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Consequential etc provision

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 10:45 am on 26th February 2019.

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Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration) 10:45 am, 26th February 2019

I wish to speak to amendments 11, 12 and 10. Throughout the Brexit process, the Government have been carrying out a power grab, acquiring powers to amend primary and secondary legislation with little parliamentary scrutiny. The debates on Brexit legislation have shown that there is cross-party support for limiting Henry VIII powers. Back Benchers on both sides of the House recognise that Parliament’s role in making legislation is crucial and must be protected. We accept that there will be aspects of statutory legislation that the Government will need to adjust as a result of ending free movement; we need a functional statute book. However, there must be limits on these powers to ensure that Ministers cannot make significant policy changes, including to primary legislation through statutory instruments.

Currently, scrutiny of secondary legislation is weak. Statutory instruments are unamendable and the Government have a majority on all SI Committees—if the SI even gets a Committee. Those subject to the negative procedure may never even be discussed by parliamentarians, as Adrian Berry said in our evidence session. He said:

“It is true that you have the affirmative resolution procedure, but it is clearly a poor substitute for primary legislation and the scrutiny you get in Select Committees.”—[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 90, Q221.]

He recommended the Henry VIII powers be radically redrawn. We know that the Government plan a major overhaul of our immigration system for EU and non-EU migrants set out in the White Paper. There is a risk that these powers could be used to bring in that entirely new system. Will the Minister confirm whether the Government would use the powers in the Bill to bring in the new system or if there would be a new immigration Bill? If there will be another Bill, when might it come? Would it be in addition to a withdrawal and implementation Bill, if we get a withdrawal agreement?

Immigration is already an area where the Government have extensive delegated powers. Since 1971, almost all major changes to our immigration system have been made through the immigration rules. We want to move to a situation in which there is more scrutiny of immigration changes, not less.

Labour has many issues with the proposed immigration system, but we broadly believe in the principle that certain major changes should have the chance to be fully discussed and debated before they are introduced. We are being asked to take it on trust that Ministers will not abuse the powers delegated to them in this clause. In the wake of Windrush, we should be particularly sceptical of this Government’s promises. The Windrush scandal was the result of a long period of under-the-radar changes to immigration rules, which chipped away at the rights of Windrush migrants and plunged their status in the UK into uncertainty. In the aftermath of Windrush, we should be particularly attentive to the risks of allowing Ministers the power to amend people’s rights after they have been debated and enshrined in primary legislation.

Clause 4 offers the Government a blank cheque to change our immigration laws and reduces the level of parliamentary scrutiny of immigration legislation. The Labour amendment and the SNP amendments, which we support, do four things.

First, they limit the scope of the powers. As currently drafted, changes to our immigration laws will be only in consequence of or in connection with the withdrawal of EU free movement legislation. We support the SNP’s amendment 1, which would limit the scope here. We support amendment 4, which would allow the Secretary of State to make only changes that are necessary rather than those that the Minister considers appropriate. The House of Lords Delegated Powers and Regulatory Reform Committee recommended the amendments because they were disturbed by the use of “in connection with”, as it would confer primary powers on Ministers to make whatever legislation they considered appropriate, provided that there was at least some connection with part one, however tenuous, and to do so by negative procedure regulations.

Amendment 2 would prevent the Secretary of State making changes to fees and charges. Labour has tabled new clause 38, which states that visa fees should be set at cost price. The Delegated Powers and Regulatory Reform Committee raised significant concern about this sub-clause as it confers broad discretion on the Minister to levy fees or charges on any person seeking leave to enter or remain in the UK who would have had free movement rights under EU laws pre-exit. Fees are already so high that they are unaffordable. The Home Office makes enormous profits out of visa fees, and it is concerning that the Government are granting themselves the power to increase them even further.

Secondly, these amendments limit the nature of these powers. Amendment 11 in my name would allow Ministers to grant status to a group of EEA nationals but not allow them to remove any such rights without primary legislation. I am grateful to the Immigration Law Practitioners Association for its help in drafting it. We believe this is a vital safeguard and that right to remain should be set in stone, and not subject to amendment or to being removed by secondary legislation.

Thirdly, these amendments improve the scrutiny that changes to immigration rules will be subject to. Clause 4(6) sets out that some immigration rules may be made by the made affirmative procedure, which means that they will be assigned into law before being laid in Parliament. There is then a period of 40 days in which the House must approve them or they will cease to have effect. The House of Lords Committee recommended that this be removed, which is what amendment 3 does. Amendments 12, 13 and 7 will ensure that immigration rules are subject to the affirmative procedure. Labour has tabled new clause 9, which will subject them to super-affirmative procedure. Our immigration rules have an enormous impact on people’s lives, but they often receive very little scrutiny. The made affirmative procedure means that they will receive no scrutiny before coming into effect and that scrutiny will only be retrospective.

Fourthly and finally, amendment 10 will place a time limit on the Henry VIII powers in clause 4. The Government have said that they will review the White Paper proposal for 12 months. The sunset clause should ensure that they can use the Henry VIII powers in clause 4 to make small amendments to the legislation, but that at the point at which they will make bigger changes, the Henry VIII powers will expire.

We have serious concerns about the extent of the delegated powers in clause 4. Our amendments and the amendments tabled by the SNP would go a long way to limit the powers and would ensure that changes to immigration policy are properly scrutinised.