to apply if

“they are inconsistent with … the Immigration Acts” or

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

I suggested in Committee, with widespread support from all sides of the Committee, that the parliamentary draftsmen could and should do better than that. Paragraph 4(2) as currently drafted defies the need for legal certainty. The Bill should set out which provisions of the workers regulation will cease to apply.

The Minister promised to look at this matter, and she indicated that she would discuss it with me. Faithful to her word, as she always is, she has discussed the matter with me—for which I am very grateful—and has now tabled Amendment 32A, which satisfactorily addresses the point. I am very grateful to her. Amendment 33 addresses a similar problem, but sadly it has not received a favourable response from the Minister.

Paragraph 6(1) of Schedule 1 tells us that

“EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law” in two circumstances—that is if

“they are inconsistent with, or … capable of affecting the interpretation, application or operation of,” a provision of the Immigration Acts, or if

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

I simply do not understand how advisers on immigration law, far less those individuals who are the subject of immigration law, are supposed to work out what their legal rights and obligations are. Legal certainty requires, in my view, that the schedule should set out those EU-derived rights et cetera which are disapplied, or those which are retained. Your Lordships’ Constitution Committee, of which I am a member, criticised the legal uncertainty in our 11th report of this Session published on 2 September.

I think the only answer the Minister could possibly give to the concern I have identified about legal certainty is that Ministers and parliamentary draftsmen do not now know which provisions of EU law survive and which do not. That rather makes my point, I think. However, I do not intend to divide the House on this matter, troubling though it is. I beg to move.

Photo of Lord Beith Lord Beith Liberal Democrat

My Lords, my name is attached to the noble Lord’s Amendments 32 and 33 because they address two long-standing concerns of the Constitution Committee. The first is the broad and unjustified use of Henry VIII powers. The second is the confusing and counterproductive complexity of immigration law, which we believe needs to be clear and consolidated. That is why I support these amendments. I welcome the fact that the Government have addressed the first of these issues by tabling Amendment 32A, which makes more specific the scope of the power, confining it, as the noble Lord, Lord Pannick, has said, to Articles 2 to 10 of the workers regulations.

I would have welcomed a similar willingness to move on the issues that the Constitution Committee has raised in relation to paragraph 6 of Schedule 1, which nullifies EU-derived rights and remedies. The noble Lord, Lord Pannick, has quoted some parts of paragraph 6 and they are really extraordinary: rights should disappear because

“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” and, even stranger, because they are

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

I can think of all sorts of functions that people might consider were “in connection” with immigration, but we really need laws that are clearer than that.

Adrian Berry, chair of the Immigration Law Practitioners’ Association, said when he gave evidence to us:

“How is the ordinary person, never mind the legislator, to know whether the law is good or not in a particular area if you draft like that?”

I know that parliamentary draftsmen have had a pretty heavy diet of work lately, not least with Covid-19 orders, but it is possible to do better than that, unless the instructions given to them were so unspecific as to leave things so wide open that they had to draft the legislation in that extraordinary way.

Paragraph 69 of the Explanatory Notes tries to explain why this is necessary, but fails to do so—at least I find it completely unpersuasive. I did learn a little more about Chen carers than I knew previously, which was almost nothing. I am sure that my noble friend Lady Hamwee thinks of little else at some stages of the Bill than the quite obscure provision that resulted from the Chen case before the European Court of Justice. However, I certainly found the argument unpersuasive.

The committee says:

“The statute book requires clarity rather than obscurity and provisions such as these threaten to frustrate essential ingredients of the rule of law.”

An essential ingredient of the rule of law is that it is on record and visible and capable of being understood, particularly by those who practice it professionally, but preferably by a wider range of people as well, including those who may face either a penalty or, in this case, the inability to have a right to which they believe they are entitled as a consequence of wording as vague as this.

There is still time to improve this: the Minister could come back at Third Reading with an amendment that makes clear the purpose of this paragraph, and I am only sorry that she has not done so thus far.

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

My Lords, the explanation of the noble Lord, Lord Pannick, of how unsatisfactory the Bill is, particularly Schedule 1, was a model of clarity, unlike the schedule. He has also left us, from the earlier stage, with a vision of straining to read the Emperor Caligula’s laws, and that will stay with me, possibly longer than Schedule 1.

The comments of the Constitution Committee on the complexity of immigration law being a serious threat to the ability of lawyers and judges to apply it consistently were, in a way, reassuring to those of us who struggle with it, but otherwise not reassuring at all, as the noble Lord and my noble friend made clear in their speeches. I am very sorry to disappoint my noble friend by not wandering off into comments on case law. I support the amendment.

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

I congratulate the noble Lord, Lord Pannick, on having persuaded the Government to introduce their Amendment 32A, in the light of his comments on this in Committee, and on tabling Amendment 32, to which I have added my name.

The similar concern over wording that resulted in Amendment 33 has not been addressed by the Government. Amendment 33 would remove paragraph 6 of Schedule 1. As noble Lords know, paragraph 6, like paragraph 4(2), is broadly drafted. It provides that any EU-derived rights, powers, et cetera, that are inconsistent with or “capable of affecting” the Immigration Acts or functions cease to be recognised.

The Delegated Powers and Regulatory Reform Committee and the Constitution Committee have both expressed their strong concerns about the sweeping powers that the Government are seeking to take under the Bill—powers that will not be subject to any effective parliamentary scrutiny. In Committee, in response to the noble Lord, Lord Pannick, the Minister said:

“I totally understand the point that the noble Lord makes about certainty. In addressing this, I should like to meet him, because I totally get what he is saying. He is not being difficult; he is just asking that we lay out the law and provide certainty.”—[Official Report, 7/9/20; col. 580.]

Why then are the Government not also prepared to lay out the law and provide that certainty over the EU-derived rights, powers, et cetera, that are being referred to in paragraph 6 of Schedule 1? I hope the Minister will answer that point in her response.

One has already been mentioned as a possibility. Bearing in mind that, in Committee, the Minister also said

“I note that the drafting of paragraph 6(1) of Schedule 1 ensures that nothing is missed that might mean free movement was only partially repealed”,—[Official Report, 7/9/20; col. 576.]

that could mean that the Government are not prepared to move on paragraph 6(1) because they do not rate their ability to ensure that the Bill says all it needs to say to ensure that free movement is fully repealed. To cover up for their anticipated deficiencies, the Government take these powers to act without full parliamentary scrutiny and leave people in a situation where the legislation, in paragraph 6(1) of Schedule 1, does not enable them to identify the exact nature of their obligations and rights. If that is the motive for not moving on paragraph 6(1) of Schedule 1, in the way that the Government have on paragraph 4(2), one can say only that that is not the purpose for which use of these powers was originally intended. No doubt we will hear from the Minister why the Government have not moved on paragraph 6(1) of Schedule 1 or at least produced their own amendment in response to Amendment 33 of the noble Lord, Lord Pannick.

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

My Lords, I thank the noble Lord, Lord Pannick, and other noble Lords who have spoken to Amendments 32 and 33. I was grateful for the opportunity to meet the noble Lord and draft Amendment 32A as a result.

I understand why noble Lords find these provisions difficult to follow. They are, however, essential in repealing EU free movement. Paragraphs 4 and 6 of Schedule 1 disapply elements of retained EU law, where they are inconsistent with or affect the interpretation, application or operation of the Immigration Acts. “The Immigration Acts” is a commonly used legislative shorthand for the UK’s domestic immigration legislation. Most importantly, it includes the Immigration Act 1971, which sets out the requirement for non-British and non-Irish citizens to have leave to enter or remain. “The Immigration Acts” is defined in Section 61 of the UK Borders Act 2007, and the Bill, once enacted, will be added to that definition by Clause 3.

These phrases therefore clarify that the retained EU law in question does not provide a back-door route to enter or reside in the UK outside of the system of leave to enter and remain, once the main free movement legislation is repealed. That system is made up partly of Immigration Rules made under the 1971 Act. That is why the words

“by or under the Immigration Acts” feature in these paragraphs.

Paragraph 4 deals with the EU workers regulation, on which we had much discussion. This regulation from 2011 has never operated outside the umbrella of the EU free movement directive and its domestic implementing legislation, the Immigration (European Economic Area) Regulations 2016. When those regulations are repealed by paragraph 2(2) of this schedule, we are in uncharted territory as to how the workers regulation is to be interpreted and applied.

The Bill revokes Article 1 of the regulation that provides a right for EEA workers to enter and reside in the UK and take up employment here. Amendment 32A clarifies the other provisions of the regulation, which are disapplied. Articles 2 to 10 are those that give rise to immigration elements, hence they are specifically disapplied. These include Article 4, which prevents quantitative restrictions on employment of EEA nationals; and Article 10, which ensures that children of EEA workers can access education in the UK. What paragraph 4(2) will say, should the House accept the Government’s amendment, is that immigration rights arising in order to give effect to those provisions will not apply. Therefore, EEA workers will still require permission to reside in the UK in accordance with a future points-based system. I hope that that amendment helps noble Lords and the public understand the effect of paragraph 4(2).

Paragraph 6 performs a similar function but for directly effective rights deriving from EU law forming part of domestic law at the end of the transition period. Directly effective rights are those that a person can rely on in domestic courts because they are sufficiently clear, unconditional and intended to confer rights on individuals. Many dozens, if not hundreds, of such rights exist that directly or indirectly give rise to immigration rights. Examples include “Zambrano carers” —those people whose presence in the UK is required to enable a British citizen to remain in the territory of the EEA. But the right to equal treatment in the immigration arena, arising both from EU treaties and more specifically via the free movement directive, also affect how EEA nationals can be treated.

The principle of equal treatment sounds laudable but what it means in practice is that EEA citizens would for ever and a day be entitled to preferential treatment solely because of their national origin. Such generosity will not be reciprocated for British citizens in the EEA. Some argue that we should specify the directly effective rights that are disapplied, following the approach we now propose for the workers regulation in paragraph 4. I wish it were possible but there are far too many such rights, and their effect without the EEA regulations of 2016 would be too uncertain. Listing some but not others would encourage people to assert a previously unheralded immigration aspect to those omitted, in order to give effect to them. Parliament wrestled with this problem when passing the withdrawal Act in 2018. That is why Section 4 of the Act saves into domestic law any such directly effective rights without listing them. The drafters of this Bill have no realistic choice but to follow suit when disapplying them. Therefore, rather than attempting to list the rights, paragraph 6 makes it clear that whichever rights are retained, they can in no way trump domestic immigration law—something that everyone can understand.

A person’s immigration status is also widely used as an element of eligibility tests for public services and benefits. That is why the phrase

“capable of affecting the interpretation, application or operation” is used. It clarifies that where eligibility rules refer to a provision of, or made under, the immigration Acts, equal treatment rights form part of retained EU law cannot be invoked to bypass such rules and give EEA migrants preferential treatment. I would add that this removal of preferential treatment is subject to the provisions of the withdrawal agreements, ensuring that EEA citizens who are resident before the end of this year are entitled to the same access to benefits and services as they are now. However, it must follow that, if Parliament votes to repeal free movement through this Bill, it must also include paragraphs 4 and 6. Accepting Amendments 32 and 33 would leave the job half done. It would create uncertainty for EEA citizens, who would conclude that elements of free movement remain, and it would perpetuate the preferential treatment of certain migrants based purely on their national origin.

I understand the intent of the noble Lord, Lord Pannick, and the objective that lies behind his amendments, but I hope that Amendment 32A has gone some way to clarifying the effect of paragraph 4. I urge the noble Lord to withdraw his amendment.

Photo of Lord Pannick Lord Pannick Crossbench 6:45 pm, 6th October 2020

I thank the Minister, certainly for government Amendment 32A, which deals with the concern that we have expressed in Amendment 32. However, the Minister’s attempt to defend paragraph 6(1) of the schedule is, I am afraid, wholly unconvincing. Her observations do not provide me with any useful clarification as to how the paragraph is going to apply. As the Minister has said, there are too many provisions and the position is too uncertain, and therefore the legislation cannot list the provisions. What she is suggesting, as I said in my opening remarks, is that the position is too uncertain for clarification, but the inevitable consequence is that the position is too uncertain for those who are advising immigrants and for immigrants themselves. They cannot possibly know with certainty how this provision will apply. I should respectfully warn the Minister that, if and when paragraph 6(1) is the subject of litigation in individual cases, the Government may well find that the courts will adopt a very unsympathetic approach to it and will give it the narrowest possible interpretation because it is so lacking in certainty. That is the real risk that the Government are running.

I have never seen a provision like paragraph 6(1) before in legislation—that is, a provision that depends on whether something is capable of affecting the exercise of functions—and I hope never to see such a provision in legislation again. I shall regard it as one of the increasing number of undesirable consequences of the decision to leave the EU and as setting no precedent for any other legislative content. I beg leave to withdraw the amendment.

Amendment 32 withdrawn.