Power to modify retained direct EU legislation relating to social security co-ordination

Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 11:30 am on 28th February 2019.

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Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee on Privileges 11:30 am, 28th February 2019

I beg to move amendment 26, in clause 5, page 4, line 21, at end insert—

“(11) The power to make regulations under subsection (1) may not be used to make regulations removing Title I, Title II or Chapter 1 of Title III of Regulation (EC) No 883/2004.”

This amendment would prevent the Secretary of State from making regulations which might remove the ability of British citizens and EEA nationals to aggregate pension rights and social security benefits.

Good morning, Mr Stringer. It is a pleasure to see you in the Chair again.

The amendment is intended to limit the extent to which the Government can make changes to social security provision by delegated legislation after Brexit. I place on the record my thanks to the Immigration Law Practitioners’ Association, to British in Europe and to Justice, whose evidence I drew on heavily for this amendment.

By virtue of the European Union (Withdrawal) Act 2018, EU regulations relating to social security co-ordination —the so-called co-ordination regulations—will be converted into domestic law on exit day. The co-ordination regulations provide a reciprocal framework to protect the social security rights of people moving between European economic area states.

The co-ordination regulations do not create a single, harmonised system of social security benefits, nor do they guarantee a general right to such benefits. Instead, they ensure that individuals who move to another EEA state are covered by the social security legislation of only one country at a time and are therefore liable to make contributions only in one country; that a person will have the same rights and obligations of the member state in which they are covered, under the equality principle in social security co-ordination; that periods of insurance, employment or residence in other member states can be taken into account when determining a person’s eligibility for benefits, under the concept of aggregation; and that a person can receive benefits to which they are entitled from one member state even if they are resident in another. Those features are important for labour mobility and as a simple matter of equity, because people who have worked and contributed have a reasonable expectation of entitlement to the social security benefits that they have paid in for. I am concerned that clause 5 could be used to undermine those legitimate expectations.

The co-ordination regulations cover only social security benefits that provide cover against certain categories of social risk, such as sickness, maternity, paternity, unemployment and old age. Some non-contributory benefits fall within the regulations, but cannot be exported. Benefits that are categorised as social and medical assistance are not covered at all; my understanding is that they include universal credit, even though universal credit contains some contributory elements, so I ask the Minister in passing whether he might like to use clause 5 to address that apparent injustice.

The co-ordination regulations also confer on those who have a European health insurance card a right to access medically necessary state-provided healthcare during a temporary stay in any other EEA state. The home member state is normally required to reimburse the host country for the cost of the treatment. Will the Minister place on the record the Government’s intentions in relation to the European health insurance card, both in the event of no deal and in the post-transition period if a Brexit deal is negotiated?

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

The issue of European health insurance is one that many people have raised concerns about. Does my hon. Friend agree that it would be good to hear something very definitive from the Minister today to put those concerns about uncertainty at rest?

Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee on Privileges

It absolutely would. People will be planning their summer holidays now, and there is every possibility that they will be making those trips without the security of the European health insurance card that they have enjoyed for many decades. I ask the Minister to be crystal clear, if he can, about the coverage that will or will not be available to those families after Brexit day. I also ask him to say a little about how the Government intend to communicate any changes to the public. This is one of the mainstream consumer consequences of Brexit, not simply an esoteric technical point that affects only a minority of expert specialists.

Clause 5(1) provides for an “appropriate authority” to modify the co-ordination regulations by secondary legislation. I have to say that I find that power incredibly broad, because it provides absolutely no limit to the modifications that appropriate authorities can make. In addition, subsection (3) explicitly states that that power

“includes power…to make different provision for different categories of person to whom they apply”.

We took oral evidence on the point a couple of weeks ago, but I wonder whether the Minister will say a little more about what the Government have in mind. Subsection (3) also provides for the Government

“otherwise to make different provision for different purposes…to make supplementary, incidental, consequential, transitional, transitory or saving provision…to provide for a person to exercise a discretion in dealing with any matter.”

The power is further extended by subsection (4), which provides for the ability to amend or repeal primary legislation and

“retained direct EU legislation which is not mentioned in subsection (2).”

I understand that the Government need to be able to amend the co-ordination regulations to remedy deficiencies resulting from the UK’s exit from the European Union. I also appreciate that difficulties arise as a result of the reciprocal nature of the retained co-ordination regulations and the fact that after exit day, in a no-deal scenario, the UK cannot unilaterally impose reciprocal obligations on the European Union.

However, the power to make such amendments is already provided for under section 8 of the European Union (Withdrawal) Act 2018. Indeed, the Government have already laid four draft statutory instruments that relate to social security co-ordination pursuant to that section. The explanatory memorandum for those regulations states that they aim to

“address deficiencies in retained law caused by the UK withdrawing from the EU, which would impact the operation of the retained Coordination Regulations in a no-deal scenario” and

“ensure that citizens’ rights are protected as far as possible in a no-deal scenario. As per the intent of the EU (Withdrawal) Act 2018, these instruments aim to maintain the status quo.”

Concerns have already been expressed about the regulations, however, which have a fairly drastic effect on individuals when the evidence of their contribution in another member state cannot be obtained in the United Kingdom. Could the powers in clause 5 be used to extend the provisions set out in those statutory instruments or, for that matter, constrain them? Are there any circumstances in which those regulations could apply in the event that a deal is agreed, or are they limited to covering a no-deal scenario? Since the regulations suggest that the Government are taking a hard-line view of evidence of entitlement, should people continue to obtain A1 forms post Brexit, if they will have a future connection with more than one EU country through their employment or self-employment?

To turn to the provisions of clause 5 in more detail, the Government are explicit in their desire to use the power in clause 5 to implement policy changes to the social security co-ordination rules that will have been retained in domestic law, which I accept that they could not do with delegated legislation under the 2018 Act. In the delegated powers memorandum to the Bill, the Government state:

“This power will provide the appropriate authorities with the ability to deliver a range of policy options from exit day in any or all of these areas”,

which include,

“what access EU nationals will have in the future to certain UK benefits and pensions; the extent to which UK nationals can export certain benefits and pensions if they move to an EU Member State; and the administration and rules which govern entitlement and obligations when people live and work in more than one country”.

Social security co-ordination is vital to protect the rights of EEA nationals who come to live in the UK, and UK nationals who go to live in EEA member states. Policy in the area could have a great impact on the lives of millions of people and affect their ability to receive the benefits that they are entitled to through national insurance contributions or periods of residency.

Do the Government’s stated policy objectives for clause 5 fundamentally seek to achieve the same effect stated for the draft statutory instruments tabled under the 2018 Act? Alternatively, is the Government’s intention to use the provisions in clause 5 to mirror the EU’s draft contingency regulations, COM(2019) 53, which limit the ability of individuals to aggregate contribution periods and contributions made in multiple jurisdictions after Brexit?

As we heard in the oral evidence sessions from British in Europe, if people can no longer aggregate their contributions, they may have no choice but to return to the UK. Has the Minister made any assessment of the potential impact, scale and cost to the public purse of that happening, as a result of possible demands on UK public services, such as the NHS and social care services? Can he say whether people coming back to the UK in such circumstances, who might struggle to demonstrate that they are ordinarily resident in the UK, will have access to means-tested benefits?

My understanding is that the Government have committed to continuing to uprate pensions until 2020 for UK nationals living in other EU countries, but can the Minister confirm that that will be the case whether or not a deal is agreed, and will he now commit to maintaining pensions uprating for UK nationals living in the EU post 2020? Finally, can he reassure the Committee that he does not intend to use clause 5 to curtail protection for posted and frontier workers, or those who regularly transit across borders, especially as UK nationals will lose their right to intra-EU freedom of movement in the event of no deal or post the end of the transition period.

I appreciate that I have asked some very technical questions, but fundamentally underlying my remarks are my concerns about the wide powers that clause 5 gives to Ministers. The explanatory memorandum to the Bill states:

“To ensure the use of the power by the Secretary of State or the Treasury is subject to full Parliamentary scrutiny, it is proposed that the exercise of the power is subject to the affirmative procedure”.

However, as we heard earlier in this Committee, there are limitations to the level of scrutiny that even the affirmative procedure provides. This area of policy, in my view, requires full debate and scrutiny from Parliament and the principles of any future policy in relation to it should be set out in primary legislation.

Photo of Gavin Newlands Gavin Newlands Shadow SNP Spokesperson (Sport), Shadow SNP Spokesperson (Northern Ireland), Shadow SNP Spokesperson (Wales) 11:45 am, 28th February 2019

That is an important point: this is too important an area to rely on secondary legislation. Incidentally, the hon. Lady is making a fantastic speech; the detail she is giving makes any speech that I might make thereafter totally redundant, but I reassure the Committee that the Scottish National party stands in support of this amendment. More power to her elbow.

Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee on Privileges

I am grateful for the hon. Gentleman’s support, and I agree with him about the huge significance for individuals and families of the way in which social security co-ordination regulations are adopted and adapted in future. It is about how much money people have to live on, to support their families or in their retirement. They have every expectation of a right to the support, because they have paid in and contributed to social insurance systems, and it would be frankly unethical of any Government to damage those legitimate expectations.

In conclusion, through my amendment I seek to curtail Ministers’ delegated powers in relation to social security co-ordination. The Government have stated that the anticipated policy changes, both in a no-deal scenario and in certain deal scenarios, could not otherwise be delivered by existing powers such as the European Union withdrawal agreement powers. However, in my view, such policy changes, or at least the principles of the policy, should be set out in primary legislation. That will be the case in a deal scenario, as the withdrawal agreement and its implementing primary legislation will address future policy on social security co-ordination. In a no-deal scenario, the European Union (Withdrawal) Act 2018 provides sufficient powers to make regulations—indeed, the Government have already drafted them—to maintain the status quo as far as possible until an agreement on social security co-ordination is reached with the EU for the future, at which point further primary legislation will be needed.

It is for those reasons that I commend my amendment to the Committee. It is important that we have parliamentary oversight and parliamentary scrutiny of Ministers’ powers in the area of any future decisions that will have an impact on social security entitlements.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

Once again, it is a pleasure to serve under your chairmanship, Mr Stringer. I start by thanking my hon. Friend the Member for Stretford and Urmston for laying out this amendment.

The Henry VIII powers would allow the Government to remove rights to aggregate pensions and disability entitlements that EU citizens in the UK and UK citizens in the EU have built their lives around. It is vital that the Government do not make regulations that might remove the ability of British citizens and European economic area nationals to aggregate pension rights and social security benefits without proper scrutiny by Parliament, so we support this amendment. These social security rights are vital for EU citizens in the UK as well as UK citizens in the EU.

People will have moved back and forth between the UK and the EU on the assumption that they will be able to bring their pension entitlements with them. For example, a German national might move to the UK midway through their career, work here for 10 years, and then go back to Germany to retire. The current EU regulations allow them to receive a pension based on their contributions both in Germany and in the UK. The same is true for a UK national who moves to work in Germany.

If we have a withdrawal agreement, those rights will be guaranteed, but if we do not have a withdrawal agreement we do not know what will happen. Perhaps the Minister can help us with that.

In an evidence session, it was pointed out by British in Europe witnesses that 80% of the British people living in Europe are of working age or below, and more than 1 million people are affected by social security implications. Removing the ability to aggregate social security benefits will deter EU citizens from coming to work in the UK, because they will not be able to export social security from the UK, despite having paid into the system. The same would apply for UK citizens moving into the EU.

There is a particular concern among UK citizens living in the EU about the uprating of pensions. The percentage increases can accumulate to be very significant for pensioners living in the EU, particularly in the context of the declining value of the pound.

The UK state pension is already the lowest in all the OECD countries, and a refusal to uprate would cause significant hardship for many UK citizens. At the moment, the Government have committed to continue the uprating of pensions until April 2020, but not beyond. Can the Minister provide some much-needed clarity for the UK citizens living in the EU about the position of pensions beyond 2020?

If the UK introduces restrictions on social security, it is to be expected that the EU will respond in kind. We heard during our evidence session from the TUC that it is

“very worried about the increasing social insecurity and the welfare repercussions for British people abroad.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c.38.]

We heard from the British in Europe witnesses during our evidence session that the Bill has had a negative effect on discussions with EU Governments. Kalba Meadows was clear that

“national Governments across the EU27 are reticent in coming forward with their own legislation, because they are concerned that the rights of their nationals living in the UK will not be equally protected.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 146, Q364.]

Photo of Alok Sharma Alok Sharma The Minister of State, Department for Work and Pensions

It is an absolute pleasure to serve under your chairmanship today, Mr Stringer. I start by thanking the hon. Member for Stretford and Urmston for her amendment to clause 5. She made a wide-ranging speech, which covered many of the points that might be raised when we consider clause 5 stand part, and I will try to address some of the points that she made. I put it on record that whatever our political differences, I have always thought of the hon. Lady as one of the most courteous and considered Members in the House, and for that we should all be grateful.

The hon. Member for Manchester, Gorton made some interesting remarks. Before I discuss amendment 26, I say generally that if colleagues want to give citizens certainty, the best way of doing so is to support the withdrawal agreement and the deal that will be returning to the House. Many sincere views are expressed, and people are concerned for citizens—I completely get that—but the best way of providing certainty is to support the deal.

Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee on Privileges

I am grateful to the Minister for giving way, and I particularly thank him for his remarks a few moments ago. There would be certainty during the transition period, but that would not really give certainty beyond 2020, would it? As I have already pointed out, for example, we do not know the Government’s intentions in relation to pensions uprating, whether or not there is a deal after 2020.

Photo of Alok Sharma Alok Sharma The Minister of State, Department for Work and Pensions

Let me come on to those points. I am sure that we will have a chance to discuss them further.

On amendment 26, I note the hon. Lady’s assertion that the provisions in clause 5 could be used to remove the ability of UK and EU nationals to aggregate periods of work, insurance or residence in other member states, in order to meet domestic entitlements for contributory benefits and pensions. I reassure her that although future policy on social security co-ordination is subject to further consideration, the Government are committed to exploring options to protect past social security contributions made in the EU and the UK as part of our ongoing discussions with the EU and member states.

The Government have always been clear that protecting the rights of citizens is a priority. It is important that UK and EEA nationals in the EU who are currently receiving aggregated pensions and benefits have those payments protected. I therefore make it clear that the Government will not retrospectively remove the entitlements of UK and EU nationals living in the UK to UK contributory benefits.

I further reassure the hon. Lady that, in a deal scenario, the power in clause 5 will not be exercised to remove or reduce commitments made in relation to the individuals within the scope of the withdrawal agreement. The withdrawal agreement protects rights and entitlements, including aggregation and uprating, in accordance with EU legislation for those EU and UK nationals covered by the withdrawal agreement. The exercise of the power will be subject to further discussion with the EU—for example, in relation to a future agreement. However, it is important that the Government have the provisions in the clause to reflect the UK’s new relationship with the European Union, either if we are in a no-deal scenario or if we do not have a future agreement.

As the hon. Lady acknowledged in her remarks, the nature of the current social security co-ordination framework means that a multilateral partnership must be in place in order for it to function effectively. Aspects of the current system, including aggregation, rely on reciprocity from the EU27 and are underpinned by data sharing between the member states. I fully understand her position, which is that it would be preferable for a system of aggregation of contributions to continue. Indeed, in the UK Government’s publication on our proposal for the future relationship between the UK and the European Union, we set out exactly that ambition. We explained that we will seek reciprocal arrangements around some defined elements of social security co-ordination. That could cover aggregation rules.

However, without reciprocity, there are limits to what the UK Government can do by ourselves. Although the UK has powers in domestic legislation to pay state pensions and benefits, if the UK leaves the European Union without a deal, we could not bind other member states to recognise contributions made in the UK. Accepting this amendment could prevent the UK Government from responding effectively to certain scenarios following our exit from the European Union.

Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee on Privileges

I accept what the Minister says about the nature of reciprocity, but it is within the Government’s power to make a unilateral commitment to the ongoing uprating of pensions beyond 2020. That has been clear since at least 1996, in relation to a memorandum issued by the then Department for Social Security.

Photo of Alok Sharma Alok Sharma The Minister of State, Department for Work and Pensions

I thank the hon. Lady for her comments, and I will come on to the point about pensions shortly.

The titles of regulation 883 cited in amendment 26 cover a broader range of issues than just aggregation rights. They cover a wide range of social security co-ordination provisions, ranging from definitions of key concepts, the scope of the regime, prohibition of residence requirements for certain benefits and the export of cash sickness benefits. Accepting an amendment that prevented the Government from removing those provisions would go much further than the hon. Lady’s stated intention of preventing the Government from making changes to aggregation policy. Doing so could remove the Government’s ability to reflect our future relationship with the EU on a wide range of policy issues. Furthermore, the amendment would prevent the removal of the listed titles, but it would not prevent their modification or amendment. With respect, therefore, it does not achieve its purported objective.

Let me address some of the issues that the hon. Lady raised, which were all perfectly valid. She made a point about the inclusion of universal credit in the social security co-ordination system, and she said that it was not currently part of that system. She will know that that is because universal credit is treated as social assistance, and therefore will not be affected by the clause.

The hon. Lady made a point about healthcare. It is not our intention to use this clause to make changes to healthcare policy. Any such changes are a matter for the Department of Health and Social Care, and they will be dealt with in the Healthcare (International Arrangements) Bill.

The hon. Lady mentioned the fixing SIs, and I want to be clear about what they will do. The Department has prepared four sets of regulations, under the European Union (Withdrawal) Act, to fix deficiencies in social security co-ordination to ensure that the UK statute book will continue to work after exit day. However, as I have mentioned, maintaining the current system unilaterally can only take us so far, especially for areas that rely on reciprocity and data sharing. Separate legislation, such as the Bill, is necessary to enable the Government to make changes to retained EU law as appropriate, so that it will operate effectively in every EU exit scenario.

The hon. Lady raised the uprating of pensions. We have announced that the state pension for pensioners currently living in the EU will be uprated for 2019-20. We wish to continue uprating pensions beyond that, but we will have to take those decisions in the light of whether, as we hope and expect, reciprocal arrangements with the EU are in place.

The hon. Lady asked why future policy was not set out in the clause. She knows that the clause provides the legislative framework to deliver the future policy at the appropriate time. Future policy changes will be set out in regulations and will be subject, as she pointed out, to the affirmative procedure. If Opposition Members do not agree with any such regulations, they will have the opportunity to vote against them. Further impact assessments and appropriate consultation will follow those proposed changes.

Finally, the hon. Lady mentioned the Commission’s proposed no-deal regulation, which is actually more limited in scope than the UK Government’s proposal. The Government have expressed to the EU our concern that the coverage of its regulation is minimal, and we are doing what we can in that space to persuade the EU. In the light of the points that I have made, I respectfully ask her to withdraw the amendment.

Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee on Privileges 12:00 pm, 28th February 2019

I appreciate the Minister’s careful response and the positive words that he offered. However, I am still not clear why my amendment, which would curtail powers that Ministers do not need—because they can make use of the EU withdrawal Act, as they are doing already, or because they will bring forward primary legislation relating to a withdrawal agreement—is a problem. I do not think that we can simply rely on the good will of the Minister, although it is greatly appreciated; changes of this magnitude should be made in primary legislation.

Question put, That the amendment be made.

The Committee divided:

Ayes 9, Noes 10.

Division number 7 Immigration and Social Security Co-ordination (EU Withdrawal) Bill — Power to modify retained direct EU legislation relating to social security co-ordination

Aye: 9 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

With this it will be convenient to discuss the following:

That schedule 2 be the Second schedule to the Bill.

That schedule 3 be the Third schedule to the Bill.

Photo of Alok Sharma Alok Sharma The Minister of State, Department for Work and Pensions

Clause 5 provides an essential legislative framework to ensure that the Government can reflect their preferred social security co-ordination policy outcomes after the UK has left the European Union, responding to the outcome of negotiations. It will enable the Government to deliver policy changes post exit both in the event of no agreement being reached on future social security co-ordination matters and to support deal scenarios in which a UK-EU agreement differs from current social security co-ordination measures.

The clause provides a power for the Secretary of State or Her Majesty’s Treasury to modify the current social security co-ordination regulations. The regulations provide for social security co-ordination across the EEA and will be incorporated into domestic law by the European Union (Withdrawal) Act when the UK leaves the EU. Clause 5(3) sets out some examples of the manner in which the power may be used. One such example is that regulations may make different provision for different cohorts, and some reference points for differentiation are suggested. This is particularly relevant in a no-deal scenario, as the regulations could, for example, provide protection to those who would otherwise have been in the scope of the withdrawal agreement in line with a unilateral offer. Very importantly, regulations made using powers in this clause will be subject to the affirmative procedure, so they will be scrutinised and must obtain the approval of both Houses.

In subsection (4), the clause also gives the Government the ability to make consequential changes to other primary legislation and other retained EU law to ensure that the changes to which the main power gives effect can be appropriately reflected. It may, for example, be used to address technical matters, inoperabilities and inconsistencies.

In subsections (5) and (6), the clause makes it clear that any directly affected rights that will have been saved by the European Union (Withdrawal) Act shall cease to be recognised to the extent that they are inconsistent or capable of affecting the changes made using the powers in the clause. This is necessary to address inoperabilities and conflicts of law that might arise as a result of regulations made under this clause. It will ensure that any policy changes are able to be delivered effectively.

It is vital that, across all EU exit legislation, the UK Government continue to honour any commitments that they have made in the devolution settlements. Therefore, subsections (1) and (7) of the clause confer powers on the devolved Administrations to legislate in areas for which they have competence. Officials in the UK Government and devolved Administrations have worked together on the correct approach for this clause, and legislative consent motions will be sought from the devolved legislatures in relation to this approach. Subsection (7) defines an appropriate authority, clarifying that the power is exercisable by the Secretary of State or the Treasury, a devolved authority, or jointly.

It is reasonable to assume that, in a deal scenario, if a withdrawal agreement is reached, the implementing vehicle for the withdrawal agreement will provide the necessary protections for those who fall within its scope, and Parliament has the power to ensure that that is the case. I want to reassure colleagues that the power in this clause will not be exercised to remove or reduce commitments made in relation to those individuals within the scope of the withdrawal agreement. The exercise of any powers within this clause will also be subject to the outcome of further negotiations with the EU on a future agreement. In a deal scenario, the clause will be necessary to deliver policy changes to the retained regime that will cover individuals who fall outside the scope of the deal, to reflect the reality of our new relationship with the EU.

In addition, this clause is essential to ensure that the UK Government are able to provide appropriate protections and make appropriate policy changes in a no-deal scenario. Without the clause, the Government have only the power contained in the European Union (Withdrawal) Act to fix deficiencies within the retained system of social security co-ordination. The current social security co-ordination regime operates on the basis of reciprocity. The European Union (Withdrawal) Act power allows us to ensure that the regime will operate on day one of exit, but does not enable us to deliver policy changes, including those that would help us to deliver effective support for UK nationals in the EU. This clause allows us to amend the rules in an appropriate and manageable way if the Government need to operate the system unilaterally, and to deliver changes to the retained regime.

As a responsible Government, we are preparing for all eventualities, and the power in this clause is necessary to provide the Government with the flexibility required to respond to a range of scenarios.

The aim of schedule 2 is straightforward. It sets out the power of the devolved authorities under the social security co-ordination clause—clause 5. The clause confers new powers on Scottish Ministers and, indeed, the Northern Ireland department, to amend the limited elements of the social security co-ordination regulations that fall within devolved competence. We are thus providing the devolved Administrations with the powers that they need to amend aspects of the regulations in areas of social security that are devolved—in the same way as, rightly, the UK Government have powers with respect to laws affecting the UK as a whole.

It is important that the powers in the Bill should not be so narrow as to hamper the devolved Administrations’ ability to amend the elements of the regulations that are within their competence. It is also important to set out, as the schedule does, the parameters for the powers. They should not be wider than is necessary to achieve their purpose. For example, the schedule ensures that the same rules on consent and consultation that the devolved authorities must follow when making provisions in their own legislation apply for regulations made under clause 5. We sought that balance by focusing on the specific aims and applying safeguards to ensure, for instance, that the powers will not be used in ways that might be outside devolved competence.

Schedule 3 simply gives further detail about the making of regulations under the social security co-ordination clause. It provides further detail about the form that regulations will take under the clause, whether they are statutory instruments, Northern Ireland statutory rules or Scottish statutory instruments. The schedule also provides that the use of the power is subject to full parliamentary scrutiny. Its exercise will be subject to the affirmative procedure, which means that regulations made using the power must obtain the approval of each House. It also gives clarity to the procedures that the devolved authorities will need to follow.

Paragraph 4 provides that where the UK Government and a devolved authority exercise the powers under clause 5 jointly, the affirmative procedure applies in both the UK Parliament and the devolved Parliaments or Assemblies. Paragraph 5 permits other regulations, subject to the negative procedure, to be included in an instrument made under clause 5. That means that even where a regulation would be subject to a lower level of scrutiny, if it is combined with regulations under clause 5 a higher level of scrutiny—the affirmative procedure—will apply.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

Labour believes that if the Government want to make far-reaching changes to social security, they should be subject to scrutiny, in primary legislation. As we discussed in the clause 4 debate, secondary legislation does not provide Parliament with an opportunity for adequate scrutiny and oversight of major policy changes. The rights in question were brought in by primary legislation, and it is only right that their removal should be possible only with the same level of scrutiny.

The powers in the clause are not necessary. If the Government really want to tidy up the statute book or make other, minor, changes to legislation, section 8 of the European Union (Withdrawal) Act 2018 already gives them the power to remove the co-ordination regulations and replace them. In fact, they have already laid four regulations under the Act. We feel that the power in the clause would enable the Government to set out global changes to social security, which should rightly be done through primary, not secondary, legislation.

That position was set out by Justice during our evidence sittings. It was concerned about

“the extraordinary breadth of power that it creates”.––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 59, Q157.]

The witness set out clearly:

“It is simply not appropriate to leave that to a policy change by way of delegated power, but it seems to us, from their memorandum, that Government are expressly intending to do that to get around the limitations in section 8.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 60, Q158.]

Similarly, Professor Steve Peers was clear that

“the Government should not have unlimited powers and some constraints should be set by primary legislation.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 123, Q308.]

Urgent, widespread changes to social security co-ordination are not needed in a rush. Thanks to the 2018 Act, there is law in place. The statutory instrument amendments are in place and there is no urgent need for an overhaul of social security co-ordination that would justify such a lack of scrutiny.

The House of Lords Delegated Powers and Regulatory Reform Committee is clear that the Government have provided an inadequate justification for the transfer of power from Parliament to the Government in the clause. It recommended the removal of clause 5 in its entirety. It refers to a requirement to provide an “exceptional justification” for a skeleton Bill, which has not happened in this case. As the Committee puts it,

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

Photo of Gavin Newlands Gavin Newlands Shadow SNP Spokesperson (Sport), Shadow SNP Spokesperson (Northern Ireland), Shadow SNP Spokesperson (Wales) 12:15 pm, 28th February 2019

It is a pleasure to serve under your chairmanship, Mr Stringer, and to rise to speak for the first time in the Committee—potentially the last time, as the Leader of the House has announced that the Northern Ireland Budget (Anticipation and Adjustment) (No. 2) Bill will be debated on Tuesday. I apologise in advance for my absence on Tuesday.

I cannot match the almost giddy levels of excitement displayed my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East in approaching matters of immigration law in the previous session—only an immigration lawyer could generate that kind of excitement—especially because I detest the Bill. It brings into effect one of the worst repercussions of the Government’s approach to Brexit, namely the ending of free movement. It is an act of sheer folly and economic vandalism, combined with the fact that the Government, as in almost all Brexit-related legislation, have granted themselves huge discretionary powers.

With that off my chest, I will move on to clause 5, which is no different. It gives broad and powerful Henry VIII powers to Ministers to make changes to social security co-ordination post Brexit—a move that the3million and British in Europe would describe as moving the goalposts. I feel deeply uncomfortable about approving the clause and giving the Government that agency for many reasons, not least because of the history of “Go home” vans and the creation of the hostile environment, although I happily concede that they predate the current ministerial team.

As was referenced a moment ago, in response to the question that the hon. Member for Stretford and Urmston asked about existing social security rights, Jodie Blackstock, the legal director of Justice, said:

“The Bill does not protect those rights, because it does not set out the principles by which it will do so. It simply provides the structure for the removal of all current reciprocal arrangements. As with the discussion we had on clause 4, it creates the power for not only a Minister but an appropriate authority to replace those current rights with an alternative arrangement.

For us, clause 5 is the most concerning clause in the Bill, as if clause 4 was not concerning enough. Our view is that the clause ought to be entirely deleted, and we say that for a few reasons—not just the extraordinary breadth of power that it creates, but the fact that the provision to remove the co-ordination regulations and replace them is already provided for by way of section 8 of the European Union (Withdrawal) Act 2018. Indeed, there are four regulations that have already been laid, pursuant to that Act, before Parliament and that comply with what are perhaps broad powers, but at least are curtailed far more than the power here; and, because they have been laid, it is possible for them to be scrutinised by Parliament.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 59, Q157.]

As Jodie said, it appears to many—outside the Home Office, at least—that the powers are entirely unnecessary. Section 8 of the European Union (Withdrawal) Act 2018 does provide the scope to replace the current arrangements on co-ordination and the EU has not agreed or announced changes to those arrangements. In the modern world, more people, certainly in the EU, are living lives between different states and cherish the right to chase the opportunity to work where they please. That is an opportunity that many in the next generation will not be afforded in the manner to which we have been accustomed.

Despite being vastly inferior to freedom of movement, there will still be various routes open to EU citizens post Brexit, including the tier 2 and the 11-month low-skilled worker visa options. That makes social security co-ordination a hugely important issue for many more people in the future, in addition to the 3.5 million EU citizens in the UK and the 800,000 UK nationals in the EU. It is not justifiable, therefore, for future policy changes in the area to be made through delegated powers.

I am sure that the Minister will insist that the Government do not plan to remove benefits or further co-ordination—in fact, he addressed that in response to the previous amendment and in his opening remarks in support of the clause—but even if we take him at his word, that is not good enough, because the EU and UK citizens affected by the issue want to be assured and to have certainty. If they cannot have certainty, they want to ensure that any changes in the area have the rigorous scrutiny of primary legislation.

As it stands, clause 5 also risks politicising social security co-ordination and leaves us with the real prospect of losing reciprocation from the European Union’s 27 member states in addition to EFTA’s four member states. Without that co-ordination, there is no guarantee that rights such as pensions and others that hon. Members have spoken about at length will continue to accrue for British citizens in the EU. That risks deterring people from moving abroad.

The Government have already awarded themselves too many broad Henry VIII powers. All too often, the Government’s answers to the question of why they need those broad powers are wholly insufficient. We firmly believe that the Bill should not be legislation at all. In the context of this debate, we firmly believe that clause 5 should not stand part of this regrettable Bill.

Photo of Alok Sharma Alok Sharma The Minister of State, Department for Work and Pensions

Perhaps I can respond to some of the points raised by the hon. Member for Manchester, Gorton and the hon. Member for Paisley and Renfrewshire North.

The hon. Member for Manchester, Gorton asked whether the powers would be too broad. I want to be absolutely clear that the power can be used only to make changes to specified retained EU social security co-ordination regulations that are listed in the clause, and to make consequential changes to primary legislation or other retained direct EU legislation that is not listed in the clause. The power is broad, because it provides the Government with the flexibility to respond to a range of scenarios. I repeat for the third time that regulations made using this power will be subject to the affirmative procedure, so they will be scrutinised and voted on by both Houses.

Both hon. Gentlemen called for the clause to be removed from the Bill. We believe that it is very important that the clause remains part of the Bill, so that the Government can respond at pace to the outcomes of negotiations and the scenarios that we find ourselves in. Without the clause, the Government would not be able to deliver policy changes to the retained social security co-ordination system, including those that could help us to deliver effective support for UK nationals abroad.

The current rules around aggregating and paying benefits pro rata and paying pensions based on contributions across member states depend on reciprocity. I have made that point a number of times. The power allows us to amend the rules in an appropriate and manageable way if the Government need to operate the system unilaterally and deliver changes beyond the scope of the deficiency fixes. Taking this enabling power is the most appropriate option, because it provides us with the flexibility that is required.

The hon. Member for Manchester, Gorton spoke about the fixing SIs. I think I responded to that point earlier, in the debate on amendment 26.

I know that Members on both sides of the Committee have raised these points with a great deal of interest in making sure that we get the matter right for citizens. The hon. Member for Paisley and Renfrewshire North has just said that he wants to give citizens certainty. That is what I and Conservative colleagues want, and the best way of doing that is for all of us to support the deal and the withdrawal agreement that are on the table.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Schedules 2 and 3 agreed to.