Immigration and Social Security Coordination (EU Withdrawal) Bill (Fifth sitting)
Tuesday 26th February 2019
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 View all Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 February 2019 - (26 Feb 2019)
The Committee divided: - Ayes: 10 / Noes: 9 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Chair
Before we begin, will everyone ensure that electronic devices are turned off or switched to silent mode? I remind Members that tea and coffee are not allowed in the Committee Room.
We now begin line-by-line consideration of the Bill. The selection list for today is available in the room and on the Bill website. That shows how the selected amendments have been grouped for debate. Amendments grouped together are generally on the same or a similar issue. A Member who has put their name to the lead amendment in a group will be called first; other Members will then be free to catch my eye to speak on all or any of the amendments in that group. A Member may speak more than once in a single debate.
At the end of a debate on a group of amendments, I shall call the Member who moved the lead amendment again. Before that person sits down, they will need to indicate whether they wish to withdraw the amendment or seek a decision. If any Member wishes to press any other amendment or new clause in a group to a vote, they need to let me know. I shall work on the assumption that the Minister wishes the Committee to reach a decision on all Government amendments, if any are tabled.
Please note that decisions on amendments take place not in the order that amendments are debated, but in the order that they appear on the amendment paper. In other words, debate occurs according to the selection list; a decision is taken when we come to the clause that the amendment affects. I shall use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following the debates on the relevant amendments. I hope that explanation is helpful.
The Committee agreed a programme order before the oral evidence sessions. That order, which is printed on the amendment paper, sets out the order in which we have to consider the Bill.
Clause 1
Repeal of the main retained EU law relating to free movement etc
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss that schedule 1 be the First schedule to the Bill.
The Minister for Immigration (Caroline Nokes)
It is a pleasure to serve under your chairmanship, Mr Stringer, and that of your co-Chair, Sir David Amess, who took us so ably through the evidence sessions the week before last.
At the outset, I would like to emphasise the importance of the Bill in delivering the future border and immigration system. It was clear from the EU referendum, from the many views shared on Second Reading and from the Committee’s evidence sessions that people want a fair immigration system that works for the whole United Kingdom—a system that attracts talent from around the globe and allows individuals to access the UK based on what they have to offer, not where they come from.
We heard many important views about the current and future border and immigration systems from witnesses who gave evidence before the Committee two weeks ago, as well as from organisations that provided written evidence. I am grateful to everyone who took the time to provide their opinions. The views that were put forward demonstrated a strong interest in a wide range of immigration issues, as well as in the specific design of the future system. The evidence highlighted the importance of learning lessons from the past and ensuring we get things right.
A clear message emerged about the need to create a fair and simple system, and those are key priorities for me in the design of the future system. As I have said previously, I recognise that the immigration rules need to be made simpler. That is why we have asked the Law Commission to review how the rules could be simplified. I look forward to considering its findings when they are published.
Leaving the European Union means that, for the first time in more than 40 years, we can deliver control of immigration by ending free movement. In its place, we will introduce a new system, which will level the playing field by ending preferential treatment for EU citizens. It will mean that everyone has the same opportunity to come to the UK, regardless of where they are from.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I am grateful to the Minister for giving way so early. She has asserted a couple of times that the new system will provide a level playing field for everybody, but the White Paper indicates that nationals of different countries will be treated in different ways. There will, I reckon, be preferential treatment for EU nationals with the one-year visa and for countries whose citizens are already non-visa nationals. Will she clarify that? Is she saying everybody is going to be treated exactly the same, or does she accept that the White Paper in fact does not set out such an arrangement?
Caroline Nokes
The Bill certainly does set out that people will be treated in the same way, because it is a Bill simply to end free movement. The White Paper, which was published on 18 December, gives us the opportunity to discuss the future system and how people from across the globe may be treated. It gives us the opportunity to discuss whether trade deals might include treatment within our immigration system. It is important that we have a system that reflects people’s skills and what we need in our economy. This Bill, through which we are seeking to end free movement, is an opportunity to start to provide that level playing field.
Alison McGovern (Wirral South) (Lab)
The Minister has just given the game away. The manner in which people will be treated will largely depend on what the Government see as their interest with regard to trade deals. They are telling people that there will be a level playing field, but that is a misnomer because people’s rights will be highly dependent on the Government’s whims relating to the incentives in future trade deals.
The Chair
Before I call the Minister, this is a good opportunity to remind members of the Committee that interventions should be short and to the point. There will be plenty of opportunities for Members to catch my eye if they want to make a longer contribution.
Caroline Nokes
This is an opportunity for Members to express their views about the future immigration system. Far from giving the game away, the White Paper is an opportunity, and we have said that there will be a year of engagement on it during which we will consider all views. We already have a system in which nationals from some countries require visas for visits and others do not, and we will be seeking to establish relationships. All such matters will be for future negotiation and discussion. It is absolutely right that, as a first step in the process, we listen to what we were told in the 2016 referendum and end free movement.
I want us to continue to be an open, outward-looking and welcoming country. I reiterate what I and my right hon. Friend the Home Secretary have said many times: we value immigration and the contribution that people have made to our society, our culture and our economy. There are many people, including hon. Members on this Committee, who are rightly interested in the design of the future system. That is why we are engaging on the proposals set out in the White Paper, “The UK’s future skills-based immigration system”. That will include sessions that are open to all MPs to discuss specific points of interest on the proposals. In the past few weeks, I have held engagement sessions with Members on students and workers, and in the coming days there will be another one on asylum.
The purpose of the Bill is clear: we are ending free movement and providing the legal framework for the future border and immigration system. Clause 1 introduces the first schedule, which contains a list of measures to be repealed in relation to the end of free movement and related issues. The clause fulfils a purely mechanistic function to introduce the schedule. It is the bare bones of the Bill. I look forward to debating it further with hon. Members, who may address certain aspects of it in amendments that undoubtedly will be tabled to other parts of the Bill. To get matters under way, I commend clause 1 to the Committee.
Afzal Khan (Manchester, Gorton) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stringer.
This clause—this entire Bill, for that matter—puts the cart before the horse. Labour has been clear that our immigration policy is subordinate to our economic and trade policy. The Government’s position on Brexit, on the other hand, has been consistent in just one way: they insist on putting immigration ahead of our economic needs. We simply cannot support measures that would cause our country to be worse off.
It is a fact that freedom of movement ends when we leave the single market, but the Prime Minister herself has recognised the need for frictionless trade and has been told categorically by the EU that that cannot be maintained without a close relationship with the single market. If the Government cannot yet be clear about what the final agreement will be on our relationship with the single market, this makes no sense. Until the Government get their ducks in a row, we simply cannot vote for such a measure.
The Bill also fails to address two major questions facing Parliament. The first is how we will protect the rights of the 3.5 million people who have already moved to the UK and made their lives here. On Second Reading, the Home Secretary said,
“my message to the 3.5 million EU citizens already living here has also been very clear. I say, ‘You are an incredibly valued and an important part of our society; we want you to stay. Deal or no deal, that view will not change.’”—[Official Report, 28 January 2019; Vol. 653, c. 507.]
Yet the Government have made no provisions in the Bill to protect those citizens.
Kate Green (Stretford and Urmston) (Lab)
Does my hon. Friend agree that the Bill would be the ideal opportunity to offer statutory reassurance to those 3.5 million people by including the details of the Government’s settled status scheme and their ongoing proposals for protecting those people’s rights?
Afzal Khan
I agree wholeheartedly with my hon. Friend’s comments. Labour has tabled a number of new clauses to the Bill that would put the rights of EU citizens into primary legislation. We hope that the Government accept those when we get to that point.
The second question is what our new immigration system should be doing in the future. The Bill is incredibly flimsy; it is only 16 pages long, which is extraordinary given that it will mean the biggest change to our immigration system in decades. Instead of putting forward a new immigration system that Parliament can discuss and debate, amend and improve, the Bill grants powers to Ministers to introduce whatever system they like through extensive Henry VIII powers. We were given an indication of what such a system might be like in the White Paper published by the Government in December. In fact, Ministers are under no obligation to use the powers to implement that system. If they implement the system described in the White Paper, it will spell disaster for our economy and our society.
We will go into these matters in more depth in subsequent debates, but expert witnesses at our evidence sessions criticised almost all aspects of the Government’s plans. The £30,000 threshold would be a disaster for business and public services such as the NHS. The 12-month visa would lead to exploitation. Labour has no problem with immigration that would treat all migrants the same no matter where they came from, but that is not the system the Government propose. The White Paper is explicit that there will be certain visas and conditions that will apply only to people from “low-risk countries”—a categorisation that the Government are not at all transparent about. Apart from those two glaring absences, the Bill before us fails to address a litany of problems with our immigration system, some of which we seek to remedy through our amendments.
Before I conclude, I have two questions that I would like the Minister to address. First, under what circumstances would the Government use the powers in the Bill? We have heard that this is a contingency Bill, so if there is a withdrawal agreement and thus a withdrawal and implementation Bill, will the Government use powers in that Bill to repeal free movement? Secondly, could the provisions in this Bill lead to a change in immigration law that affects non-European economic area migrants? Could the Government use the powers in the Bill to amend immigration legislation that affects non-EU citizens?
As the Minister will know, the Government are asking for extensive Henry VIII powers. During our Committee sittings, Adrian Berry, Steve Valdez-Symonds and Martin Hoare, all experts in immigration law, confirmed to me that the powers in the Bill could be used to make legislation affecting non-EU citizens. Is the Minister willing to contradict the experts? Does she agree that, if it is indeed the case that the powers in the Bill could be used to make legislation that affects non-EU citizens, its scope is much wider than the end of free movement?
Stuart C. McDonald
It is a pleasure to serve under your chairmanship, Mr Stringer. I thank the Clerks for working their way through a mountain of amendments and making them presentable in the last few days. I thank the various organisations and individuals for their help and ideas for amendments, and I thank the shadow Minister for engaging with us over the last couple of days. Any flaws in the amendments we have tabled are my responsibility alone. Finally, I thank the Minister; she has been very open to discussion, approachable and good humoured, as ever. The fact that I can’t stand the Bill and utterly oppose it should not be taken personally. Hopefully, we will still be able to have some useful and constructive debates.
I will not rehash all the points I made on Second Reading. I love free movement; my party fully supports it and I pretty much believe it is the best thing since sliced bread. I regret that it is in danger of coming to an end. It will leave the United Kingdom in an unusual position historically. This country has, for almost its entire history, allowed certain citizens to come and go, whether EU citizens, Commonwealth citizens or, before that, absolutely everybody. All the evidence is that free movement is beneficial to us, for growth, productivity and public finances. In Scotland, it has transformed our demographic outlook from a country of net immigration to a country of positive migration. The quid pro quo for all this is that we will lose our free movement rights. My family and I have benefited from free movement, as have many Members, including on this Committee. I regret that this Parliament will pull up the ladder behind it.
The challenges of free movement that are often cited will not be solved by ending free movement but by proper labour market standards and enforcement, by integration strategies and by investment in public services. Neither do the justifications for ending free movement stack up. Indeed, it was striking in the Minister’s speech and in the speeches of some Government Members on Second Reading how little free movement and the supposed justifications for ending it were addressed.
It is wrong to say that people voted to end free movement, because it was not on the ballot paper. To argue the contrary is to argue that almost 100% of leave voters were motivated by that alone. That is not the case. This is the Prime Minister’s red line, not the people’s red line. Opinion polls and studies show that if it comes to a choice between a closer trading relationship with Europe and ending free movement, a closer trading relationship wins. Simply repeating ad nauseam that we are “taking back control of our borders” is not an argument.
Now is the most bizarre moment for MPs to consider voting to end free movement. Parliament hopefully is on the verge of taking control. Who knows what trading arrangements may be secured, perhaps involving free movement. A people’s vote is even more on the cards than it was at the time of Second Reading. As the shadow Minister said, the Bill puts the cart before the horse. Let us sort out our negotiating position first, then we can decide what that means for free movement. If the public are happy enough to retain free movement for a closer trading arrangement, it is wrong for MPs to rule it out at this stage. There is no need to rush through the end of free movement, even if we do leave in a month’s time. For those reasons, my party believes that the clause should not stand part of the Bill.
Kate Green
It is a pleasure to serve under your chairmanship, Mr Stringer. I echo the comments of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in thanking the Minister for being so open to colleagues in preparing for consideration of the Bill over the next two weeks.
I, too, believe that freedom of movement has been good for our country and particularly for my constituency. We are a proud manufacturing constituency that offers many skilled jobs, and we have relied heavily over the years on the skills and talents of EEA nationals who come to work in our industries. It is clear that north-west England is destined to suffer most economically from loss of access to EEA labour under free movement rules.
I echo the hon. Gentleman’s remarks about public opinion on freedom of movement. A couple of years ago I had the pleasure to participate in a citizens’ assembly organised by the Constitution Unit of University College London. One of the questions that the participants were asked to address was what kind of immigration arrangements they wanted with the European Union after Brexit. This was a deliberative process carried out with a representative sample of over 100 individuals, exactly mirroring the demographic of the referendum electorate in terms of the vote—leave or remain—geography, ethnicity, age, background and so on.
Alison McGovern
I join colleagues in thanking the Clerks and the team for the work they have done. I will make a few remarks, particularly about the economic arguments sometimes made for clause 1. I have no doubt that we will spend much time debating some of these points, but let us start as we mean to go on.
On the timing of the Bill, I profoundly agree with my hon. Friend the Member for Stretford and Urmston. It seems bizarre that anyone would think it acceptable to remove, with one clause of this Bill, an entire set of rights that all citizens in this country enjoy by reciprocity with the European Union, and that European Union citizens enjoy in this country, and to replace them with nothing but the promise of a White Paper. There is no set timescale for the introduction of any new immigration system, so we are saying to people, “All your current rights will be removed and will be replaced at some point in the future. We don’t know when, and we don’t know what the new rights will be, but bear with us while we sort it out.”
Nick Thomas-Symonds (Torfaen) (Lab)
Can my hon. Friend think of any realistic argument why, given that the Government say they want to guarantee the rights of EU nationals, they would not simply do so now, in clause 1?
Alison McGovern
I can think of a reason: because they want to take decisions on these rights based on negotiating interests and the potential gain they might get for their agenda. It seems clear that that has always been the manner in which the rights of EU nationals would be treated. I am afraid warm words are not enough. It is perfectly reasonable—and something I would expect every member of the Committee to be able to do—to say that we personally feel no animus towards EU nationals and that people are welcome in this country. However, it is one thing to say those words and another to do what is necessary to guarantee that they are true. I can think of no reason why the Government would not do as my hon. Friend has suggested.
Nic Dakin (Scunthorpe) (Lab)
Does my hon. Friend agree that the fact that this is not dealt with in the Bill as clearly as it could be is unsettling for not only EU nationals but businesses? It interrupts business continuity in a way that is not helpful to the UK economy.
Alison McGovern
I agree with my hon. Friend, who makes a good point. I never thought I would be in Committee lecturing the Conservative party on the needs of British business, but we are where we are. My hon. Friend the Member for Stretford and Urmston made the point very well that we are creating not simplicity but an extraordinarily high level of uncertainty, and uncertainty is costly to the British economy. I am sure we will discuss the costs of the Brexit process during the Bill, but the Government could be handling the Bill better. They could have come up with the immigration White Paper long before they did, and we could have spent time in the past two and a bit years since the referendum discussing that very thing, but they have held off and postponed—and here we are now. People have no real idea what situation EU nationals will be in after the end of March. That is utterly intolerable.
Kate Green
My hon. Friend makes an important point. Does she agree that the result is that businesses are already experiencing labour shortages, because the uncertainty means EU nationals are already choosing not to come to this country to work? I was told the other day by a food processor in my constituency that there is particular pressure now in the haulage sector.
Alison McGovern
I hear the same evidence that my hon. Friend does. We represent constituencies in the same region, so that is not unexpected. Many people will respond that it should be fine, as there are plenty of people in Britain, and plenty of British people can do those jobs. However, unfortunately, that is to misunderstand the labour market. We have an ageing population. What, as we heard in evidence to the Committee, is the answer, according to those who want to put up the border and stop people coming here to do the decent and dignified thing by working in our country? It is to raise the pension age and ask people to work into their 70s. That is all right for people who do a desk job that is not physically taxing, but I do not really want to ask nurses whom I represent to work until they are 71 or 72. I do not think that would be appropriate. My hon. Friend made a good point.
My hon. Friend also talked about lack of simplicity in the new system. The Minister mentioned simplicity several times and the Law Commission will look into it. That is a good thing—and it is not before time. However, the fact is that free movement, like it or not, provides people with rights that are simple to understand and exercise. If we are to replace that system with a new one we had better have a good idea now—today—how we will give people an equal, or hopefully better, level of simplicity. For all the reasons that my hon. Friend mentioned, making people’s lives simpler in that way is vital. It is the best way to make sure that the economy can innovate and move forward. I find it hard to understand why the Government should move clause 1 at this point, without a guarantee of an equally simple, or even simpler and better understood system.
Kate Green
Again, my hon. Friend makes a powerful point. This is about simplicity not just for business and our economy, but for families who will now not be clear about the basis on which family members can come to this country to live with them.
Alison McGovern
I thank my hon. Friend for that intervention. She is right, and we have all spent time in our surgeries with distressed constituents who are dealing with complexities faced by their families. No doubt all that personal and human cost comes across the Minister’s desk, and I know she treats such cases with empathy and kindness. If we are to replace a system that is simple and straightforward for people to understand, and means that they can plan family life and get on with the things they want to do without constant interference by the Government, a better option should be on the table than the one we currently have—I never thought I would have to lecture the Tory party about the perils of a Government interfering unnecessarily in people’s personal lives, but there we are.
Some people talk about the economic impacts of immigration and say that ending free movement was what caused the referendum result. As has been said, however, that is questionable because free movement was not on the ballot paper, and we do not really know.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Does the hon. Lady agree that there is a huge degree of confusion about freedom of movement, and that it is conflated with the rest of immigration and asylum policy? That is not helped by a lack of knowledge in this country about how the European Union works and operates, and how we approach such issues with the EU. The direct impact on people in the UK, and on their ability to travel freely across the EU to work, travel and be educated, was not known, so we cannot possibly say that the UK voted to end freedom of movement.
Alison McGovern
I thank the hon. Gentleman for his intervention. It is entirely possible that people do not know all the ins and outs and details of the immigration system—I would not expect them to; it is quite complicated. Having stood in three general elections in a swing marginal seat, I suggest that anyone who thinks they can be involved in British politics and not get involved in conversations about immigration is kidding themselves. We must accept that immigration is an issue, and that people will seize on anecdotes and their own personal experience. That is not illegitimate either—people rely on their lived experiences, but when it comes to decisions that we take, it is a mistake to rely on anecdote and we must consider the actual evidence for what immigration has done in our labour market.
In 2015, one Bank of England study found that immigration had had a very small effect on the wages of those at the lower end of the earnings distribution, but that that effect was not significant. Often that study is seized on as evidence that immigration has somehow had this huge impact on people’s earning potential, but I simply ask people to compare that with what we know has happened to wages since the financial crash of 2008. Compared with the trend of 2% annual growth in real wages from 1980 to the early 2000s, which was pretty regular, between 2008 and 2014 people’s real wages fell significantly, with a shortfall of about 20% in what they would otherwise have expected had that real wage growth continued.
If we consider groups in our society, apart from pensioner households, no one is better off than they would have been in 2008. The significance of that impact while we have been in the European Union demonstrates that what has happened is a change in Government policy and the decisions that have been made to support people’s incomes. Real wages have been weakened by rising inflation since the 2016 referendum, which has had a huge impact. Depreciation will lead to rising costs. In the end, when considering people’s earnings potential, what matters is not the nominal figure of the amount they have coming in, but what they can buy with it.
I would say to people who worry about the impact of immigration on wages that we should definitely consider it. It is true that most of the studies that have investigated this matter have found that, at the local level, there is no statistically significant impact of immigration on the earnings of those in that local economy. However, if that is considered so important that it ignores the impact of prices and what has happened since the referendum, that is not being serious about dealing with poverty in this country. We need to understand that if we tell people that we will make the average British person better off by restricting immigration, we are offering a false promise.
Caroline Nokes
A good number of useful and interesting points were raised by hon. Members. I just want to start by correcting one point made by the hon. Member for Manchester, Gorton who said it was a fact that free movement would end when we leave the single market. Free movement, as hon. Members know, was frozen into UK law last year, which is why we need the Bill so that we can end free movement, which will not happen automatically when we leave the EU.
Hon. Members are right to point out that there may be a gap. There could be a gap either way. It is perfectly feasible that the Bill will not gain Royal Assent until after we leave the European Union and it is certainly possible to envisage the circumstances in which the Bill might gain Royal Assent before we leave the EU. It is an important Bill and, although I have been accused of putting the cart before the horse, that is not the case. It is not premature; it is something that we must do.
Several hon. Members raised the rights of the 3.5 million EU citizens living in the UK and were absolutely right to do so. They will also know that we hope very much to address that in the withdrawal agreement Bill in the event of a deal. I am probably one of the few in the room to have voted consistently for the deal every time it has come before the House [Interruption.] Okay, they are all raising their hands now. I certainly have done. It is really important that we secure a deal and, in so doing, have the withdrawal agreement. I will have the joy of also serving on that Bill Committee and will take through the citizens’ rights principles that we are determined to secure.
I do not intend to bore hon. Members on this subject but it is one of my favourites. They will know that we opened the EU settled status scheme last year in its first trial phase. We are now into the third open beta testing phase. I am not in any way complacent about that. These large projects are opened in private beta testing first in order to iron out the bugs, problems and issues that may crop up. It is fair to say that there have been issues, but we have been able to learn from the process and react relatively quickly to iron them out. I am pleased that so far 100,000 people have gone through the process and more are applying every single day.
That does not mean that I am not alive to the challenges that are part of that. Obviously, 3.5 million is an enormous number and 100,000, although a good start when not even in the open phase of the scheme, is encouraging but I know there is a great deal more to do. I am sure hon. Members will be reassured by the fact that we will open the communications programmes very shortly.
Caroline Nokes
The hon. Gentleman raises an important point. If we have learned one thing from Windrush—and I sincerely hope we have learned many—it is that a declaratory system that does not give people the evidence they need to be able to affirm their right to be in the UK, to work and own property, does not work. That is why we have a scheme that I am confident will give people the evidence they need so that we can avoid a position whereby EU citizens who are here and settled are in the same situation in the future. I am conscious—Members may have heard me say this in Select Committees—that there will be children of EU citizens living in this country today who are well under the age of 16; some will be one or two years old. The hon. Member for Wirral South mentioned an ageing population and longevity, but while we in this room might be lucky to get to our late 80s, there are children who will live to 100 or 110. It is therefore important we have something that is enduring and enables them to evidence their right to be here for a century or more.
Stuart C. McDonald
A new argument appeared for the first time yesterday at Home Office questions, saying the problem was caused because Windrush was what Ministers describe as a declaratory system. That was not what caused the problem; the problem was the lack of evidence. In fact, if people did not have rights under statute—as we would like to see here—they could have been removed ages ago and could not have rectified the situation. It is not right to say that a declaratory system caused the problem to the Windrush generation.
Caroline Nokes
I disagree. If we look back to the Immigration Act 1971—I have become quite familiar with that Act over the past year in this job—it put the right of the people of the Windrush generation to be here in statute, but it did not provide them with the evidence they needed to demonstrate that. It is important we learn that lesson and make sure we do not repeat the mistake for our EU citizens.
Kate Green
Does the Minister agree that the conclusion is that we should do both? We should have a declaratory system so that people’s legal rights are clear in statute and, at the same time, we should have a process of giving them reliable and sustainable evidence to demonstrate they have that right.
Caroline Nokes
Through the EU settled status scheme, we have provided people with the mechanism via which to demonstrate that. I have confidence in the mechanism. I recognise the challenges, some of which we heard in the evidence session two weeks ago. I am determined we get that right and make it a system that people will engage in, take part in and be able to evidence their status.
Afzal Khan
On the same point, one of the issues that came through during the evidence sessions was that it would also be helpful to have a hard copy of that evidence.
Caroline Nokes
The hon. Gentleman will be aware that the Home Office is seeking to move to digital by default in many of our processes. I recognise that this is the way forward. I spent a very happy six months at the Cabinet Office as the Minister for the Government Digital Service, recognising that the delivery of services digitally is the way forward. With the digital right-to-work checks and the roll-out of the digital right-to-rent checks, we already have a system that makes sure the individual employer or landlord can see only the evidence to which they are entitled, rather than having a biometric card that lays out all a person’s details. It can be tailored so the potential employer gets to see only the evidence of the right to work. I believe that the system works well and when I showed it to the landlords’ representative panel, they engaged with and were enthused by it. It has also worked well for employers. Digital status that is backed up and can be evidence going forward, simply and easily, is much better than a document that potentially contains the risk of fraud and that might need renewing every 10 years, in the same way we have to renew our passports.
This is the Bill that will end free movement. That is not the role of the withdrawal agreement Bill, which is where we will enshrine citizens’ rights.
Paul Blomfield (Sheffield Central) (Lab)
I share the comments made from this side of the Committee regarding the Minister’s approach to the Bill and, indeed, to her brief. Can she explain what consideration the Government have given to one of the single biggest national groups affected by any freedom of movement—UK nationals: the 1.2 million Brits who live and work in the European Union. If we poll young people, we find that their biggest regret about our leaving is losing their right to freedom of movement within the European Union. What assessment has she made of that issue, because reciprocity is key?
Caroline Nokes
The hon. Gentleman is right to point out that reciprocity is key—it is crucial. Although we have it within our power to legislate to protect the rights of the 3.5 million here, we do not have the right to legislate in France, Germany or Spain. I am absolutely conscious of the very real concerns. We heard some of them in the evidence sessions, but I have also met repeatedly with representatives of those who live in EU member states, who are concerned.
Kate Green
It will be welcome to have citizens’ rights enshrined in primary legislation through the withdrawal agreement Bill, but of course if we do not have a withdrawal agreement, we will not have that legislation. Are there alternative plans to ensure that those rights are enshrined in primary legislation, rather than in secondary legislation, which would be subject to future change and would not receive proper parliamentary scrutiny, in the event that there is no deal?
Caroline Nokes
Opposition Members never, I think, let me get away with anything without proper scrutiny. The hon. Lady knows that I want to see the withdrawal agreement Bill passed. That is an important step. I am most enthusiastic and keen—nay, desperate—for us to get a deal; it is crucial that we do so, but I still firmly hold that the withdrawal agreement Bill, rather than this Bill, which is a straightforward Bill to end free movement, is the place to enshrine those rights. This Bill’s powers on free movement will of course be required both in the event of a deal and in a no-deal scenario, but they will be used differently if we have a deal, in which case the withdrawal agreement Bill will provide protections for the resident population.
The power in clause 4, which we shall probably come to later today, is similar to that found in other immigration legislation, and can be used only in consequence of or in connection with part 1 of this Bill, which is about ending free movement. I therefore do not believe there is a risk that it could be used to change immigration legislation for non-EEA nationals in ways unconnected to part 1 of the Bill.
Let me say in response to the hon. Member for Stretford and Urmston that we have been clear that, after our exit, there will be no change to the way that EU citizens prove their right to work. They will continue to use a passport or an ID card until the future system is in place.
I have been clear that we will engage widely on the future system, which will come in after 2021. It will be a skills-based immigration system, which enables us to move forward, absolutely accommodating the needs of our economy, I hope—I have been candid about this since my first day in the Home Office—in a much simpler way. We are confronted with 1,000 pages of immigration rules, so there is certainly the opportunity to simplify enormously. I do not pretend that I have it within my power to “do a Pickles” with the immigration rules by doing the equivalent of his tearing up 1,000 pages of planning guidance and reducing it to the national planning policy framework, but we have to move forward with a system that is far simpler and easier to understand than what we currently have.
Kate Green
Will the Minister take the opportunity to reassure employers that, in the period until 2021, provided they have looked at an individual’s passport or identity document, they will not commit any criminal offence if it happens that that individual in practice does not have the right to work because they arrived after Brexit day and did not apply, as they needed to, for European temporary leave to remain?
Caroline Nokes
There is a terrible phrase, which I really dislike using: “statutory excuse”. If an employer has seen evidence—an EU passport or ID card—that indicates that somebody has the right to work in the same way as they do now, that provides them with the protection that the hon. Lady seeks.
Afzal Khan
I ask the Minister again: could the Government use the powers in the Bill to amend immigration legislation affecting non-EU citizens?
Caroline Nokes
I think I responded to that point a few moments ago. We do not consider there to be a risk that the power could be used to change immigration legislation for non-EU nationals in ways that are unconnected to part 1 of the Bill. Part 1 is specifically about ending free movement.
Question put, That the clause stand part of the Bill.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 29, in clause 2, page 1, line 11, at end insert—
“(1A) After section 2A insert—
‘2B Family members of Irish citizens
Nothing in the Immigration Rules (within the meaning of this Act) shall lay down any practice that treats or provides for the family members of Irish citizens differently to the treatment or provision made for the family member of British citizens.’”
This amendment seeks to ensure that the family members of Irish citizens are treated in the same way as the family members of British citizens.
The Chair
With this it will be convenient to discuss amendment 28, in clause 2, page 2, line 13, at end insert—
“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he concludes that a higher threshold is reached whereby deportation is in the public interest because there are exceptional circumstances.
(7) No person of any nationality is liable for deportation under section 3(5)(b) where he belongs to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (6) is satisfied in respect of that Irish citizen.
(8) No Irish citizen is liable for deportation under section 3(6) where recommended for deportation by a court empowered under this Act to do so unless, thereafter, the Secretary concludes that his deportation is conducive to the public good in accordance with subsection (6).
(9) An Irish citizen may not be deported or excluded from the United Kingdom if they are among the ‘people of Northern Ireland’ entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish Agreement of 1998.”
This amendment would provide additional safeguards against deportation for Irish citizens.
Stuart C. McDonald
Clause 2 concerns the special status of Irish citizens in the UK in immigration law. It is probably fair to say that although we often refer to the common travel area, and although we know how it works in practice and have a broad idea of the practical reasons why it exists, the actual law here is pretty obscure, vague and not very well understood. I apologise if I have maligned any Committee members who are in fact experts in this area of immigration law.
In recent years it probably has not been a concern, largely because free movement means that it has not really mattered. That now changes completely if free movement is stopped, and clause 2 is one of the steps that we need to take to ensure that the status of Irish citizens here is protected. Parts of clause 2 are welcome because, if clause 2 were not part of the law, although Irish citizens could still come to the UK without immigration control if they were coming from another part of the common travel area, if free movement ended they would have no such right if they arrived in the UK from outside the common travel area, whether on a plane from New York or a train from Paris. Clause 2 confirms the right of Irish citizens to enter and remain without permission—even if free movement rights end—irrespective of where they entered the UK from, unless they are subject to a deportation order, exclusion order or international travel ban.
The question is: does clause 2 go far enough? The evidence received in writing and heard at hearings suggests that it does not. There are other aspects of the special status that we need to have a look at as well. There is one sense in which clause 2 appears to undermine the special status afforded to Irish citizens, and that is in relation to deportation.
As Professor Ryan pointed out in his evidence, the clause provides that Irish citizens may be deported under the general deportation laws of this country—those that apply to everybody else—under the Immigration Act 1971. Those apply to: a person whose deportation the Secretary of State deems conducive to the public good, including under the controversial mandatory deportation provisions of the UK Borders Act 2007; a person whom a court recommends for deportation at the time of conviction for a criminal offence punishable by imprisonment; and a family member of a person who is or has been ordered to be deported.
The clause would also introduce a specific new power to exclude Irish citizens from the United Kingdom if the Secretary of State considers that to be conducive to the public good. However, in doing so the Bill does not imply any particular special protection regarding the threshold for the deportation or exclusion of Irish citizens. The stated policy of the Government in 2007, according to the then Immigration Minister, was:
“Irish citizens will only be considered for deportation where a court has recommended deportation in sentencing or where the Secretary of State concludes, due to the exceptional circumstances of the case, the public interest requires deportation.”—[Official Report, 19 February 2007; Vol. 457, c. 4WS.]
That is a higher test than would be applied by clause 2, and we heard evidence suggesting that the clause would water down the position of Irish citizens. In that regard, it might be useful to note that, by virtue of their exemption from Irish immigration law, British citizens are completely immune from deportation and exclusion under Irish law. Indeed, other evidence sent to us from a group of academics goes further, and asks why, if Irish citizens are “not foreign” according to the Ireland Act 1949, we need to retain the power to deport them at all. Ireland has not retained the equivalent power.
Professor Ryan raised a further important question about whether, to comply with the Belfast agreement, there should be an exemption from deportation and exclusion for Irish citizens who are from Northern Ireland. Under the Belfast agreement, both Governments recognised the birthright of all people of Northern Ireland to identify themselves as, and be accepted as, Irish, British or both, as they may so choose. As Professor Ryan puts it:
“There is a risk that, as formulated, the deportation and exclusion clauses will fail to respect the right of a person from Northern Ireland who wishes to identify as an Irish citizen.”
He questions whether it is compatible with the Belfast agreement to require a person from Northern Ireland to assert their British identity in order to resist deportation to Ireland. There might even be circumstances in which UK nationality had been renounced.
Those are the issues that amendment 28 is designed to address. It seeks to enshrine in law what is supposedly current Government practice, instead of watering down that standard on deportation. It also seeks to ensure that clause 2 does not in any way undermine the Belfast agreement. I am sure that everyone in this room today would agree that it is important that we get these things right. My final observation in that regard is that, according to Professor Ryan, as I have said, there is no provision in Irish law to deport UK nationals.
Amendment 29 probes the Government, seeking an explanation of what the exact position will be of Irish nationals who seek to have family members join them—if and when the normal family rules in the immigration rules are applied to them. As we will come to later—perhaps today, or on Thursday—I absolutely hate those draconian and restrictive rules, but at least they are there, allowing British citizens and settled persons to be joined by family members. As Professor Ryan points out, the immigration rules will allow for UK citizens returning to the UK to be accompanied by non-UK or Irish family, and for UK citizens and settled persons already here to be joined by non-UK or Irish family. That last bit should apply simply enough to Irish nationals as well, because clause 2, if passed, would appear to mean that Irish persons would be treated as settled persons for the purposes of the rules. I should be grateful for confirmation that that is the case.
The second problem is that it seems, from the clause’s drafting, that Irish persons moving here with such family would not be able to use the rules in the way that a UK citizen could, because they would not yet be settled persons. The Irish person would need to come here first and become settled, and their family would join them later. Another issue is whether the rules in other respects will treat the family members of an Irish citizen in precisely the same way as they treat family members of UK citizens. In particular, if a UK national has a UK national child here, as we all know, the child would not cause the financial threshold to increase if any application was made by an overseas spouse to join them. Would the presence of an Irish citizen child of an Irish citizen result in the financial threshold being increased for any spouse coming to join that family?
Amendment 29 simply seeks to ensure that Irish citizens will be treated in the same way as UK nationals. I will not press it to a vote, however, because as the Committee on the Administration of Justice, a cross-community human rights organisation in Northern Ireland, rightly points out, it may need to be tweaked to ensure that it does not prevent Irish citizens from benefiting from the more favourable treatment that EU families may continue to enjoy for a period through retained EU law, in comparison with UK citizens and settled persons encumbered with the immigration rules. The amendment should probably preclude less favourable treatment rather than different treatment. The CAJ’s submission goes further, supporting the view of the human rights commissions that the common travel area is “written in sand” and warning of “other gaps”, including in relation to social rights.
Afzal Khan
I echo the words of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. In essence, we agree that clause 2 is necessary, but we believe that it requires some improvements.
I have some questions for the Minister. First, the Good Friday agreement grants people who were born in Northern Ireland the right to identify and be accepted as exclusively Irish, as exclusively British or as both Irish and British. Does the reference to Irish citizens in the Bill, and therefore the Immigration Act 1971, include Northern Ireland-born Irish citizens who do not identify as British? Secondly, clause 2 highlights the fact that many associated rights of the common travel area are provided for only by virtue of free movement. When, if not in the Bill, will common travel area rights be legislated for to ensure that they are maintained on a clear legal footing? Finally, will the Minister make it explicit in the Bill that people in Northern Ireland who identify exclusively as Irish, as is their right under the Belfast agreement, are exempt from deportation and exclusion?
Caroline Nokes
I thank hon. Members for raising important issues linked to Irish citizens. It is important to recognise that British and Irish citizens have enjoyed a particular status and specific rights in each other’s countries since the 1920s as part of the common travel area arrangements.
Clause 2 will protect the status of Irish citizens. When free movement ends, it will allow them to continue to come to the UK without requiring permission and without any restrictions on how long they can stay. British citizens enjoy reciprocal rights in Ireland. The clause will provide legal certainty and clarity for Irish citizens by inserting new section 3ZA into the Immigration Act 1971 to ensure that they can enter and remain in the UK without requiring permission, regardless of where they have travelled from. That is already the position for those who enter the UK from within the common travel area, but Irish citizens who travel to the UK from outside the CTA currently enter under European economic area regulations. The clause will remove that distinction by giving Irish citizens a clear status.
I turn to the amendments tabled by the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East, and for Paisley and Renfrewshire North. Amendment 29 would establish in legislation that the immigration rules cannot treat family members of Irish citizens differently from family members of British citizens. The common travel area arrangements have never included rights for the family members of British and Irish citizens. That is an approach that we intend to maintain, but the unique status of Irish citizens means that they are considered settled from the day on which they arrive in the United Kingdom. Irish citizens in the UK can therefore sponsor family members, in the same way as British citizens can. That is the position for those of all nationalities within the UK who are settled.
I also note that Irish citizens, in line with other EU nationals, can be joined in the UK by family members under the terms of the EU settlement scheme, but the amendment would prevent that. To be clear, Irish citizens are not required to apply for status under the EU settlement scheme to benefit from the family member rights, but they may apply if they wish. Under the settlement scheme in a deal scenario, close family members who are not already resident in the UK will be able to join an EU citizen—that includes Irish citizens—under the same conditions as now, where the relationship pre-existed the end of the implementation period. I therefore ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to consider withdrawing his amendment for the reasons that I have outlined.
Amendment 28 would introduce additional provisions regarding the deportation and exclusion of Irish citizens and their family members. I will use this opportunity to reiterate our approach to deporting Irish citizens in light of the historical community and political ties between the UK and Ireland, along with the existence of the common travel area. Irish citizens are considered for deportation only if a court has recommended deportation following conviction or if the Secretary of State concludes that, because of the exceptional circumstances of a case, the public interest requires deportation. We carefully assess all deportation decisions on a case-by-case basis, taking into account all the facts of the case.
In response to questions asked on Second Reading, I confirmed that the Government are fully committed to maintaining this approach. In that regard, Committee members will have noted that we are making provision to ensure that once we leave the EU, Irish citizens will be exempt from the automatic deportation provisions for criminality in the UK Borders Act 2007. That exemption is contained in the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, which were laid before the House on 11 February. Therefore, proposed new subsections (6) and (8) are not needed.
As I have outlined, the UK’s approach is to deport Irish citizens only in exceptional circumstances or where the court has recommended it, which means that a family member of an Irish citizen would not be considered for deportation unless a deportation order was made in respect of that citizen in line with our approach. I also emphasise that the common travel area rights have always provided solely for British and Irish citizens. They have never specifically extended to the family members of British or Irish citizens, and we intend to maintain that approach.
With proposed new subsection (8) in mind, I must make it absolutely clear that the UK is fully committed to upholding the Belfast agreement and respects the right of the people of Northern Ireland to identify as Irish, British or both, and to hold both British and Irish citizenship as they choose. I recognise the centrality of those citizenship and identity provisions to the Belfast agreement. As I have said, deportation decisions are taken on a case-by-case basis, and we consider the seriousness of the criminality and whether it is in the public interest to require deportation.
Recognising the citizenship provisions in the Belfast agreement, we would consider any case extremely carefully and not seek to deport a person from Northern Ireland who is solely an Irish citizen. However, I recognise the hon. Gentleman’s interest in this matter and will continue to keep it under consideration. I therefore respectfully ask him to consider withdrawing his amendment for the reasons outlined.
Stuart C. McDonald
I am grateful to the Minister for her detailed response. As I have accepted, amendment 29 is not perfect. I also accept her general reassurances about the treatment of Irish citizens’ families in the United Kingdom, so I will withdraw the amendment and reflect further on our position.
In relation to what the Minister said about deportations and amendment 28, it seems to me that we are mostly saying the same things, but our statements are reflected better in my amendment than in the clause. We seem to be saying the same thing, but reaching different conclusions about how to enshrine it in law. I am simply asking the Government to put their current practice into statute. I will give further thought to that, but for now I beg to ask leave to withdraw amendment 29.
Amendment, by leave, withdrawn.
Amendment proposed: 28, in clause 2, page 2, line 13, at end insert—
“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he concludes that a higher threshold is reached whereby deportation is in the public interest because there are exceptional circumstances.
(7) No person of any nationality is liable for deportation under section 3(5)(b) where he belongs to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (6) is satisfied in respect of that Irish citizen.
(8) No Irish citizen is liable for deportation under section 3(6) where recommended for deportation by a court empowered under this Act to do so unless, thereafter, the Secretary concludes that his deportation is conducive to the public good in accordance with subsection (6).
(9) An Irish citizen may not be deported or excluded from the United Kingdom if they are among the ‘people of Northern Ireland’ entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish Agreement of 1998.”—(Stuart C. McDonald.)
This amendment would provide additional safeguards against deportation for Irish citizens.
Caroline Nokes
As I said in response to the amendments tabled by the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North, the clause will protect the status of Irish citizens in the UK when free movement ends. Without the clause, as Professor Ryan explained in evidence to the Committee, when freedom of movement ends, Irish citizens will need to seek permission to enter the UK when they arrive from outside the common travel area. I am sure all members of the Committee agree that that would be wholly unacceptable.
In addition to the evidence from Professor Ryan, I also welcome the written evidence from the Committee on the Administration of Justice, which notes that the clause is
“designed to remedy the gap for Irish citizens being able to enter and reside in the UK from outside the CTA”.
Dr de Mars, Mr Murray, Professor O’Donoghue and Dr Warwick highlight that the clause will help to clarify and simplify travel rights under the common travel area.
The Government are clear that, as now, Irish citizens should not be subject to immigration control unless they are subject to a deportation or exclusion order, or to an international travel ban. Those exceptions are set out in the Bill, and they reflect current and long-standing practice. I confirm that our approach is to deport Irish citizens only if there are exceptional circumstances, or if a court has recommended deportation in a criminal case.
Stuart C. McDonald
This is the crux of the matter—the Minister is confirming an approach that appears to be different from the one set out in the clause. Why not just include the Government’s approach to this issue in the Bill?
Caroline Nokes
The hon. Gentleman will be aware that he just lost a division on that matter, but I am sure we will return to it on Report. He may consider his drafting to be better than that of my Home Office officials, but I must take a contrary view. I confirmed the Government’s approach in response to questions raised on Second Reading, and, as members of the Committee will have noted, once we leave the EU, Irish citizens will be exempt from the automatic deportation provisions for criminality in the UK Borders Act 2007.
The clause amends section 9 of the Immigration Act 1971 so that restrictions placed on those who enter the UK from the CTA by order under that section will not apply to Irish citizens. It also amends schedule 4 to that Act, which deals with the integration of UK law and the immigration law of the islands—Jersey, Guernsey and the Isle of Man. The schedule provides broadly that leave granted or refused in the islands has the same effect as leave granted or refused in the UK. The clause disapplies those provisions in relation to Irish citizens who do not require such leave under the Bill. They also make it lawful for an Irish citizen—unless they are subject to a deportation or exclusion order—to enter the UK from the islands, regardless of their status in them.
The clause aims to support the wider reciprocal rights enjoyed by British and Irish citizens in the other state. Citizens will continue to work, study, access healthcare and social security benefits, and vote in certain elections when they are in the other state. I reiterate that once free movement ends, Irish citizens in the UK will be able to bring family members to the UK on the same basis as British citizens, because they are considered to be settled from day one of their arrival in the UK.
Maria Caulfield (Lewes) (Con)
Will the Minister confirm that that is also the case for Irish citizens in Northern Ireland, under the spirit of the Good Friday agreement?
Caroline Nokes
My hon. Friend is right to emphasise that point, and that is absolutely the case in Northern Ireland. We take the provisions of the Belfast agreement very seriously indeed.
This clause supports the citizenship provisions in the Belfast agreement that enable the people of Northern Ireland to identify and hold citizenship as British, Irish or both. The Bill makes no changes to the common travel area or to how people enter the UK from within it. Section 1(3) of the Immigration Act 1971 ensures there are no routine immigration controls on those routes. Given the unique and historic nature of our relationship with Ireland, and our long-standing common travel area arrangements, I am sure that Members will agree on the importance of the clause as we bring free movement to an end.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Meaning of “the Immigration Acts” etc
Question proposed, That the clause stand part of the Bill.
Caroline Nokes
Clause 3 is minor and technical in nature, but it is important for the implementation of the Bill and to ensure that we have a fully functioning statute book. Subsection (1) ensures that the Bill, when enacted, will be covered by any reference to “the Immigration Acts”, which are the Acts of Parliament that govern the UK’s immigration system. They enable, for example, grants of leave to enter and remain, and the deportation of individuals.
References to the Immigration Acts can be found across the statute book. For example, section 55 of the Borders, Citizenship and Immigration Act 2009 requires that functions conferred by virtue of the Immigration Acts are discharged having regard to the need to safeguard and promote the welfare of children in the UK. Clause 3 will ensure that functions conferred by regulations under the Bill must be discharged according to that duty in relation to the best interests of children. Such a provision is standard for an immigration Bill, and clauses that have the same purpose and effect are included in previous Immigration Acts. For example, section 73 of the Immigration Act 2014 and section 92 of the Immigration Act 2016 both provide that those Acts are included in the definition of Immigration Acts.
Subsection (2) clarifies that the Bill is not retained EU law. That means that it is not part of the body of law that will have been saved in UK law by the European Union (Withdrawal) Act 2018. It is important to make it clear that the Bill cannot be treated as retained EU law. For example, it cannot be amended by the deficiencies power under section 8 of the European Union (Withdrawal) Act or any other powers to deal with retained EU law.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Consequential etc provision
Stuart C. McDonald
I beg to move amendment 4, in clause 4, page 2, line 34, leave out “appropriate” and insert “necessary”.
This amendment would ensure that the Secretary of State may only make regulations which are necessary rather than those which the Minister considers appropriate.
The Chair
With this it will be convenient to discuss the following:
Amendment 1, in clause 4, page 2, line 34, leave out “, or in connection with,”
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 11, in clause 4, page 3, line 1, leave out “make provisions applying” and insert
“give leave to enter the United Kingdom”.
Amendment 2, in clause 4, page 3, line 8, leave out subsection (5).
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 3, in clause 4, page 3, line 11, leave out subsection (6).
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 5, in clause 4, page 3, line 17, leave out “other”.
This amendment is consequential on Amendment 3.
Amendment 6, in clause 4, page 3, line 17, leave out from “subsection (1)” to “is” on line 19.
This amendment, along with Amendment 7, will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.
Amendment 12, in clause 4, page 3, line 18, leave out
“that amend or repeal any provision of primary legislation (whether alone or with any other provision)”.
This amendment would mean that all regulations made under Clause 4 would be subject to the affirmative procedure.
Amendment 7, in clause 4, page 3, line 21, leave out subsection (8).
This amendment, along with Amendment 6, will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.
Amendment 10, in clause 7, page 5, line 44, at end insert—
“(10A) Section 4 and section 7(5) of this Act expire at the end of a period of one year beginning with the day on which this Act is passed.”
This amendment would place a time limit on the Henry VIII powers contained in Clause 4.
Stuart C. McDonald
It was a little while after my first election in 2015 that I first heard the term “Henry VIII clause,” but I have become very familiar with it since then. The clauses in the Immigration Act 2016 were outrageous enough, but they are small beer compared with the powers the Government have helped themselves to in the European Union (Withdrawal) Act and in this Bill. There is no need to take my word for it; we have ample evidence. The amendments are largely based on submissions from the Law Society of Scotland and the report of the House of Lords Delegated Powers and Regulatory Reform Committee. I am very grateful to both. It is unusual to have the benefit of the Lords Committee report for a Commons Bill, but it has certainly proved helpful. The Committee said:
“The combination of the subjective test of appropriateness, the words ‘in connection with Part 1’, the subject matter of Part 1 and the large number of persons who will be affected, make this a very significant delegation of power from Parliament to the Executive. The scope of this broad power is expanded even further by subsections (2) to (5).”
If we are serious about our role as legislators and about separating the Executive from the legislature, we must start putting our foot down and reining in these clauses. Otherwise, what on earth are we here for?
We can start that process through amendment 4, by replacing the subjective test of appropriateness. Through amendment 1 we can ditch the phrase “in connection with”. The Committee was absolutely scathing here. It said:
“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This 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; and to do so by negative procedure regulations (assuming no amendment was made to primary legislation)”.
Amendment 2 is also from the House of Lords Committee’s recommendations. It removes clause 4(v). It noted that subsection (v)
“confers broad discretion on Ministers to levy fees or charges on any person seeking leave to enter or remain in the UK who pre-exit would have had free movement rights under EU law”.
It recommended removal
“unless the Government can provide a proper and explicit justification for its inclusion and explain how they intend to use the power”.
That is the challenge for the Minister this morning.
As for the Government’s justifications and the memorandum on delegated powers stating that the powers are needed to protect EEA citizens, it is fair to say that the Committee was not persuaded. It said:
“We believe that transitional arrangements to protect existing legal rights of EEA nationals should appear on the face of the Bill, and not simply left to regulations with no opportunity for parliamentary scrutiny until after they have been made and come into force.”
That is exactly what Opposition MPs have sought to do with other amendments that we will come to later. The consequence of that for the Committee was that there would be no need to use made affirmative procedures set out in clause 4(vi). It recommended removal of that subsection, which is what my amendments 3 and 5 seek to do. The very unusual made affirmative procedure means that the regulations are actually in force when they are tabled in the House of Commons before we have even voted on them. Our position is that the more common made affirmative procedures should be followed, and instruments should be laid in draft and should not come into force until we examine and approve them—hence amendments 6 and 7.
I conclude with some comments by the Law Society of Scotland. It said:
“The abrogation of parliamentary scrutiny is deeply concerning and the cumulative effect of these provisions is to reduce the role of parliamentary scrutiny of legislation relating to immigration, both EU and non-EU”.
For all these reasons, I hope that the Government will listen carefully and rein in their desires for extensive delegated powers under clause 4.
Afzal Khan
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.
Kate Green
Will the Minister place on the record more information about how the Government intend to use the scope of the legislation? As we heard from the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, the language of clause 4, such as “connected with” and “appropriate”, means that the legislation could be used to make sweeping changes to immigration rules, not just in relation to EU nationals but across the whole immigration system.
The long title of the Bill says that its intention is to
“Make provision to end rights to free movement of persons under retained EU law and to repeal other retained EU law relating to immigration; to confer power to modify retained direct EU legislation relating to social security coordination”,
but the devil is in the detail of “and for connected purposes.” It would be reassuring for the Committee if the Minister could place on the record this morning exactly how widely the Government intend to make use of the legislation.
Tracey Crouch (Chatham and Aylesford) (Con)
I want to speak sympathetically—although hon. Members should not get excited—to amendment 8 and the issue of the minimum threshold, if this is the appropriate time to do so.
The Chair
I remind Committee members that we are debating amendments 4, 1, 11, 2, 3, 5, 6, 12, 7 and 10. We will discuss amendment 8 next.
Caroline Nokes
Notwithstanding the brief contribution from my hon. Friend the Member for Chatham and Aylesford, the hon. Member for Stretford and Urmston invites me to delve into the detail, which is what I plan to do. It is right that the Committee pays close attention to the delegated powers in the Bill, which are key to delivering the changes linked to the end of free movement. I am grateful to the Delegated Powers and Regulatory Reform Committee for its report and recommendations on the Bill, which I am carefully considering.
The power in the clause is similar to that found in many other immigration Acts. It is needed for the effective implementation of the Bill and the ending of free movement. A great deal has been said about the power granting Ministers a blank cheque—a slightly 20th century analogy, but one that I have used as well; perhaps I should talk about chip and PIN or contactless—so I want to explain exactly and in some detail how the power can and cannot be used.
I reassure the Committee that, with clause 4, the Government seek to ensure that we can manage the transition of EEA nationals, Swiss nationals and their family members from free movement to our domestic immigration system. For the sake of brevity, I will refer to that group collectively as EEA nationals.
First, the power will enable us to protect the status of EEA nationals and their family members who are resident in the UK before exit day and ensure that their residence rights are not affected by the UK’s departure from the EU. It will enable us to save the operation of otherwise repealed legislation, such as section 7 of the Immigration Act 1988, which relates to the requirement to have leave to enter and remain in the UK, and the Immigration (European Economic Area) Regulations 2016, which implement the free movement directive. It will preserve the position of EEA nationals in the UK before exit day, or in any agreed implementation period, so they do not require leave to enter or remain until the deadline for obtaining leave under the EU settlement scheme passes in June 2021, or December 2020 in the sad event of no deal.
Secondly, in the unlikely event that we leave the EU without a deal, the power will enable us to make provision for EEA nationals who arrive after exit day but before the future border and immigration system is rolled out in January 2021. During the transition period the clause will enable us, for example, to ensure that EEA nationals need only provide their passport or other national identity document as evidence of their right to work or rent, as is currently the case. We need the power to ensure that, prior to implementation of the future system in 2021, EEA nationals can be treated as they are currently, in terms of checking for eligibility for benefits and public services and the right to work and rent property.
The clause is needed to enable us to meet the UK’s obligation under the draft withdrawal agreement, if that is agreed. In the event of no deal, the clause will enable us to implement the Government’s policy in the paper on citizens’ rights in the event of a no-deal Brexit, which was published by the Department for Exiting the European Union on 6 December.
Thirdly, the power will enable us to align the immigration treatment of EEA and non-EEA nationals in the future, so that we can create a level playing field in terms of who can come to the UK. For example, the power will enable us to align the positions of EU nationals and non-EU nationals in relation to the deportation regime, where currently a different threshold applies to the deportation of criminals who are EU nationals.
As I have said previously, we are engaging extensively on the design of the future system, and our proposals were set out in the White Paper. The details of the future system will be set out in the immigration rules once they have been agreed, but without the power in the clause we cannot deliver the future system, and that is why it is crucial to the overall implementation of the Bill.
Fourthly, the power is important to ensure that our laws work coherently once we have left the EU. There are references across the statute book to EEA nationals, their free movement rights and their status under free movement law. The power needs to be wide enough to ensure that all such references can be adequately addressed as a consequence of ending free movement. By way of example, section 126 of the Nationality, Immigration and Asylum Act 2002 lists the documents that must be provided in support of various types of immigration application. One example relates to applications under the Immigration (European Economic Area) Regulations 2016. An amendment is needed to remove that reference, because in the future there will no longer be applications under the EEA regulations, as they are repealed by the Bill.
Amendments 1 to 5 were tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. As he explained, amendment 4 would limit the Secretary of State’s power to make regulations to instances where it was “necessary” rather than “appropriate”. I reassure the Committee that the clause is not a blank cheque. The regulations could be used only to make provision in consequence of or in connection with part 1 of the Bill. That means that they could be made only in connection with the end of free movement or the status of Irish citizens. They must be appropriate within that context, so the scope of the power is already limited, even without it being limited to what is necessary.
Not only is the test for what is necessary harder to meet; it is also harder to say whether it is met. To explain why I regard “necessary” as too high a bar, I refer to the courts, which have said that the nearest paraphrase is “really needed”. Such a test would be too restrictive: one person’s necessary amendment is another’s “nice to have”. Immigration is a litigious area and we do not want a provision that will lead to uncertainty and challenge about whether an amendment is appropriate or necessary. The Committee may recall that that point was discussed at some length during the passage of the European Union (Withdrawal) Act 2018 and that Parliament agreed that “appropriate” was the correct formulation when dealing with amendments in relation to EU exit. It is the right test here also.
Amendment 1 would limit the changes made under the regulations to those that are “in consequence of” the ending of free movement, rather than “in connection with” or “in consequence of”. I note that the amendment was recommended by the Delegated Powers and Regulatory Reform Committee. As I have explained, references to EEA nationals occur in numerous places across the entire statute book and in numerous different ways, not always by reference to free movement rights. The inclusion of “in connection with” is more appropriate to describe the provision that needs to be made for some of those cases. It is also better suited than the phrase “in consequence of” for the making of transitional provision for those who arrive in the UK after the commencement of the Bill.
The Lords Committee made the specific point that transitional and savings provisions for pre-exit day EEA nationals should be made on the face of the Bill. Hon. Members are interested in that and some witnesses discussed it in evidence sittings. We have committed to protecting the rights of EU citizens who are resident in the UK. That has been our priority, and we have delivered it through our negotiations with the EU to secure protections of citizens’ rights, which are included in the draft withdrawal agreement. If that is agreed by Parliament, there will be legislation to implement it in UK law. The withdrawal agreement Bill will be the vehicle by which such protections are delivered. We have also opened the EU settlement scheme to allow EU nationals who are already living in the UK to obtain settled status or pre-settled status in the UK. That will provide them with a clear status once free movement ends and will ensure their rights are protected in UK law.
In addition, we have given unilateral assurances that EU nationals and their family members resident in the UK can stay if the UK leaves the EU without a deal, as set out in the no deal policy paper I previously mentioned. In the event of no deal, we will use the power in clause 4 to make provision to protect the status of EU nationals resident in the UK. One could speculate about whether such protections are necessary or merely appropriate, or whether they are in consequence of the end of free movement or only connected to the end of free movement, but I know that Members of the Committee agree with me that it is important to be able to protect EU nationals, and I want to ensure that the clause is broad enough to enable us to do so.
I am grateful to the hon. Member for Manchester, Gorton for raising an important issue in amendment 11, which would replace part of the power in subsection (4) of clause 4. The power allows us to make provisions applying to persons not exercising free movement rights. The amendment appears to narrow, or perhaps clarify, the power by including reference to the grant of leave to enter.
It may be helpful if I first explain our intended use of the provision. I am aware that there is a perception that clause 4(4) would allow the Secretary of State to make sweeping changes to the immigration system in respect of non-EEA nationals, but I assure the Committee that that is not the case. Subsection (4) does not provide a standalone power; it is part and parcel of the power in subsection (1) which we have previously debated. That means that it can be used only in consequence of or in connection with part 1 of the Bill, which is about the repeal of free movement and the status of Irish nationals. There is no risk that the power could be used to change the immigration legislation for non-EEA nationals in ways unconnected with part 1 of the Bill.
Subsection (4) is needed because not every person who is an EEA national in the UK is exercising free movement rights. EU law sets out the conditions for the exercise of such rights: for example, a person who is not working, seeking work, self-employed or studying can exercise free movement rights only if they have adequate resources and comprehensive sickness insurance. Putting aside any rights as a family member, a German househusband or wife who does not have comprehensive sickness insurance is not exercising free movement rights. We have taken the decision to be generous in our treatment of EU nationals already in the UK and we have opened the EU settlement scheme to them all, regardless of whether they are exercising treaty rights or not. However, we need to ensure that we have the power to amend other legislation to facilitate that—for example, checks on rights to work or access to benefits and public services that might otherwise apply to them. The amendment could prevent us from making those changes, potentially meaning that that group could fall through the gaps.
I reiterate that the power is not the means by which the future border and immigration system will be delivered. That will be done through the immigration rules made under the Immigration Act 1971. I am sure that the hon. Gentleman does not intend that group to be denied protection. I hope I have provided sufficient reassurance on the need for and use of the subsection. I respectfully ask him to not to press amendment 11.
Amendment 2, which stands in the name of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, would narrow the scope of the power by omitting subsection (5). The House of Lords Committee recommended that the Government justify the need for subsection (5) and I am grateful for the opportunity to do so.
The purpose of subsection (5) is to enable changes to be made to legislation that imposes fees and charges. For example, under the EU-Turkey association agreement, Turkish nationals are currently exempt from the immigration health surcharge. The directly effective rights under the association agreement, which will form part of domestic law from exit day by virtue of section 4 of the European Union (Withdrawal) Act 2018, are disapplied by paragraph 9 of schedule 1 to the Bill. That would mean that Turkish nationals would become liable to pay the immigration health surcharge, but we think it appropriate to maintain that exemption for those already resident in the UK.
Another example of how we might rely on subsection (5) is in relation to persons granted limited leave to remain under the EU settlement scheme. As the law stands, they would be considered not ordinarily resident in the UK when their free movement rights end, and they would be liable for charges when accessing NHS treatment. We want to make it crystal clear that those EU nationals already in the UK should not be charged for NHS treatment. Without this provision, we could make such amendments to exempt people from charges that might otherwise apply. I hope that I have provided sufficient explanation of why subsection (5) is needed. I request that the amendments not be pressed.
Stuart C. McDonald
I am grateful to the Minister for her detailed response; she said she would go into the detail and she certainly did not disappoint. The one defence that does not really fly with me is that similar powers have been used in previous immigration Bills. I objected very strongly to some of the powers that appeared in previous immigration Bills, and certainly to those in the immigration Bill before this one. However, she gave useful examples of how the powers will have to be used. We will have to go away, think carefully about what she said and reflect on whether changes are needed.
The amendment about which I was not fully satisfied by the Minister’s answer, and which I still wish to push to a vote, is amendment 1. In my view, tidying up the statute book and putting in place transitional provisions, as the Minister gave as examples, would surely meet the “in consequence” test, and so the very loose “in connection with” test would not be needed. I also agree with the Lords Committee that transitional arrangements should be in the Bill, first to cover a no-deal scenario, secondly because it would be useful for the UK in Europe in such a no-deal scenario when trying to push other Governments around the EU for reciprocal treatment, and finally because the Bill is a much safer place for it to be than in delegated legislation.
I also have some concerns about the response to amendments 3 and 5 on the different types of affirmative procedure. I still find it startling that we are even contemplating, in a no-deal scenario, an end to free movement within a few weeks’ time. I do not think this country is remotely ready for any such prospect at all; a far more sensible option would be to put in place arrangements for free movement to continue even in a no-deal scenario until we are properly ready to make any changes that are agreed upon. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 1, in clause 4, page 2, line 34, leave out “, or in connection with,”—(Stuart C. McDonald.)
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Question put, That the amendment be made.
Kate Green
I beg to move amendment 8, in clause 4, page 3, line 10, at end insert—
“(5A) Regulations under subsection (1) must provide that EEA nationals who are employed as personal assistants using funding from a personal budget are exempt from any minimum salary threshold that is set for work visa applications.
(5B) In this section, personal budget has the meaning set out in section 26 of the Care Act 2014.”
I hope the amendment will attract at least some support from the hon. Member for Chatham and Aylesford, and that she will take the opportunity to offer her observations on it. The Minister will be pleased to hear that the amendment is probing; it is designed to enable us to explore some of the issues that might affect personal assistants employed by disabled people after Brexit, as some of those personal assistants will be EEA nationals and therefore affected by the freedom of movement provisions in the Bill.
Personal assistants are employed directly by disabled people to meet day-to-day needs for assistance, whether that be personal care or facilitating assistance—
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Fifth sitting)
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 10 / Noes: 9 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Chair
Before we begin, will everyone ensure that electronic devices are turned off or switched to silent mode? I remind Members that tea and coffee are not allowed in the Committee Room.
We now begin line-by-line consideration of the Bill. The selection list for today is available in the room and on the Bill website. That shows how the selected amendments have been grouped for debate. Amendments grouped together are generally on the same or a similar issue. A Member who has put their name to the lead amendment in a group will be called first; other Members will then be free to catch my eye to speak on all or any of the amendments in that group. A Member may speak more than once in a single debate.
At the end of a debate on a group of amendments, I shall call the Member who moved the lead amendment again. Before that person sits down, they will need to indicate whether they wish to withdraw the amendment or seek a decision. If any Member wishes to press any other amendment or new clause in a group to a vote, they need to let me know. I shall work on the assumption that the Minister wishes the Committee to reach a decision on all Government amendments, if any are tabled.
Please note that decisions on amendments take place not in the order that amendments are debated, but in the order that they appear on the amendment paper. In other words, debate occurs according to the selection list; a decision is taken when we come to the clause that the amendment affects. I shall use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following the debates on the relevant amendments. I hope that explanation is helpful.
The Committee agreed a programme order before the oral evidence sessions. That order, which is printed on the amendment paper, sets out the order in which we have to consider the Bill.
Clause 1
Repeal of the main retained EU law relating to free movement etc
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss that schedule 1 be the First schedule to the Bill.
The Minister for Immigration (Caroline Nokes)
It is a pleasure to serve under your chairmanship, Mr Stringer, and that of your co-Chair, Sir David Amess, who took us so ably through the evidence sessions the week before last.
At the outset, I would like to emphasise the importance of the Bill in delivering the future border and immigration system. It was clear from the EU referendum, from the many views shared on Second Reading and from the Committee’s evidence sessions that people want a fair immigration system that works for the whole United Kingdom—a system that attracts talent from around the globe and allows individuals to access the UK based on what they have to offer, not where they come from.
We heard many important views about the current and future border and immigration systems from witnesses who gave evidence before the Committee two weeks ago, as well as from organisations that provided written evidence. I am grateful to everyone who took the time to provide their opinions. The views that were put forward demonstrated a strong interest in a wide range of immigration issues, as well as in the specific design of the future system. The evidence highlighted the importance of learning lessons from the past and ensuring we get things right.
A clear message emerged about the need to create a fair and simple system, and those are key priorities for me in the design of the future system. As I have said previously, I recognise that the immigration rules need to be made simpler. That is why we have asked the Law Commission to review how the rules could be simplified. I look forward to considering its findings when they are published.
Leaving the European Union means that, for the first time in more than 40 years, we can deliver control of immigration by ending free movement. In its place, we will introduce a new system, which will level the playing field by ending preferential treatment for EU citizens. It will mean that everyone has the same opportunity to come to the UK, regardless of where they are from.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I am grateful to the Minister for giving way so early. She has asserted a couple of times that the new system will provide a level playing field for everybody, but the White Paper indicates that nationals of different countries will be treated in different ways. There will, I reckon, be preferential treatment for EU nationals with the one-year visa and for countries whose citizens are already non-visa nationals. Will she clarify that? Is she saying everybody is going to be treated exactly the same, or does she accept that the White Paper in fact does not set out such an arrangement?
Caroline Nokes
The Bill certainly does set out that people will be treated in the same way, because it is a Bill simply to end free movement. The White Paper, which was published on 18 December, gives us the opportunity to discuss the future system and how people from across the globe may be treated. It gives us the opportunity to discuss whether trade deals might include treatment within our immigration system. It is important that we have a system that reflects people’s skills and what we need in our economy. This Bill, through which we are seeking to end free movement, is an opportunity to start to provide that level playing field.
Alison McGovern (Wirral South) (Lab)
The Minister has just given the game away. The manner in which people will be treated will largely depend on what the Government see as their interest with regard to trade deals. They are telling people that there will be a level playing field, but that is a misnomer because people’s rights will be highly dependent on the Government’s whims relating to the incentives in future trade deals.
The Chair
Before I call the Minister, this is a good opportunity to remind members of the Committee that interventions should be short and to the point. There will be plenty of opportunities for Members to catch my eye if they want to make a longer contribution.
Caroline Nokes
This is an opportunity for Members to express their views about the future immigration system. Far from giving the game away, the White Paper is an opportunity, and we have said that there will be a year of engagement on it during which we will consider all views. We already have a system in which nationals from some countries require visas for visits and others do not, and we will be seeking to establish relationships. All such matters will be for future negotiation and discussion. It is absolutely right that, as a first step in the process, we listen to what we were told in the 2016 referendum and end free movement.
I want us to continue to be an open, outward-looking and welcoming country. I reiterate what I and my right hon. Friend the Home Secretary have said many times: we value immigration and the contribution that people have made to our society, our culture and our economy. There are many people, including hon. Members on this Committee, who are rightly interested in the design of the future system. That is why we are engaging on the proposals set out in the White Paper, “The UK’s future skills-based immigration system”. That will include sessions that are open to all MPs to discuss specific points of interest on the proposals. In the past few weeks, I have held engagement sessions with Members on students and workers, and in the coming days there will be another one on asylum.
The purpose of the Bill is clear: we are ending free movement and providing the legal framework for the future border and immigration system. Clause 1 introduces the first schedule, which contains a list of measures to be repealed in relation to the end of free movement and related issues. The clause fulfils a purely mechanistic function to introduce the schedule. It is the bare bones of the Bill. I look forward to debating it further with hon. Members, who may address certain aspects of it in amendments that undoubtedly will be tabled to other parts of the Bill. To get matters under way, I commend clause 1 to the Committee.
Afzal Khan (Manchester, Gorton) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stringer.
This clause—this entire Bill, for that matter—puts the cart before the horse. Labour has been clear that our immigration policy is subordinate to our economic and trade policy. The Government’s position on Brexit, on the other hand, has been consistent in just one way: they insist on putting immigration ahead of our economic needs. We simply cannot support measures that would cause our country to be worse off.
It is a fact that freedom of movement ends when we leave the single market, but the Prime Minister herself has recognised the need for frictionless trade and has been told categorically by the EU that that cannot be maintained without a close relationship with the single market. If the Government cannot yet be clear about what the final agreement will be on our relationship with the single market, this makes no sense. Until the Government get their ducks in a row, we simply cannot vote for such a measure.
The Bill also fails to address two major questions facing Parliament. The first is how we will protect the rights of the 3.5 million people who have already moved to the UK and made their lives here. On Second Reading, the Home Secretary said,
“my message to the 3.5 million EU citizens already living here has also been very clear. I say, ‘You are an incredibly valued and an important part of our society; we want you to stay. Deal or no deal, that view will not change.’”—[Official Report, 28 January 2019; Vol. 653, c. 507.]
Yet the Government have made no provisions in the Bill to protect those citizens.
Kate Green (Stretford and Urmston) (Lab)
Does my hon. Friend agree that the Bill would be the ideal opportunity to offer statutory reassurance to those 3.5 million people by including the details of the Government’s settled status scheme and their ongoing proposals for protecting those people’s rights?
Afzal Khan
I agree wholeheartedly with my hon. Friend’s comments. Labour has tabled a number of new clauses to the Bill that would put the rights of EU citizens into primary legislation. We hope that the Government accept those when we get to that point.
The second question is what our new immigration system should be doing in the future. The Bill is incredibly flimsy; it is only 16 pages long, which is extraordinary given that it will mean the biggest change to our immigration system in decades. Instead of putting forward a new immigration system that Parliament can discuss and debate, amend and improve, the Bill grants powers to Ministers to introduce whatever system they like through extensive Henry VIII powers. We were given an indication of what such a system might be like in the White Paper published by the Government in December. In fact, Ministers are under no obligation to use the powers to implement that system. If they implement the system described in the White Paper, it will spell disaster for our economy and our society.
We will go into these matters in more depth in subsequent debates, but expert witnesses at our evidence sessions criticised almost all aspects of the Government’s plans. The £30,000 threshold would be a disaster for business and public services such as the NHS. The 12-month visa would lead to exploitation. Labour has no problem with immigration that would treat all migrants the same no matter where they came from, but that is not the system the Government propose. The White Paper is explicit that there will be certain visas and conditions that will apply only to people from “low-risk countries”—a categorisation that the Government are not at all transparent about. Apart from those two glaring absences, the Bill before us fails to address a litany of problems with our immigration system, some of which we seek to remedy through our amendments.
Before I conclude, I have two questions that I would like the Minister to address. First, under what circumstances would the Government use the powers in the Bill? We have heard that this is a contingency Bill, so if there is a withdrawal agreement and thus a withdrawal and implementation Bill, will the Government use powers in that Bill to repeal free movement? Secondly, could the provisions in this Bill lead to a change in immigration law that affects non-European economic area migrants? Could the Government use the powers in the Bill to amend immigration legislation that affects non-EU citizens?
As the Minister will know, the Government are asking for extensive Henry VIII powers. During our Committee sittings, Adrian Berry, Steve Valdez-Symonds and Martin Hoare, all experts in immigration law, confirmed to me that the powers in the Bill could be used to make legislation affecting non-EU citizens. Is the Minister willing to contradict the experts? Does she agree that, if it is indeed the case that the powers in the Bill could be used to make legislation that affects non-EU citizens, its scope is much wider than the end of free movement?
Stuart C. McDonald
It is a pleasure to serve under your chairmanship, Mr Stringer. I thank the Clerks for working their way through a mountain of amendments and making them presentable in the last few days. I thank the various organisations and individuals for their help and ideas for amendments, and I thank the shadow Minister for engaging with us over the last couple of days. Any flaws in the amendments we have tabled are my responsibility alone. Finally, I thank the Minister; she has been very open to discussion, approachable and good humoured, as ever. The fact that I can’t stand the Bill and utterly oppose it should not be taken personally. Hopefully, we will still be able to have some useful and constructive debates.
I will not rehash all the points I made on Second Reading. I love free movement; my party fully supports it and I pretty much believe it is the best thing since sliced bread. I regret that it is in danger of coming to an end. It will leave the United Kingdom in an unusual position historically. This country has, for almost its entire history, allowed certain citizens to come and go, whether EU citizens, Commonwealth citizens or, before that, absolutely everybody. All the evidence is that free movement is beneficial to us, for growth, productivity and public finances. In Scotland, it has transformed our demographic outlook from a country of net immigration to a country of positive migration. The quid pro quo for all this is that we will lose our free movement rights. My family and I have benefited from free movement, as have many Members, including on this Committee. I regret that this Parliament will pull up the ladder behind it.
The challenges of free movement that are often cited will not be solved by ending free movement but by proper labour market standards and enforcement, by integration strategies and by investment in public services. Neither do the justifications for ending free movement stack up. Indeed, it was striking in the Minister’s speech and in the speeches of some Government Members on Second Reading how little free movement and the supposed justifications for ending it were addressed.
It is wrong to say that people voted to end free movement, because it was not on the ballot paper. To argue the contrary is to argue that almost 100% of leave voters were motivated by that alone. That is not the case. This is the Prime Minister’s red line, not the people’s red line. Opinion polls and studies show that if it comes to a choice between a closer trading relationship with Europe and ending free movement, a closer trading relationship wins. Simply repeating ad nauseam that we are “taking back control of our borders” is not an argument.
Now is the most bizarre moment for MPs to consider voting to end free movement. Parliament hopefully is on the verge of taking control. Who knows what trading arrangements may be secured, perhaps involving free movement. A people’s vote is even more on the cards than it was at the time of Second Reading. As the shadow Minister said, the Bill puts the cart before the horse. Let us sort out our negotiating position first, then we can decide what that means for free movement. If the public are happy enough to retain free movement for a closer trading arrangement, it is wrong for MPs to rule it out at this stage. There is no need to rush through the end of free movement, even if we do leave in a month’s time. For those reasons, my party believes that the clause should not stand part of the Bill.
Kate Green
It is a pleasure to serve under your chairmanship, Mr Stringer. I echo the comments of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in thanking the Minister for being so open to colleagues in preparing for consideration of the Bill over the next two weeks.
I, too, believe that freedom of movement has been good for our country and particularly for my constituency. We are a proud manufacturing constituency that offers many skilled jobs, and we have relied heavily over the years on the skills and talents of EEA nationals who come to work in our industries. It is clear that north-west England is destined to suffer most economically from loss of access to EEA labour under free movement rules.
I echo the hon. Gentleman’s remarks about public opinion on freedom of movement. A couple of years ago I had the pleasure to participate in a citizens’ assembly organised by the Constitution Unit of University College London. One of the questions that the participants were asked to address was what kind of immigration arrangements they wanted with the European Union after Brexit. This was a deliberative process carried out with a representative sample of over 100 individuals, exactly mirroring the demographic of the referendum electorate in terms of the vote—leave or remain—geography, ethnicity, age, background and so on.
Alison McGovern
I join colleagues in thanking the Clerks and the team for the work they have done. I will make a few remarks, particularly about the economic arguments sometimes made for clause 1. I have no doubt that we will spend much time debating some of these points, but let us start as we mean to go on.
On the timing of the Bill, I profoundly agree with my hon. Friend the Member for Stretford and Urmston. It seems bizarre that anyone would think it acceptable to remove, with one clause of this Bill, an entire set of rights that all citizens in this country enjoy by reciprocity with the European Union, and that European Union citizens enjoy in this country, and to replace them with nothing but the promise of a White Paper. There is no set timescale for the introduction of any new immigration system, so we are saying to people, “All your current rights will be removed and will be replaced at some point in the future. We don’t know when, and we don’t know what the new rights will be, but bear with us while we sort it out.”
Nick Thomas-Symonds (Torfaen) (Lab)
Can my hon. Friend think of any realistic argument why, given that the Government say they want to guarantee the rights of EU nationals, they would not simply do so now, in clause 1?
Alison McGovern
I can think of a reason: because they want to take decisions on these rights based on negotiating interests and the potential gain they might get for their agenda. It seems clear that that has always been the manner in which the rights of EU nationals would be treated. I am afraid warm words are not enough. It is perfectly reasonable—and something I would expect every member of the Committee to be able to do—to say that we personally feel no animus towards EU nationals and that people are welcome in this country. However, it is one thing to say those words and another to do what is necessary to guarantee that they are true. I can think of no reason why the Government would not do as my hon. Friend has suggested.
Nic Dakin (Scunthorpe) (Lab)
Does my hon. Friend agree that the fact that this is not dealt with in the Bill as clearly as it could be is unsettling for not only EU nationals but businesses? It interrupts business continuity in a way that is not helpful to the UK economy.
Alison McGovern
I agree with my hon. Friend, who makes a good point. I never thought I would be in Committee lecturing the Conservative party on the needs of British business, but we are where we are. My hon. Friend the Member for Stretford and Urmston made the point very well that we are creating not simplicity but an extraordinarily high level of uncertainty, and uncertainty is costly to the British economy. I am sure we will discuss the costs of the Brexit process during the Bill, but the Government could be handling the Bill better. They could have come up with the immigration White Paper long before they did, and we could have spent time in the past two and a bit years since the referendum discussing that very thing, but they have held off and postponed—and here we are now. People have no real idea what situation EU nationals will be in after the end of March. That is utterly intolerable.
Kate Green
My hon. Friend makes an important point. Does she agree that the result is that businesses are already experiencing labour shortages, because the uncertainty means EU nationals are already choosing not to come to this country to work? I was told the other day by a food processor in my constituency that there is particular pressure now in the haulage sector.
Alison McGovern
I hear the same evidence that my hon. Friend does. We represent constituencies in the same region, so that is not unexpected. Many people will respond that it should be fine, as there are plenty of people in Britain, and plenty of British people can do those jobs. However, unfortunately, that is to misunderstand the labour market. We have an ageing population. What, as we heard in evidence to the Committee, is the answer, according to those who want to put up the border and stop people coming here to do the decent and dignified thing by working in our country? It is to raise the pension age and ask people to work into their 70s. That is all right for people who do a desk job that is not physically taxing, but I do not really want to ask nurses whom I represent to work until they are 71 or 72. I do not think that would be appropriate. My hon. Friend made a good point.
My hon. Friend also talked about lack of simplicity in the new system. The Minister mentioned simplicity several times and the Law Commission will look into it. That is a good thing—and it is not before time. However, the fact is that free movement, like it or not, provides people with rights that are simple to understand and exercise. If we are to replace that system with a new one we had better have a good idea now—today—how we will give people an equal, or hopefully better, level of simplicity. For all the reasons that my hon. Friend mentioned, making people’s lives simpler in that way is vital. It is the best way to make sure that the economy can innovate and move forward. I find it hard to understand why the Government should move clause 1 at this point, without a guarantee of an equally simple, or even simpler and better understood system.
Kate Green
Again, my hon. Friend makes a powerful point. This is about simplicity not just for business and our economy, but for families who will now not be clear about the basis on which family members can come to this country to live with them.
Alison McGovern
I thank my hon. Friend for that intervention. She is right, and we have all spent time in our surgeries with distressed constituents who are dealing with complexities faced by their families. No doubt all that personal and human cost comes across the Minister’s desk, and I know she treats such cases with empathy and kindness. If we are to replace a system that is simple and straightforward for people to understand, and means that they can plan family life and get on with the things they want to do without constant interference by the Government, a better option should be on the table than the one we currently have—I never thought I would have to lecture the Tory party about the perils of a Government interfering unnecessarily in people’s personal lives, but there we are.
Some people talk about the economic impacts of immigration and say that ending free movement was what caused the referendum result. As has been said, however, that is questionable because free movement was not on the ballot paper, and we do not really know.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Does the hon. Lady agree that there is a huge degree of confusion about freedom of movement, and that it is conflated with the rest of immigration and asylum policy? That is not helped by a lack of knowledge in this country about how the European Union works and operates, and how we approach such issues with the EU. The direct impact on people in the UK, and on their ability to travel freely across the EU to work, travel and be educated, was not known, so we cannot possibly say that the UK voted to end freedom of movement.
Alison McGovern
I thank the hon. Gentleman for his intervention. It is entirely possible that people do not know all the ins and outs and details of the immigration system—I would not expect them to; it is quite complicated. Having stood in three general elections in a swing marginal seat, I suggest that anyone who thinks they can be involved in British politics and not get involved in conversations about immigration is kidding themselves. We must accept that immigration is an issue, and that people will seize on anecdotes and their own personal experience. That is not illegitimate either—people rely on their lived experiences, but when it comes to decisions that we take, it is a mistake to rely on anecdote and we must consider the actual evidence for what immigration has done in our labour market.
In 2015, one Bank of England study found that immigration had had a very small effect on the wages of those at the lower end of the earnings distribution, but that that effect was not significant. Often that study is seized on as evidence that immigration has somehow had this huge impact on people’s earning potential, but I simply ask people to compare that with what we know has happened to wages since the financial crash of 2008. Compared with the trend of 2% annual growth in real wages from 1980 to the early 2000s, which was pretty regular, between 2008 and 2014 people’s real wages fell significantly, with a shortfall of about 20% in what they would otherwise have expected had that real wage growth continued.
If we consider groups in our society, apart from pensioner households, no one is better off than they would have been in 2008. The significance of that impact while we have been in the European Union demonstrates that what has happened is a change in Government policy and the decisions that have been made to support people’s incomes. Real wages have been weakened by rising inflation since the 2016 referendum, which has had a huge impact. Depreciation will lead to rising costs. In the end, when considering people’s earnings potential, what matters is not the nominal figure of the amount they have coming in, but what they can buy with it.
I would say to people who worry about the impact of immigration on wages that we should definitely consider it. It is true that most of the studies that have investigated this matter have found that, at the local level, there is no statistically significant impact of immigration on the earnings of those in that local economy. However, if that is considered so important that it ignores the impact of prices and what has happened since the referendum, that is not being serious about dealing with poverty in this country. We need to understand that if we tell people that we will make the average British person better off by restricting immigration, we are offering a false promise.
Caroline Nokes
A good number of useful and interesting points were raised by hon. Members. I just want to start by correcting one point made by the hon. Member for Manchester, Gorton who said it was a fact that free movement would end when we leave the single market. Free movement, as hon. Members know, was frozen into UK law last year, which is why we need the Bill so that we can end free movement, which will not happen automatically when we leave the EU.
Hon. Members are right to point out that there may be a gap. There could be a gap either way. It is perfectly feasible that the Bill will not gain Royal Assent until after we leave the European Union and it is certainly possible to envisage the circumstances in which the Bill might gain Royal Assent before we leave the EU. It is an important Bill and, although I have been accused of putting the cart before the horse, that is not the case. It is not premature; it is something that we must do.
Several hon. Members raised the rights of the 3.5 million EU citizens living in the UK and were absolutely right to do so. They will also know that we hope very much to address that in the withdrawal agreement Bill in the event of a deal. I am probably one of the few in the room to have voted consistently for the deal every time it has come before the House [Interruption.] Okay, they are all raising their hands now. I certainly have done. It is really important that we secure a deal and, in so doing, have the withdrawal agreement. I will have the joy of also serving on that Bill Committee and will take through the citizens’ rights principles that we are determined to secure.
I do not intend to bore hon. Members on this subject but it is one of my favourites. They will know that we opened the EU settled status scheme last year in its first trial phase. We are now into the third open beta testing phase. I am not in any way complacent about that. These large projects are opened in private beta testing first in order to iron out the bugs, problems and issues that may crop up. It is fair to say that there have been issues, but we have been able to learn from the process and react relatively quickly to iron them out. I am pleased that so far 100,000 people have gone through the process and more are applying every single day.
That does not mean that I am not alive to the challenges that are part of that. Obviously, 3.5 million is an enormous number and 100,000, although a good start when not even in the open phase of the scheme, is encouraging but I know there is a great deal more to do. I am sure hon. Members will be reassured by the fact that we will open the communications programmes very shortly.
Caroline Nokes
The hon. Gentleman raises an important point. If we have learned one thing from Windrush—and I sincerely hope we have learned many—it is that a declaratory system that does not give people the evidence they need to be able to affirm their right to be in the UK, to work and own property, does not work. That is why we have a scheme that I am confident will give people the evidence they need so that we can avoid a position whereby EU citizens who are here and settled are in the same situation in the future. I am conscious—Members may have heard me say this in Select Committees—that there will be children of EU citizens living in this country today who are well under the age of 16; some will be one or two years old. The hon. Member for Wirral South mentioned an ageing population and longevity, but while we in this room might be lucky to get to our late 80s, there are children who will live to 100 or 110. It is therefore important we have something that is enduring and enables them to evidence their right to be here for a century or more.
Stuart C. McDonald
A new argument appeared for the first time yesterday at Home Office questions, saying the problem was caused because Windrush was what Ministers describe as a declaratory system. That was not what caused the problem; the problem was the lack of evidence. In fact, if people did not have rights under statute—as we would like to see here—they could have been removed ages ago and could not have rectified the situation. It is not right to say that a declaratory system caused the problem to the Windrush generation.
Caroline Nokes
I disagree. If we look back to the Immigration Act 1971—I have become quite familiar with that Act over the past year in this job—it put the right of the people of the Windrush generation to be here in statute, but it did not provide them with the evidence they needed to demonstrate that. It is important we learn that lesson and make sure we do not repeat the mistake for our EU citizens.
Kate Green
Does the Minister agree that the conclusion is that we should do both? We should have a declaratory system so that people’s legal rights are clear in statute and, at the same time, we should have a process of giving them reliable and sustainable evidence to demonstrate they have that right.
Caroline Nokes
Through the EU settled status scheme, we have provided people with the mechanism via which to demonstrate that. I have confidence in the mechanism. I recognise the challenges, some of which we heard in the evidence session two weeks ago. I am determined we get that right and make it a system that people will engage in, take part in and be able to evidence their status.
Afzal Khan
On the same point, one of the issues that came through during the evidence sessions was that it would also be helpful to have a hard copy of that evidence.
Caroline Nokes
The hon. Gentleman will be aware that the Home Office is seeking to move to digital by default in many of our processes. I recognise that this is the way forward. I spent a very happy six months at the Cabinet Office as the Minister for the Government Digital Service, recognising that the delivery of services digitally is the way forward. With the digital right-to-work checks and the roll-out of the digital right-to-rent checks, we already have a system that makes sure the individual employer or landlord can see only the evidence to which they are entitled, rather than having a biometric card that lays out all a person’s details. It can be tailored so the potential employer gets to see only the evidence of the right to work. I believe that the system works well and when I showed it to the landlords’ representative panel, they engaged with and were enthused by it. It has also worked well for employers. Digital status that is backed up and can be evidence going forward, simply and easily, is much better than a document that potentially contains the risk of fraud and that might need renewing every 10 years, in the same way we have to renew our passports.
This is the Bill that will end free movement. That is not the role of the withdrawal agreement Bill, which is where we will enshrine citizens’ rights.
Paul Blomfield (Sheffield Central) (Lab)
I share the comments made from this side of the Committee regarding the Minister’s approach to the Bill and, indeed, to her brief. Can she explain what consideration the Government have given to one of the single biggest national groups affected by any freedom of movement—UK nationals: the 1.2 million Brits who live and work in the European Union. If we poll young people, we find that their biggest regret about our leaving is losing their right to freedom of movement within the European Union. What assessment has she made of that issue, because reciprocity is key?
Caroline Nokes
The hon. Gentleman is right to point out that reciprocity is key—it is crucial. Although we have it within our power to legislate to protect the rights of the 3.5 million here, we do not have the right to legislate in France, Germany or Spain. I am absolutely conscious of the very real concerns. We heard some of them in the evidence sessions, but I have also met repeatedly with representatives of those who live in EU member states, who are concerned.
Kate Green
It will be welcome to have citizens’ rights enshrined in primary legislation through the withdrawal agreement Bill, but of course if we do not have a withdrawal agreement, we will not have that legislation. Are there alternative plans to ensure that those rights are enshrined in primary legislation, rather than in secondary legislation, which would be subject to future change and would not receive proper parliamentary scrutiny, in the event that there is no deal?
Caroline Nokes
Opposition Members never, I think, let me get away with anything without proper scrutiny. The hon. Lady knows that I want to see the withdrawal agreement Bill passed. That is an important step. I am most enthusiastic and keen—nay, desperate—for us to get a deal; it is crucial that we do so, but I still firmly hold that the withdrawal agreement Bill, rather than this Bill, which is a straightforward Bill to end free movement, is the place to enshrine those rights. This Bill’s powers on free movement will of course be required both in the event of a deal and in a no-deal scenario, but they will be used differently if we have a deal, in which case the withdrawal agreement Bill will provide protections for the resident population.
The power in clause 4, which we shall probably come to later today, is similar to that found in other immigration legislation, and can be used only in consequence of or in connection with part 1 of this Bill, which is about ending free movement. I therefore do not believe there is a risk that it could be used to change immigration legislation for non-EEA nationals in ways unconnected to part 1 of the Bill.
Let me say in response to the hon. Member for Stretford and Urmston that we have been clear that, after our exit, there will be no change to the way that EU citizens prove their right to work. They will continue to use a passport or an ID card until the future system is in place.
I have been clear that we will engage widely on the future system, which will come in after 2021. It will be a skills-based immigration system, which enables us to move forward, absolutely accommodating the needs of our economy, I hope—I have been candid about this since my first day in the Home Office—in a much simpler way. We are confronted with 1,000 pages of immigration rules, so there is certainly the opportunity to simplify enormously. I do not pretend that I have it within my power to “do a Pickles” with the immigration rules by doing the equivalent of his tearing up 1,000 pages of planning guidance and reducing it to the national planning policy framework, but we have to move forward with a system that is far simpler and easier to understand than what we currently have.
Kate Green
Will the Minister take the opportunity to reassure employers that, in the period until 2021, provided they have looked at an individual’s passport or identity document, they will not commit any criminal offence if it happens that that individual in practice does not have the right to work because they arrived after Brexit day and did not apply, as they needed to, for European temporary leave to remain?
Caroline Nokes
There is a terrible phrase, which I really dislike using: “statutory excuse”. If an employer has seen evidence—an EU passport or ID card—that indicates that somebody has the right to work in the same way as they do now, that provides them with the protection that the hon. Lady seeks.
Afzal Khan
I ask the Minister again: could the Government use the powers in the Bill to amend immigration legislation affecting non-EU citizens?
Caroline Nokes
I think I responded to that point a few moments ago. We do not consider there to be a risk that the power could be used to change immigration legislation for non-EU nationals in ways that are unconnected to part 1 of the Bill. Part 1 is specifically about ending free movement.
Question put, That the clause stand part of the Bill.
Stuart C. McDonald
I beg to move amendment 29, in clause 2, page 1, line 11, at end insert—
“(1A) After section 2A insert—
‘2B Family members of Irish citizens
Nothing in the Immigration Rules (within the meaning of this Act) shall lay down any practice that treats or provides for the family members of Irish citizens differently to the treatment or provision made for the family member of British citizens.’”
This amendment seeks to ensure that the family members of Irish citizens are treated in the same way as the family members of British citizens.
The Chair
With this it will be convenient to discuss amendment 28, in clause 2, page 2, line 13, at end insert—
“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he concludes that a higher threshold is reached whereby deportation is in the public interest because there are exceptional circumstances.
(7) No person of any nationality is liable for deportation under section 3(5)(b) where he belongs to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (6) is satisfied in respect of that Irish citizen.
(8) No Irish citizen is liable for deportation under section 3(6) where recommended for deportation by a court empowered under this Act to do so unless, thereafter, the Secretary concludes that his deportation is conducive to the public good in accordance with subsection (6).
(9) An Irish citizen may not be deported or excluded from the United Kingdom if they are among the ‘people of Northern Ireland’ entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish Agreement of 1998.”
This amendment would provide additional safeguards against deportation for Irish citizens.
Stuart C. McDonald
Clause 2 concerns the special status of Irish citizens in the UK in immigration law. It is probably fair to say that although we often refer to the common travel area, and although we know how it works in practice and have a broad idea of the practical reasons why it exists, the actual law here is pretty obscure, vague and not very well understood. I apologise if I have maligned any Committee members who are in fact experts in this area of immigration law.
In recent years it probably has not been a concern, largely because free movement means that it has not really mattered. That now changes completely if free movement is stopped, and clause 2 is one of the steps that we need to take to ensure that the status of Irish citizens here is protected. Parts of clause 2 are welcome because, if clause 2 were not part of the law, although Irish citizens could still come to the UK without immigration control if they were coming from another part of the common travel area, if free movement ended they would have no such right if they arrived in the UK from outside the common travel area, whether on a plane from New York or a train from Paris. Clause 2 confirms the right of Irish citizens to enter and remain without permission—even if free movement rights end—irrespective of where they entered the UK from, unless they are subject to a deportation order, exclusion order or international travel ban.
The question is: does clause 2 go far enough? The evidence received in writing and heard at hearings suggests that it does not. There are other aspects of the special status that we need to have a look at as well. There is one sense in which clause 2 appears to undermine the special status afforded to Irish citizens, and that is in relation to deportation.
As Professor Ryan pointed out in his evidence, the clause provides that Irish citizens may be deported under the general deportation laws of this country—those that apply to everybody else—under the Immigration Act 1971. Those apply to: a person whose deportation the Secretary of State deems conducive to the public good, including under the controversial mandatory deportation provisions of the UK Borders Act 2007; a person whom a court recommends for deportation at the time of conviction for a criminal offence punishable by imprisonment; and a family member of a person who is or has been ordered to be deported.
The clause would also introduce a specific new power to exclude Irish citizens from the United Kingdom if the Secretary of State considers that to be conducive to the public good. However, in doing so the Bill does not imply any particular special protection regarding the threshold for the deportation or exclusion of Irish citizens. The stated policy of the Government in 2007, according to the then Immigration Minister, was:
“Irish citizens will only be considered for deportation where a court has recommended deportation in sentencing or where the Secretary of State concludes, due to the exceptional circumstances of the case, the public interest requires deportation.”—[Official Report, 19 February 2007; Vol. 457, c. 4WS.]
That is a higher test than would be applied by clause 2, and we heard evidence suggesting that the clause would water down the position of Irish citizens. In that regard, it might be useful to note that, by virtue of their exemption from Irish immigration law, British citizens are completely immune from deportation and exclusion under Irish law. Indeed, other evidence sent to us from a group of academics goes further, and asks why, if Irish citizens are “not foreign” according to the Ireland Act 1949, we need to retain the power to deport them at all. Ireland has not retained the equivalent power.
Professor Ryan raised a further important question about whether, to comply with the Belfast agreement, there should be an exemption from deportation and exclusion for Irish citizens who are from Northern Ireland. Under the Belfast agreement, both Governments recognised the birthright of all people of Northern Ireland to identify themselves as, and be accepted as, Irish, British or both, as they may so choose. As Professor Ryan puts it:
“There is a risk that, as formulated, the deportation and exclusion clauses will fail to respect the right of a person from Northern Ireland who wishes to identify as an Irish citizen.”
He questions whether it is compatible with the Belfast agreement to require a person from Northern Ireland to assert their British identity in order to resist deportation to Ireland. There might even be circumstances in which UK nationality had been renounced.
Those are the issues that amendment 28 is designed to address. It seeks to enshrine in law what is supposedly current Government practice, instead of watering down that standard on deportation. It also seeks to ensure that clause 2 does not in any way undermine the Belfast agreement. I am sure that everyone in this room today would agree that it is important that we get these things right. My final observation in that regard is that, according to Professor Ryan, as I have said, there is no provision in Irish law to deport UK nationals.
Amendment 29 probes the Government, seeking an explanation of what the exact position will be of Irish nationals who seek to have family members join them—if and when the normal family rules in the immigration rules are applied to them. As we will come to later—perhaps today, or on Thursday—I absolutely hate those draconian and restrictive rules, but at least they are there, allowing British citizens and settled persons to be joined by family members. As Professor Ryan points out, the immigration rules will allow for UK citizens returning to the UK to be accompanied by non-UK or Irish family, and for UK citizens and settled persons already here to be joined by non-UK or Irish family. That last bit should apply simply enough to Irish nationals as well, because clause 2, if passed, would appear to mean that Irish persons would be treated as settled persons for the purposes of the rules. I should be grateful for confirmation that that is the case.
The second problem is that it seems, from the clause’s drafting, that Irish persons moving here with such family would not be able to use the rules in the way that a UK citizen could, because they would not yet be settled persons. The Irish person would need to come here first and become settled, and their family would join them later. Another issue is whether the rules in other respects will treat the family members of an Irish citizen in precisely the same way as they treat family members of UK citizens. In particular, if a UK national has a UK national child here, as we all know, the child would not cause the financial threshold to increase if any application was made by an overseas spouse to join them. Would the presence of an Irish citizen child of an Irish citizen result in the financial threshold being increased for any spouse coming to join that family?
Amendment 29 simply seeks to ensure that Irish citizens will be treated in the same way as UK nationals. I will not press it to a vote, however, because as the Committee on the Administration of Justice, a cross-community human rights organisation in Northern Ireland, rightly points out, it may need to be tweaked to ensure that it does not prevent Irish citizens from benefiting from the more favourable treatment that EU families may continue to enjoy for a period through retained EU law, in comparison with UK citizens and settled persons encumbered with the immigration rules. The amendment should probably preclude less favourable treatment rather than different treatment. The CAJ’s submission goes further, supporting the view of the human rights commissions that the common travel area is “written in sand” and warning of “other gaps”, including in relation to social rights.
Afzal Khan
I echo the words of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. In essence, we agree that clause 2 is necessary, but we believe that it requires some improvements.
I have some questions for the Minister. First, the Good Friday agreement grants people who were born in Northern Ireland the right to identify and be accepted as exclusively Irish, as exclusively British or as both Irish and British. Does the reference to Irish citizens in the Bill, and therefore the Immigration Act 1971, include Northern Ireland-born Irish citizens who do not identify as British? Secondly, clause 2 highlights the fact that many associated rights of the common travel area are provided for only by virtue of free movement. When, if not in the Bill, will common travel area rights be legislated for to ensure that they are maintained on a clear legal footing? Finally, will the Minister make it explicit in the Bill that people in Northern Ireland who identify exclusively as Irish, as is their right under the Belfast agreement, are exempt from deportation and exclusion?
Caroline Nokes
I thank hon. Members for raising important issues linked to Irish citizens. It is important to recognise that British and Irish citizens have enjoyed a particular status and specific rights in each other’s countries since the 1920s as part of the common travel area arrangements.
Clause 2 will protect the status of Irish citizens. When free movement ends, it will allow them to continue to come to the UK without requiring permission and without any restrictions on how long they can stay. British citizens enjoy reciprocal rights in Ireland. The clause will provide legal certainty and clarity for Irish citizens by inserting new section 3ZA into the Immigration Act 1971 to ensure that they can enter and remain in the UK without requiring permission, regardless of where they have travelled from. That is already the position for those who enter the UK from within the common travel area, but Irish citizens who travel to the UK from outside the CTA currently enter under European economic area regulations. The clause will remove that distinction by giving Irish citizens a clear status.
I turn to the amendments tabled by the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East, and for Paisley and Renfrewshire North. Amendment 29 would establish in legislation that the immigration rules cannot treat family members of Irish citizens differently from family members of British citizens. The common travel area arrangements have never included rights for the family members of British and Irish citizens. That is an approach that we intend to maintain, but the unique status of Irish citizens means that they are considered settled from the day on which they arrive in the United Kingdom. Irish citizens in the UK can therefore sponsor family members, in the same way as British citizens can. That is the position for those of all nationalities within the UK who are settled.
I also note that Irish citizens, in line with other EU nationals, can be joined in the UK by family members under the terms of the EU settlement scheme, but the amendment would prevent that. To be clear, Irish citizens are not required to apply for status under the EU settlement scheme to benefit from the family member rights, but they may apply if they wish. Under the settlement scheme in a deal scenario, close family members who are not already resident in the UK will be able to join an EU citizen—that includes Irish citizens—under the same conditions as now, where the relationship pre-existed the end of the implementation period. I therefore ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to consider withdrawing his amendment for the reasons that I have outlined.
Amendment 28 would introduce additional provisions regarding the deportation and exclusion of Irish citizens and their family members. I will use this opportunity to reiterate our approach to deporting Irish citizens in light of the historical community and political ties between the UK and Ireland, along with the existence of the common travel area. Irish citizens are considered for deportation only if a court has recommended deportation following conviction or if the Secretary of State concludes that, because of the exceptional circumstances of a case, the public interest requires deportation. We carefully assess all deportation decisions on a case-by-case basis, taking into account all the facts of the case.
In response to questions asked on Second Reading, I confirmed that the Government are fully committed to maintaining this approach. In that regard, Committee members will have noted that we are making provision to ensure that once we leave the EU, Irish citizens will be exempt from the automatic deportation provisions for criminality in the UK Borders Act 2007. That exemption is contained in the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, which were laid before the House on 11 February. Therefore, proposed new subsections (6) and (8) are not needed.
As I have outlined, the UK’s approach is to deport Irish citizens only in exceptional circumstances or where the court has recommended it, which means that a family member of an Irish citizen would not be considered for deportation unless a deportation order was made in respect of that citizen in line with our approach. I also emphasise that the common travel area rights have always provided solely for British and Irish citizens. They have never specifically extended to the family members of British or Irish citizens, and we intend to maintain that approach.
With proposed new subsection (8) in mind, I must make it absolutely clear that the UK is fully committed to upholding the Belfast agreement and respects the right of the people of Northern Ireland to identify as Irish, British or both, and to hold both British and Irish citizenship as they choose. I recognise the centrality of those citizenship and identity provisions to the Belfast agreement. As I have said, deportation decisions are taken on a case-by-case basis, and we consider the seriousness of the criminality and whether it is in the public interest to require deportation.
Recognising the citizenship provisions in the Belfast agreement, we would consider any case extremely carefully and not seek to deport a person from Northern Ireland who is solely an Irish citizen. However, I recognise the hon. Gentleman’s interest in this matter and will continue to keep it under consideration. I therefore respectfully ask him to consider withdrawing his amendment for the reasons outlined.
Stuart C. McDonald
I am grateful to the Minister for her detailed response. As I have accepted, amendment 29 is not perfect. I also accept her general reassurances about the treatment of Irish citizens’ families in the United Kingdom, so I will withdraw the amendment and reflect further on our position.
In relation to what the Minister said about deportations and amendment 28, it seems to me that we are mostly saying the same things, but our statements are reflected better in my amendment than in the clause. We seem to be saying the same thing, but reaching different conclusions about how to enshrine it in law. I am simply asking the Government to put their current practice into statute. I will give further thought to that, but for now I beg to ask leave to withdraw amendment 29.
Amendment, by leave, withdrawn.
Amendment proposed: 28, in clause 2, page 2, line 13, at end insert—
“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he concludes that a higher threshold is reached whereby deportation is in the public interest because there are exceptional circumstances.
(7) No person of any nationality is liable for deportation under section 3(5)(b) where he belongs to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (6) is satisfied in respect of that Irish citizen.
(8) No Irish citizen is liable for deportation under section 3(6) where recommended for deportation by a court empowered under this Act to do so unless, thereafter, the Secretary concludes that his deportation is conducive to the public good in accordance with subsection (6).
(9) An Irish citizen may not be deported or excluded from the United Kingdom if they are among the ‘people of Northern Ireland’ entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish Agreement of 1998.”—(Stuart C. McDonald.)
This amendment would provide additional safeguards against deportation for Irish citizens.
Question put, That the amendment be made.
Caroline Nokes
As I said in response to the amendments tabled by the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North, the clause will protect the status of Irish citizens in the UK when free movement ends. Without the clause, as Professor Ryan explained in evidence to the Committee, when freedom of movement ends, Irish citizens will need to seek permission to enter the UK when they arrive from outside the common travel area. I am sure all members of the Committee agree that that would be wholly unacceptable.
In addition to the evidence from Professor Ryan, I also welcome the written evidence from the Committee on the Administration of Justice, which notes that the clause is
“designed to remedy the gap for Irish citizens being able to enter and reside in the UK from outside the CTA”.
Dr de Mars, Mr Murray, Professor O’Donoghue and Dr Warwick highlight that the clause will help to clarify and simplify travel rights under the common travel area.
The Government are clear that, as now, Irish citizens should not be subject to immigration control unless they are subject to a deportation or exclusion order, or to an international travel ban. Those exceptions are set out in the Bill, and they reflect current and long-standing practice. I confirm that our approach is to deport Irish citizens only if there are exceptional circumstances, or if a court has recommended deportation in a criminal case.
Stuart C. McDonald
This is the crux of the matter—the Minister is confirming an approach that appears to be different from the one set out in the clause. Why not just include the Government’s approach to this issue in the Bill?
Caroline Nokes
The hon. Gentleman will be aware that he just lost a Division on that matter, but I am sure we will return to it on Report. He may consider his drafting to be better than that of my Home Office officials, but I must take a contrary view. I confirmed the Government’s approach in response to questions raised on Second Reading, and, as members of the Committee will have noted, once we leave the EU, Irish citizens will be exempt from the automatic deportation provisions for criminality in the UK Borders Act 2007.
The clause amends section 9 of the Immigration Act 1971 so that restrictions placed on those who enter the UK from the CTA by order under that section will not apply to Irish citizens. It also amends schedule 4 to that Act, which deals with the integration of UK law and the immigration law of the islands—Jersey, Guernsey and the Isle of Man. The schedule provides broadly that leave granted or refused in the islands has the same effect as leave granted or refused in the UK. The clause disapplies those provisions in relation to Irish citizens who do not require such leave under the Bill. They also make it lawful for an Irish citizen—unless they are subject to a deportation or exclusion order—to enter the UK from the islands, regardless of their status in them.
The clause aims to support the wider reciprocal rights enjoyed by British and Irish citizens in the other state. Citizens will continue to work, study, access healthcare and social security benefits, and vote in certain elections when they are in the other state. I reiterate that once free movement ends, Irish citizens in the UK will be able to bring family members to the UK on the same basis as British citizens, because they are considered to be settled from day one of their arrival in the UK.
Maria Caulfield (Lewes) (Con)
Will the Minister confirm that that is also the case for Irish citizens in Northern Ireland, under the spirit of the Good Friday agreement?
Caroline Nokes
My hon. Friend is right to emphasise that point, and that is absolutely the case in Northern Ireland. We take the provisions of the Belfast agreement very seriously indeed.
This clause supports the citizenship provisions in the Belfast agreement that enable the people of Northern Ireland to identify and hold citizenship as British, Irish or both. The Bill makes no changes to the common travel area or to how people enter the UK from within it. Section 1(3) of the Immigration Act 1971 ensures there are no routine immigration controls on those routes. Given the unique and historic nature of our relationship with Ireland, and our long-standing common travel area arrangements, I am sure that Members will agree on the importance of the clause as we bring free movement to an end.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Meaning of “the Immigration Acts” etc
Question proposed, That the clause stand part of the Bill.
Caroline Nokes
Clause 3 is minor and technical in nature, but it is important for the implementation of the Bill and to ensure that we have a fully functioning statute book. Subsection (1) ensures that the Bill, when enacted, will be covered by any reference to “the Immigration Acts”, which are the Acts of Parliament that govern the UK’s immigration system. They enable, for example, grants of leave to enter and remain, and the deportation of individuals.
References to the Immigration Acts can be found across the statute book. For example, section 55 of the Borders, Citizenship and Immigration Act 2009 requires that functions conferred by virtue of the Immigration Acts are discharged having regard to the need to safeguard and promote the welfare of children in the UK. Clause 3 will ensure that functions conferred by regulations under the Bill must be discharged according to that duty in relation to the best interests of children. Such a provision is standard for an immigration Bill, and clauses that have the same purpose and effect are included in previous Immigration Acts. For example, section 73 of the Immigration Act 2014 and section 92 of the Immigration Act 2016 both provide that those Acts are included in the definition of Immigration Acts.
Subsection (2) clarifies that the Bill is not retained EU law. That means that it is not part of the body of law that will have been saved in UK law by the European Union (Withdrawal) Act 2018. It is important to make it clear that the Bill cannot be treated as retained EU law. For example, it cannot be amended by the deficiencies power under section 8 of the European Union (Withdrawal) Act or any other powers to deal with retained EU law.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Consequential etc provision
Stuart C. McDonald
I beg to move amendment 4, in clause 4, page 2, line 34, leave out “appropriate” and insert “necessary”.
This amendment would ensure that the Secretary of State may only make regulations which are necessary rather than those which the Minister considers appropriate.
The Chair
With this it will be convenient to discuss the following:
Amendment 1, in clause 4, page 2, line 34, leave out “, or in connection with,”.
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 11, in clause 4, page 3, line 1, leave out “make provisions applying” and insert
“give leave to enter the United Kingdom”.
Amendment 2, in clause 4, page 3, line 8, leave out subsection (5).
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 3, in clause 4, page 3, line 11, leave out subsection (6).
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 5, in clause 4, page 3, line 17, leave out “other”.
This amendment is consequential on Amendment 3.
Amendment 6, in clause 4, page 3, line 17, leave out from “subsection (1)” to “is” on line 19.
This amendment, along with Amendment 7, will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.
Amendment 12, in clause 4, page 3, line 18, leave out
“that amend or repeal any provision of primary legislation (whether alone or with any other provision)”.
This amendment would mean that all regulations made under Clause 4 would be subject to the affirmative procedure.
Amendment 7, in clause 4, page 3, line 21, leave out subsection (8).
This amendment, along with Amendment 6, will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.
Amendment 10, in clause 7, page 5, line 44, at end insert—
“(10A) Section 4 and section 7(5) of this Act expire at the end of a period of one year beginning with the day on which this Act is passed.”
This amendment would place a time limit on the Henry VIII powers contained in Clause 4.
Stuart C. McDonald
It was a little while after my first election in 2015 that I first heard the term “Henry VIII clause,” but I have become very familiar with it since then. The clauses in the Immigration Act 2016 were outrageous enough, but they are small beer compared with the powers the Government have helped themselves to in the European Union (Withdrawal) Act and in this Bill. There is no need to take my word for it; we have ample evidence. The amendments are largely based on submissions from the Law Society of Scotland and the report of the House of Lords Delegated Powers and Regulatory Reform Committee. I am very grateful to both. It is unusual to have the benefit of the Lords Committee report for a Commons Bill, but it has certainly proved helpful. The Committee said:
“The combination of the subjective test of appropriateness, the words ‘in connection with Part 1’, the subject matter of Part 1 and the large number of persons who will be affected, make this a very significant delegation of power from Parliament to the Executive. The scope of this broad power is expanded even further by subsections (2) to (5).”
If we are serious about our role as legislators and about separating the Executive from the legislature, we must start putting our foot down and reining in these clauses. Otherwise, what on earth are we here for?
We can start that process through amendment 4, by replacing the subjective test of appropriateness. Through amendment 1 we can ditch the phrase “in connection with”. The Committee was absolutely scathing here. It said:
“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This 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; and to do so by negative procedure regulations (assuming no amendment was made to primary legislation)”.
Amendment 2 is also from the House of Lords Committee’s recommendations. It removes clause 4(5). It noted that subsection (5)
“confers broad discretion on Ministers to levy fees or charges on any person seeking leave to enter or remain in the UK who pre-exit would have had free movement rights under EU law”.
It recommended removal
“unless the Government can provide a proper and explicit justification for its inclusion and explain how they intend to use the power”.
That is the challenge for the Minister this morning.
As for the Government’s justifications and the memorandum on delegated powers stating that the powers are needed to protect EEA citizens, it is fair to say that the Committee was not persuaded. It said:
“We believe that transitional arrangements to protect existing legal rights of EEA nationals should appear on the face of the Bill, and not simply left to regulations with no opportunity for parliamentary scrutiny until after they have been made and come into force.”
That is exactly what Opposition MPs have sought to do with other amendments that we will come to later. The consequence of that for the Committee was that there would be no need to use made affirmative procedures set out in clause 4(6). It recommended removal of that subsection, which is what my amendments 3 and 5 seek to do. The very unusual made affirmative procedure means that the regulations are actually in force when they are tabled in the House of Commons before we have even voted on them. Our position is that the more common affirmative procedures should be followed, and instruments should be laid in draft and should not come into force until we examine and approve them—hence amendments 6 and 7.
I conclude with some comments by the Law Society of Scotland. It said:
“The abrogation of parliamentary scrutiny is deeply concerning and the cumulative effect of these provisions is to reduce the role of parliamentary scrutiny of legislation relating to immigration, both EU and non-EU”.
For all these reasons, I hope that the Government will listen carefully and rein in their desires for extensive delegated powers under clause 4.
Afzal Khan
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 it was 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 1, 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 subsection (5) 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.
Kate Green
Will the Minister place on the record more information about how the Government intend to use the scope of the legislation? As we heard from the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, the language of clause 4, such as “connected with” and “appropriate”, means that the legislation could be used to make sweeping changes to immigration rules, not just in relation to EU nationals but across the whole immigration system.
The long title of the Bill says that its intention is to
“Make provision to end rights to free movement of persons under retained EU law and to repeal other retained EU law relating to immigration; to confer power to modify retained direct EU legislation relating to social security coordination”,
but the devil is in the detail of “and for connected purposes.” It would be reassuring for the Committee if the Minister could place on the record this morning exactly how widely the Government intend to make use of the legislation.
Tracey Crouch (Chatham and Aylesford) (Con)
I want to speak sympathetically—although hon. Members should not get excited—to amendment 8 and the issue of the minimum threshold, if this is the appropriate time to do so.
The Chair
I remind Committee members that we are debating amendments 4, 1, 11, 2, 3, 5, 6, 12, 7 and 10. We will discuss amendment 8 next.
Caroline Nokes
Notwithstanding the brief contribution from my hon. Friend the Member for Chatham and Aylesford, the hon. Member for Stretford and Urmston invites me to delve into the detail, which is what I plan to do. It is right that the Committee pays close attention to the delegated powers in the Bill, which are key to delivering the changes linked to the end of free movement. I am grateful to the Delegated Powers and Regulatory Reform Committee for its report and recommendations on the Bill, which I am carefully considering.
The power in the clause is similar to that found in many other immigration Acts. It is needed for the effective implementation of the Bill and the ending of free movement. A great deal has been said about the power granting Ministers a blank cheque—a slightly 20th century analogy, but one that I have used as well; perhaps I should talk about chip and PIN or contactless—so I want to explain exactly and in some detail how the power can and cannot be used.
I reassure the Committee that, with clause 4, the Government seek to ensure that we can manage the transition of EEA nationals, Swiss nationals and their family members from free movement to our domestic immigration system. For the sake of brevity, I will refer to that group collectively as EEA nationals.
First, the power will enable us to protect the status of EEA nationals and their family members who are resident in the UK before exit day and ensure that their residence rights are not affected by the UK’s departure from the EU. It will enable us to save the operation of otherwise repealed legislation, such as section 7 of the Immigration Act 1988, which relates to the requirement to have leave to enter and remain in the UK, and the Immigration (European Economic Area) Regulations 2016, which implement the free movement directive. It will preserve the position of EEA nationals in the UK before exit day, or in any agreed implementation period, so they do not require leave to enter or remain until the deadline for obtaining leave under the EU settlement scheme passes in June 2021, or December 2020 in the sad event of no deal.
Secondly, in the unlikely event that we leave the EU without a deal, the power will enable us to make provision for EEA nationals who arrive after exit day but before the future border and immigration system is rolled out in January 2021. During the transition period the clause will enable us, for example, to ensure that EEA nationals need only provide their passport or other national identity document as evidence of their right to work or rent, as is currently the case. We need the power to ensure that, prior to implementation of the future system in 2021, EEA nationals can be treated as they are currently, in terms of checking for eligibility for benefits and public services and the right to work and rent property.
The clause is needed to enable us to meet the UK’s obligation under the draft withdrawal agreement, if that is agreed. In the event of no deal, the clause will enable us to implement the Government’s policy in the paper on citizens’ rights in the event of a no-deal Brexit, which was published by the Department for Exiting the European Union on 6 December.
Thirdly, the power will enable us to align the immigration treatment of EEA and non-EEA nationals in the future, so that we can create a level playing field in terms of who can come to the UK. For example, the power will enable us to align the positions of EU nationals and non-EU nationals in relation to the deportation regime, where currently a different threshold applies to the deportation of criminals who are EU nationals.
As I have said previously, we are engaging extensively on the design of the future system, and our proposals were set out in the White Paper. The details of the future system will be set out in the immigration rules once they have been agreed, but without the power in the clause we cannot deliver the future system, and that is why it is crucial to the overall implementation of the Bill.
Fourthly, the power is important to ensure that our laws work coherently once we have left the EU. There are references across the statute book to EEA nationals, their free movement rights and their status under free movement law. The power needs to be wide enough to ensure that all such references can be adequately addressed as a consequence of ending free movement. By way of example, section 126 of the Nationality, Immigration and Asylum Act 2002 lists the documents that must be provided in support of various types of immigration application. One example relates to applications under the Immigration (European Economic Area) Regulations 2016. An amendment is needed to remove that reference, because in the future there will no longer be applications under the EEA regulations, as they are repealed by the Bill.
Amendments 1 to 5 were tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. As he explained, amendment 4 would limit the Secretary of State’s power to make regulations to instances where it was “necessary” rather than “appropriate”. I reassure the Committee that the clause is not a blank cheque. The regulations could be used only to make provision in consequence of or in connection with part 1 of the Bill. That means that they could be made only in connection with the end of free movement or the status of Irish citizens. They must be appropriate within that context, so the scope of the power is already limited, even without it being limited to what is necessary.
Not only is the test for what is necessary harder to meet; it is also harder to say whether it is met. To explain why I regard “necessary” as too high a bar, I refer to the courts, which have said that the nearest paraphrase is “really needed”. Such a test would be too restrictive: one person’s necessary amendment is another’s “nice to have”. Immigration is a litigious area and we do not want a provision that will lead to uncertainty and challenge about whether an amendment is appropriate or necessary. The Committee may recall that that point was discussed at some length during the passage of the European Union (Withdrawal) Act 2018 and that Parliament agreed that “appropriate” was the correct formulation when dealing with amendments in relation to EU exit. It is the right test here also.
Amendment 1 would limit the changes made under the regulations to those that are “in consequence of” the ending of free movement, rather than “in connection with” or “in consequence of”. I note that the amendment was recommended by the Delegated Powers and Regulatory Reform Committee. As I have explained, references to EEA nationals occur in numerous places across the entire statute book and in numerous different ways, not always by reference to free movement rights. The inclusion of “in connection with” is more appropriate to describe the provision that needs to be made for some of those cases. It is also better suited than the phrase “in consequence of” for the making of transitional provision for those who arrive in the UK after the commencement of the Bill.
The Lords Committee made the specific point that transitional and savings provisions for pre-exit day EEA nationals should be made on the face of the Bill. Hon. Members are interested in that and some witnesses discussed it in evidence sittings. We have committed to protecting the rights of EU citizens who are resident in the UK. That has been our priority, and we have delivered it through our negotiations with the EU to secure protections of citizens’ rights, which are included in the draft withdrawal agreement. If that is agreed by Parliament, there will be legislation to implement it in UK law. The withdrawal agreement Bill will be the vehicle by which such protections are delivered. We have also opened the EU settlement scheme to allow EU nationals who are already living in the UK to obtain settled status or pre-settled status in the UK. That will provide them with a clear status once free movement ends and will ensure their rights are protected in UK law.
In addition, we have given unilateral assurances that EU nationals and their family members resident in the UK can stay if the UK leaves the EU without a deal, as set out in the no deal policy paper I previously mentioned. In the event of no deal, we will use the power in clause 4 to make provision to protect the status of EU nationals resident in the UK. One could speculate about whether such protections are necessary or merely appropriate, or whether they are in consequence of the end of free movement or only connected to the end of free movement, but I know that members of the Committee agree with me that it is important to be able to protect EU nationals, and I want to ensure that the clause is broad enough to enable us to do so.
I am grateful to the hon. Member for Manchester, Gorton for raising an important issue in amendment 11, which would replace part of the power in subsection (4) of clause 4. The power allows us to make provisions applying to persons not exercising free movement rights. The amendment appears to narrow, or perhaps clarify, the power by including reference to the grant of leave to enter.
It may be helpful if I first explain our intended use of the provision. I am aware that there is a perception that clause 4(4) would allow the Secretary of State to make sweeping changes to the immigration system in respect of non-EEA nationals, but I assure the Committee that that is not the case. Subsection (4) does not provide a standalone power; it is part and parcel of the power in subsection (1) which we have previously debated. That means that it can be used only in consequence of or in connection with part 1 of the Bill, which is about the repeal of free movement and the status of Irish nationals. There is no risk that the power could be used to change the immigration legislation for non-EEA nationals in ways unconnected with part 1 of the Bill.
Subsection (4) is needed because not every person who is an EEA national in the UK is exercising free movement rights. EU law sets out the conditions for the exercise of such rights: for example, a person who is not working, seeking work, self-employed or studying can exercise free movement rights only if they have adequate resources and comprehensive sickness insurance. Putting aside any rights as a family member, a German househusband or wife who does not have comprehensive sickness insurance is not exercising free movement rights. We have taken the decision to be generous in our treatment of EU nationals already in the UK and we have opened the EU settlement scheme to them all, regardless of whether they are exercising treaty rights or not. However, we need to ensure that we have the power to amend other legislation to facilitate that—for example, checks on rights to work or access to benefits and public services that might otherwise apply to them. The amendment could prevent us from making those changes, potentially meaning that that group could fall through the gaps.
I reiterate that the power is not the means by which the future border and immigration system will be delivered. That will be done through the immigration rules made under the Immigration Act 1971. I am sure that the hon. Gentleman does not intend that group to be denied protection. I hope I have provided sufficient reassurance on the need for and use of the subsection. I respectfully ask him not to press amendment 11.
Amendment 2, which stands in the name of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, would narrow the scope of the power by omitting subsection (5). The House of Lords Committee recommended that the Government justify the need for subsection (5) and I am grateful for the opportunity to do so.
The purpose of subsection (5) is to enable changes to be made to legislation that imposes fees and charges. For example, under the EU-Turkey association agreement, Turkish nationals are currently exempt from the immigration health surcharge. The directly effective rights under the association agreement, which will form part of domestic law from exit day by virtue of section 4 of the European Union (Withdrawal) Act 2018, are disapplied by paragraph 9 of schedule 1 to the Bill. That would mean that Turkish nationals would become liable to pay the immigration health surcharge, but we think it appropriate to maintain that exemption for those already resident in the UK.
Another example of how we might rely on subsection (5) is in relation to persons granted limited leave to remain under the EU settlement scheme. As the law stands, they would be considered not ordinarily resident in the UK when their free movement rights end, and they would be liable for charges when accessing NHS treatment. We want to make it crystal clear that those EU nationals already in the UK should not be charged for NHS treatment. Without this provision, we could make such amendments to exempt people from charges that might otherwise apply. I hope that I have provided sufficient explanation of why subsection (5) is needed. I request that the amendments not be pressed.
Stuart C. McDonald
I am grateful to the Minister for her detailed response; she said she would go into the detail and she certainly did not disappoint. The one defence that does not really fly with me is that similar powers have been used in previous immigration Bills. I objected very strongly to some of the powers that appeared in previous immigration Bills, and certainly to those in the immigration Bill before this one. However, she gave useful examples of how the powers will have to be used. We will have to go away, think carefully about what she said and reflect on whether changes are needed.
The amendment about which I was not fully satisfied by the Minister’s answer, and which I still wish to push to a vote, is amendment 1. In my view, tidying up the statute book and putting in place transitional provisions, as the Minister gave as examples, would surely meet the “in consequence” test, and so the very loose “in connection with” test would not be needed. I also agree with the Lords Committee that transitional arrangements should be in the Bill, first to cover a no-deal scenario, secondly because it would be useful for the UK in Europe in such a no-deal scenario when trying to push other Governments around the EU for reciprocal treatment, and finally because the Bill is a much safer place for it to be than in delegated legislation.
I also have some concerns about the response to amendments 3 and 5 on the different types of affirmative procedure. I still find it startling that we are even contemplating, in a no-deal scenario, an end to free movement within a few weeks’ time. I do not think this country is remotely ready for any such prospect at all; a far more sensible option would be to put in place arrangements for free movement to continue even in a no-deal scenario until we are properly ready to make any changes that are agreed upon. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 1, in clause 4, page 2, line 34, leave out “, or in connection with,”.—(Stuart C. McDonald.)
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Question put, That the amendment be made.
Kate Green
I beg to move amendment 8, in clause 4, page 3, line 10, at end insert—
“(5A) Regulations under subsection (1) must provide that EEA nationals who are employed as personal assistants using funding from a personal budget are exempt from any minimum salary threshold that is set for work visa applications.
(5B) In this section, personal budget has the meaning set out in section 26 of the Care Act 2014.”
I hope the amendment will attract at least some support from the hon. Member for Chatham and Aylesford, and that she will take the opportunity to offer her observations on it. The Minister will be pleased to hear that the amendment is probing; it is designed to enable us to explore some of the issues that might affect personal assistants employed by disabled people after Brexit, as some of those personal assistants will be EEA nationals and therefore affected by the freedom of movement provisions in the Bill.
Personal assistants are employed directly by disabled people to meet day-to-day needs for assistance, whether that be personal care or facilitating assistance—
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Sixth sitting)
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 8 / Noes: 10 - Question accordingly negatived.
The Chair
Before I call Kate Green to resume her speech, I should say that it is hot in here, so if hon. Members wish to take their jackets off, they have the Chair’s permission to do so.
Clause 4
Consequential etc provision
Amendment moved (this day): 8, in clause 4, page 3, line 10, at end insert—
“(5A) Regulations under subsection (1) must provide that EEA nationals who are employed as personal assistants using funding from a personal budget are exempt from any minimum salary threshold that is set for work visa applications.
(5B) In this section, personal budget has the meaning set out in section 26 of the Care Act 2014.”—(Kate Green.)
Kate Green (Stretford and Urmston) (Lab)
The personal assistants employed by disabled people help with tasks such as travel, writing and communications, in addition to providing personal care. They come with a variety of skills, which are very much dependent on the unique needs of the disabled person. They are a growing workforce within the wider social care workforce, particularly as more disabled people live independently and are in need of personalised support to enable them to learn, work and live their own lives.
Personal assistants are partially or wholly funded by the state, either from personal social care budgets or from personal health budgets. Direct payments—personal social care budgets—were first introduced for adults in 1997 by the Community Care (Direct Payments) Act 1996, and for older people in 2000. The Care Act 2014 made it mandatory for local authorities to provide direct payments to individuals who needed and were eligible to receive them.
In 2015, the Department of Health defined a direct payment as follows:
“A payment of money from the local authority to either the person needing care and support, or to someone else acting on their behalf, to pay for the cost of arranging all or part of their own support. This ensures the adult can take full control over their own care.”
That gives considerable discretion to the person in receipt of the budget as to how they deploy it, but many people use it, in whole or in part, to employ a personal assistant to enable them to live an independent life.
After a fairly slow start, the number of people receiving direct payments increased rapidly, from 65,000 in 2008 to 235,000 in 2014. Many of those adults chose directly to employ their own staff rather than use traditional adult social care services. Skills for Care estimates that, by 2016, around 70,000 of the 235,000 adults and older people receiving a direct payment employed their own staff directly, creating around 145,000 personal assistant jobs between them. Until that point, however, relatively little was known about the make-up of that part of the adult social care sector workforce.
Skills for Care has conducted new research into this subject, and we now know that there are approximately 200,000 personal assistants working in the UK. That figure is based on information from the national minimum dataset collected by Skills for Care and on the number of people in England using personal health budgets to employ personal assistants. We also know that, in 2018, 8% of the total social care workforce were non-UK nationals. The exact figures for personal assistants are not known, but it is fair to assume that a similar percentage applies.
Nick Thomas-Symonds (Torfaen) (Lab)
I commend my hon. Friend on the speech she is making. Does she agree that, although the issue of personal assistants is important, there is the wider issue of the impact on the care sector as a whole of a minimum threshold of £30,000 per annum?
Kate Green
Indeed I do. Research by Global Future, for example, points starkly to the gap in the social care workforce today, the growth of that gap as a consequence of demographic change, and the potential implications of the proposals in the Government’s White Paper. I will say a little more about that in a moment, and colleagues may wish to expand on it, too.
In respect of personal assistants, if we assume that the percentage of that workforce mirrors that of the social care workforce as a whole, we could assume that perhaps 7,000 to 10,000 are non-UK nationals, including European economic area nationals. That covers only personal assistants employed to provide social care; I have no information on the breakdown by nationality of personal assistants employed by holders of personal health budgets. However, there are a total of 42,000 personal assistants employed by holders of personal health budgets, which might suggest, if the proportion of non-UK nationals is similar to that in social care, a further 3,000 to 4,000 people.
My amendment seeks to address the concern about the ongoing ability of disabled people to recruit this important workforce after Brexit if the proposals in the Minister’s White Paper, particularly those relating to the salary threshold, came into effect. Wherever personal assistants are employed, they are a vital resource for disabled people, whose lives would be very difficult without them—especially, for example, those who live in isolated rural communities where it is difficult to get end-to-end social care.
Many—perhaps the vast majority or even all—of these personal assistants earn way less than £30,000 per year. Typically, many will earn only half that. As I have said, and as my hon. Friend the Member for Torfaen pointed out, the sector as a whole already faces severe pressure. Skills for Care says there are approximately 110,000 unfilled vacancies in the sector at any one time. Global Future’s research points to growing pressures as a result of a changing demographic, which, combined with the provisions of the European Union (Withdrawal) Act 2018, this Bill and the proposals in the White Paper, could lead to a shortfall in the workforce of perhaps 400,000 by 2026, including a shortfall in the number of personal assistants. At the present rate of recruitment it would take us 20 years to make up that gap.
This workforce was considered in detail by the Migration Advisory Committee in the report it published last year. While acknowledging the shortfall, the MAC suggested that it could be made up in a number of different ways were access not available to EEA nationals to fill vacancies in the labour force—for example, by persuading former care workers to come back into the sector or by improving retention rates.
However, MAC also says that if the fundamental problem of recruitment and retention in the sector relates to pay and conditions, the only way we can use alternatives to recruiting non-UK nationals—indeed, even if we are recruiting EEA nationals—lies in improving pay and conditions across the sector, which will require substantial funding from the Government. In any event, it would take an heroic effort by the Government and the sector to fill that workforce gap without access to EEA nationals, not least as this demographic time bomb is ticking right here, right now.
For disabled people who employ personal assistants, this could be disastrous. They need committed, skilled carers. They need continuity of care; they cannot afford to have people coming in and out of the workforce. They need certainty and reliability. Therefore, there are real concerns that, if a skills threshold were imposed or, most importantly for this amendment, if a salary threshold of £30,000 applied, they might be forced to look to fill vacancies using people on short-term work visas who would not have the skills or be able to provide the continuity of care.
Governments of all colours have long supported the concept of personal budgets as a facilitative means to support independent living for disabled people. It would be a crying shame if the ambitions that the Government set out in their White Paper and the provisions of this Bill worked against that aim. I hope the Minister will, in the course of our debate, be able to offer some words of reassurance to personal assistants and, most importantly, to the disabled people who employ them.
Tracey Crouch (Chatham and Aylesford) (Con)
It is no longer a surprise that I rise in sympathetic support of the amendment tabled by the hon. Member for Stretford and Urmston. I am the independent chair of Medway Council’s physical disability partnership board, and with that role come connections to Kent’s physical disability forum. I have campaigned for a long time on some of the issues people with physical disabilities face and on how, through better partnership working, they can have a really productive relationship with the local authorities that serve them.
One issue that has come up in meetings over the last 12 months is shortages within the personal assistant workforce post Brexit. Many people are incredibly anxious about whether they will be able to recruit the team they need to support them in their lives. I have not seen anxiety like this on any other issue. It is not necessarily about the Bill specifically but about the impact of Brexit on this recruitment crisis.
As the hon. Lady stressed, many people simply cannot work, or indeed live anything that resembles a normal life, without their personal assistants. With his permission, I want to reference a concern of a member of that forum called Clive. Clive works full time as a senior campaigner for Citizens Advice and runs the Thanet citizens advice bureau extremely ably. He said at a recent meeting that, four years ago, before Brexit, he advertised for a new personal assistant and received 110 applications, three quarters of which were from EU nationals. Immediately after Brexit, he put out an advert, and instead of 110 applications, he received four, none of which was from an EU national. After placing his latest advert, he received only one applicant, who happened to be an EU national. He is absolutely reliant on good personal care, and he fears there will be an accidental consequence as a result of the Bill’s minimum threshold on this part of the workforce.
Many people like Clive face issues such as those the hon. Lady set out, and I hope the Minister listened to what I thought was her reasonable and sensible speech. This issue is unique, in many respects, among the wider issues around the EEA national workforce, and I hope she will speak to her colleagues in the Department for Work and Pensions who have responsibility for those with disabilities and those in social care who are responsible for personal healthcare budgets. Hopefully, at some point, she will come back with the reassurances that are sought by people such as Clive, who is my constituent and a member of that forum, and by others across the country on the future employment of personal assistants.
The Minister for Immigration (Caroline Nokes)
I am grateful to the hon. Member for Stretford and Urmston for providing the Committee with the opportunity to discuss the amendment, which concerns personal care assistants and exemptions from the £30,000 salary threshold for the future skilled worker route.
First, I assure the Committee that the Government wholeheartedly recognise the tremendous contribution made to the UK by those working in social care and in our wider health and care sector. We remain committed to ensuring that the future immigration system caters to all sectors, including our important NHS and social care sectors, and that it benefits the UK’s economy and our prosperity.
The hon. Lady made some important points, which were echoed by my hon. Friend the Member for Chatham and Aylesford, who made some interesting comments, drawing on her experience of chairing the forum in Kent and, in particular, on Clive’s comments. The hon. Member for Stretford and Urmston talked about the increase in disabled people and the elderly living independently, and they are able to do so because of personal care assistants. The hon. Member for Wirral South also commented on changing demographics. We are all very conscious of that and absolutely rejoice in and welcome the ability of both the elderly population and the disabled to live much more independently, but I am absolutely alive to the reality that that is brought about in part by personal budgets and the ability to independently employ a personal care assistant in the way that has been outlined.
Paul Blomfield (Sheffield Central) (Lab)
The Minister is right to cite the evidence from the MAC. Indeed, Alan Manning in his verbal evidence to the Committee, made the point that, in low-wage sectors, employers needed to step up to the mark. Clearly, the major employer behind social care is the Government. Are the Government willing to step up to the mark to provide the funding necessary?
Caroline Nokes
I am unsurprised that the hon. Gentleman has chosen to put that on the record. It is fair to say that there is an enormous amount of work going on in the Department of Health and Social Care. I am very fortunate that the Minister for Care, my hon. Friend the Member for Gosport (Caroline Dinenage), has been engaging with me repeatedly on this issue. She is a doughty champion for ensuring that we get the right policies in place. I have no doubt that during the next 12 months she will be continuing to press me on the point that both our Departments—and as my hon. Friend the Member for Chatham and Aylesford mentioned, the Department for Work and Pensions—need to make sure that we have a joined-up approach on this matter.
I know, and the Government know, that we need to redouble our efforts to promote jobs and careers in social care to the domestic workforce. That is why the Secretary of State for Health and Social Care has made improving the working lives of the millions of people who work in social care one of his top priorities and why, on 12 February, he launched a national recruitment campaign for social care. The campaign aims to raise awareness of the variety of rewarding job opportunities in social care, improve people’s perceptions of working in the sector and increase consideration and applications from individuals with the right values who are looking for a new challenge.
The Government are committed to ensuring that all sectors are catered for in a future system, so that the UK remains competitive and an attractive place to work for skilled individuals. However, it is important that we consider carefully the impact on the economy, including the impact of any exemption from the eventual minimum salary threshold, and ensure that we strike the right balance in the system. It must protect migrant workers and prevent undercutting of the resident workforce; we must not support employment practices that drive down wages in an occupation or sector, perpetuating low pay.
In full recognition that employers will need time to adjust to the future system, the White Paper also proposes a transitional measure: a time-limited route for temporary short-term workers, which will be open to all skill levels and, initially, to low-risk countries, and will be reviewed by 2025. We expect individuals, including personal care assistants who fall below the requirements of the skilled worker route, to be able to take advantage of the benefits that the route offers.
Kate Green
I am sure that the Minister will acknowledge that the instabilities inherent in the short-term worker visa scheme make it unsuitable for the very personal and intense personal care that is provided by PAs. Indeed, as the Select Committee on Home Affairs heard in evidence from the MAC last year, it is a different kind of job from coming over for a year to work in a bar or a shop and do a bit of travelling, as young people continue to want to do.
Caroline Nokes
The hon. Lady makes an important point that we have heard in our sectoral engagement on the proposed temporary workers route, and that I expect to hear reinforced over the coming months. She is right to point out that we want people engaged in such employment to have stability, so that they can build relationships with the people they care for, but we should also reflect that the sector already has instability and problems with retention. It is important that we work hand in hand with the Department of Health and Social Care to address those issues, as well as looking at routes to enable continuity.
Maria Caulfield (Lewes) (Con)
Care agencies in my constituency that take on personal assistants and have a high turnover of staff have highlighted how long Disclosure and Barring Service checks take—another issue that adds to recruitment problems in the care sector.
Caroline Nokes
My hon. Friend makes an important point about DBS checks. I welcome her contribution: she has a lot of experience in the health and care sector, and she knows that one of the big challenges is instability and high turnover. Together, we have to find ways to address that, which will be partly within and partly outside the immigration system.
Leaving the EU means ending free movement, with full control of our borders, and introducing a new immigration system that works in the interests of the UK, while being fair to working people here by bringing immigration down to sustainable levels and ensuring that we train people up here at home. As I have indicated, the Government intend to provide for a single future immigration system based on skills rather than on where an individual comes from. We want to ensure that there are only limited exceptions to that principle.
There is no doubt that the EEA nationals who are already working as personal care assistants make an invaluable contribution to the lives of many vulnerable adults in the UK with care needs. We have already been clear that we want the 167,000 EU nationals who currently work in the health and social care sector—including those who work as personal assistants, and other EEA nationals who are already here—to stay in the UK after we leave the EU. We have demonstrated that aim with the launch of the settlement scheme.
I hope that the hon. Member for Stretford and Urmston agrees that it is right that the Government continue to listen to businesses and organisations across all sectors of the UK economy over the next 12 months, and that it is too early to provide for exemptions to a salary threshold that is yet to be determined. I therefore invite her to withdraw her amendment.
Kate Green
I thank the Minister for her response. I especially thank the hon. Member for Chatham and Aylesford for sharing Clive’s experiences, because it is always important to bring a human dimension to our debates.
I know that the Minister is carefully considering the impact of a salary threshold on certain sectors; we would argue that the health and social care sector needs particular special care. I am encouraged by what she says about the MAC review of the shortage occupation list, and I note what she says about the skills level at which workers might be able to come into the UK to work. Of course, the skills that personal assistants and care workers need are not purely academic: they need to have equivalent-level vocational skills, and I am sure that the Minister will want to acknowledge that in the way that the skills threshold is designed. I also say to the Minister that the £30,000 figure that the MAC has used to assess the point at which an average family is making a contribution to the public finances is a little unfair to personal assistants and care workers. Arguably, those people are not just making a financial contribution to the public purse, but are significantly contributing to our overall quality of life, to our public services, and to a sector on which all of us will rely at some point in our lives. I hope that will be considered in the way in which the threshold is applied.
Finally, we would very much like to see the Government’s Green Paper as an underwriting of the good intent that the Minister has spoken of in relation to her colleagues in the Department of Health and Social Care. I know that the Government are giving careful attention to this particular important sector and, in those circumstances and with the leave of the Committee, I will withdraw my amendment. However, I hope that the Minister and her colleagues will take the opportunity to engage directly with disabled people and the personal assistants who provide them with care in the course of the consultation on the White Paper.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Kate Green
I beg to move amendment 19, in clause 4, page 3, line 10, at end insert—
“(5A) Regulations under subsection (1) must provide that EEA nationals, and adult dependants of EEA nationals, who are applying for asylum in the United Kingdom, may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant’s asylum application within six months of the date on which it was recorded.”
The Chair
With this it will be convenient to discuss new clause 23—Agreement with the EU on unaccompanied children—
A Minister of the Crown must commit to negotiate, on behalf of the United Kingdom, an agreement with the European Union under which an unaccompanied child who has made an application for international protection to a member State may come to the United Kingdom to join a relative, in accordance with section 17 of the European Union (Withdrawal) Act 2018, such that the agreement becomes law in the UK before the end of any transition period agreed as part of a withdrawal agreement or within 3 months in the event of the UK leaving the EU without a deal.
This new clause would mean that unaccompanied children can continue to be reunited with family members in the UK following the UK’s withdrawal from the EU, as currently provided for as part of the Dublin III Regulation.
Kate Green
If peace and cross-party good will broke out in relation to my last amendment, I hope that we may find similar cross-party enthusiasm for this one. I know that many colleagues around the House have paid careful attention to campaigns for legal asylum seekers to have the right to work in certain circumstances. This amendment would offer the right to work to EEA nationals who may become asylum seekers in future if a decision on their case has not been taken after a period of six months.
People seeking asylum in the UK are effectively prohibited from working, which means that they are forced on to asylum support at the meagre level of £5.39 a day while they wait for a decision on their asylum claim. Current immigration rules dictate that those people can apply for permission to work only if they have been waiting for a decision for over 12 months, and only for jobs that are on the shortage occupation list, which we were discussing a few moments ago. Those constraints could apply to EEA nationals seeking asylum in this country post Brexit, and we have to assume that in at least a small number of cases, such individuals will be looking for refuge here in the years to come.
The White Paper published on 20 December has already recognised the importance of work when it comes to the physical and mental wellbeing, the sense of building a wider contribution to society, and the community integration of people in the asylum system. It states that
“the Government has committed to listening carefully to the complex arguments around permitting asylum seekers to work.”
I know that both the Minister and the Home Secretary have been actively engaging with me and with other colleagues around the House, and I place on record my thanks for their interest in and engagement with this subject. It is much appreciated.
As I have said, the amendment calls for asylum seekers who are EEA nationals and their adult dependants to have a right to work, unconstrained by the shortage occupation list, after six months of having lodged an asylum claim or made a further submission in relation to their case. Of course, I would like the right to work to extend to all asylum seekers, not just those who are EEA nationals. There is a measure of support for that proposal around the House, and I hope that in due course—if not under the scope of this Bill—we will have the opportunity to debate it further in this Parliament. It would represent a return to UK policy as it existed under previous Governments, both Labour and Conservative.
Up until July 2002, people seeking asylum could seek permission to work if they had been waiting for an initial decision on their claim for six months or more. That rule was withdrawn in July 2002 on the basis—which, with the benefit of hindsight, was perhaps rather optimistic—that faster asylum decision making was going to make that provision irrelevant. However, the Government’s most recent immigration statistics show that 49% of all people waiting for a decision on their initial claim have been waiting for more than six months, and I think that if we started to see numbers increase from the EEA in future years, we could only expect that waiting time to become worse.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I rise to speak to new clause 23, which essentially seeks to prod the Government to provide reassurance that they will do what they have promised to do, and we urge them to do so as quickly as possible.
The Government have made a very important promise. Under section 17 of the EU withdrawal Act, the Government agreed to seek an agreement with the EU to ensure that unaccompanied asylum-seeking children in an EU state can continue to be reunited with family members in the UK after Brexit. That was very welcome.
Of course, all of that is currently done through the EU’s so-called Dublin III regulations, which, though not perfect, have been vital in ensuring that children are not left unaccompanied and in danger of exploitation and trafficking. We must ensure that that route is not closed off; but, if it is, the danger is that more children will be forced into the hands of traffickers and smugglers, in order to reach family here in the UK. I do not think that anyone on this Committee would want that to happen.
New clause 23 seeks to put a timeframe on that promise. If there is a Brexit deal, we ask the Government to include and bring into force that agreement before the transition ends. If there is no deal, the new clause seeks to ensure that the arrangement comes into force within three months of withdrawal. Essentially, therefore, this is the opportunity for the Minister to let us know what is happening to implement Parliament’s express will in section 17 of the withdrawal Act.
Equally, this is also the chance for the Government to consider going further than their original commitment. For example, why not also seek to implement the other Dublin provisions, so that it is not just unaccompanied children who can be reunited with family here but other asylum seekers, too, where appropriate?
As I have said, Dublin III is not perfect. It relies on other EU countries to process asylum claims and then request a transfer, which—as we have often seen—can be a ludicrously slow process. Would it not be better simply to use immigration rules to allow asylum seekers to be reunited here, thereby potentially bypassing that first administrative step?
Finally on new clause 23, of course the Dublin rules on family reunion only apply in a European context. Why not apply them more broadly so that unaccompanied asylum-seeking children and other asylum seekers can be reunited with family here in the UK without having to make dangerous journeys to Europe? We will revisit some of these issues when we debate a later amendment, but for now a progress report from the Minister would be very much appreciated.
I lend my full support to the hon. Member for Stretford and Urmston Green for everything she said about amendment 19 and the right of asylum seekers to work. That policy has had the Scottish National party’s full support for many years, and to my mind it is an absolute no-brainer. As she said, first of all it is good for asylum seekers themselves. Anyone who spends 12 months out of work will find themselves in a drastic situation, and that is just as true, possibly more so, for asylum seekers, whose skills are lost and run down, which can have a negative impact on self-esteem and mental health. Frankly, as the hon. Lady said, the situation is putting people in poverty, given the unacceptably low levels of asylum support that they are left to subsist on.
The right to work is also good for employers, particularly because at a time when the Government are very happy to tell us that unemployment is at very low levels, access to workers will always be welcome. Of course, asylum seekers have a range of skills. A scheme in Glasgow is successfully integrating refugee doctors into the workforce, but why do we have to wait for them to be recognised as refugees? If they have the skills to work in the NHS, why not allow that to happen when they are still asylum seekers?
The right to work is good for communities; it is pivotal for integration and for tackling poverty. Some locations to which asylum seekers are dispersed are not the wealthiest in the country—the Minister and I have debated that a lot recently. Often, in fact, they are among the poorest, so putting in place a new population who do not have the right to work does not help. It would be good for communities if people were earning an income that they could spend in the community.
As the hon. Member for Stretford and Urmston pointed out, the right to work is good for the public purse. Put simply, there would be savings on asylum support, and tax revenue would be gained from the income tax and the increased spending of asylum seekers. Various estimates put the Government’s savings at tens of millions of pounds.
From time to time, the Government have expressed concerns about the pull factor, but if that were a significant issue no asylum seekers would come to the United Kingdom at all, because, as the hon. Lady pointed out, we are the outliers. By implementing a right to work, we will not be very different from neighbouring countries. I have already mentioned Canada, which is not a neighbouring country, but which pretty much allows the right to work from day one.
The proposed measure is popular with the public. I welcome the fact that the Government have said that they are willing to consider the arguments, but it is time to get a move on. The right to work is long overdue and the time for procrastination has come to an end.
Afzal Khan (Manchester, Gorton) (Lab)
I thank my hon. Friend the Member for Stretford and Urmston and the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for tabling the amendment and new clause, both of which we support. The immigration White Paper has almost nothing to say about asylum or refugee issues, even though there are so many problems.
Amendment 19 deals with the right to work. The right to work would allow asylum seekers the dignity of work, as has been said, and would enable them to earn enough money to support themselves and their families. It would also encourage integration and prevent people from having to rely, for no good reason, on the meagre state subsidy of £5.39 a day. If the Home Office cannot resolve cases in the six-month target time, it is right that asylum seekers be given the right to work.
The waste of talent has already been touched on. I came across an asylum seeker in my constituency who was a Syrian consultant but who has not been allowed to work, even though, with 100,000 job vacancies in the NHS, we really need that skill. Research has shown that not being able to work for a long period doubles the risk of asylum seekers experiencing major mental health problems.
We continue to support the right of unaccompanied children to be reunited with family members in the UK after our withdrawal from the EU. An SNP private Member’s Bill is trying to achieve the same outcome and it is right that we support both the amendment and the new clause.
Caroline Nokes
I welcome the opportunity to speak to amendment 19 and new clause 23. I thank the hon. Member for Hornsey and Wood Green (Catherine West), who tabled the amendment, and the hon. Member for Stretford and Urmston, who moved it. I welcome their ongoing contribution to the debate about the right of asylum seekers to work.
The amendment would require provision to be made under clause 4 to enable asylum seekers who are EEA nationals, and their adult dependants, to apply to the Home Office for the right to take up employment if a decision on their asylum claim has not been made within six months of the date on which it was recorded.
As hon. Members may know, the European economic area is not the same as the European Union. It is slightly wider and includes Liechtenstein, Norway and Iceland, which are not members of the EU. That distinction is very important. Under our current immigration rules, asylum claims from EU nationals are treated as inadmissible—in other words, they will not be substantively considered unless there are very exceptional circumstances. Claims from EEA nationals whose home countries are not part of the EU are not inadmissible.
Stuart C. McDonald
One of our problems is that many asylum claims take longer than six months to assess. The Minister just cited unfounded claims as a problem. Surely there must be a process by which we can establish whether a claim is completely unfounded in a much shorter timeframe than six months.
Caroline Nokes
The hon. Gentleman’s intervention was not entirely unexpected. He knows that we are committed to ensuring that asylum claims are considered without unnecessary delay, so that people who need protection can be granted it as soon as possible in order for them to integrate and rebuild their lives.
Until recently, our aim was to decide 98% of straightforward asylum claims within six months from the date of the claim. However, many asylum claims are not straightforward, which means that it has not always been possible to make an initial decision within six months. Many of these cases had a barrier that needed to be overcome in order to make the asylum decision, and many of those barriers were outside the Home Office’s control.
I am sure that the hon. Gentleman was in the Chamber yesterday when I said that I regard the situation as not good enough. I know that we have to do more in this area, and one of our key priorities is to speed up the process. I would still like to make several comments about the rights of asylum seekers to work; if the Committee will indulge me, I will expand a little on some of my thoughts in a moment.
I am conscious that we cannot simply dismiss the risk that removing restrictions on work might increase the number of unfounded claims, which would reduce our capacity to take decisions and support genuine refugees. However, we recognise the importance of getting both the policy and the process right, which is why the Home Secretary has already committed to a review of the policy on asylum seekers’ right to work. Officials are already undertaking that review, looking at available evidence and anticipating the economic impact that such changes might bring about.
Hon. Members are right to point out that this matter has been raised frequently in both the Chamber and Westminster Hall. I remember that in October many hon. Members here today contributed to a debate led by my right hon. Friend the Member for Meriden (Dame Caroline Spelman). I later responded before the Select Committee on Home Affairs to a question from my hon. Friend the Member for Christchurch (Sir Christopher Chope), when he spoke of a report he had contributed to several years ago on the rights of asylum seekers to work.
The issue was raised extensively on Second Reading and yesterday it cropped up again in Home Office oral questions. I had forgotten, until the hon. Member for Stretford and Urmston mentioned it, that I sat on the Bench last week for the First Reading of the Asylum Seekers (Permission to Work) (No. 2) Bill, the ten-minute rule Bill promoted by the hon. Member for Hornsey and Wood Green, who spoke passionately about this issue and made a number of the points that we have heard again today.
Over the course of the past 12 months I have made a significant effort to engage on the issue, not only with non-governmental organisations and charities involved in the sector, but with hon. Members in this place. I appreciate the thought and time that have gone into those conversations, not least with the hon. Member for Stretford and Urmston and her good friend and colleague, the hon. Member for Bristol West (Thangam Debbonaire), who made a fleeting visit to the Committee this morning. I think she was a little optimistic if she thought we would get to this amendment before lunch. She has always made a powerful case on this subject.
As Immigration Minister, I am conscious that one should not conflate asylum seekers with refugees. I fear that in my next comments I am about to do just that, for which I apologise. I have spent a great deal of time on visits over the course of the past year, and I will give some edited highlights. One of my first ministerial visits was to Bradford, where I met members of World Jewish Relief Aid who were working closely with resettled refugees who had come here as part of the vulnerable persons resettlement scheme. That is where the conflation is coming in. They were making efforts to enable those with refugee status to improve their English and CVs and work through the process of moving into employment. It was a humbling experience and fascinating to have the opportunity to talk to the refugees about the importance to them of work. Hon. Members will have heard me say previously—
The Chair
Order. I have given the Minister a great deal of latitude. The amendment is about EEA nationals and the new clause is about unaccompanied children. Would the Minister come back to the amendment and the new clause?
Caroline Nokes
I absolutely will, Mr Stringer. I wanted to make the point, as the hon. Member for Stretford and Urmston said herself, that employment is an important route to integration. She made the point about the ability to work of EEA nationals who had claimed asylum. It holds true that the right and ability to work is an important step in enabling people to integrate into communities. It is good, not just for their financial wellbeing, but for their mental and physical wellbeing, and we know that the outcomes for their children will be better. I hope that was in order.
I recently attended a conference held by the Refugee Employment Network where those points were made to me repeatedly about the importance of ensuring that refugees are enabled to move into the workplace and the benefits that that brings.
I want to talk briefly about the difference between refugees and asylum seekers and the outcomes of moving into employment. I repeat the challenging figure, almost ad nauseam, that only 2% of refugees who have come through the vulnerable persons resettlement scheme move into employment. We know that the outcomes for those who have come here as spontaneous arrivals who have claimed asylum—
The Chair
Order. Can the Minister refer her comments to EEA nationals or unaccompanied children, which is what is before us, please?
Caroline Nokes
We might expect that EEA nationals, who came here and claimed asylum in the unlikely circumstances that we would deem a claim to be admissible, might move into employment at a rate of about 25%. I am conscious that these figures are very low and there are areas where we could do better. Either the hon. Member for Stretford and Urmston or the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East made the point that the longer somebody is out of work, if they are an EEA national who is claiming asylum, the harder it is for them to move into work.
I hope that those comments, whether in order or not, have reassured hon. Members that we are taking the matter really seriously. It is an important issue but amendment 19 does not address the wider issue, being limited to only EEA nationals and their family members. Given my comments that it is incredibly restrictive and possibly discriminatory, I invite the hon. Member for Stretford and Urmston to withdraw the amendment and look to our review on the existing policy.
I now turn to new clause 23. I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North and welcome their ongoing contributions to this debate. The new clause aims to ensure that the UK must reach and legislate for an agreement with the EU in accordance with section 17 of the European Union (Withdrawal) Act 2018 within an implementation period or within three months of the UK leaving the EU without a deal. Section 17 commits the UK to seek to negotiate an agreement with the EU whereby unaccompanied asylum-seeking children can be reunited with close family members and vice versa, where it is in the child’s best interests.
I hope that the Committee will agree that there should not be a deadline in domestic legislation for reaching an agreement with the EU. The UK cannot compel the EU to negotiate on this issue and, more importantly, we cannot compel the EU to do so for a specific timeframe. I understand the intention behind the new clause proposed by the hon. Members and reassure them of the provisions that will be in place for unaccompanied asylum-seeking children seeking to join family members in the UK when the UK withdraws from the EU.
In addition to the commitments under section 17 of the withdrawal Act, the UK will continue to operate under the Dublin III regulation in any agreed implementation period. In the event of the UK withdrawing from the EU without a deal, the Home Office will continue to consider inward Dublin transfer requests relating to family reunification that are made before 29 March 2019. That would also apply to any take charge requests accepted before 29 March this year. Furthermore, EU exit does not change the Government’s commitment to relocating 480 unaccompanied children to the UK under section 67 of the Immigration Act 2016, commonly known as the Dubs amendment. I therefore invite the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North to withdraw the amendment.
Kate Green
I am grateful to the Minister for her comprehensive response. We are aware of the review that the Government are undertaking and very much appreciate that that is taking place and appreciate the opportunities that we have been offered to participate in it. In the light of her engagement with the subject and the comments that she has made about the potentially discriminatory nature of amendment 19, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdraw.
Afzal Khan
I beg to move amendment 20, in clause 4, page 3, line 10, at end insert—
“(5A) Any regulations made under subsection (1) which introduce a work visa scheme for EEA nationals must be developed in consultation with trade union representatives.
(5B) The Secretary of State must publish an impact assessment on workers’ rights for any regulations made under subsection (1) which introduce a work visa scheme for EEA nationals.”
The Chair
With this it will be convenient to consider the following:
New clause 20—Seasonal agricultural work visas scheme for EEA and Swiss Nationals—
(1) The Secretary of State must introduce a sector-specific work visa to enable farmers to employ EEA and Swiss nationals to come and work in the United Kingdom for limited time periods.
(2) Any EEA and Swiss national is eligible to apply for a visa issued under this section if—
(a) they have secured a job offer in the United Kingdom; and
(b) they possess a certificate of sponsorship from a UK employer with a valid sponsorship licence.
(3) A work visa granted under this section remains valid for—
(a) the duration of time that the person it is granted to is employed in the United Kingdom; and
(b) for a period not exceeding six months continuous employment.
(4) No minimum income requirement shall be required for a visa issued under this section.
(5) The Secretary of State may by regulations made by statutory instrument make such further provision as the Secretary of State considers appropriate to establish a farming sector-specific work visa under this section.
(6) Any statutory instrument issued under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House.
New clause 21—Work visas for EEA and Swiss Nationals—
(1) The Secretary of State must introduce a general work visa to enable EEA and Swiss nationals to come and work in the United Kingdom.
(2) Any EEA and Swiss national is eligible to apply for a visa issued under this section if—
(a) they have secured a job offer in the United Kingdom; and
(b) they possess a certificate of sponsorship from a UK employer with a valid sponsorship licence.
(3) A work visa granted under this section remains valid for—
(a) the duration of time that the person it is granted to is employed in the United Kingdom; and
(b) for a period not exceeding 12 months continuous employment.
(4) No minimum income requirement shall be required for a visa issued under this section.
(5) The immediate family members of a person granted a general work visa under this section are entitled to reside in the United Kingdom for the duration of the validity of the work visa.
(6) In this section “immediate family member” means an EEA or Swiss citizen’s spouse or civil partner, or a person related to them (or their spouse or civil partner) as their—
(a) child or grandchild under 21 years old, or dependent child or grandchild of any age; or
(b) dependent parent or grandparent.
(7) The Secretary of State may by regulations made by statutory instrument make such further provision as the Secretary of State considers appropriate to establish a general work visa under this section.
(8) Any statutory instrument issued under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House.
Afzal Khan
The Government’s White Paper outlines the intention to introduce a new 12-month general work visa, which it says will be necessary to make up the shortfall in workers created by the ending of freedom of movement. The Government claim that it will be a skill-based system, even though they have repeatedly identified an income limit of £30,000, as we have heard many times today, which is above the annual wage for full-time workers. Our concern is that that will limit the ability of employers in both the public and private sectors to recruit to fill labour and skill shortages. It will also create a new category of low-skilled migrants and temporary workers whose rights will prove extremely difficult to uphold in practice. As a result, it is likely to have a detrimental effect on the ability to uphold the rights of all workers who occupy the lower-paid jobs affected.
Stuart C. McDonald
I wanted to speak briefly to these amendments. First, I note how unusual and exciting it is to be debating substantive provisions of immigration law. One of the key points that I make throughout this process is that this is a rare occurrence. We get to what would usually be shoved into immigration rules or a statement of changes; it is then passed through Parliament, and the Bill becomes law without anyone realising that it is happening—never mind having a chance to debate it. Perhaps we could even suggest amendments to the shadow Minister to improve his draft new clauses. I welcome what he has done in proposing substantive immigration policy in a way that allows MPs to come and have a say. Our take on what he has said about the SAWS and the evidence we heard from National Farmers Union Scotland was that the pilot scheme was not enough. We welcomed the pilot, but 2,500 places are not enough. I think that the number that was mentioned that would be sufficient was 10,000. That is against the background that National Farmers Union Scotland was also absolutely and clearly in favour of retaining the free movement of people.
David Duguid (Banff and Buchan) (Con)
Coming from a constituency that is agricultural as well as fishing, I recognise a lot of the concerns that have been raised by National Farmers Union Scotland. Does the hon. Member agree that Andrew McCornick, the president of NFU Scotland, also stated, not in evidence to this Committee but in previous evidence, that he would like the immigration system to open up to employees from outside the EEA as well?
Stuart C. McDonald
I am happy to acknowledge that evidence. The two things are not inconsistent: to attain free movement of people we have got to have a seasonal agricultural workers scheme to allow access to labour from outside the EU as well. Even with free movement of people, there is still a huge recruitment problem. There are crops and fruit going unpicked.
As we have seen, countries from which farmers were able to recruit previously, such as Poland, have caught up. In fact, they have job offers from other parts of the EU. Subsequently, farmers were recruiting more from Romania, but again, the economy and wages there have caught up slightly and there are also alternative employment options elsewhere. So there is already a recruitment crisis, even though we have had free movement of labour. There must be a two-pronged approach here: retain free moment and at the same time have a proper seasonal agricultural workers scheme to allow farmers and others to recruit from outside the EU as well. The SAWS pilot is welcome but it is not enough: we need the free movement of people as well.
In other evidence, NFU Scotland stated that the proposals for a no-deal scenario were not remotely sufficient for its purposes. There is the strange three months, then a three-year visa, if you are successful. NFU Scotland thought that that would put employers at a competitive disadvantage. They would only be able to say to folk, “We are trying to recruit. You can come for three months and possibly you will be able to stay on beyond that”. They need people to have that guarantee up front. Some—but not enough—will be able to do that through the pilot.
On the two new clauses, there are things I would have done slightly differently, but that is what is good about having this debate. A lot of farmers will say that the six-month SAWS time limit in new clause 20 is not sufficient. With new clause 21, I hugely welcome the proposal for family to be allowed to accompany the workers here. That is not envisaged in the Government’s proposal for a one-year visa; also the Government have the “12 months on, 12 months off” idea, which a lot of employers understandably find absolutely ludicrous.
Our concern with new clause 21 is, again, the 12-month time limit; I also want further information about what the sponsorship licence looks like. One of the huge problems, particularly for small and medium-sized enterprises, is around the requirements to be a licensed sponsor. Many have found that to be hugely problematic and costly, and to involve red tape. I like the principle behind the ideas. I would have some difficulty in voting for them because I do not quite agree with everything that is in them, but I welcome the fact that we are having that debate.
I agree with the proposal in amendment 20. As I have said during the course of our debates, sometimes the criticisms made of free movement of people and, generally, of migration for work, and some of the problems flagged up in relation to that are not problems with migration itself, but problems with labour market enforcement, labour standards and the enforcement of existing laws. It is pivotal that we marry up what we are doing in the immigration system with what we are doing in terms of labour market enforcement. One silver lining from the Immigration Act 2016 was the introduction of the Director of Labour Market Enforcement. There is a question whether his remit is wide enough and whether the resources are there to do the job properly, but I fully welcome amendment 20 and the intention of making sure that we do a much better job of that.
Caroline Nokes
I thank the hon. Member for Manchester, Gorton for giving us the opportunity to consider two important issues: the protection of migrant workers and the opportunities that are open to them. Amendment 20 concerns the protection of workers’ rights. I appreciate the sentiment behind the amendment, and I do not believe there is any real difference between the hon. Gentleman and me on this issue. It is of the highest importance that everyone working in our economy is safe, and is treated fairly and with respect. I am proud of the Government’s track record in this area, with the landmark Modern Slavery Act 2015 and the further powers we have given to the Gangmasters and Labour Abuse Authority. We will not be complacent on the matter.
Let me be very clear that migrant workers in the UK are entitled to all the protections of UK law while they are here, whether that is the minimum wage, health and safety legislation, working conditions, maternity and paternity arrangements, the right to join a trade union, the right to strike, statutory rights to holiday pay and sick pay or any of the other myriad protections in UK law for workers. Those protections apply to those who are in the UK on work visas every bit as much as they do to the resident workforce. That is true of migrant workers who are here under the current immigration system and those who may come in future under the new one.
In the future system, those who come under the skilled worker route will be taking up professional occupations and will be sponsored by their employer, so the Home Office will have a relationship with their employer. The Home Office may well visit and inspect the employer, and the Government will take very seriously any suggestion that the worker is not benefiting from every employment right to which they are entitled. Migrant workers who come to the UK under the temporary worker route may be doing jobs that are more vulnerable to exploitation. That is why a feature of that route is that migrant workers are not tied to one employer and may move around the labour market if they are unhappy, for whatever reason, in their employment. The hon. Gentleman will remember that the temporary worker route will be open to nationals from countries that pose a low immigration risk. We do not expect that route to be used by those who may, unfortunately, be economically desperate enough to make themselves vulnerable to exploitation.
As we have heard, there is one sector in which we will operate a special scheme under which workers will, to some extent, be tied to a particular type of work, and that is the agricultural sector. The independent Migration Advisory Committee recognised the sector’s unique reliance on short-term migrant labour, and the Government have accepted that argument. We are currently catering for that through a seasonal worker pilot, which comes into operation shortly. I will say a bit more about that when I address new clause 20, but let me deal first with the protection issues.
The potential for exploitation of the pilot was the recent subject of a thoughtful and considered debate in Westminster Hall, secured by the hon. Member for Nottingham North (Alex Norris). In that debate, the Minister for Policing and the Fire Service, my right hon. Friend the Member for Ruislip, Northwood and Pinner (Mr Hurd)—he responded to the debate because I was in this Committee taking evidence—set out the careful work that had gone into the design of the pilot scheme, and the ongoing liaison with the Gangmasters and Labour Abuse Authority to ensure that migrant workers are protected. I suspect members of this Committee were present in this Committee rather than in that debate, and I urge them to review the principles of the pilot and the protections that will be applied, as set out by my ministerial colleague.
On the requirement in amendment 20 to consult trade unions, I appreciate that trade unions have a unique perspective on work-related immigration, and they will understandably want to protect the rights of their existing members in the domestic workforce. As part of our ongoing engagement following the publication of the immigration White Paper, we are consulting some trade unions about the proposed future system. However, I do not see how the amendment could practically be made to work. As I have explained, we do not propose to introduce sectoral working visas other than in agriculture, and MAC specifically advised against doing so. Our proposed work routes—the skilled worker route and the temporary worker route—are, in combination, open to the full range of occupations and professions. That means that the Government would be committed to consulting hundreds of trade unions and representative bodies every time a change was required to the immigration rules, and that would be unworkable.
The second half of amendment 20 would require the Secretary of State to publish an impact assessment on workers’ rights for any future work-related immigration arrangements, and I do not believe that that is necessary. As I have said, migrant workers who come to the UK will be subject to the full protections that already exist for every worker—regardless of their nationality—who is employed by a UK employer. Since the statutory workplace employment rights and protections will be the same for domestic and migrant workers, it is unlikely that an impact assessment would be necessary or add to the understanding of the future immigration system.
I turn to new clause 20. Although I appreciate what the hon. Member for Manchester, Gorton seeks to achieve, I believe that, once again, he and the Government are in the same place and the new clause is not necessary. The Government fully understand the importance of our food and farming industry, and the sector’s significant reliance on seasonal labour. We appreciate that farming is a long-term endeavour and that the sector places great emphasis on certainty when it comes to workforce planning. That is particularly the case as we look to the design of our future immigration system. As I set out earlier, the temporary worker route will be open to nationals from countries that pose a low immigration risk. That route will support seasonal employment of all kinds across all sectors, including our farmers and growers. The route will offer considerably more generous terms than the proposals in the new clause; that includes not tying migrants to a specific employer.
We intend to go further, however. As the Committee will be aware, the Migration Advisory Committee identified agriculture as a special case, and as the only sector that is deserving of special treatment. The Government have accepted that advice.
Stuart C. McDonald
The Minister has made the point a couple of times that the Government will not expect people to be tied to a particular employer. I welcome that, because tying people to employers gives rise to the risk of exploitation. However, other problems have arisen because of very short visas. If, for example, domestic workers get about halfway through their visa and have only four, five or six months left, there is no chance that anyone else will take them on because they are so close to the end of their visa. Is that not something we need to learn from? Should we not, generally speaking, look to have visas with a term longer than just one year?
Caroline Nokes
The hon. Gentleman will be aware that the temporary work visas are a transitional measure, but we will be looking carefully at that and listening to the advice that we have received in the evidence sessions for this Committee and more widely. As the Immigration Minister, I am conscious that people from a huge range of sectors are beating a path to my door to outline the particular circumstances of their industries, and I fully expect that to continue over the next 12 months. I do not expect people to beat a path to my door, however, so we are going out and engaging actively with different sectors. We are holding roundtables in every part of the country, and across every part of industry, so that we have a top-range understanding of the challenges.
David Duguid
I welcome the Minister’s commitment to engaging around the UK on future immigration policy, particularly during the Easter period, when she will be in my constituency. Does she agree that new clauses 20 and 21 are limited in that they apply only to EEA and Swiss personnel, and that future Government policy would be to introduce a level playing field for anybody, from anywhere, assuming that they have the skills we require?
Caroline Nokes
My hon. Friend is right to point out that the new clauses relate only to the EEA. Our future immigration system, which will undoubtedly be the subject of much debate, will have to provide the level playing field of which he speaks.
As I have set out, the Government have announced the two-year seasonal workers pilot, which allows non-EU migrants to work on UK farms for six months, specifically in the edible horticultural sector. The pilot will test the effectiveness of our immigration system in helping to alleviate seasonal labour shortages during peak production periods, while maintaining robust immigration controls, safeguarding migrant workers and ensuring that the impact on local communities and public services is minimal. There will be a thorough review before any decisions are taken about long-term arrangements. Piloting and evaluating is the right way to proceed, rather than taking a final decision now.
I advise the Committee that new clause 21, although well intentioned, is not necessary. When we debated amendment 20, I set out some details of the future immigration system, but let me remind the Committee what we will be providing. First, there will be a route for skilled workers, which will be available to nationals of all countries and will require workers to be sponsored by an employer to do a specific job. As now, however, there will be the facility to change jobs and move from one licensed sponsor to another.
In line with the recommendations of the independent Migration Advisory Committee, we are expanding that route to encompass medium-skilled as well as high-skilled workers. We are also abolishing the cap and the resident labour market test for high-skilled workers. Those who come to the UK through the skilled workers route will need to meet an income requirement, and I make no apology for that. That is a continuation of the provision in the current points-based system which, I remind the Committee, was introduced by the last Labour Government.
MAC’s report, which was published in September, said:
“We believe that these salary thresholds are likely to ensure that these migrants raise the level of productivity in the UK, make a clear positive contribution to the public finances and contribute to rising wages.”
I am sure that every member of the Committee shares those objectives. We have set out that we intend to spend the next year engaging with businesses, employers and other stakeholders before determining the level at which salary thresholds should be set.
Let me turn to more temporary and potentially less skilled migration, with which new clause 21 is particularly concerned. The immigration White Paper sets out that as a transitional measure we intend to introduce a temporary work visa, which will allow nationals of low-risk countries to come to the UK for up to a year to work in any job, at any skill level.
Unlike in the new clause proposed by the hon. Member for Manchester, Gorton, there will be no requirement to have a prior job offer or to be sponsored by a particular employer, and that is an important safeguard against exploitation. The temporary work route that I have described gives the hon. Gentleman much of what he is looking for with the new clause: a route for low-risk nationals to come to the UK for up to 12 months to work at any skill level and—crucially, given the problems that this might entail—without the need to be tied to a particular employer.
I apologise for having spoken at some length, but these are important issues worthy of serious consideration. I hope that I have reassured hon. Members that the protection of migrant workers is at the forefront of the Government’s thinking.
Afzal Khan
Does the Minister accept that during the evidence sessions, speaker after speaker who touched on the less skilled route and the 12-month visa said that they were not helpful? One person actually said that a 12-month scheme had been trialled but abandoned. What is the difference?
Caroline Nokes
We did hear evidence in which people expressed concerns about the temporary routes, but we also heard from the agricultural sector, which was keen that there should be some. I vividly remember some evidence that indicated that temporary routes would inevitably—that was the word used—lead to exploitation. In the rebuttal from the National Farmers Union, however, we were given much evidence about workers on temporary contracts who returned year after year. That suggests that short-term routes would not inevitably lead to exploitation.
That remains something for us to consider carefully by listening to the evidence and the discussions that we have in the next 12 months, so that we understand the sectors—particularly the agricultural sector—that are engaging with us. I highlight again the fact that we are in the final stages of establishing the relevant pilot scheme.
Stuart C. McDonald
Two other points that relate to the one-year visa proposed in the White Paper are: not allowing family to join the worker in the United Kingdom; and not allowing any recourse to public funds, including, for example, tax credits. Surely that is unfair? In fact, why would anyone want to come if those were the conditions for incoming people?
Caroline Nokes
As I have said, this is a transitional route that we will review carefully, but there are very good reasons why we do not propose that dependants should be able to come for such a short period. Of course, “no recourse to public funds” is about encouraging people who come here for work to not be reliant on the benefits system, which they will not have paid into for any significant period. We will have an immigration route for high-skilled and medium-skilled workers of all nationalities, and we will have a transitional route for workers at all skill levels. I hope that the hon. Member for Manchester, Gorton feels able to withdraw the amendment.
Afzal Khan
I thank the Minister for the explanation that she has given, but I wish to press amendment 20 to a Division.
Question put, That the amendment be made.
Nic Dakin (Scunthorpe) (Lab)
I beg to move amendment 22, in clause 4, page 3, line 10, at end insert—
“(5A) Regulations under subsection (1) must not be made until the Secretary of State has undertaken and published an impact assessment of the effect of the regulations on the United Kingdom’s health, social care and medical research sectors.
(5B) An impact assessment under subsection (5A) above must include, but is not limited to, an assessment of the regulations impact on—
(a) the health and social care workforce;
(b) the cancer workforce; and
(c) the medical research workforce.
(5C) An impact assessment under subsection 1 must be laid before both Houses of Parliament.”
It is a pleasure to serve under your chairmanship, Mr Stringer. As chair of the all-party parliamentary group on cancer, it is also a pleasure to take this opportunity to raise these issues by moving amendment 22. The measure has wide-ranging support from the cancer sector, with no fewer than 18 cancer charities urging support for it, namely Macmillan Cancer Support, Cancer Research UK, Bloodwise, Bowel Cancer UK, the Brain Tumour Charity, Brain Tumour Research, Breast Cancer Care, Breast Cancer Now, the cancer counselling group, CHAPS, CLIC Sargent, Ovarian Cancer Action, Pancreatic Cancer UK, Prostate Cancer UK, Sarcoma UK, Tackle Prostate Cancer, the Teenage Cancer Trust and Tenovus Cancer Care.
We all agree that ending freedom of movement is one of the most significant changes to immigration policy in decades. It is therefore imperative that people know what the impact of that change will be on the health and social care workforce; indeed, we touched on some of those issues in an earlier debate. Making sure that the Government are taking steps to understand fully the impact of ending freedom of movement on the health and social care workforce is important to the organisations I listed, and to the people whom they exist to support. As the Minister has said, this is something that is in the Government’s mind, but these proposals make it more important that things are carried through to a conclusion.
The purpose of the amendment is to require the Government to make arrangements to conduct an impact assessment in both Houses on the implications of ending freedom of movement for the health, social care, cancer and medical research workforces, prior to the change coming into effect. The amendment is focused on the principle of ensuring that any change of such scale and importance is not undertaken without the Government demonstrating that they have prepared properly. As the Minister is well aware, getting the preparation right is key for the future health and social care system.
Historically, the NHS workforce has relied on the support of professionals from across the world coming to the UK. In recent decades, that has included a supply of EU nationals. Nearly 10% of doctors, 8% of social care staff and 6% of nurses working in the UK are from the EEA. The Government have acknowledged that there are already pressures facing the health and social care workforce. Scotland, England, Wales and Northern Ireland are all experiencing high vacancy rates. Given the worrying trends that we have seen since June 2016, we must ask whether leaving the EU will create further pressures.
Maria Caulfield
The hon. Gentleman is making a very important point. I have worked in lung cancer research. Although researchers from the EU make up 10% of the workforce, a significant problem is trying to get researchers, PhD students and scientists from around the world. The current immigration system is not working for cancer research, and reforming the whole system would greatly benefit research across the board.
Nic Dakin
That really underlines the importance of having a proper impact assessment so that we can minimise the risks and maximise the opportunities, to ensure that this crucial workforce can continue to deliver to the people it serves.
There has been a 90% fall in the number of European nurses coming to the UK over the past year. In addition, 14% of European doctors in Scotland and 19% in England are already in the process of leaving. The Government need to consider whether ending freedom of movement will exacerbate the issue or, as the hon. Member for Lewes said, provide opportunities that reduce the problem, which is what an impact assessment would do.
Paul Blomfield
Opening up opportunities from around the world is clearly an issue that we will return to, but is it not unwise to close down a particular sector of recruitment while the Government have no such proposals on the table?
Nic Dakin
My hon. Friend makes a salient point. As we go through the Bill in Committee, there seems to be a recurring theme of the danger of gaps. One of the issues is that if we have gaps, there is a danger that people fall through them. In this particular area, the people who might fall through them are those in need of specialist healthcare, support and treatment. None of us would want that to happen, which is why planning and preparedness are so important. Such a significant change further underlines the necessity of planning and preparedness.
Across the wider workforce, primary and acute medical and social care shortages are already impacting on people’s access to cancer care in hospitals and communities. We know that demand is growing at the same time. Macmillan Cancer Support has said that cancer is a key proxy through which to understand the importance of supporting the health and social care workforces. Improvements in diagnosis and treatment mean that more people than ever are surviving or living longer with cancer, which is a very good thing. Across the UK there are now 2.5 million people living with cancer, and the figure is expected to rise to 4 million by 2030.
To support the growing number of people living with and beyond cancer, there must be an immigration system in place to underpin and support a workforce that is capable of delivering this, alongside an appropriate skills and development system. The immigration system must also complement the very welcome long-term ambitions of this Government, and the Scottish and Welsh Governments, to improve cancer care across the United Kingdom. The plans set out in the immigration White Paper do not include a detailed analysis of the impact of ending freedom of movement on the cancer workforce or those working within the wider health and social care sector. Plans to use salaries as a barometer by which to identify skilled workers are concerning given the large number of professionals who would not meet the threshold that may be established at £30,000. I recognise that the Minister has consistently said that the threshold is being consulted on and is under review, which is a welcome message for her to continue to repeat. I hope that that message is properly delivered on as we move forward.
Stuart C. McDonald
I had intended to add my name to the amendment, along with that of my hon. Friend the Member for Paisley and Renfrewshire North. We fully support it. Our view is that ending free movement while keeping the immigration system for non-EEA nationals broadly the same poses a huge challenge and, indeed, a danger to this particular sector. We very much support the amendment, which comes from 16 leading organisations.
Caroline Nokes
I am grateful to the hon. Member for Scunthorpe for providing the Committee with the opportunity to discuss the amendment, and for his really important work as chair of the all-party parliamentary group on cancer.
The amendment gives us the opportunity to consider the impact that ending free movement through the Bill might have on the health and social care and medical research sectors. I appreciate that there are those on the Committee who do not believe that we should end free movement. I have to remind them that the people of the United Kingdom voted in a referendum, in which there was no doubt that immigration was a key consideration for some members of the electorate. Parliament has to respect that democratic mandate.
Paul Blomfield
I accept the Minister’s point about the concerns around immigration, but does she accept that the Government have had complete control of our borders in relation to non-EU migration for the last eight years and in each one of those years, non-EU net migration has been higher than EU net migration?
Caroline Nokes
I thank the hon. Gentleman for his comment. I am sure, like me, he welcomes the fact that some of the most recent immigration statistics show more people coming to the UK with a confirmed job to go to, rather than simply looking for work. That is an important trend. I am sure he would also acknowledge that, as the Secretary of State for Exiting the European Union pointed out—he was a Minister in the Department of Health and Social Care when he did so—there are more EU citizens working in the NHS today than there were at the time of the 2016 referendum. I would not want anyone to misunderstand me and think I was being remotely complacent, because I really am not, but I must emphasise again the Government’s recognition and appreciation of the great contribution made to the UK by EU nationals working in health, social care and our important medical research sector. I think it was on the day we published the White Paper that I went to the Crick Institute in London and spoke to some of the research teams there. They were not simply from the EU or the EEA, but were global research teams. That point was made to me by Cancer Research UK, which I visited at the tail end of last year. We will continue to engage with the sector.
The hon. Member for Scunthorpe made an important point about roundtable events and talking to all sectors, and I am absolutely determined to do that in the area of medical research. I assure him that I have a busy programme over the next six months.
Maria Caulfield
One example is those coming to this country to do medical research, particularly cancer research. If they are doing that for their PhD, it can take a number of years, and the current visa period is just not long enough. They go to other English-speaking countries and do their research there. We are missing out on some valuable expertise.
Caroline Nokes
My hon. Friend is right to point out that we do not want to miss out on expertise. We want to continue to attract the very brightest and the best to the UK, to work not only in medical research, but across the economy and all sectors of academia. We heard evidence from Universities UK, which often comes to talk to me about the importance of being able to attract not only researchers from the EEA, but students and academic staff. As I am sometimes inclined to point out, they cannot open their doors if they do not have people available to clean the lavatories. I am conscious that there is a wide breadth of individuals, skills and talents that we will need to continue to attract to the UK post Brexit.
We are in absolutely no doubt about the continuing need in the UK for those working to tackle terrible diseases, such as cancer. We want the existing EU workforce to stay, and we want to continue to attract other international workers in the field. We recognise that the research, as the hon. Member for Scunthorpe pointed out, goes way beyond fiscal benefit. It is about the contribution to the health of the UK population and to the world, because research in this country does not stop at our own shores.
Even under the existing immigration system, special provisions apply for those coming to work in the UK as doctors, nurses and researchers, including in important scientific and medical fields. The provisions include, but are not limited to, being outside the scope of the annual cap that applies to the main skilled work route under tier 2 and not being subject to the resident labour market test. There is also provision for special salary exemptions from the minimum £30,000 threshold for experienced workers. I assure the Committee that the Government take seriously the impact on the UK economy of the proposals we have set out in the immigration White Paper. Together, the proposals are and will be designed to benefit the UK and ensure that we continue to be a competitive place, including for medical research and innovation.
As the hon. Gentleman will be aware, the Bill is designed to provide for the arrangements by which free movement will end for EEA nationals, delivering the commitment that the Government made. It is not designed to set out precisely how the future immigration system will apply, and the power in clause 4 is to make consequential changes as a result of the end of free movement. It is not the place where we will set out the details of the future system.
As stated in the impact assessment published alongside the Bill, the details of the future immigration arrangements that apply to EEA nationals and their family members from 2021 will be set out in immigration rules. It is not yet possible to set out the quantitative and wider benefits of that future system, but the White Paper proposals published in December were supported by a full and detailed economic appraisal, which was published in an analytical note in annex B of the White Paper.
As the Committee will know, the Government intend that the proposal in the White Paper will provide the basis for a national conversation with a wide spectrum of business organisations and sectors. As I have said several times today, over the next 12 months we will listen carefully to various sectors and their concerns before taking final decisions. As the hon. Member for Scunthorpe will appreciate, it is right that the Government assess the full costs and benefits of ending free movement once the future policies have been finalised.
I therefore suggest that the regulations, which are primarily intended to cover the transition from free movement to the future system, are not the right place to set out a detailed impact assessment of the end of free movement on individual sectors. I can reassure the Committee that it is our intention that the immigration rules for the future system will be accompanied by relevant impact assessments, once the arrangements have been finalised.
Accordingly, I believe that the amendment is not appropriate at this time, because it is attached to the wrong provision, but I accept and welcome the spirit of what the hon. Member for Scunthorpe seeks to achieve. I assure him that appropriate impact assessments will be provided.
Paul Blomfield
The Minister is making an important point about future arrangements. Part of the problem is that we are moving towards a blindfold departure. The Minister talks about future rules. Will she give a guarantee that there will be an immigration Bill that will set out the framework for those future rules, so that we can have a full and proper debate in the House?
Caroline Nokes
The hon. Gentleman will be conscious that our immigration rules since the 1971 Act have been largely set out in the rules, as opposed to primary legislation. This is a framework Bill to end free movement. As I have put on record in a statutory instrument Committee, I fully expect there to be a subsequent immigration Bill. There are many aspects of future policy that are perhaps not yet in this Bill.
Afzal Khan
Does the Minister not agree that there are very dangerous implications for patients and their medicine from where we are? We have heard the figures: there are 2.5 million people currently living with cancer; one in three of us will experience that and the number is increasing. When we look at the figures for the number of people from the EU, it is not simply about looking ahead at what we may do; people are being affected today. We need to be careful and move quickly.
Caroline Nokes
The hon. Gentleman will be aware that the future system is intended to be introduced from 2021 and of my commitment to achieving a deal with the EU that is supported by Parliament, so that we can have transitional arrangements, which are crucial. However, now is not the appropriate time to publish impact assessments, which will come forward at the relevant time. I therefore invite the hon. Member for Scunthorpe to withdraw the amendment.
Nic Dakin
I will withdraw the amendment but I would like to thank my hon. Friends for their support and for the helpful comments from the Government Benches, including the Minister’s recognition that this issue needs to be grappled with. I welcome her commitment, in the course of her roundtable meetings, to meet these groups so that the issues can be properly explored with the cancer community.
I also welcome her comments in the exchange with my hon. Friend the Member for Sheffield Central that she is confident that at an appropriate time an immigration Bill will come forward to deal with these issues more comprehensively. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Kate Green
I beg to move amendment 27, in clause 4, page 3, line 10, at end insert—
‘(5A) Any regulations issued under subsection (1) which enable children of EEA or Swiss nationals to be removed from the United Kingdom must include—
(a) a requirement to obtain an individual Best Interests Assessment before a decision is made to remove the child; and
(b) a requirement to obtain a Best Interest Assessment in relation to any child whose human rights may be breached by a decision to remove.
(5B) The assessment under subsection (5A) must cover, but is not limited to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his or her age and understanding);
(b) the child’s physical, emotional and educational needs;
(c) the likely effects, including psychological effects, on the child of the removal;
(d) the child’s age, sex, background and any characteristics of the child the assessor considers relevant;
(e) any harm which the child is at risk of suffering if the removal takes place;
(f) how capable the parent facing removal with the child, and any other person in relation to whom the assessor considers the question to be relevant, is of meeting his or her needs;
(g) the citizenship rights of the child including whether they may be stateless and have rights to British citizenship.
(5C) The assessment must be carried out by a suitably qualified and independent professional.
(5D) Psychological or psychiatric assessments must be obtained in appropriate cases.
(5E) The results of the assessment must be recorded in a written plan for the child.”
This amendment would ensure that before a decision is taken to remove an EEA or Swiss national child from the UK a comprehensive best interest assessment is obtained.
The Chair
With this it will be convenient to discuss the following:
Amendment 25, in clause 4, page 3, line 31, at end insert—
‘(11) When exercising functions under Clause 4 relating to children and families the Secretary of State must—
(a) have due regard to the requirements of—
(i) Part I of the United Nations Convention on the Rights of the Child, and
(ii) the Optional Protocols of the UNCRC to which the UK is a signatory state.
(b) undertake and publish a Child Rights Impact Assessment.”
This amendment would place a duty on the Secretary of State to have due regard to the UNCRC when making statutory instruments using the Henry VIII powers in Clause 4. It will also require them to undertake and publish a CRIA for each change to or introduction of statutory instruments or regulations under Clause 4.
Amendment 24, in clause 7, page 5, line 33, leave out subsection (6) and insert—
‘(6) This Act may not come into force until a Minister of the Crown has undertaken and published a Child Rights Impact Assessment of the Bill.
(6A) Section 6 and this section come into force on the day a Minister of the Crown publishes the Child Rights Impact Assessment under subsection (6).”
Kate Green
The amendment is in my name along with those of the hon. Member for East Worthing and Shoreham (Tim Loughton) and my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman). I am very pleased to have that cross-party support. I also place on record my thanks to the Refugee and Migrant Children’s Consortium, and in particular the Children’s Society, which has helped me considerably, not just with preparing the amendments we are discussing this afternoon but in pursuing my interest in the impact of Brexit on children, going back to our debates on article 50 more than two years ago. It was good to have the Children’s Society give oral evidence to us last week; I am sure that other Members will agree that that was helpful.
Amendment 27 would require the Government to undertake a best interests assessment before an EEA child could be removed from the United Kingdom. There are around 2 million EU national children and parents with dependent children living in the UK who will need to change their immigration status through the European settled status scheme or secure citizenship rights following Brexit. We know from history and examples around the world—we heard about them in oral evidence two weeks ago—that large-scale projects intended to change the immigrant status of significant cohorts or populations are riddled with challenges, from poor design to low take-up. If just a small proportion of the hundreds of thousands of European children already in the UK do not settle their status through the settlement scheme or secure citizenship, the number of undocumented children in the UK could rise substantially. Despite the Government’s commitment to a simple EU settlement scheme, a significant number of children currently living in the UK may find themselves subject to immigration control if they fail to secure their status and become undocumented.
Stuart C. McDonald
Does the hon. Lady agree that this is not just a matter of whether the settled status scheme itself is simple, but a question of how simple UK immigration and nationality laws are? Many children and those looking after them would find it impossible to understand whether, for example, the person is British or has other rights to be in the country and whether they need to apply under the settled status scheme at all.
Kate Green
The hon. Gentleman makes an important point, which is linked to the need for top quality advice for families deciding what status they and their children should seek in the future. We know that children may have a claim to British citizenship, which would give them higher status than the settled status that may be available to their parents. Their parents and carers will need advice about the best form of status that those children should seek in future. That will be difficult in a complex system, as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East rightly says, if they do not have access to good quality advice and information.
We know that, as a result of the failure to secure status, children become undocumented and could, potentially, face removal from this country—the country they have grown up in. That is a real risk in the current immigration system if no further safeguards are put in place or, for that matter, if we do not secure assurances, which I hope the Minister can give the Committee this afternoon.
Amendment 27 would introduce a critical safeguard to ensure that any child’s best interests are proactively and robustly assessed prior to taking the decision to remove a child from the UK or before a child’s rights are breached by a removal decision, for example, where they may become indefinitely separated from a parent or carer. The amendment makes it clear that a holistic assessment of their best interests must be undertaken, including, but not limited to, taking account of the views, wishes and feelings of the child; their educational and emotional needs; the risk of harm to the child if removed; and the citizenship rights of the child, including whether the child is a British national and if so, how they would be able to thrive outside of their country of origin if they were removed. Assessing a child’s interests in those ways is not new or novel. We are not talking about sweeping reform with this amendment, but about introducing a basic safeguard into a complex adversarial system where it is not uncommon for life-changing mistakes to be made.
The UK Government are bound by international, European and domestic law to take the best interests of the child into consideration when making any decisions in all matters that affect children. Indeed, the UN convention on the rights of the child states that the best interests of the child need to be a primary consideration in all acts concerning them. Section 55 of the Borders, Citizenship and Immigration Act 2009 encapsulates the best interest principle in UK domestic law and must be followed by Home Office decision makers when exercising their immigration, asylum and nationality decisions. What is more, section 55 of the 2009 Act places a duty on the Home Secretary to make arrangements to ensure that immigration functions are discharged having regard to the need to safeguard and promote the welfare of children. There is a clear, mandatory duty to safeguard and promote the wellbeing of children on the UK statute book.
Case law demonstrates clearly that what is best for the child must be a primary consideration. The Government’s first step must be to determine what is in the child’s best interests and whether it is outweighed by any countervailing considerations.
The Minister may say that there is no need for amendment 27 because the section 55 duty already exists, that the Home Office takes its welfare considerations very seriously and that each child’s case is considered individually. However, we know from civil society and children’s organisations and from research that there is currently no best interests determination process in place in Home Office decision making. Specifically, I am aware of no formal process by which children’s best interests are examined, assessed, weighed and recorded when removal decisions are made. Instead, decisions about children’s best interests are considered through an immigration prism.
The Committee on the Rights of the Child expressed regret that the rights of the child to their best interests, taken as a primary consideration, is still not reflected in all legislative and policy matters. Furthermore, in 2017 the Coram Children’s Legal Centre reviewed a sample of Home Office decisions in family migration cases, and found that in 40% of cases it did not engage with the child’s best interests at all, and in a further 20% it devoted just a couple of sentences to child’s best interests. We cannot be satisfied with that neglect of our obligations to children’s welfare. Those findings are further supported by research from the Law Centres Network, which reviewed 26 refusal decisions in asylum cases involving unaccompanied children, and found that only 14 explicitly referred to the section 55 guidance, usually by way of a generic paragraph. That is a staggering institutional omission by the Home Office, and a failure to meet its statutory obligations to the rights of children adequately.
In addition, court judgments continue to highlight cases in which children’s welfare is not properly considered before they are forcibly removed from this country or separated from parents indefinitely. One such example is RA and BF v. Secretary of State for the Home Department in 2015, when the court ordered the Home Secretary to bring back a UK-born child and his mother, who had been removed to Nigeria, because the Secretary of State had failed to have regard to RA’s best interests as a primary consideration. The Secretary of State had not taken into account the implications of the mother’s mental health, the risk that it would degenerate in the Nigerian context, and the effect that that would have on the child, who had been in a foster placement previously due to his mother’s poor health. Without an existing systematic approach to fully considering and recording children’s best interests, further clarity is needed from the Minister on how she will ensure that the best interests of every child will be fully considered in the future, so that the Home Office can be held accountable when a decision is taken to remove an EEA national child from the UK.
The introduction of a fully comprehensive system of best interests assessments for all children, including the children of EU nationals, is essential to ensure that immigration decisions—particularly where children and their close family members or people on whom they are dependent are at risk of detention or removal from the UK—are always expressly and fully considered and recorded. I know that colleagues from across the House are keen to explore how an amendment of this sort could be given effect. If the amendment does not pass in Committee, I suspect we will seek further assurances on Report, as it would add an important and safeguard to our immigration system in so far as it relates to all children. I strongly encourage the Minister to consider what more the Home Office can do to promote the best interests of children within our adversarial immigration system.
I therefore ask the Minister: what process is in place to ensure that the Home Office carries out best interests assessments in full when making immigration and asylum decisions? How many children have been separated from their parents by a forced removal within the past two years? How many children have been forcibly removed from the UK with their parents in the past two years? How many of those children were British citizens? We have later amendments relating to Zambrano carers, but will the Minister say whether Zambrano parents will be granted EU settled status? Will the Home Office commit to establishing a comprehensive best interests assessment process to be used when making decisions about EU and EEA nationals, with recorded justifications for each decision, especially in cases of detention or removal?
I would also like to speak to amendments 24 and 25, which are in my name and that of the hon. Member for East Worthing and Shoreham. Amendment 24 would require the Minister to undertake a children’s rights impact assessment of the Bill before commencement. Amendment 25 requires the Minister to have due regard to the United Nations convention on the rights of the child when making powers under clause 24.
Roughly 1.2 million EU parents and 900,000 EU children currently live in the UK. The proposed changes to the immigration system in the Bill and in the Government’s White Paper, and in its statement of intent, equate to a significant change in the rights status of those families. On Universal Children’s Day, just four months ago, probably as this Bill was being drafted by our officials, the children’s Minister called on all Departments to give consideration to the UN convention on the rights of the child when making policy and legislation.
In collaboration with the children’s rights sector, I am pleased that a children’s rights impact assessment template has been developed by the Department for Education. That hard work underpins the amendments that I am proposing this afternoon. However, to my surprise, as it stands, no children’s rights impact assessment has been undertaken by the Home Office on the provisions of the White Paper or this Bill, nor is there any requirement for one to be undertaken for powers that are now being afforded to Ministers by clause 4.
Amendment 25 would require the Minister to have due regard to the United Nations convention on the rights of the child when making powers under clause 4. Members and colleagues in the House of Lords will be incredibly concerned by the wide-ranging powers afforded to Ministers in the Bill. Given the insufficiencies of children’s rights provision in the UK, a commitment from the Minister today to have due regard to the UN convention when making provisions under clause 4 would go some way towards reassuring me and colleagues.
The Government must appreciate that it is nearly impossible for a change to the UK’s immigration system on the scale that we now envisage not to have a profound impact on children and young people. This Immigration Bill alone removes certain protections afforded to EU children under treaty law and free movement and it is simply insufficient to believe that the default of domestic law and the existence of the UN convention will protect all children from having their rights impacted.
For example, EU national children in local authority care and children who are victims of trafficking may struggle to achieve settled status successfully, as I think has been demonstrated already in the beta testing pilot. That would have a massive impact on the human rights of many vulnerable children and young people in the UK, who could find themselves undocumented and facing all the penalties and exclusions that come with that. Any changes to an EU national parent or carer’s status or impact on their rights will have a further impact on their child. Any impact on parents’ or carers’ right to work, claim benefits or continue residing in the UK would have a serious impact on the wellbeing and most likely the rights of that child, as defined in the UN convention.
It is absolutely necessary that the Government stick to their own commitment and follow the advice of the children’s Minister by carrying out a comprehensive children’s rights impact assessment of the Bill and commit to holding children’s rights in due regard when introducing new policy and legislation changes to immigration, as we move to the post-EU immigration system.
Amendment 24 would require a children’s rights impact assessment of the Bill to be undertaken before the Act comes into effect. A child rights impact assessment is a child-focused human rights impact assessment to understand the impact of policies, legislation and administrative decisions on the rights of the child, looking at both direct and indirect impacts to ensure that the child’s wellbeing is safeguarded. Yet between 2010 and 2017, only five Bills were considered for their impact on children’s rights, and so far no assessments have been made for any of the proposed changes to the UK immigration system. The Government assert that children and young people will be protected by domestic law and our commitment to the UNCRC.
There is no such thing as a child-neutral policy. Whether intended or not, every policy impacts on the lives of young people. The Government’s claims that the rights of children are already protected by domestic law and international convention are simply not translating into practice. Evidence for that is the lack of comprehensive best interests determinations completed by the Home Office.
Caroline Nokes
I commend the hon. Member for Stretford and Urmston, my hon. Friend the Member for East Worthing and Shoreham and the right hon. and learned Member for Camberwell and Peckham for their well-known commitment to children’s welfare, which is reflected in the proposed amendments. I apologise for this somewhat cheeky aside, but my hon. Friend the Member for East Worthing and Shoreham, who is not on the Committee, is looking down at us from the Annunciator. I am sure he would want to feel part of this process: he is a former children’s Minister who always took his role very seriously indeed. It is a commitment that I share, and which is already required of the Home Office.
The hon. Member for Stretford and Urmston has certainly given considerable thought to this whole area. Unfortunately for me, she predicted some of my comments. I want to explain how the Government seek to carry out their functions in a way that takes account of the need to safeguard and promote the welfare of children in the UK, as required by section 55 of the Borders, Citizenship and Immigration Act 2009. This requirement applies to all children—not simply to those who are the children of EEA or Swiss nationals—and is therefore much more comprehensive and appropriate than the proposed amendments.
Amendment 27 addresses the situation of children of EEA or Swiss nationals. Hon. Members will be aware that the UK takes very seriously its responsibilities to safeguard the welfare of all children in the country. Significant safeguards are already in place for children who might be required to leave the UK as a result of immigration legislation. That relates mainly to children who are required to leave because their parents are required to leave. It is unclear whether the amendment deals only with children in that situation or whether it seeks to encompass unaccompanied children of EEA and Swiss nationals. If it is the latter, I remind hon. Members that the Home Office’s published guidance prevents the removal of an unaccompanied child unless there are safe and adequate reception arrangements available to them in the country of destination.
Hon. Members will be aware that the unaccompanied children with whom we have the most frequent dealings are unaccompanied asylum-seeking children. Other unaccompanied migrant children, who are the minority, will fall within the safeguarding measures of the relevant local authority, which has a duty to ensure that children are placed, preferably, with family or in situations where their needs can be properly met. A child can be removed from the UK only if safe and adequate arrangements are in place. I cannot cover the full range of circumstances that might be involved, but essentially that means the care of a parent or a family member or the statutory services for children in that country.
The most frequent instances involving the return of children under immigration legislation is when a parent is no longer entitled to remain in the UK. The safeguards that are built in require consideration of whether it is reasonable for the child to leave the UK, starting with the child’s individual right to family life and then their right to a private life. Consideration is then given to any exceptional circumstances that are specific to the child, and which might make it unreasonable for them to be required to leave the UK. These safeguards for children are provided by a combination of primary legislation and guidance. The need to ensure that children’s best interests are considered is set out in primary legislation, and the detail of how this should be done is set out in guidance that is relevant to particular case types. It is done in that way so as not to impose—as the amendment would—a level of detail for each and every case that might not be relevant in every situation.
Kate Green
I am concerned that without more detailed prescription, reasonableness is not necessarily the same as best interests. I invite the Minister to offer all the reassurance she can that the best interests of children will be paramount in the process.
Caroline Nokes
I thank the hon. Lady for that intervention. I was about to move on to the consideration of best interests in primary legislation. I hope it will be self-explanatory.
The placing in primary legislation of detailed requirements about how to consider the best interests of children may not serve the interests of all children. For some, being reunited with family overseas as quickly as possible is an important outcome. In other cases, these requirements will replicate work already being done by a local authority through its children’s services. There is, therefore, a risk that some individual children’s needs will not be well served by including well-intentioned provisions in primary legislation and making them mandatory in every case.
The Home Office’s published guidance on cases involving children required to leave the UK with their parents requires consideration of the following: is it reasonable to expect the child to live in another country? What is the level of the child’s integration with the UK? How long has the child been away from the parents’ country? Where and with whom will the child live if compelled to live overseas? What will the arrangements be for the child in that other country? What is the strength of the child’s relationship with the parent or other family members, which would be severed if the child moved away or stayed in the UK?
The assessment of a child’s best interests in such cases requires consideration of all relevant factors, including whether the child’s parent or parents are expected to leave the UK, whether the child is expected to leave with them or remain without them, and the impact that would have on the child.
Factors to be considered include—but are not limited to—the child’s health, how long they have been in education and what stage they have reached, as well as issues relating to their parents. I therefore consider the current arrangements to provide a more robust safeguard than the assessments proposed by the amendment, which will in any case only apply to children of EEA or Swiss parents.
The proposed amendment would also require the Home Office to develop a care and reintegration plan for any child of an EEA or Swiss national before we could remove the child. However, it is the responsibility of the authorities and the state to which the child is being removed to implement such plans. We would not have the power to enforce them. The amendment would effectively create a new set of statutory duties for the immigration authorities that would be demanding on their time without leading to any clearly identifiable result or benefit for a child.
Other specific safeguards for children whose parents face removal from the UK already exist in immigration legislation. The Government introduced the family returns process to support the removal of families with minor dependent children. That process includes a comprehensive and ongoing written welfare assessment in all cases. Discussion with social services takes place to identify particular concerns and risks, and medical information is sought with the agreement of the individuals. A plan for an ensured return of the family must demonstrate how we have met our duty under section 55 of the Borders, Citizenship and Immigration Act. The proposed amendment is therefore not necessary.
Amendment 25 would require the Secretary of State to have regard to the United Nations convention on the rights of the child when exercising the power in clause 4 in relation to children and families. It would also require the Government to publish a child rights impact assessment when clause 4 is used in relation to children and families. The Government take children’s welfare extremely seriously. As hon. Members will be aware, the UK is a signatory to the United Nations convention on the rights of the child, and we take those obligations seriously.
Section 55 of the Borders, Citizenship and Immigration Act requires the Home Office to carry out its functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. We also have a proud history of providing protection to those in need, including some of the most vulnerable children. For example, we are providing grant funding of up to £9 million for voluntary and community organisations across the UK to support EU nationals who might need additional help when applying for immigration status through the EU settlement scheme. Last week I met a group of organisations working with and representing vulnerable individuals. I was forced to send a note asking whether the Children’s Society had attended the event; it was in fact Children England, although it echoed the comments made by the Children’s Society in evidence to this Committee two weeks ago.
The grant funding we are providing to organisations to inform vulnerable individuals, as well as children and families, about the need to apply for status, and to support them to complete their applications under the scheme, is an important part of the Home Office’s support. As Committee members heard during the oral evidence sessions, voluntary and community organisations have been well engaged in the development of the settlement scheme and their engagement is ongoing.
In exercising all delegated powers, the Government must and do comply with their international legal obligations, including the UN convention on the rights of the child. We do not think it is necessary to reiterate the commitments in individual cases across the statute book, particularly in the light of section 55 of the Borders, Citizenship and Immigration Act. Similarly, the Government’s view is that it would be disproportionate to require the publication of a separate child impact assessment. Age is one of the protected characteristics under the Equality Act 2010 and as such the Secretary of State is already required to, and does, consider the impacts that regulations would have on children by virtue of the public sector equality duty.
Amendment 24, which seeks to amend the Bill’s commencement provisions in clause 7, would make commencement dependent on the Government publishing a child rights impact assessment. As I have outlined, the duty set out in section 55 of the Borders, Citizenship and Immigration Act applies to all functions of the Home Office in the area of immigration, asylum and nationality. Furthermore, clause 3 states that the Bill will be added to the statutory definition of the term, “the Immigration Acts”. To clarify, everything done by and under those Acts must meet that obligation.
Furthermore, we are working to ensure that local authorities have all the support they need to ensure that looked-after children in their care will be able to receive leave to remain under the EU settlement scheme. The Bill’s core focus is to end free movement. The design of the future borders and immigration system will be developed consistently with our international domestic obligations to safeguard and promote the welfare of children. For that reason, as set out in our published policy equality statement on the Bill’s immigration measures, we have committed to carefully considering all equalities issues, including the impact on children, as the policies are developed.
The hon. Member for Stretford and Urmston asked a number of questions about the processes that the Home Office follows to ensure it considers the best interests of the child. As I have outlined, the Home Office has extensive guidance for caseworkers and officials explaining the requirements of section 55 of the 2009 Act, which must always be followed to ensure compliance with the duty. Thus the Home Office always considers the best interests of the child as the primary, but not necessarily the sole, consideration in immigration, asylum and nationality cases.
The hon. Lady asked what would happen to the children of EU resident citizens who do not register themselves for the EU settlement scheme. We have been clear that if a child has not applied before the deadline because their parent has not done so, that would clearly constitute a reasonable ground for missing the deadline and we would work closely with the children and their parent to make an application as soon as possible. She also asked a specific question about numbers. Unfortunately, I do not have the statistics with me but I am happy to write to her and all members of the Committee to provide that information.
The Bill’s social security co-ordination clause is an enabling power, allowing changes to be made to the retained social security co-ordination regime via secondary legislation. A policy equality statement on the co-ordination, which was published alongside the Bill, gave a commitment that equality considerations, including the public sector equality duty, are being considered more widely throughout the policy development and that any policy changes that may be considered under secondary legislation will result in an updated equalities analysis. We will certainly consider the impact of any future changes to the retained co-ordination regime, in line with the public sector equality duty. I therefore urge the hon. Lady to withdraw the amendment.
Kate Green
I am grateful to the Minister for her full response. I will reflect on what she has said, particularly in the light of her offer to provide further information to the Committee, which I hope we can have before our proceedings are concluded, so that we can consider them before moving on to the next stage of the Bill’s passage. I was a little concerned to learn from her that children’s welfare is not necessarily the sole consideration in an immigration decision. It should be the primary and overarching consideration—it is important that we put that on record. I would like to take time to consider the Minister’s response, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Stuart C. McDonald
I beg to move amendment 33, in clause 4, page 3, line 10, at end insert—
“(5A) Regulations under subsection (1) must provide for admission of EU nationals as spouses, partners and children of UK citizens and settled persons.
(5B) Regulations under subsection (1) may require that the EU nationals entering as spouses, partners and children of UK citizens and settled persons can be maintained and accommodated without recourse to public funds, but in deciding whether that test is met, account must be taken of the prospective earnings of the EU nationals seeking entry, as well as any third party support that may be available.
(5C) Regulations under subsection (1) must not include any test of financial circumstances beyond that set out in subsection (5B).”
This amendment would ensure that UK nationals and settled persons can be joined in future by EU spouses and partners and children without application of the financial thresholds and criteria that apply to non-EEA spouses, partners and children.
As hon. Members will have gathered, I disagree with immigration law and rules in this country, but one area of those rules about which I feel particularly strongly is what I regard as the egregious and outrageous rules on family. The problem with the Bill and the White Paper is that, although thousands of families have already been split apart because of the nature of current immigration rules, in future, many more families will face that awful situation. I could pick away at and criticise different aspects of the family immigration rules, but the amendment focuses on spouses, partners and children.
My message to the members of the Committee is that this could be us. If we lost our seats or were lucky enough to be able to retire, we could find ourselves on incomes that did not allow us to sponsor spouses or children to join us from overseas. It could affect our kids or our nephews and nieces. It certainly affects lots of our constituents. I have raised the matter a number of times in debates in Westminster Hall, in the main Chamber, and at Question Time, and I am then inundated with emails from families up and down the country, who are really suffering because we have some of the most draconian immigration rules for families in the world.
I will start with two case studies to highlight the issue, although I could easily provide hundreds. Kiran works six days a week for the NHS, booking people into appointments with their GPs. Sunday should be her only day off, but she instead gets up at the crack of dawn to clean a 21-acre car showroom. Her work is exhausting; there is no respite because the next day, the weekly routine starts again, and she goes back to her nine-to-six job working for the NHS. She has been doing that for a year, all so that she can push her income above the £18,600 threshold and be with her husband in the country that she grew up in. She says:
“I can't even describe to you how it feels. Why do we have to struggle so much to have our loved ones here? It doesn't feel very British to make people suffer like this. I used to be proud to be born and bred here, but all this has changed that. The system splits people apart and makes them feel like they’re worthless.”
The second case study is that of Juli and Tony. Juli met her husband, Tony, while studying for her master’s degree in Northumbria. He is a self-employed plasterer from Edinburgh and she is an artist and media management expert from the US. They met at a party, fell in love and got married after a whirlwind romance. Tony earns more than £18,600 from the business that he runs, but a technicality means that not all of his income is counted. As a result, this loving couple have not been allowed to start building their life together in the UK.
Juli has instead been sent back to the US, where she has slept on a sofa and lived out of a suitcase for months while she fights to come back to her husband. Tony cares for his mother, who suffers from severe mental health problems, and struggles with depression himself, especially without his wife by his side. Juli says:
“I hope this is the year my husband and I finally get to be together again, and I hope it’s sooner rather than later. My husband is suffering, and I’m very worried about him. I would like nothing more than to be able to use my degree to work, contribute to the Scottish economy and finally be able to build a life with my husband and start a family.”
As I said, I could give a million more examples, but every single one of them is about real lives turned upside down by unnecessarily restrictive immigration rules. The Bill and the White Paper would extend those rules to more families. We should do the opposite and try to repeal the worst of those provisions, which came into force in 2012. Since 2012, the minimum income rule has meant that thousands of British citizens, people with indefinite leave to remain and refugees are not allowed to live with their partners, but are forced to leave the country and live thousands of miles away from extended family and support networks. That is all because they do not meet the financial threshold.
As we know, the base threshold is currently set at £18,600, so a British citizen or a settled person must have an income far higher than the minimum wage in order to sponsor the visa of a non-EEA partner. The threshold is higher still if someone wishes to sponsor a child as well as a partner. If someone is sponsoring a partner and one non-British child, the threshold is £22,400 a year, plus a further £2,400 for any additional child. Usually, only the sponsor’s UK income counts towards meeting the threshold, which to me undermines some of the reasons offered by the Government in defence of the rules. If it was seriously only about whether a couple could support themselves without recourse to public funds, why is there this rule that prohibits any account being taken of the potential earnings of the spouse applying to come in from outside the EEA?
Proving the income is also complex, and can be extremely stressful. There are seven separate categories of ways in which sponsors can show that they earn above the required amount. In most cases, only income from UK employment can be counted, while income from overseas employment, the non-British partner’s potential earnings, job offers and support from third parties are excluded from consideration. None of that can be used to demonstrate a couple’s self-sufficiency.
To give an idea of the scale for the people affected, the UK’s income requirement is the highest in the world relative to average earnings. It is equal to more than 121% of the national living wage for those aged 25 and over, 129% for 21 to 24-year-olds and 161% for those aged between 18 and 20. That covers people who are employed on the basis of a full-time salary, but for the ever-growing number of self-employed the system is even more difficult to navigate. If the British partner is self-employed, couples will often end up spending at least 12 months apart, because the sponsor must be able to prove that they met the minimum income requirement over the course of the last full financial year, which is April to April, and applications for an initial spouse visa can usually only be made overseas.
Various groups are disproportionately affected, including women. In many parts of the country, well over half of full-time employed women would be affected. In some regions, more than 60% of the population would not be able to sponsor a spouse from outside the EEA. In many of the constituencies of MPs in this Committee, that will be the percentage of constituents who could not have a spouse join them in this country.
The rules have had a severe detrimental impact on the thousands of families who are unable to meet the requirements. Due to the minimum income rules, British citizens and settled UK residents have been separated from partners, parents and grandparents, often indefinitely. The Children’s Commissioner for England, together with academics from Middlesex University and researchers from the Joint Council for the Welfare of Immigrants, have documented the short and long-term negative effects of those rules on children whose parents are unable to satisfy the requirements.
Parents reported a range of behavioural and psychological problems in their children, including separation anxiety, anger, aggression, depression and guilt, disrupted sleep, bed wetting, social problems with peers and changes to eating patterns. Such effects stem from the enforced separation of children from a parent and/or other family members as a result of the Government’s immigration policy, as well as the transfer of parental stress and anxiety on to children.
NHS England alone employs more than 225,000 British citizens at salaries below the minimum income requirement. How can MPs tell them that they are not allowed to be joined here by their overseas spouse, or that they have to leave their job in the NHS to go and join their spouse overseas?
Average annual pay for teaching assistants, who make up 25% of the UK teaching workforce, is estimated to be between £13,600 and £15,900. The minimum income requirement means that those workers, too, are unable to establish a stable family life in the UK, and many take the difficult decision to move to their partner’s country of origin, or to a third country.
We have also heard about careworkers, more than 70% of whom would not be able to establish a family life in this country with a non-EEA partner under existing immigration rules. There are currently more than 100,000 empty jobs in the adult social care sector. With a fifth of all workers in the sector aged 55 or over, that number will skyrocket over the coming years. If the minimum income rules are extended to cover the spouses and partners of EU nationals, as set out in the White Paper, the care sector will be one of many to be heavily impacted.
Across all sectors, the minimum income requirement is forcing workers with children out of salaried employment. Parents unable to sponsor their partner to come to the UK to live with the family are often forced to choose between paying for prohibitively expensive childcare to enable them to continue working and to reach the threshold, or giving up work altogether in order to act as the family’s sole caregiver. That effect was not properly anticipated in the Government’s initial assessment of the economic impact of the rule changes.
As well as having a negative impact on the workforce, the policy risks harming children, since children of single parents who work part-time are at greater risk of falling into poverty. Some would-be sponsors with children will never be able to reach the minimum income requirement due to their childcare obligations. Single-parent households have a median annual income of about £17,800, compared to about £23,700 for two-parent households. All the stats under the sun cannot properly reflect the human cost and human tragedy at the heart of all this.
I finish with another quote, from a mother with a two-year-old son:
“I am a single mother who has to look after my son as well as provide for my family. I did not want or choose to be in this position but I am being forced to”
by the Government’s immigration rules. I am shocked. It is way after time that we rolled back these provisions. There is no way that we should extend them to many thousands more families who will face these heartbreaking situations. The amendment will prevent that from happening. It is only a first step, because it will stop the extension of the rules, whereas what we actually want is for the rules to be rolled back. Will the Minister comment on that?
Will the Minister also address the evidence we heard about Surinder Singh cases, in which British citizens want to return with non-EEA national spouses, having exercised their right to free movement elsewhere. Some of them may well end up in the difficult position of having to meet thresholds that they are unlikely to be able to meet. I feel very strongly about this rule, and I ask hon. Members to give serious thought as to whether they can countenance splitting families apart in this way.
Afzal Khan
We support the amendment. We feel that income thresholds discriminate against working-class people on lower incomes. Around 40% to 50% of UK residents earn less than £18,600. Due to Brexit, the Government plan to extend this threshold requirement to EU citizens. In the Labour party’s 2017 manifesto, we said that we would replace income thresholds with a prohibition on recourse to public funds, which we feel is a more appropriate way forward.
The Government argue that the financial requirement supports integration and prevents a burden from being placed on the taxpayer. It is right that there are controls on who is able to sponsor a partner to come to the UK. The immigration rules already state that anybody who wants to move to the UK to be with their partner or spouse must prove that they are in a genuine, loving relationship and must pass an English test, and they will not have access to benefits when they arrive. However, demanding that the British partner proves that they earn a specific amount on top of the existing rules means that families are being forced apart purely on the basis of income.
An estimated 15,000 children are growing up in Skype families, where the only contact they have with one of their parents is through Skype, because the British parent does not earn enough for the family to live together. Another group affected is the 80% of women in part-time work who do not meet the threshold. Young mothers are particularly badly affected, often being pushed out of the labour force because they have to handle childcare responsibilities alone due to these rules. I believe that these rules have a negative impact on families, on social cohesion and on the economy. They must be changed, so I am happy to support the amendment.
Caroline Nokes
I appreciate the positive intent behind the amendment, which seeks to create a means whereby, in the future, EU nationals will be able to join a spouse, partner or parent in the UK who is either a British citizen or is settled here, but without being subject to the current and established financial requirements for family migration. No doubt the intention is to be helpful to that group of people and their family members in the UK.
However, the practical effect would not be to maintain the status quo for EU citizens but to create a separate and preferential family migration system for EU family members when compared with the situation of British or settled people’s family members who are not EU nationals. This would clearly lead to a perception that non-EU families are discriminated against for no reason other than their nationality, and may well be regarded as unlawful for that very reason.
The possibly unwitting introduction of direct discrimination is the Government’s main reason for objecting to the amendment, but I also draw attention to the terms of the amendment itself. It would replace the minimum income requirement for British citizens and settled persons sponsoring EU family members with a test that has three separate components: being able to maintain and accommodate the family without recourse to public funds; taking account of the prospective earnings of the EU national seeking entry; and taking into account any third-party support available. I will address each in turn.
Stuart C. McDonald
I thank the Minister for her response. I am frustrated, though. I do not think she appreciates the level of anger there is about this and how many constituents are affected. We are talking about tens of thousands already; about families split apart. She will be imposing that on many thousands of families. She suggested that the old test of a family maintaining itself without recourse to public funds was in some way difficult. That is not my recollection of how it operated in practice. However, I will reconsider whether there is an even more straightforward test that could apply, to refer to certainty. You can have certainty at all sorts of different levels of income, though: it does not have to be at £18,700. As for resting on the MAC’s assessment, if we give it a certain remit to provide certain answers and it gives us the most generous of those, we cannot say, “Well, the MAC says this”, because it did not have the option to give any alternative answers.
The rules regarding prospective earnings and third-party support are still far too restrictive. I will go back and look again at what the Minister said, but the experience of people who are writing to me is that, generally speaking, they are struggling as individuals to meet the threshold. Proper account has not been taken of the earning potential of people who are applying to come into this country.
The arguments about the burden on the taxpayer make no sense. The spouse is not allowed to claim public funds, but apart from anything else, as a taxpayer I am perfectly happy to provide top-up tax credits or whatever else is needed if that allows a British citizen to live with their husband or wife in this country. For the party of the family to say what it is saying is extraordinary.
Kate Green
I appreciate the points that the hon. Gentleman makes. Does he agree that there might be a saving for the British taxpayer if, for example, a family member or spouse can come in to care for a British national who might otherwise be dependent on national health service and local authority social care services?
Stuart C. McDonald
The hon. Lady makes a very valid point. I would be interested to see whether the Government will have the courage of their convictions and reassess the impact on the Treasury of the changes. Researchers from Middlesex University found pretty much the opposite of what the Government suggested would happen. That is because of situations like the one that the hon. Lady describes. Another example is that of parents who have had to give up work because they do not have a spouse here to support them and share childcare responsibilities. It is far from clear cut that there has been a burden on the taxpayer, and it is not a reasonable argument anyway—I would not split families apart merely to save the taxpayer a small sum of money.
I do not understand the argument about integration—how does being separated from a spouse possibly help anyone to integrate? We are saying to these individuals, “You’re not entitled to have your husband or wife or child join you here; we expect you to head off to another country and integrate there.” It is a very strange argument, which I do not follow. I do not think there is a public confidence argument either. The more the public hear about these rules, the more they are outraged, so I reject that argument.
I will think again about precisely how the amendment is worded, but on this occasion the Minister gravely underestimates how far wrong the immigration rules have strayed. I ask her to look again at how they operate and stop families having to suffer in this way. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ordered, That further consideration be now adjourned.— (Paul Maynard.)
Financial Services (Implementation of Legislation) Bill [ Lords ] (First sitting)
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 8 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 9 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Chair
Welcome to our Committee, which I am sure will be enlightening and good natured on this lovely sunny morning. Obviously, we have to ensure that electronic devices are silent, that no banned substances are being consumed—such as tea and coffee—and all that sort of thing.
We will now begin line-by-line consideration of the Bill. The selection list for today’s sittings is available in the room. Please note that the decisions on amendments do not take place in the order in which they are debated but in the order in which they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause that it affects.
I first call the Minister to move the programme motion standing in his name.
The Economic Secretary to the Treasury (John Glen)
I beg to move,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 26 February) meet—
(a) at 2.00 pm on Tuesday 26 February;
(b) at 11.30 am and 2.00 pm on Thursday 28 February;
(2) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 28 February.
It is a pleasure to serve under your chairmanship, Sir Edward, and I am sure that of Mr Austin too. I look forward to the scrutiny of the Bill and to our debate in Committee.
Question put and agreed to.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(John Glen.)
Clause 1
Power in respect of EU financial services legislation with pre-exit origins
Alison Thewliss (Glasgow Central) (SNP)
I beg to move amendment 2, in clause 1, page 1, line 2, leave out “may” and insert—
“, in respect of a piece of specified EU financial services legislation, within six months of that legislation being implemented in the European Union, or immediately if more than six months has passed before this section coming into force, must”.
This amendment would require regulations to be made to apply specified EU financial services legislation in domestic law within six months of that legislation being implemented in the European Union.
The Chair
With this it will be convenient to discuss amendment 3, in clause 1, page 1, line 3, leave out “, or similar, ”.
This amendment would only allow for corresponding provision to EU financial services legislation, not similar provision, to be made.
Alison Thewliss
It is a pleasure to see you in the Chair, Sir Edward. I shall keep this relatively brief. I am pretty sure that the Government know the concerns of the Scottish National party and other Opposition Members about the scope and powers of the Bill.
The amendment would require the UK Government to change regulations in line with European Union standards, as opposed to merely allowing them to make such changes. The UK is reliant on the EU for trade in services, and has become increasingly so since the referendum, according to Office for National Statistics figures for trade, which show that the EU makes up almost half of the UK’s service exports. Brexit risks displacing thousands of jobs in the vital financial services industry, despite institutions drawing up and triggering contingency plans to prepare for the UK’s exit from the EU.
The more that UK regulations differ from those of the EU single market for services, the harder it will be to continue to work alongside our friends in Europe. The UK Government are consistently trying to remove democratic control over the Brexit process—they had to be taken to court to give Parliament a role, they introduce statutory instruments at the last minute before adequate scrutiny can take place and they threaten us all with a no-deal Brexit in a dangerous game of Brexit Russian roulette. The amendment would therefore limit the powers given to the Treasury under the legislation to diverge from EU standards.
John Glen
I thank the hon. Member for Glasgow Central for that contribution. I will respond to amendments 2 and 3 together. As she pointed out, they relate to the Treasury’s discretion to domesticate specified EU financial services legislation and the limitations on implementing said provisions.
Amendment 2 was tabled by the hon. Lady and by the hon. Member for Lanark and Hamilton East and would require the relevant EU legislation to be implemented in the UK within six months of that legislation being implemented in the European Union. The amendment would limit the Government’s discretion unnecessarily and in a way that might have an adverse impact on the UK’s financial services sector.
As the Committee will appreciate, the purpose of the Bill is to give the Government the necessary powers to implement certain pieces of in-flight EU legislation in a timely manner. Mandating implementation within a certain time limit, however, is simply an unnecessary constraint. That is particularly the case given the uncertainty about a no-deal scenario. There might be files that, as it unfolds, are no longer suitable for UK markets, so mandating the UK to implement legislation that in its final form may be unsuitable for or damaging to the UK financial services is inappropriate, in particular as we will not be able to influence the final form of the files in the schedule, which are still in negotiation.
The power to adjust under the Bill is limited; it will not allow the Treasury to alter substantially the intent of files. I do not think it appropriate for the Bill to compel the implementation of legislation that has not yet been drafted and will not have UK input in its final stages.
Amendment 3 seeks to restrict the Government to implementing only corresponding EU provisions, as opposed to corresponding or similar provisions. As was discussed at length in the Lords Bill Committee, “corresponding” is taken to mean
“‘identical in all essentials or respects’. The term ‘similar’ means ‘having a resemblance in appearance, character, or quantity without being identical’. In practice, of course, the legal interpretation of the two terms can vary, with some judging that ‘corresponding’ affords a wider latitude…on the basis of the current drafting…it will be possible to exercise the power only to achieve the aim of the original EU legislation, with an option to make adjustments to account for the specificities of UK markets, rightly reflecting the fact that we will no longer be a member of the EU. It will not, therefore, allow for wholesale changes to the character and intent of the current legislation.”—[Official Report, House of Lords, 8 January 2019; Vol. 794, c. 2138.]
I reassure the Committee that the formulation “corresponding, or similar” is well established and has been used, to provide recent examples, in the Pension Schemes Act 2015 and the Recall of MPs Act 2015. I hope that that will reassure the Committee regarding the limitations that will apply in the formulation “corresponding, or similar”, for which there are precedents. In short, the current wording is already intended to ensure that the powers under the Bill cannot be used to create substantively new policy outside the bounds of the original EU legislation. Without that discretion to implement files in a corresponding or similar way to original EU legislation, the Bill’s power is essentially unworkable. I hope that, in light of those reassurances, hon. Members will withdraw amendments 2 and 3.
Alison Thewliss
I would like to press the amendment to a vote.
Question put, That the amendment be made.
Alison Thewliss
I beg to move amendment 4, in clause 1, page 1, line 9, leave out “the Treasury consider appropriate” and insert
“the Treasury and the House of Commons consider appropriate as defined in sub-paragraphs (i) and (ii)—
(i) any proposed adjustments must be approved by a motion of the House of Commons prior to regulations being laid in draft in accordance with subsection (8)(a), and
(ii) if the House of Commons agrees a motion that certain adjustments be made, the Treasury shall consider that to be an expression of agreement by the House that those adjustments are appropriate.”
This amendment would only permit adjustments to be made that have been pre-approved by the House of Commons.
This amendment also addresses the extra powers that the Bill gives to the Treasury. Clause 1(1)(b) talks about the Treasury considering things “appropriate”. We think that a wider definition of “appropriate” is needed, because the drafting gives the Treasury a good deal more power. The amendment asks for a bit more information on that and for more powers to be given to the House of Commons, with a motion being needed for any adjustments to be made.
John Glen
I thank the hon. Lady for the amendment. It requires adjustments to files under the Bill to be pre-approved by the House of Commons before the Government introduce the relevant statutory instrument. The Government recognise the importance of parliamentary scrutiny surrounding any adjustments that might be made to the relevant EU legislation covered by the powers within the Bill, but any proposed adjustment to files under the Bill will undergo robust parliamentary scrutiny.
First, each statutory instrument will need to be approved by both Houses under the affirmative procedure. That would require laying the relevant statutory instrument before Parliament and then an accompanying explanatory memorandum, setting out the policy intent, before the debate on the SI, and well ahead of implementation. This is the established process for scrutinising such statutory instruments and that is why it is the model we have chosen to follow.
Secondly, the Government have made a clear commitment to consult on each of the SIs laid under the Bill, as appropriate, as stated by the Cabinet Office guide to consultation. Thirdly, the Government publish impact assessments for statutory instruments as a matter of course, and those tabled under the provisions in this Bill will be no different. That will include analysis of economic impacts and equalities considerations, where relevant.
Finally, the additional reporting mechanisms in the Bill will require the Treasury to publish a report at least one month ahead of laying any SI, outlining any adjustments or omissions and the reasons that any adjustments are considered to be appropriate, alongside a draft of the SI. That will allow Parliament, including any interested Select Committees, to scrutinise and report on the proposed content.
In the Government’s view these reporting requirements, alongside the use of the affirmative procedure with each SI laid, afford sufficient and appropriate parliamentary scrutiny for the proposed adjustments to files in the Bill. I remind the Committee that the Joint Committee on Statutory Instruments will be scrutinising all SIs produced under this Bill, as part of the usual procedure. The JCSI’s role is to ensure that a Minister’s powers are being used in accordance with the provisions of the enabling Act. It reports to the House any instance where the authority of the Act has been exceeded or any that reveal unusual or unexpected use of the powers, where the instrument might require further explanation, or where it has been drafted defectively. It is vital that the Government retain the latitude to make these adjustments to files in a timely way, given that without this power the utility of the Bill is seriously compromised.
In consideration of the strengthened reporting requirements and scrutiny procedures in the Bill and the importance of making adjustments to files in a timely way, I hope that the hon. Lady will feel able to withdraw her amendment.
Alison Thewliss
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)
I beg to move amendment 11, in clause 1, page 1, line 14, leave out from “(g)” to “does” in line 16.
This amendment would amend the definition of “adjustments” to restore its natural meaning, while retaining the prohibition on major changes.
The Chair
With this it will be convenient to discuss the following:
Amendment 12, in clause 1, page 1, line 17, leave out “major” and insert “material”.
This amendment would prevent material changes to EU financial services legislation being made through adjustments under subsection (2).
Amendment 13, in clause 1, page 1, line 18, at end insert—
“(2A) But ‘adjustments’ may not include any changes that, in the Treasury’s view, lighten or remove the regulatory burden in comparison to the legislation as it would have operated had the United Kingdom not withdrawn from the EU.”
This amendment would prevent adjustments to EU legislation under this Bill from lightening or removing regulatory burdens on financial services.
Jonathan Reynolds
It is a pleasure to serve under your chairmanship, Sir Edward, and to open the debate for the Opposition. I would now like to speak to amendments 11, 12 and 13, which aim to address some of our wider concerns about the powers being given to the Treasury in this Bill. In the Opposition’s view, the Bill lacks the necessary checks and balances that would prevent it being subject to the potential exploitation of its stated objectives. I express my gratitude to my colleagues in the Lords who began this process and achieved some important initial restrictions on those powers. However, we believe that further controls can be added to ensure that the powers cannot be abused.
I will address this group in two parts. Amendments 11 and 12 would alter the language in the Bill to prevent material changes taking place and restrict the nature of the adjustments that can be made. Amendment 13 explicitly prevents any deregulation under the Bill. Those changes of language are significant and important, because they specify in the Bill clear limits on what alterations and adjustments fall within acceptable realms. We must exercise such caution because included within the Bill, as specified in the in-flight list, are fundamental pillars of the post-financial crisis regulatory regime. That list includes critical rules which are designed to strengthen our financial markets and infrastructure, to prevent a repeat of the disastrous events of 2008, of which we still feel the consequences today. Those include the capital requirements directive V, the bank recovery and resolution directive II, and the central counterparty recovery and resolution regulation. Those regulations have played a central role in promoting integrity in financial markets.
The capital requirements directive, for example, sets out the asset buffers that systemically important financial institutions must hold, and in what ratios. That is to prevent a repeat of the events of 2008, so that banks do not enter a downward spiral at times of market stress and put the public purse at unacceptable risk again. Given the costs involved for banks, the regulations often involve significant negotiation and lobbying to find an agreeable level of capitalisation with which banks feel they can reasonably comply. Last year, for example, the Basel Committee on Banking Supervision granted concessions to United States banks after a long process of lobbying by those banks, which resulted in flexibility in how the rules were ultimately applied.
I will not comment on whether that was the right or wrong decision, but that is a clear example of the interests that will need to be managed in such a process. It does not seem right to the Opposition that the Treasury could be lobbied on such a matter with fairly limited public transparency and that the subsequent changes could then be channelled directly into an SI for which the Treasury is responsible for drafting. In truth, although the current Treasury can reassure us in good faith that that will not be the case, we simply do not know how things might change or who the Government or Ministers might be in future.
Since the referendum result, we have heard noises about deregulation—faint, though they may be—and in our view, the Bill must be built to withstand the pressure that may come. That is why we have explicitly specified in amendment 13 that deregulation cannot be enabled as part of the Bill. That builds in vital protections for a regulatory framework to which we have already signed up at a European level. There will no doubt be reasonable disagreement about what constitutes a weakening or a lightening of the regulatory framework, but we are inserting an important direction to lawmakers and a clear signal to consumers that their interests will continue to be protected.
In truth, we simply do not know how things might change if we crash out of the EU without a deal. I and my Front-Bench colleagues have highlighted in Delegated Legislation Committees the complications that could be associated with capital requirements in such a situation. Capital requirements could be susceptible to problems with the removal of preferential treatment of Euro sovereign debt. At present, EU Government debt is treated with the same risk weighting as UK Government debt. If we crash out without a deal, the preferential treatment of EU sovereign debt will instantly change—it will no longer receive preferential treatment. The reverse would apply for UK sovereign debt.
Evidently, that could be highly disruptive and one would expect big institutions to recalculate their capital ratios and recapitalise when there has been no real change in the risk that they hold. Such a change would inevitably have an impact on how we ultimately implement the capital requirements directive V, as the status quo will have changed so dramatically from when it was first agreed. There must however be safeguards on the underlying process so that that dialogue can be publicly assessed.
I feel therefore that the amendments are reasonable, proportionate and would command public confidence. We might press them to a vote, subject to the Minister’s response.
John Glen
I start by thanking the hon. Gentleman for his explanation of the intent of the three amendments, which I shall address in turn.
I must confess that I was surprised to see amendment 11. The language that it seeks to remove was inserted as a concession to the Labour Front Bench on Report in the Lords. Indeed, the language was directly inspired by an amendment to the Bill tabled by Lord Tunnicliffe and Lord Davies of Oldham in Committee in the other place. Our original drafting reflected the Government’s position that the word “adjustment” is inherently limiting. Following concern in the other place, however, we agreed to insert this language—along with a further limitation, to which we will turn in amendment 13—to clarify what was meant by the term.
Under this wording, as agreed in the other place, the Government will be able to make only adjustments that reflect or facilitate the transition to the United Kingdom’s new position outside the EU, but that does not include changes that result in provisions whose effect is different in a major way to that of the legislation. The new wording clarifies limitations on the power to make adjustments, while, crucially, still allowing for some changes that may be needed, as the UK will have been neither at the negotiating table when the files were finalised nor advocating on behalf of the UK financial services industry during that process. Lord Davies’s position on Report was that he and Lord Tunnicliffe were content with the amended drafting. In light of that, I ask the hon. Gentleman to withdraw amendment 11.
On amendment 12, I am reminded of another debate that took place during the Bill’s passage through the Lords. That debate centred around the Opposition amendment that sought to replace “major” with “significant”, which was later withdrawn. Lord Sharkey, who spoke to that amendment, noted that subsequent to its tabling, he had realised that his dictionary defined “major” as “significant”. I note that the Oxford English Dictionary in turn defines “material” as “significant”. It is therefore clearly possible to interpret all three words as in essence meaning the same thing, in which case the amendment does not have the effect desired by those who tabled it.
Jonathan Reynolds
I appreciate the Minister’s response to our three amendments. On amendment 11, my understanding in good faith of the position of my colleagues in the Lords is that it is not quite as he believes it to be. Their concession was on the prohibition on major changes, rather than on the language on adjustments.
On amendment 12, we could have a semantic discussion of the differences between “major” and “material” for some time. In statutory instruments, for example, on a substantial number of occasions legislation has simply changed European regulatory bodies to UK ones, and I would consider that a fairly minor change. However, I would consider something that resulted in a substantial change to the status quo to be material, and so I make a distinction between what is material and what is major.
On amendment 13, I genuinely believe and trust the Minister when he says that he has no interest in leading a race to the bottom on financial regulation. I know that, like me, he believes that the quality of UK regulation in financial services is a key part of our competitive advantage. However, none of us in this room can guarantee who the Ministers in this country will be in a relatively short space of time—they could be the same, or different, no one is entirely sure—[Interruption.] I am sure that the Whips Office will remain, as ever, a bastion of consistency. These are volatile times, and when legislation is assessed, discussions in Committee about the intent of parliamentarians are taken into consideration and are important. Both sides must be fairly united in believing that we should avoid the illusory race to the bottom as if that would somehow help UK competitiveness, and I simply feel that amendment 13 establishes that clearly. I intend to press all three of my amendments to a vote.
Question put, That the amendment be made.
Alison Thewliss
I beg to move amendment 5, in clause 1, page 2, line 10, leave out subsection (4).
This amendment would disapply section 8(5) and 8(7) of the European Union (Withdrawal) Act, which allow regulations to do anything, with some exceptions, that can be done by an Act of Parliament.
The Chair
With this it will be convenient to discuss amendment 14, in clause 1, page 2, line 12, at end insert
“as though section 8(5) of that Act read ‘Regulations under subsection (1) may make any provision that could be made by an Act of Parliament apart from amending any primary legislation.’”
This amendment would prevent regulations under this Act amending any primary legislation.
Alison Thewliss
Again, amendment 5 seeks to limit some of the sweeping Henry VIII powers that the Government are taking under this Bill, as they did with the European Union (Withdrawal) Act 2018. We seek to disapply sections 8(5) and 8(7) of the withdrawal Act, which allow regulations to do anything, with some exceptions, that can be done by an Act of Parliament. We would very much like to see the Government bringing back some proper, primary legislation as part of a wider strategy on financial services, rather than putting all these out in the way that they are. As I have argued at different stages—and I do not seek to repeat all the arguments here—the Government are giving themselves a huge amount of power under this Bill. We would like to pull that back somewhat, which is what this amendment seeks to do.
Anneliese Dodds (Oxford East) (Lab/Co-op)
I rise to speak in support of amendment 14. It is a pleasure to serve under your chairmanship, Sir Edward, and to follow the hon. Member for Glasgow Central. I very much agree with the sentiments she has expressed. Labour’s amendment 14 is similar in intent to the SNP’s amendment 5, albeit that it would achieve its outcome through a different route; but we will support the SNP’s amendment if it is pushed to a vote, as well as our own.
As members of this Committee will be aware, we have consistently expressed our concerns about the proliferation of Henry VIII powers created through secondary legislation during the process of preparations for no deal. Indeed, that was one of many reasons why we voted against this Bill on Second Reading. The transposition of EU regulations, as mentioned by my hon. Friend the Member for Stalybridge and Hyde, is not an apolitical technical process, necessarily.
During the process of debating the different no-deal SIs that have already been passed through the House, there has been contention on a wide range of issues, including the resourcing and capacity of our regulators to carry out the tasks that heretofore have been carried out by EU bodies; the regulators’ capacity and accountability when levying fines as provided via the new legislation; the ability of Government to alter criminal convictions, which has been provided by part of this process; the setting of thresholds at UK level that previously were set at EU level involving complex sets of calculations; the discretion provided to regulators to apply or disapply EU-level decisions, with reference not to onshored EU legislation but instead to the objectives of those regulators; and many more. We have talked about all of those within the Delegated Legislation Committees and they are significant. It is our contention that they should not have been dealt with through secondary legislation.
Thelma Walker (Colne Valley) (Lab)
I wanted to speak to the amendments and new clauses in the names of my hon. Friends the Members for Oxford East and for Stalybridge and Hyde. The global financial crisis has shown us all—
The Chair
The hon. Lady can speak as often as she likes, but she must let the hon. Member for Oxford East finish her speech first.
Anneliese Dodds
I look forward to hearing my hon. Friend’s speech very soon. Indeed, she started to talk about the financial crisis. This Bill covers many of the issues that were germane during that financial crisis, for example, capital requirement setting and surcharging. The Bill also covers decisions that could be made on consumer safeguards and protections. It is our contention that this process should be accountable and where decisions are made that alter primary legislation, that should not be through secondary legislation, but through the normal process with proper recourse to Parliament. Anything else, frankly, is to allocate power to Whitehall and not to Parliament.
The process of restricting decision making to secondary legislation causes problems not only for Parliament but for the public and for industry. I am sure this has been the experience of other Committee members when they have talked to people outside this place about how secondary legislation works. There is very little understanding. The processes for challenging secondary legislation are highly opaque and—we have discussed this in other Committees—the process for making decisions on it within the UK is quite different to that at EU level, where there is negotiation between the different institutions, including the European Parliament. In the case of the Westminster Parliament, it is simply presented, often even without debate in Committee, let alone on the Floor of the House.
Amendment 14 would prevent the Bill from being able to amend primary legislation. This is sensible to ensure there is proper democratic scrutiny of changes to significant elements of our financial regulatory architecture. My hon. Friend the Member for Stalybridge and Hyde set out the different regulations covered by the Bill, which include the central securities depositories regulation, the delegated cash penalties regulation, the markets in financial instruments regulation, the prospectus regulation and the securities financing transactions regulation. They collectively ensure appropriate levels of transparency in financial markets and instruments and ensure that critical institutions for financial stability hold the appropriate margin. We cannot underestimate their significance within the global financial system.
As Members will know, Henry VIII powers derive their name from the Statute of Proclamations in 1539, in which Henry VIII gained the right to pass laws, directly bypassing Parliament. The reasons for reducing their use to the bare minimum are clear. Not only do Henry VIII powers place a huge amount of control in the hands of the Executive; they also starve the scrutiny process of oxygen. I realise the Minister may well state at this point that he believes there has been sufficient scrutiny of the new measures, which may be introduced if there is no deal. In fact, I believe he stated that in his opening comments. I have only praise for him for appearing in front of many statutory instrument Committees and for taking that burden entirely on his own shoulders. He has been willing to take on board the Opposition’s concerns, and I thank him for that, but let us be honest about the impact of this process. As the Opposition have made clear in every one of those SI Committees, this process is unprecedented in its scale and scope, so there may be areas that have received insufficient scrutiny.
The potential for problems to be discovered only after the fact is real. In fact, just yesterday, the Minister rightly acknowledged—I praised him for being open about this—that there had been mistakes in the draft Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019, and I mentioned that I had highlighted a drafting error in another SI. There may well be more examples of such anomalies, which are far more likely to be picked up when there is a proper debate on the Floor of the House rather than a brief discussion in an SI Committee—most of the time, let’s face it, just between Opposition spokespeople and the Government. Of course, not every SI is even discussed in Committee. In that context, I hope Committee members will support our amendment 14, which would halt the inappropriate use of Henry VIII powers.
Thelma Walker
Thank you for calling me, Sir Edward. Who would know that this is my first Bill Committee?
I rise again to speak on the amendment and the new clause in the names of my hon. Friends the Members for Oxford East and for Stalybridge and Hyde. The global financial crisis showed us all the devastating human cost of inadequate regulation and excessive risk taking in the banking system. We need a clear demonstration from the Government that they have learned from past mistakes, are serious about financial reform and will do everything in their power to ensure that financial stability is placed at the heart of our regulatory agenda. I fear that the Bill represents the exact opposite of such sentiments.
The Government are undertaking a series of far-reaching Brexit-related changes through statutory instruments. Secondary legislation is something that only lawyers, parliamentarians, policy makers and a handful of others are familiar with. For that reason, it is important that that sort of legislation is used only for technical, non-partisan, uncontroversial matters, such as to fill in details, but that is not what has happened in the past few weeks, as the Government have realised they have not planned properly for Brexit.
As a relatively new MP—who would guess?—I have sat on numerous Delegated Legislation Committees and been profoundly shocked as the Government have forced through complex and opaque EU financial regulation, adapting it, adjusting it and transferring powers to financial institutions in the UK. My constituents expect there to be proper time to call for evidence, to consider the different bodies that might be given powers to take forward EU regulations, and to ensure that definitions in the regulatory regime are appropriate.
When financial regulation goes wrong, we all suffer the consequences, so we all should have the right to have a say. That is the cornerstone of our democracy. Our communities have been made to pay these past painful years for a crisis they did not cause. Nine long years of Tory failure have left our economy weak and unprepared for the future. People across the UK are suffering as a result of this Government’s failed austerity programme, which has undermined the very fabric of our society and left public services at breaking point. Can the Minister give an absolute and firm guarantee that my constituents will not be worse off as a result of the Bill, and that the powers in it will not be used for the purpose of deregulation?
John Glen
I thank the Opposition spokespeople for their contributions. I also thank the hon. Member for Colne Valley for her maiden Bill Committee speech. I did not agree with much of what she said, but I will address the substantive points that were made.
Amendment 5 seeks to remove the ability under the Bill for regulations to make any provision that could be made by an Act of Parliament. Amendment 14 is more targeted, seeking to remove only the power to effect changes to primary legislation when implementing the EU files in question. An amendment with a similar effect to amendment 5 was moved and then withdrawn by those on the Labour Front Bench in Committee in the Lords.
I appreciate that there are many concerns across the House about Henry VIII powers, as the hon. Member for Oxford East set out. It is clear that, where they are proposed, their necessity must be well evidenced. In the case of the financial services legislation to which the power in the Bill will apply, I feel that such a power is necessary.
An inability to amend existing primary legislation—the Financial Services and Markets Act 2000, for example—would make it impossible for the UK to implement the relevant EU legislation. Therefore, both these amendments would render the Bill completely ineffective. Furthermore, as Committee members will be aware, the exercise of many functions under financial services legislation is carried out by the independent regulators, the Financial Conduct Authority and the Bank of England. That was always intended. The capacity and expertise of the financial regulators will be crucial in the effective implementation, where appropriate, of that legislation.
Amendment 5 would remove the ability to delegate to the regulators, because as a general rule, a power to make secondary legislation does not include a power to sub-delegate. An inability effectively to delegate powers to the regulators would completely undermine the value of transposing the relevant EU legislation into UK law.
I acknowledge the wider points made about the undesirability of no deal, but this is a contingency arrangement and I believe that the Government have set out clearly the rationale for use of these powers and how they will be used in the circumstance of no deal, which would be wholly different from anything that we are familiar with. Given this context, I hope that the hon. Members will feel able to withdraw their amendments.
Alison Thewliss
I would like to press my amendment to a vote.
Question put, That the amendment be made.
Jonathan Reynolds
I beg to move amendment 15, in clause 1, page 2, line 35, at end insert—
“(c) that draft was laid more than 1 month after the Treasury conducted a public consultation that was promoted to trade unions, regulatory institutions, service users, and any other stakeholders the Chancellor of the Exchequer considers appropriate.”
This amendment obliges HM Treasury to undertake wide-ranging consultation on their proposed implementation of EU legislation, to ensure appropriate public scrutiny on any regulatory divergence.
We have already discussed in Committee today the Opposition’s concerns about the transparency and suitability of the process that we are legislating for in the Bill; clearly, the concerns are quite widely shared across all Opposition parties. That is why we also propose amendment 15, which would mandate the Treasury to undertake full consultation before each regulation is transposed. That would provide an opportunity for better public scrutiny than the statutory instrument process normally affords. It would allow consumer groups, trade unions and academics, alongside a wide range of stakeholders, to give their input and identify where there might have been regulatory divergence that was not immediately apparent. The mandatory consultation would allow any adjustments to be openly debated and scrutinised. Such consultation is essential to maintaining a transparent process where the Treasury is being given powers in this manner.
Consultation and proper impact assessments have become major issues in the process so far of transposing existing EU legislation. I therefore urge hon. Members to support the amendment. It would empower the public and consumer institutions with an essential layer of scrutiny on a set of unprecedented powers being assumed by the Treasury.
John Glen
I thank the hon. Gentleman for his comments. The Government have committed to following Cabinet Office principles on consultation, and they have made clear their commitment to consult on each SI laid, as appropriate. As a matter of course, the Government publish impact assessments for statutory instruments, and that will be no different for those brought forward under powers in the Bill. Those assessments will include an analysis of economic impacts, and equalities considerations where relevant. In line with duties under the Equality Act 2010 and with Cabinet Office guidance, regulations will be made with that equality duty in mind, and any impacts identified will be included in the relevant impact assessments in the usual way.
The Government are already required by legislation to produce reports ahead of, and looking back at, the publication of SIs under the Bill, and those reports will include any inspected and realised impacts of the legislation. That commitment to rigorous reporting and transparency about the Bill’s powers, and the potential adjustments to files and proposed SIs, is evidence that the current Bill contains appropriate provisions for proper scrutiny. I hope that that provides reassurance about the Government’s commitment to transparency in the public and parliamentary spheres, and in that light I ask the hon. Gentleman to withdraw his amendment.
Jonathan Reynolds
I appreciate the Minister’s acceptance and reassurance that the levels of consultation and impact assessments are crucial to this process, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Alison Thewliss
I beg to move amendment 6, in clause 1, page 2, line 37, leave out “4” and insert “8”.
The Chair
With this it will be convenient to discuss the following:
Amendment 7, page 2, line 38, leave out “6” and insert “3”.
Amendment 8, page 2, line 40, leave out “6” and insert “3”.
Amendment 9, page 2, line 42, leave out “1 month” and insert “2 weeks”.
Alison Thewliss
The amendment would increase the frequency with which the UK Government must report on the use of these powers, which would be a step forward for transparency about the new powers taken by the Treasury. The Lords raised various issues in Committee, and the Government took those on board on Report by accepting amendments that require more detailed and frequent reporting from the Treasury about its proposals and use of powers, and on extending those reports and requirements to financial regulators, the Bank of England, the Prudential Regulation Authority, and the Financial Conduct Authority, where powers are sub-delegated to them. Our amendment seeks to build on work done by the Lords to try to hold this centralising Government to account for the Henry VIII powers that they are taking.
The timeline for when these pieces of EU legislation will be introduced and how they will be implemented is not clear. Regular reporting will enhance that transparency, allowing us to keep track of the measures as they come through, and an eye on the implications of the legislation for financial services in the UK.
John Glen
I am grateful to the hon. Lady for her explanation of amendment 6. The Government clearly recognise the importance of parliamentary scrutiny and our reporting obligations under the Bill, as evidenced through concessionary amendments made in the other place. The Bill commits the Treasury to the following reporting and scrutiny obligations, which include obligations to,
“publish a report at least one month ahead of laying any SI, outlining any adjustments or omissions and the reasons any adjustments are considered appropriate, alongside a draft of the SI…to publish six-monthly reports on the exercise of the powers provided by the Bill”.
That will reflect on how powers have been exercised in the previous reporting period. We will also state how the Treasury intends to use those powers in the upcoming reporting period, and
“require the regulators (the Bank of England and the Financial Conduct Authority) to report on their use of any powers sub-delegated to them using the powers in this Bill”.
That will be every 12 months.
The significant bolstering of reporting requirements in the other place reflects the Government’s commitment to the transparent use of the powers in the Bill. To intensify further the reporting requirements as requested by the amendment would result in the Treasury’s being required to produce up to 25 separate reports in two years, in order to domesticate up to 17 pieces of EU legislation. The Government believe that that is completely unnecessary.
The six-month reporting period for the Bill has been accepted in the Lords, and it would bring no real benefit to add further unnecessary reporting requirements. I appreciate the commitment to proper scrutiny across the Committee, but given the strengthening of the Bill’s reporting requirements that has already taken place, I suggest that the hon. Lady withdraw her amendment.
Alison Thewliss
On the basis of what the Minister has said, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Alison Thewliss
I beg to move amendment 10, in clause 1, page 3, line 7, at end insert—
“(d) making an assessment of the economic impact of any adjustments made by the regulations in reliance on subsection (1)(b) to the specified EU financial services legislation to which the regulations relate.”
This amendment would require, in each reporting period, an assessment to be made of any adjustments made in reliance on subsection (1)(b).
The Chair
With this it will be convenient to discuss new clause 2—Report on the provisions of regulations under this Act—
“(1) Prior to making any regulations under this Act, the Treasury must publish a report on the impact of the provisions of those regulations.
(2) A report under this section must consider, in respect of the regulations proposed to be made—
(a) the impact of those provisions on households at different levels of income,
(b) the impact of those provisions on people with protected characteristics (within the meaning of the Equality Act 2010),
(c) the impact of those provisions on the Treasury’s compliance with the public sector equality duty under section 149 of the Equality Act 2010, and
(d) the impact of those provisions on equality in different parts of the United Kingdom and different regions of England.”
This new clause would require a report to be made on the impact of any regulations under this Bill before any such regulations are made.
Alison Thewliss
The amendment would require the Government to prepare a report outlining the impact of any regulatory divergence from the EU as its regulations under this Bill are introduced. It has been accepted that the majority of this Bill’s impact will only be known after the Brexit date of 29 March, if indeed that is still the date. I have not checked my phone; who knows what has happened in the interim? All kinds of things may happen while we are in this room. Who knows?
The Minister spoke earlier about some of the in-flight legislation not being suitable or appropriate, because the UK will no longer be part of the process of making that legislation. He accepts that this is putting a lot of power in the Government’s hands in deciding what fits and does not fit, what we need to take on, and what we do not need to take on. The appropriateness of whether it will have significance to different industries, and whether we think they are appropriate, is all in the Government’s hands.
As the hon. Member for Oxford East has often said on this, it really does amount to a political decision. It is a political choice to decide which of those things are appropriate to different financial services organisations. The amendment would give a bit more clarity on the impact assessment of those decisions—political choices—that the Government intend to make. If we are going to diverge, that has an impact on how we are then able to conduct business with the EU. We need to have a better understanding, for each of those regulations, of how that will have an impact, financial and otherwise. We need a bit more clarity on what that impact will be.
This amendment gives us more opportunity to do that—to hold the Government to account on a continuing basis, and to make sure that we have a full understanding as a parliament on what the impact of the Government’s political decisions will be.
Anneliese Dodds
I rise to support the Opposition’s new clause 2, which is similar in intent to the SNP’s amendment 10. I would like to associate myself with many of the comments by the hon. Member for Glasgow Central. It is a pleasure to follow her in this debate. Labour’s new clause 2 is broader in scope than amendment 10, but it pushes in the same direction.
Our new clause would require the Treasury, prior to making any regulations under this Bill, to publish a report on the impact of the provisions of those regulations. In particular, we specify that the report should cover the following aspects: first, the impact of the provisions on households at different levels of income; secondly, the impact of provisions on people with protected characteristics as defined in the Equality Act 2010, with which I am sure we are all familiar; thirdly, the impact of the provisions on the Treasury’s compliance with the public sector equality duty with which I am sure, again, Members are familiar; and finally, the impact of the provisions on equality in different parts of the UK and different regions of England. The new clause underlines the pressing need for a greater understanding of the impact of legislation such as this on the real economy and on the people who work within it and are impacted by it.
Throughout this process, the Opposition have been concerned about the lack of impact assessments being provided for different pieces of legislation, yet even when they have been provided to us, they have often been highly restricted in scope as well as often arriving late in the day. Often, the main element receiving consideration within the impact assessments has been the familiarisation costs to business of the different measures. That has rightly been criticised by my hon. Friend the Member for Wallasey (Ms Eagle), and indeed last night by the Chair of the Treasury Committee. They both pointed out that the formula for calculating even familiarisation costs is highly mechanistic, relying solely on an assessment of the time spent reading each word of the new regulations, rather than a proper consideration of the level of impact of new regulations on different business practices, for example. Indeed, the Chair of the Treasury Committee has suggested that a better approach might be to ask firms for an assessment of what their adjustment costs will be, then produce a proxy based on that assessment. That could be a sensible way forward. I appreciate that the formula is currently set across Government, rather than just by the Treasury, but surely the area needs to be considered in a much broader context. We have tried to broaden the debate by specifying the elements that need to be taken into account in assessing the Bill’s impact, in line with our general approach to economic decision making.
Financial regulations often come across as a very rarefied area, but we all know that, as my hon. Friend the Member for Colne Valley pointed out, the consequences of getting them wrong can be enormous, especially for specific groups. Whether or not we agree—personally I do not—that cuts to social security were necessary to reduce the deficit that had been created by measures that followed the financial crisis, the burden of those cuts has clearly had an uneven impact on different groups.
The areas of regulation covered in the Bill could have highly disparate impacts. Arguably, the process of financialisation and the intensification of investment banking compared with relationship banking—boring banking, as we might call it—have helped to fuel the imbalance in lending. Over recent years, there has been an enormous move in the UK banking system away from loans to small and medium-sized enterprises and towards loans for real estate. That process has been much more marked outside London and the south-east—it has had a regional impact. The Bill covers some of the instruments that were involved in that process. Capital requirements also have an impact on the structure of banking and its regional distribution, so it is very important that we consider the issues properly.
Finally, I have a question for the Minister about his understanding of the impact of the better regulation provisions. I had assumed all along, as I am sure many other hon. Members did, that those provisions would not apply to this process, given the Government’s stated intention not to water down regulations. As hon. Members will be aware, the better regulation approach specifies “one in, three out”: for every new regulation introduced, three regulations must go. The same issue came up in a debate last night on a very different subject, albeit one that also related to no deal: the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019, the no-deal provisions on the registration, evaluation, authorisation and restriction of chemicals—another incredibly complex body of legislation.
We do not have a clear answer from the Minister on the matter, so I would appreciate his assurance that the better regulation provisions will not apply to the process. If they did, it would counteract any claims made in this Committee or elsewhere that there would be no watering down. The issue is particularly relevant to new clause 2, because the better regulation process focuses only on the costs to business; it does not consider the costs, from a regional perspective, of not regulating, or the potential countervailing benefits to other groups. I have been informed that the better regulation provisions will not be applied to Grenfell-related fire safety regulations. Will the Minister confirm that they will not apply to this process, either?
If we suddenly find that the “one in, three out” provisions apply in this case, we will be in very different territory. There will be even more need for a proper impact assessment, because to an extent it will counteract some of the mechanistic impacts of the “one in, three out” process.
John Glen
I thank the hon. Members for Glasgow Central and for Oxford East for speaking to amendment 10 and new clause 2. I shall discuss them together, because although they differ in key aspects—the former looks backwards at the impact of regulations, while the latter looks forward—we have a similar response to both. The intentions behind them are sound, because it is only right that the Government make regulations with an understanding of their expected impact, but I suggest that they are both unnecessary in the context of the Bill.
As hon. Members know, the Government publish impact assessments for statutory instruments as a matter of course, and it will be no different for those introduced under the powers in the Bill. The impact assessments will include analyses of economic impacts and equalities considerations where relevant.
I acknowledge the challenges of publishing impact assessments for the SIs closely associated with the Bill. I have explained on several occasions in Delegated Legislation Committees, and I reiterate now, that we have done this in a compressed timeframe. Every SI that has gone through the Regulatory Policy Committee—I think there have been five of them—has been registered green. I note the concerns raised by the hon. Member for Oxford East and last night by my right hon. Friend the Member for Loughborough (Nicky Morgan) about the mechanism for evaluating the familiarisation costs. I am pleased that the hon. Member for Oxford East today acknowledged that this is a cross-Whitehall provision.
I will reflect on the points that the hon. Lady has made about the application of the better regulation “one in, three out” rule in respect of this process. I confess that I am not able to give her a definitive statement this morning; I will need to write to her. We have done what we can, and the Treasury is committed to meeting our obligations on impact assessments to enable parliamentary scrutiny. In line with the duties under the Equality Act 2010, and with Cabinet Office guidance, regulations will be made with the equality duty in mind, and any impacts identified will be included in the relevant impact assessments in the usual way.
I remind the Committee that the Government are required in legislation to produce reports ahead of and looking back at the publication of SIs under the Bill. Such reports will of course include, where relevant, the expected and realised impacts of the legislation that is introduced. I hope that, in the light of those assurances, the amendment will be withdrawn and the new clause will not be pressed.
Alison Thewliss
I would still like to press amendment 10 to a vote, because we need to understand better the impact that divergence will have. It is one thing to say, “This is the impact of this bit of legislation,” but we need to know the wider impact of divergence for particular industries.
Question put, That the amendment be made.
The Chair
With this it will be convenient to consider new clause 1—Draft consolidated financial services legislation.
Jonathan Reynolds
New clause 1 aims to address what the Opposition consider to be one of the central issues with the Bill. As we stated earlier, the Government’s chosen approach, which is to combine statutory instruments to transpose existing legislation with this Bill to transpose future legislation, risks creating a patchwork of legislation. Within that patchwork, it will be very difficult to identify areas of overlap, omission and inconsistency. That is an extremely precarious position in which to put a sector that is of such high value to the British economy—particularly one that is so reliant on regulatory certainty and clarity.
Equally, a variety of new powers is being bestowed on institutions such as the Financial Conduct Authority, the Bank of England and the Treasury, as the Opposition have previously highlighted in Delegated Legislation Committees. We believe that there is a clear need to have a central, transparent picture of which institutions will be carrying out which functions, so that we can assess the new balance of powers holistically. A huge shift in powers is being proposed. It is essential that those powers are debated openly and transparently, so that all Members are clear about what is being put forward. Our alternative approach, which is achieved by new clause 1, differs by putting the power to properly scrutinise financial legislation back into the hands of Parliament. To borrow a phrase, it would take back control.
Alison Thewliss
We support new clause 1, which helps us hugely to move forward to a point of clarity. It makes sure that when we take on new pieces of legislation for the different regulatory bodies, we try to get rid of any loopholes and inconsistencies, and that everybody knows exactly what the landscape looks like. It is important that the Government lay out where they intend to go with it. A draft consolidated financial services piece of legislation would be useful, to give everyone the clarity that they require.
John Glen
Clause 1 comprises the core substantive content of the Bill. In a no-deal scenario, the Bill gives the Government the power to implement, in whole or in part, a specified list of EU legislative proposals or in-flight files. In many cases, the UK has strongly supported the proposals throughout their negotiations and has played a leading role in shaping them over a number of years.
The files fall into two categories. The first relates to the pieces of legislation that have been agreed while we have been a member of the European Union, but that will not have come into force prior to the UK’s exit from the EU on 29 March. Those files are listed in clause 1(3)(a), (b), (c), (d) and (f). In a no-deal scenario, there would be no way to implement them in a timely manner, as each would require primary legislation. Clause 1 gives the Government the power to domesticate those files, in whole or in part, via affirmative statutory instruments. Furthermore, as was clarified following concerns expressed in the House of Lords about the breadth of powers, the Government have the power to fix deficiencies.
The second category of files relates to those still in negotiation. The UK has played a leading role in shaping them so far and they could bring significant benefits to UK consumers and businesses when they are implemented. Those files are set out in subsections (3)(e) and (g), incorporating the schedule. Clause 1 also gives the Government the power to domesticate those files, in whole or in part, via affirmative statutory instruments. The UK will not be at the negotiating table when the files are finalised, however, so we will not be able to advocate for the interests of the specific nature of the UK’s financial services sector as negotiations are concluded. The Bill, therefore, provides the Government with the ability to fix deficiencies within the files and to make adjustments to them that go beyond the deficiency-fixing power.
Again, following concerns raised in the other place, the Government have clarified the nature of those adjustments and have stated that they cannot depart in a major way from the original EU legislation. However, the Government will have some flexibility to make adjustments to take account of the UK’s new position outside of the EU. It is only right that the UK retains the latitude to ensure that pieces of legislation finalised after we have left the EU reflect the interests of the UK’s financial services industry, and this Bill must tread the line between giving sufficient powers to enable the Government to effectively implement the legislation and imposing appropriate restraints to reassure Members that safeguards are sufficient.
I put on record my thanks for the collegiate way in which Opposition Front Benchers in the Lords worked with us to arrive at the present drafting and set of safeguards without division. Those safeguards are set out in subsections (7) to (10) of clause 1, and include a two-year sunset clause; a requirement for the affirmative procedure in every instance in which the power is used; strong reporting requirements on Government, including a requirement to publish a draft SI alongside a report detailing omissions and adjustments at least one month before laying it before the House; and a further requirement to publish a report twice a year setting out how the power has been exercised in the previous six months, and how the Treasury intends to exercise it in future.
I should note at this stage one issue to which we may return on Report. Members will note that subsection (3)(e) is not included among those files deemed settled. The Commission was required under the prospectus regulation to adopt delegated acts in January of this year; that has not yet happened, and as such, we do not yet know the content of that delegated legislation. Should the Commission adopt those acts prior to Report, we will seek to amend the Bill accordingly, limiting any adjustments that may be made to the fixing of deficiencies.
Clause 1 is the heart of this short Bill. It is the duty of responsible Government to prepare for all outcomes, and the Bill will provide us with the critical ability to implement legislation that maintains the functionality, reputation and international competitiveness of our financial sector. It is a key part of our no-deal preparations, and without this clause, I am afraid that there would be no Bill to take forward. I recommend that the clause stand part of the Bill.
I will now turn to new clause 1, which is suggested, essentially, as an alternative. The Government believe that the new version of clause 1 tabled by the Opposition is inappropriate as an alternative to the current version, as it does not as drafted provide the Government with any means of domesticating legislation through the Bill. As has been set out a number of times over the course of this and other debates on the Bill, there exists a body of in-flight EU legislation that the UK will want the ability to implement in a timely manner in the period following EU exit, in order to maintain the functionality, reputation and international competitiveness of our financial sector.
New clause 1 does not include any powers to domesticate EU legislation. It compels the Treasury to bring a motion before the House to debate a document stating what EU legislation it proposes to domesticate, but it does not include the necessary mechanism through which those measures can be implemented subsequent to the House’s approval. As such, the Bill would become a hindrance rather than a help—a means for debate without the necessary powers—and the Treasury would be left, having sought the approval of the House of Commons on those pieces of EU legislation it wishes to domesticate, needing to again seek approval by introducing primary legislation or, indeed, another version of this Bill. That would undermine the purpose of the Bill by not enabling the UK to implement important EU legislation in a timely manner when necessary. It would leave the UK lagging behind international counterparts on the issue of financial services regulation—something that I am sure Opposition Front Benchers would not wish to happen—and our financial services industry would then be at a competitive disadvantage at a crucial period in our country’s history.
Even if new clause 1 were amended to include a power to implement the legislation, I suggest that it is an unsuitable alternative to the current procedure. It requires the Treasury to collate into a single document the legislation it wishes to implement, alongside any adjustments it wishes to make and explanations of why those adjustments are necessary. That document would then be debated by the House through the aforementioned motion.
My objections to that extra layer of procedure are, in part, identical to those rehearsed earlier in my objections to amendment 4. Under the Bill as drafted, there will be extensive opportunity for scrutiny of the legislation before it is implemented. During the Bill’s passage through the Lords, we inserted the requirement to publish a draft SI alongside a report detailing any adjustments and the justification for those adjustments one month prior to laying it before the House. The publication of those draft SIs will allow Members to seek a debate on the proposed content, should they so wish. Indeed, the draft SI and the accompanying report seem essentially similar in function to the document that this new clause would require the Treasury to produce. I should also note that publication of those draft SIs will allow Parliament, including any interested Select Committees, to scrutinise the proposed content.
I sympathise with what I suspect is the intention behind the new clause. I imagine, and perhaps the hon. Member for Stalybridge and Hyde will confirm this, that the consolidated document is an attempt to make sense of all the pieces of financial legislation that form part of this essential Brexit planning for a no deal. This Bill addresses a specific issue; it is vital for the UK’s financial services industry that these 17 key pieces of legislation can be domesticated in a timely manner in a no-deal scenario. It will not be possible for the Treasury to set out in a single consolidated document its intentions for all these pieces of legislation prior to their final publication.
We simply do not know what the final version of each file will look like. It would mean the Treasury’s having to wait until all legislation in the Bill was finalised at EU level before producing this document. That would potentially lead to intolerable delays and to the UK financial services sector’s lagging behind its international competitors during this crucial period.
That is why, in the current draft of the Bill, the Treasury has committed to six-monthly reports that will set out how we have used the powers under this Bill in the preceding six months, as well as how we intend to use them in the subsequent six months. That should provide a clear and timely overview of how the Government are using the powers provided for in this Bill. In light of that, I ask that the hon. Members refrain from pressing the new clause as an alternative.
Jonathan Reynolds
I appreciate the Minister’s point that clause 1 is essentially the whole of the Bill that we are discussing, but we do intend to press new clause 1 to a vote as an alternative, for the reasons that I outlined. If I can explain to hon. Members who have not been on a Bill Committee before, under advice from the Chair I understand that if existing clause 1 were accepted then he could not then offer us a vote on new clause 1, because we would have accepted that entirely. Therefore, we will vote against clause 1 stand part in order to move new clause 1.
Question put, That the clause stand part of the Bill.
The Chair
As the Opposition spokesman made clear, new clause 1 is an alternative, so we now proceed to clause 2.
Clause 2
Extent, commencement and short title
John Glen
I beg to move amendment 1, in clause 2, page 3, line 42, leave out subsection (4).
This amendment removes the privilege amendment inserted by the Lords.
I shall speak only briefly on this amendment, as it is a standard form amendment removing the privilege amendment inserted by convention into all Bills that begin life in the House of Lords and have consequences for the public purse. The privilege amendment, as I am sure members of the Committee are aware, recognises that it is the constitutional right of the Commons to initiate legislation that relates to revenue raising or expenditure, and so forbids Acts that are introduced in the Lords from engaging in these activities.
As stated in the explanatory notes accompanying the Bill, regulations made under clause 1(1) could result in money flowing into, or out of, central Government funds. Further, regulations made by virtue of clause 1(4) could lead to provision for the charging of fees. Such financial matters are among those in respect of which the Commons claims the privilege to initiate legislation, and so the privilege amendment was inserted in the Lords. This amendment simply clears it away to enable regulations under, or by virtue of, the Bill to make provisions having consequences for public finances.
Jonathan Reynolds
We were interested, having never been on a Committee for a Bill that has been to the Lords already, in exactly how this worked. We were slightly worried at one point that the Minister was seeking to usurp the Bill of Rights 1689 by trying to make Treasury regulations without recourse to primary legislation; I am relieved to see that he is not seizing power in such an inappropriate way. I understand now that it is a pro forma amendment and I understand why such a process works in the Lords before it comes back to us. We therefore have no objection to this amendment.
Amendment 1 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
John Glen
Clause 2 is simply a technical clause that extends the powers granted in clause 1 across England, Wales, Scotland and Northern Ireland. Financial services policy covered in the Bill relates entirely to reserved matters. It also enables the Act to come into force on the day on which it is passed, as we know of at least one file—the prospectus regulation—that will likely need to be implemented soon after EU exit. I therefore recommend that the clause, as amended, stand part of the Bill.
Question put and agreed to.
Clause 2, as amended, accordingly ordered to stand part of the Bill.
New Clause 2
Report on the provisions of regulations under this Act
“(1) Prior to making any regulations under this Act, the Treasury must publish a report on the impact of the provisions of those regulations.
(2) A report under this section must consider, in respect of the regulations proposed to be made—
(a) the impact of those provisions on households at different levels of income,
(b) the impact of those provisions on people with protected characteristics (within the meaning of the Equality Act 2010),
(c) the impact of those provisions on the Treasury’s compliance with the public sector equality duty under section 149 of the Equality Act 2010, and
(d) the impact of those provisions on equality in different parts of the United Kingdom and different regions of England.” .—(Jonathan Reynolds.)
This new clause would require a report to be made on the impact of any regulations under this Bill before any such regulations are made
Brought up, and read the First time.
Question put, That the clause be read a Second time.
John Glen
The schedule contains a list of financial services files that are essential for ensuring the continued competitiveness and functionality of UK markets. Those files consist of 13 EU legislative proposals that are currently in negotiation and may enter into the EU Official Journal up to two years post EU-exit.
It is not an exhaustive list of all in-flight EU financial services legislation. In order to bring before both Houses a Bill that was as narrow in scope as possible, a triage process was undertaken to settle on files deemed essential to the ongoing functionality, reputation and international competitiveness of our financial sector in the crucial period following a no deal. Some in-flight legislation, for example, relates solely to the eurozone, so it would be inappropriate to include it in the Bill. I extend my thanks once more to the Lords, who suggested expanding the list to include the remaining two sustainable finance files, which was a suggestion that we were happy to accept.
In short, the files in the schedule are those that we believe will be most important for market functioning and UK competitiveness in a no-deal scenario. I recommend that the schedule be the schedule to the Bill.
Question put and agreed to.
Schedule accordingly agreed to.
Anneliese Dodds
I beg your pardon, Sir Edward, but I would like to ask for the Chair’s clarification if I may. We wish to clarify whether it is the case that as clause 1 was ordered to stand part of the Bill, new clause 1 falls, and that that is why we have not had a vote on it. Is that the case?
The Chair
That is correct. All that remains is for me to thank you very much. That was a very expeditious and efficient Committee. I said to Thelma Walker that during the first Committee that I attended, we spent 100 hours filibustering on the Cromwell statue, so I thank you for your efficient scrutiny and wish you a very good morning.
Bill, as amended, to be reported.