European Union (Withdrawal Agreement) Bill

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

Committee (1st Day)

Relevant documents: 1st Report from the Delegated Powers Committee, 1st Report from the Constitution Committee

15:22

Clauses 1 to 6 agreed.

Amendment 1

Moved by

[Lord Greaves]

1: Before Clause 7, insert the following new Clause—
“Rights of European citizens resident in the United Kingdom
(1) This section applies to citizens of the EU, EEA and EFTA nationals and Swiss citizens who are ordinarily resident in the United Kingdom on exit day.(2) Except as provided for in this Act, following exit day all persons mentioned in subsection (1) have the rights, status and obligations which applied to them before that day.(3) The provisions in this section apply to the children and other dependent relatives of such persons whether or not they were ordinarily resident in the United Kingdom on exit day.(4) The rights referred to in subsection (2) may not be amended or removed except by primary legislation.”

[Lord Greaves (LD)]

My Lords, it seems slightly odd that we launch into Committee at Clause 7 but that is the way it is. It comes at the beginning of Part 3 of the Bill, which is the extremely important part referring to the European citizens who now live and work among us and the question of what will happen to them when we leave the European Union. It is about settled status and the future of a very important part of our community.

This is the first time that the details and principles behind the settlement scheme have really come to Parliament. Before now, the matter has been dealt with through orders and regulations under the Immigration Act and by ministerial diktat. It is interesting that today the Law Commission is saying that the Immigration Rules are not fit for purpose and proposing that they have a thorough rewrite. Can the Minister tell us when the Government will respond to that and whether it is likely to happen? It would be very welcome indeed.

This is not a carefully honed amendment that can be fitted into the Bill; that will come in Amendments 2 and 3 tabled by my noble friend Lord Oates. It is a declamatory amendment; it states a principle and a promise made, which very large numbers of the people it affects—European citizens living here—believe has not been, and is not being, carried out in full.

Before the referendum, back in 2016, Boris Johnson, Michael Gove and Priti Patel issued a statement. It was not a government Statement, but they are now the Prime Minister, the Chancellor of the Duchy of Lancaster—who has been tasked with getting Brexit done—and the Home Secretary, so they are pretty important people in the present Government. The statement said:

“There will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.”


The words “automatically” and “no less favourably” are now in considerable doubt.

On television this morning, the Prime Minister, Boris Johnson, was talking about really important things in relation to the Elizabeth Tower and Big Ben. He explained that

“we need to restore the clapper in order to bong Big Ben on Brexit night, and that is expensive. The bongs cost £500,000 … but we are working up a plan so that people can bung a bob for a Big Ben bong.”

I had to read this carefully—and listen to it carefully on the BBC this lunchtime—to be quite sure of the last word. I am assured that it did end in a “g” and was not some other word which might have meant something different, and which I might have had difficulty saying in your Lordships’ House. Having said that

“we need to restore the clapper in order to bong Big Ben on Brexit night”

the Prime Minister continued that they

“have not quite worked out how to do it.”

Yesterday at Second Reading, I said that people who have won the Brexit debate should not be triumphalist. People may be euphoric and have the kind of “paroxysms of joy” that the Prime Minister has described in the Sunday Times—the suggestion was that there would be a baby boom as a result of these paroxysms, which is why I wondered whether the word “bong” was right—but that will not do any good in bringing this country together and healing the serious wounds that have been, and continue to be, caused by the whole Brexit debate. Many people in this country, far from being full of paroxysms of joy, sexual or otherwise, are full of dismay and distress—

[Noble Lords]

Oh!

[Lord Greaves]

Noble Lords can moan. People are crying when they go to sleep at night and when they wake up in the morning, and all they get from the unfeeling, hard-headed Tories is moans. People are feeling a sense of loss, which is akin to bereavement and a grieving process has only just begun. In these circumstances, triumphalist behaviour, festivals of Brexit and all the rest will simply make things worse. The people who feel it the most are the many citizens of the EU who live, work and take part in our communities in every way. There are said to be 3.6 million of them—that was the guess of the Office for National Statistics, although a lot of people think it is rather more. In addition to the EU citizens there are families, UK citizens, spouses, partners, relatives and friends. Families and marriages have already broken up as a result.

15:30

People came here on the basis of law. They were given promises on the basis of trust, and some of those promises are being broken. They know that whatever goes into British law now, there is no longer European law that can protect them in future against a British Government who want rid of as many of them as possible. I should declare an interest of a sort, in that one of my daughters is married to an EU citizen who comes from Denmark. They are going through traumas as a result of what is happening, as are many other people, and they are relatively well off and settled.

Professor Tanja Bueltmann of Northumbria University, working together with the campaign group the3million, carried out a settled-status survey between 20 November and 20 December last year of people living in this country. No fewer than 3,171 individuals responded to the survey with detailed written testimonies which, as a social scientist, she suggests is a phenomenal response rate for this kind of survey. The material that she now has amounts to 245,000 words in free-text comments, which is quite a lot. She tells me that the report is due to be released next week, and I hope we will have it here in time for our deliberations on Report. She says:

“The Settled Status Survey will provide unprecedented insights into the situation of EU/EEA and Swiss citizens, as well as non-EU/EEA and Swiss family members, in the UK and their experiences of the EUSS scheme. They need it. Fear and anxiety remain common sentiments expressed regularly and this is also reflected in the Survey. That fear and anxiety need to be taken away, and having something tangible to hold—physical proof of status—would go a very long way towards achieving that.”

That is something that we will discuss later.

I am particularly concerned about what the Government are doing about the prevention of discrimination in the transition period or the implementation period—call it what you will. I am fearful that on 31 January some things may happen in some places that could be reminiscent of events in Germany in the early 1930s. I am worried about this because there is that sentiment among a hostile minority of the population. I would like to know what the Government are doing to try to stop that happening.

There is a lot of evidence. The Independent published an article on Saturday headed:

“EU settlement scheme delays leave people ‘unable to get jobs or housing’.”

Landlords and employers are simply saying no if people do not have settled status or because they are a European citizen and their future is unknown. That is particularly true if they have pre-settled status and no guarantees beyond five years.

[Lord Grocott (Lab)]

The noble Lord just made a comparison—I am slightly reeling from it—between Britain on 1 February of this year and Nazi Germany in 1933. Could he elaborate on that a little, because that seems to me to be stretching the point a bit?

[Lord Greaves]

We will see. What we know is that the day after the referendum, people’s windows were put in, people were abused in the street and paint was daubed on people’s houses. That is the kind of thing I am talking about. From talking to European citizens here, I know of people who are now reluctant to go into shops if they are not known in them, because of their accent and the attitude people might have towards them. This is quite widespread; I am not saying it is very frequent, but it is going on. I know plenty of instances of people being abused in the street and shouted at, and even more instances when people have, quite kindly, said to people, “I suppose you’ll be going home now.” That is happening all the time. It happened immediately after the referendum and I am very worried that on 1 and 2 February there will be a wave of this kind of thing. Police statistics show that the number of racially motivated offences has increased significantly since June 2016. I am not making it up; it is happening. Noble Lords who perhaps live a sheltered life might get out there a bit more and find out what is going on.

I believe that the Government are not fulfilling their promises—or promises that three leading members of the Government made—and the least they ought to do is explain why and apologise for it. I do not imagine that they will do that, but they ought to. The least we ought to do is make appropriate amendments to the Bill—some of those coming through—to improve it. If the House of Commons throws it out, so be it. That is our duty as unelected people on behalf of people who did not have votes. I beg to move.

[Lord McNicol of West Kilbride (Lab)]

My Lords, the amendment moved by the noble Lord, Lord Greaves, would grant an automatic continuation of pre-exit-day rights and immigration status for EU citizens resident in the United Kingdom. This is a position that the Labour Party has consistently supported. Indeed, the party put forward amendments to that effect when the original Article 50 Bill was considered. However, the then Prime Minister resisted any amendments to that Bill on this issue.

The Government waited a long time to announce that they would unilaterally guarantee the rights of EU citizens resident in the UK, even in the event of a no-deal exit. However, regarding this amendment, the reality is that the settled status scheme has now been operational for some time and the withdrawal agreement was negotiated on the existence of such a scheme. As such, while we sympathise with the thrust behind the amendment of the noble Lord, Lord Greaves, we believe that a better approach is to reform the current system, as the next group of amendments aims to do.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank the noble Lords, Lord Greaves and Lord McNicol, for their comments. The initial points made by the noble Lord, Lord Greaves, were about Immigration Rules. There will be an update in March. He made some points about Big Ben; I was not sure what they were. He also talked about gloating, but I do not observe any member of your Lordships’ House gloating over the Bill and I concur with the noble Lord, Lord Grocott, that comparing the UK on 31 January to Nazi Germany is a step too far.

To get to the point of what the noble Lord eventually said, we reject the proposed new clause in Amendment 1. It is well intentioned but unnecessary; it conflicts with our general implementation of the withdrawal agreement, the EEA EFTA Separation Agreement and the Swiss citizens’ rights agreement. For brevity, I will refer to these as the agreements. My references to EU citizens should likewise be taken to include these EEA/EFTA and Swiss nationals, and their family members.

Citizens’ rights have been a priority in negotiations and the Government have delivered on that commitment, reaching agreements that provide certainty to EU citizens in the UK and to UK nationals in the EU that they can continue to live, work, study and access benefits and services broadly as now. Clauses 5 and 6 create a conduit pipe, which makes the rights and obligations contained in the agreements available in UK law. This is intended to replicate the way that EU law applied in the UK while the UK was a member state, and these clauses ensure that the rights contained in the agreements are available to EU citizens in the UK. The agreements provide certainty and protect the rights of EU citizens lawfully resident in the UK before the end of the implementation period. Existing close family members, including children of those covered in the agreements, will also have a lifelong right to family reunion. The as-yet unborn children of EU citizens will also be protected. This protection applies equally to UK nationals in their member state of residence and is guaranteed by the withdrawal agreement.

The UK has already introduced the EU settlement scheme, which is the means for EU citizens to obtain the status that confers rights under the agreements. The scheme provides a quick and easy way to do this, and it is a success. According to the latest internal figures, over 2.8 million applications have been received and 2.5 million grants of status made. The Home Office is processing up to 20,000 applications a day. We are working tirelessly with communities up and down the country to raise awareness and keep up this momentum. The scheme already allows EU citizens protected by the agreements to obtain UK immigration status, which enables them to remain here permanently after exit. The proposed new clause is therefore unnecessary, as it conflicts with the purpose and operation of the scheme.

Finally, the proposed new clause makes reference to those resident in the UK on exit day, at the end of this month. As the noble Lord should know, rights under the agreements are conferred on those resident in the UK at the end of the implementation period, which is at the end of this year. The proposed new clause therefore does not align with our obligations under the agreements. I hope that has reassured the noble Lord on the concerns expressed through this new clause and I ask him to withdraw his amendment.

[Lord Greaves]

My Lords, I will certainly withdraw the amendment and I am glad that the Minister discovered the error that I had made when it was too late to correct it. I thank her for that but, as I said, it is not a carefully honed amendment; it is an amendment to declare a principle. The Minister says that it declares the principle behind what the Government are doing. That is clearly not the case. It is the case in many areas, but not in all. As for the settled status scheme, it is certainly the most efficient Home Office scheme that I have come across in recent years—although that does not say very much—because of the effort that has been put into it. I thank her for that. The Minister said, and the Government keep saying, that the rights of European citizens will be broadly as now. It is “broadly” that is a weasel word.

Finally, I did not compare this country to Nazi Germany and obviously I would not do so; that would be ridiculous. What I am saying is that some of the conditions that exist in this country are similar to those that existed in Germany between the wars before the Nazis came to power. You can think that that is right or that it is wrong, but I believe it is the case. Look at the amount of racist abuse there is on social media, while if you listen to pub conversations, you can hear people saying things that perhaps three, four or five years ago they would have kept to themselves. There is an amount of abuse by a small minority of people that is not being stopped by the social controls that previously existed. That, I am afraid, is the position.

15:45

I shall give a brief example from Colne, my home town. A planning application was made to turn an old Sunday school into a mosque. It did not need permission to do that but for the changes to be made to a listed building. What happened last summer was shocking. There was outside influence and local far-right agitators stirring it up. Their behaviour during a demonstration they held on a Saturday afternoon when they brought a far-right fascist group in to occupy the town centre was the kind of thing that we really do not want. There is danger here, so I ask the Government to make renewed efforts to prevent this kind of thing happening, particularly immediately after exit day and as the end of the year approaches. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 7: Rights related to residence: application deadline and temporary protection

Amendment 2

Moved by

[Lord Oates]

2: Clause 7, leave out Clause 7 and insert the following new Clause—
“Rights related to residence
(1) This section applies to—(a) persons within the personal scope of the withdrawal agreement (defined in Article 10) having the right to reside in the United Kingdom;(b) persons to whom the provisions in (a) do not apply but who are eligible for indefinite leave to enter or remain or limited leave to enter or remain by virtue of residence scheme immigration rules (see section 17).(2) The Secretary of State may by regulations make provision to extend the scope of persons eligible for indefinite leave to enter or remain or limited leave to enter or remain by virtue of residence scheme immigration rules (see section 17).(3) A person has settled status in the United Kingdom if that person meets the criteria set out in ‘Eligibility for indefinite leave to enter or remain’ in Immigration Rules Appendix EU, or any amendment of these rules according to subsection (2).(4) A person with settled status holds indefinite leave to enter or remain and has the rights provided by the withdrawal agreement for those holding permanent residence as defined in Article 15 of the agreement, even if that person is not in employment, has not been in employment or has no sufficient resources or comprehensive sickness insurance. (5) A person has pre-settled status in the United Kingdom if that person meets the eligibility requirements set out in ‘Eligibility for limited leave to enter or remain’ in residence scheme immigration rules (see section 17), or any amendment of these rules according to subsection (2).(6) A person who has pre-settled status has leave to enter or remain and has the rights provided by the withdrawal agreement for those holding permanent residence as defined in Article 15 of the withdrawal agreement, even if that person is not in employment, has not been in employment or has no sufficient resources or comprehensive sickness insurance, except for the right to reside indefinitely in the United Kingdom and subject to the limitations set out in Article 23(2) of the withdrawal agreement.(7) The Secretary of State must by regulations made by statutory instrument make provision—(a) implementing Article 18(4) of the withdrawal agreement (right of eligible citizens to receive a residence document), including making provision for a physical document providing proof of residence;(b) implementing Article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to receive a residence document) including making provision for a physical document providing proof of residence;(c) implementing Article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to receive a residence document), including making provision for a physical document providing proof of residence.(8) The regulations adopted under subsection (11) must apply to those defined in subsections (1)(a) and (1)(b).(9) A person holding pre-settled or settled status does not lose the right to reside for not having registered that settled or pre-settled status.(10) A person who has settled or pre-settled status who has not registered their settled or pre-settled status by 30 June 2021 or any later date decided by the Secretary of State may register at any time after that date under the same conditions as those registering prior to that date.(11) After 30 June 2021 or any later date decided by the Secretary of State, a person or their agent may require proof of registration of settled or pre-settled status under conditions prescribed by the Secretary of State in regulations made by statutory instrument, subject to subsections (12) to (14).(12) Any person or their agent who is allowed under subsection (11) to require proof of registration has discretion to establish by way of other means than proof of registration that the eligibility requirements for pre-settled or settled status under the provisions of this Act have been met.(13) When a person within the scope of this section is requested to provide proof of registration of settled or pre-settled status as a condition to retain social security benefits, housing assistance, access to public services or entitlements under a private contract, that person shall be given a reasonable period of at least three months to initiate the registration procedure set out in this section if that person has not already registered.(14) During the reasonable period under subsection (13), and subsequently on the provision of proof of commencement of the registration procedure and until a final decision on registration on which no further administrative or judicial recourse is possible, a person cannot be deprived of existing social security benefits, housing assistance, access to public services or private contract entitlements on the grounds of not having proof of registration.(15) A statutory instrument containing regulations under this section may not be made unless a draft instrument has been laid before and approved by a resolution of each House of Parliament.” Member’s explanatory statement
This amendment creates a declaratory registration that provides incentives for registration while at the same avoiding EU citizens becoming illegally resident if not registering by the deadline. It ensures EU citizens receive physical proof of registration. It consolidates both the current eligibility criteria of the EU Settlement Scheme immigration rules, and the rights of those eligible under the Scheme, into primary legislation.

[Lord Oates (LD)]

My Lords, in moving Amendment 2 I shall speak also to Amendment 3, in my name and those of the noble Lords, Lord Kerslake and Lord McNicol of West Kilbride, The noble Lord, Lord Kerslake, gives his apologies that he cannot be in the Chamber because he has been called away to another meeting.

Amendment 2 seeks to create a declaratory registration system to replace the existing application-based system. Its intention is, first, to continue to provide incentives for registration but to avoid making EU citizens who do not register by the deadline immediately and by definition illegal. Secondly, it seeks to ensure that EU citizens can receive physical proof of registration, which is a concern that I know has been expressed to many Members of your Lordships’ House, and indeed has been the subject of representations made by EU sub-committees.

Thirdly, it would consolidate in primary legislation both the current eligibility criteria of the EU settlement scheme Immigration Rules and the rights of those who are eligible under the scheme. Amendment 3 tries to do similar things: that is, it would establish the declaratory principle and make provision for physical proof, but it would not seek to put into primary legislation the rules and rights under the scheme.

The aim of Amendment 2—that of seeking to put these issues into primary legislation—is to be helpful to the Government by ensuring the categorical commitment made to EU citizens, referred to by my noble friend Lord Greaves, during the referendum campaign by the current Prime Minister, the current Home Secretary and the current Chancellor of the Duchy of Lancaster, to guarantee that those rights would be automatic and that EU citizens would be treated no less favourably than they are at present. The current scheme does not honour that commitment. The settled status scheme is not the automatic route to indefinite leave to remain that was promised by the leave campaigners. It is an application-based system with a finite cut-off of 30 June 2021. In fact, the only thing that is automatic about the scheme is that, after midnight on that date, any person who has not applied will be criminalised. They will be deemed to be unlawfully in the United Kingdom whether or not they are otherwise eligible for permanent residence under the scheme, and they will therefore be subject to deportation.

I echo the comments of my noble friend and others: the Home Office is clearly making strenuous efforts in this regard. But we know that, inevitably and despite its best efforts, it will not be able to reach and grant settled status to every one of the 3.6 million—we do not know the exact number—EU, EEA and Swiss citizens. Tens or even hundreds of thousands of otherwise eligible people may find themselves undocumented and criminalised in as little as 18 months’ time. Inevitably, those most at risk will be the most vulnerable: young people in care, the elderly and the marginalised.

The Government’s argument for a cut-off date seems to be that it will help avoid a repeat of the injustice inflicted by the Home Office in the Windrush scandal. But it will do nothing of the sort. It will just criminalise the latter-day Windrush people. The solution of the Home Office to the problem of Windrush seems to be simply to ensure that it will not be acting unlawfully by removing eligible people, as it was found to be in the case of the Windrush victims. It is a bizarre form of protection.

Another issue with the settled status scheme is that, unlike the indefinite leave to remain scheme, where you have a stamp in your passport, it does not provide successful applicants with physical proof of their right to be in the United Kingdom. Instead, they must rely entirely on a code issued to them by the Home Office, which has to be entered into the relevant website by whoever requires proof of their immigration status. the3million, which represents EU citizens in the UK, has highlighted the many difficulties and concerns that this inevitably will cause for EU citizens. Interactions with landlords, airline staff and other officials obliged to check immigration status will become fraught with anxiety and will be dependent on the fragility of an internet connection or the resilience of a government IT system.

Finally, and most fundamentally, the current settled status scheme rests on immigration regulations, which can be changed virtually at the stroke of a ministerial pen, and on the undertakings of Ministers. But, as we know, Ministers come and go. We know already that the commitments—categorical, without any room for confusion or misunderstanding—that were issued by the Home Secretary and the Prime Minister have not been honoured. So why should EU citizens in this country have faith that this system will not be changed at a later date?

Beyond the principles of the settled status scheme, there are also lots of concerns about how it is applied: who is actually getting settled status and who is instead getting presettled status. In summing up at Second Reading last night, the Minister, the noble and learned Lord, Lord Keen, said that

“presettled status is a pathway to settled status,”—[Official Report, 13/1/20; col. 552.]

as if it did not matter which you got—but it does. It matters very much because the rights under each are different.

We are not seeking to change anything about the rights of citizens under the EU settled status scheme, or about eligibility. We are asking, first, that the rights are placed in primary legislation to give the reassurance that EU citizens need and want, so that they can feel secure and settled in their status in this country. Secondly, we ask that their request for a means of having physical proof is answered. It may be that not everybody wants that, but there should be an option for EU citizens to have it. Lastly, we ask for a shift to a declaratory system in which eligibility is the basis on which one has rights, not the application system. As the amendment sets out, it is perfectly possible to continue to give incentives to registration while establishing a declaratory system that will ensure that a whole load of vulnerable people are not criminalised when the registration date passes in 2021. I beg to move.

[Lord Hamilton of Epsom (Con)]

My Lords, the Government have done an amazing amount to look after EU citizens in this country. I cast my mind back to the early days of the May Government when there was great pressure to unilaterally make steps to ensure the position of EU citizens living in this country. At that stage, the Government resisted the pressure because they said that this should be part of the negotiations. It should be reciprocated by the EU: it should do the same for our citizens in the EU. As far as I can make out, that has not happened. We have made a generous, unilateral gesture towards EU citizens in this country and there has not been reciprocation from the EU. Does that not mean that the Government have been rather mistaken to make this generous offer? Surely we have an obligation to our citizens in the EU and we should look to it to reciprocate anything that we do in this country. Will my noble friend address this problem when she sums up? As I understand it, British citizens in the EU do not, at the moment, have any freedom of movement between one EU country and another and there are certain problems with EU citizens in this country travelling to and from their country of origin in Europe. This has not been a very satisfactory outcome in the negotiations. Perhaps we would have been better not to have made this extremely generous, unilateral offer.

[Lord Warner (CB)]

My Lords, I support these two amendments. I do so as the roommate of my noble friend Lord Kerslake, who sends his apologies for not being here but has strengthened my arguments for supporting the amendments. I speak as someone who, after the 1997 election—oh glorious days—spent two years in the Home Office and saw every submission of any significance that was made to the then Home Secretary. I always shuddered a little when we got submissions from the immigration part of the department. They sent a quiver through my soul, because of reliability. I remember a former Conservative Home Secretary briefed us shortly after that election. He said to the then Home Secretary: “You have to remember that there are always 500 people in the Home Office who can ruin your political career. The really scary thing is that none of them actually realises that they can do it.” The Windrush exercise demonstrated rather well the wisdom of those remarks.

The important thing about these two amendments is that they do not in any way disturb significantly what the Government want to do. They provide legal certainty, about which I think we will hear more later in Committee. They also provide some very practical stiffening of the arrangements around these new Immigration Rules. I went to one of the Home Office briefings for parliamentarians on the new scheme, at which everybody, MPs, Peers and members of MPs’ offices, made the point to the Home Office that in the real world a lot of people expect someone to produce hard-copy evidence, whether it is the landlord, the GP or whoever. I can speak from personal experience, having helped a number of people get permanent leave to remain here, and not that long ago either. These people had had experiences of having to produce some written documentation that they were entitled to live here.

16:00

I shall just tell the story of a person who has lived here 10 years and has a son at school who has lived here for that period of time. The child was bullied in his school because there was no evidence, as they thought, that he had an entitlement to be here. We could deal with that issue only by being able to produce Home Office evidence that this person had permanent leave to remain here. It was the piece of paper that convinced the head that something had to be done. The absence of that documentation is very worrying, and it is why I think Amendment 3 is so important: it would give people confidence that they can convince people that they are entitled to be here. Just think about the idea of someone having to say, “I have this code and if you go on the Home Office website it will prove to you that I am entitled to be here.” That is not the way the real world works; it is not a credible way of helping people to reassure others that they have an entitlement to be here.

I think this House would be very wise to send this Bill back with both these amendments in it, or some government alternative to the precise wording, because, however hard we try, we will not be sure that by the deadline everybody who has settled status at the moment will be able to ensure that they are registered in the new scheme. If one stops to think about it for a moment, it is counterintuitive. If someone has in recent years secured a permanent right to be here, why should it occur to them, despite all the briefings to the public by the Home Office, that they are not entitled to be here? Why should they have to go through another step to prove to the Home Office that they are entitled to be here when they have already received, within the last two or three years, a letter from the Home Office guaranteeing them the right to be here? The Home Office is asking a lot of people to do a counter- intuitive thing and I think we should support these two amendments.

[Viscount Waverley (CB)]

My Lords, I hope I may be permitted to elaborate on a point made by the noble Lord, Lord Hamilton. I do so as a long-term resident of Portugal, where there is a sense from officialdom on the continent that the rights of UK citizens in Portugal, and indeed elsewhere, are actually in a good place. The key word in all this is reciprocity. The Portuguese have made certain protections for UK citizens in their country, but there is this key word in Article 19 of the appropriate legislation that specifically— I will not translate it directly from the Portuguese—relates to reciprocity. The conditions are broadly the same; if you go and register, your rights are protected. In reality, that is what everyone should be doing anyway. If there is a single message that the Minister and others in this country might want to give, it is to encourage UK citizens to do the very easy and simple thing—go and register, and your rights are protected.

[Baroness Hamwee (LD)]

My Lords, important points have been made about UK citizens in other European countries, and my noble friend Lady Miller and I have an amendment on one aspect of that which I think will be taken on Thursday.

The noble Lord, Lord Warner, referred to permanent residence status. I understand that while the numbers of people applying for permanent residence have dropped a bit, as one would expect given the rollout of the settled status scheme, they are still significantly higher than they were before 2016. One can only speculate about the reasons for that—I do not think we can know what they are—but permanent residence provided documentary evidence, and the physical evidence available through that route may well have been a reason for the high number of applications.

Points have also been made this afternoon about immigration rules. I cannot let the occasion go by without saying how much I would welcome rules that are simpler and cannot be changed without going through full scrutiny and parliamentary process.

I will make a couple of points on these amendments, which I wholeheartedly support. One is the importance of ensuring that people who have some sort of status are not impeded in travelling. I have come across this in connection with independent leave to remain obtained by a refugee, only the latest of a number of examples I have heard of people who have had problems with travel documents. There is something about not fitting the boxes that officials are given and need to tick. We must make sure that those with settled status can properly exercise their rights and come in and out of this country freely.

My other point was mentioned by the noble and learned Lord, Lord Keen, last night in summing up the debate. He said that there will be an “automatic reminder” to those with pre-settled status to apply for settled status. I urge the Government to work with the embassies and the groups that have been so involved in this process and made such helpful interventions and comments to ensure that whatever very necessary arrangements they put in place to remind people both that they will have to apply for settled status and that pre-settled status is different will work as well and efficiently as possible—taking account of human frailty, if you like.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I support both these amendments. I will begin with the words of the noble and learned Lord, Lord Keen, from the end of our very long day yesterday:

“EU citizens in the United Kingdom are our neighbours, colleagues and workplace friends, and of course we value the contribution they make to the United Kingdom and wish them to remain here.”—[Official Report, 13/1/20; col. 552.]


I contrast that with a report from 10 October, when the Security Minister, Brandon Lewis, was quoted as saying that EU citizens who do not apply for settled status face deportation.

I ask your Lordships to put yourselves in the shoes of an affected citizen here in the UK, who may have come here quite recently or have been here for many decades, and think about which set of words you will have heard more clearly, which set of words will be affecting your sentiment and understanding of your place in the United Kingdom. I think everyone knows that what people will be hearing, worrying about and fearing are the words “threatened with deportation”. We are talking about up to 4 million people being affected. The latest figure I have seen is that 2.5 million people have applied for settled status. However, as the noble Viscount, Lord Waverley, said, there are also the 1.4 million UK citizens across Europe, for whom reciprocity means that they will be affected by how we treat their fellows here in the UK.

My arguments for these amendments fit into two groups. First, there are the practical arguments. As many noble Lords have said, to have a physical document will be immensely useful in dealing with landlords and immigration—just knowing that it is in your wallet or purse. There is also the fact that to have a declaratory scheme is far easier and far less daunting. That is a practical benefit. Those are the practical advantages. But there is also the question of sentiment—sending a message of welcome to our EU and other friends who are part of our communities. I urge noble Lords to back these two amendments, to back the message which the noble and learned Lord, Lord Keen, delivered last night and which the Government say they want to send to these citizens.

[Baroness Ludford (LD)]

My Lords, I too support these amendments, which were introduced by my noble friend Lord Oates and which are in his name and those of the noble Lords, Lord McNicol and Lord Kerslake.

I too was pleased to hear the noble and learned Lord, Lord Keen, say last night that those with pre-settled status would

“receive an automatic reminder to apply for settled status before their leave expires.”—[Official Report, 13/1/20; col. 552.]

I may have lost track of this issue, but is that new? I do not remember it. I remember that we on the EU Justice Sub-Committee asked repeatedly for that to happen, as well as for physical proof of status. Perhaps it is not new, but I do not recall when I was on that sub-committee that that system had been set up by the Government, and I am pleased that it now exists. Perhaps the Minister could explain whether it is new.

Some of us worry about 40% of people getting pre-settled status. Have the Government been able to do any surveys or analysis of how many people genuinely do not have the five years’ residence they need for settled status, or of those who give up because they have not managed to provide the evidence that is required for five years, some of which might be a little challenging to provide?

In a different context, I read in the papers about people who have had real problems convincing HMRC—regarding the years they need to clock up for a state pension—that its records are wrong about national insurance contributions. People have talked about how it has taken a year’s effort to persuade HMRC that they did indeed make national insurance contributions in a particular year. So the part of the supplying of evidence that relies on HMRC and DWP records may or may not be accurate. Some people might be struggling.

Can the Minister tell us whether there is any analysis of how many people genuinely do not have five years’ residence, and of those who are having difficulty providing the necessary evidence? A lot of us are very concerned about this. I agree that the Home Office appears to be putting good effort into it—some of my colleagues went to Liverpool; I did not manage to do that. None the less, the consequences come June of next year of people not having settled status are so severe that we cannot afford to overlook any possible problem—of course, I support the proposal that we pursued on the EU Justice Sub-Committee that applicants should get physical proof. We never managed to get, to my satisfaction at least, a good answer from the Home Office on why it refused to countenance that. I am sure the Minister will give us that answer.

That tracks into the fact that, as my noble friend said, there are people with permanent residence who believe, wrongly, that they do not need to apply for settled status. That adds to the concern about people who may find themselves bereft in 18 months’ time.

16:15

Then there are people who have been here for decades. They are often very elderly and just assume that, because they have always been allowed to stay, they do not need to do anything. They need our particular concern. I know that we are getting lots of reassurances and so on—we are about to get some more—but many of us will continue to worry very much about this situation and this scheme.

[Lord Cromwell (CB)]

I also add my support to this pair of amendments. Others have said so many of the right things about them so I will not detain the House by repeating them. I had the honour of serving on the EU Justice Sub-Committee with at least two of the previous speakers. Witness after witness raised with us the issues that others have already spoken about, but I promised not to repeat them so I will not.

When picking up this list of amendments, I was concerned about the extent to which we were going to encounter obstructive rather than good faith amendments. I have to say, this is an entirely good faith set of amendments and some version of it needs incorporating into the law. It does what the Government declare they want to achieve; it simply gives what the noble Lord, Lord Warner, eloquently called “practical stiffening” to achieve it. I am happy to support the amendments.

[Lord Cashman (Non-Afl)]

My Lords, I too support these two amendments. Initially, I did not intend to speak but I also served on the EU Justice Sub-Committee. I reinforce the point that was made time and again about the deep concern of those seeking settled status that they would not have physical evidence and that the only evidence would remain in a database. Databases can come under cyberattack and be wiped. I ask the Government seriously to think again on this issue, which I have raised with the Minister before. I hope that the Government will look kindly on and support these two important amendments, which go to the heart of the concerns of the 3 million-plus people wishing to remain here and continue their lives with their families in our country.

[Lord Greaves]

My Lords, I have a couple of questions for the Minister. The November statistics for pre-settled status have been published and show a reduced number of applications after the 31 October deadline that did not happen. The proportion with pre-settled status in November was 47%, compared with the 40% figure overall. Does the Minister have statistics for December or any time after the end of November?

Secondly, what will the Government do if they notify people—by whatever means—that they need to apply for settled status in good time, perhaps a year in advance, to convert their pre-settled status into settled status, but they get no response? Will efforts be made to trace these people? Some of them will be ordinary people who have lived here for not very long at the moment and have to wait, but some—perhaps quite a lot—have been given pre-settled status even though they have lived in this country for perhaps more than five years, because they simply have not been able to provide proof of five years’ continuous residence here. Many of these people might have the kind of jobs that require them to move about a bit or a lifestyle that means moving from house to house quite frequently. They, or at least their current address and whereabouts, can quite easily be lost from the Home Office’s database of those who have pre-settled status. What will happen to chase these people, to find out where they are and to make sure they know their rights?

[Lord McNicol of West Kilbride]

My Lords, the amendments that the noble Lords, Lord Oates and Lord Kerslake, and I have laid before us draw attention to, and look to move to and secure a shift to, a declaratory registration system—away from a constitutive application system to an automatic, declaratory system. These amendments demonstrate that there are different ways of going about this, with different levels of detail. However, the principle that such rights are written into primary rather than secondary legislation is critical.

Amendment 2 proposes that EU citizens should not lose their rights to reside if they are legally resident in the UK at the time of Brexit but have not registered for settled or pre-settled status. Labour has always been clear that citizens should not have been used as bargaining chips in the withdrawal negotiations and that the Government kept the question of citizens’ rights open for too long.

The noble Lord, Lord Hamilton, asked the Minister whether the Government were mistaken to offer pre-settled status before any reciprocity had been dealt with for British citizens living on the continent. I think the Government were right to do so. We are talking about 3.5 million to possibly 3.8 million people who live, work and play among us. Offering those people reassurances, security and, probably most important, the knowledge that our Government want them to stay in the United Kingdom, rather than be treated as pawns in a political negotiation, was absolutely the right thing to do.

[Lord Hamilton of Epsom]

Is the noble Lord saying that we have no responsibility for British citizens in the EU and that their position is something we just leave to the whims of individual countries in the EU? The noble Viscount, Lord Waverley, said that he regarded what he was benefiting from in Portugal as complete equivalence—but he is not allowed to move from one country to another within the EU, so you could say that British citizens in the EU have been seriously disadvantaged by not having a balanced agreement giving settled status to people on both sides of the English Channel.

[Viscount Waverley]

As a resident of Portugal, at this moment in time I am well able to go across to Ayamonte, Sevilla and elsewhere in Spain without any hindrance whatever. I am a little concerned about what happens after a certain date; I do not fully understand the issue. Does that opportunity prevail? Does this exclude people from just being able to work in those other member states? If someone could answer that, it would be helpful to me and others.

[Lord Cashman]

Before my noble friend replies, does he agree that, as a member of the EU, a citizen has freedom of movement within the EU? If a country removes itself from the EU, its citizens cannot have the right of freedom of movement within the EU.

[Lord McNicol of West Kilbride]

My noble friend Lord Cashman puts it very well. To the noble Lord, Lord Hamilton, I say that, on the contrary, the rights of British citizens across the European Union are of the utmost importance, and I believe that their position can be negotiated over the coming months. I was referring to people who have chosen to move to this country to work, live and bring up their children, who go to our schools, and who help in our hospitals. The Government of this country, and all of us, have a responsibility to look after and do right by these people, but not by way of punishing British citizens who have chosen to live abroad.

We will discuss appeals in the next group of amendments, but there are too many examples of the current settled status scheme falling short of expectations. As we have heard, those who get settled status receive it digitally, rather than in the form of a physical document. As the noble Lord, Lord Warner, said, a piece of paper, not a code, gives so much reassurance. It does not feel as though it is too much of a step to move to a physical document rather than something in the cloud or on a computer. While the Government more generally are trying to shift services online, there is evidence to suggest that the lack of physical documentation leads to an increased level of discrimination. As we heard from my noble friend Lord Cashman, there is also a risk of temporary outages of online systems and hacking, which could compromise the data of hundreds of thousands—or millions—of EU citizens. It is not too late for the Government to change their approach. This would provide reassurance to law-abiding EU citizens legally resident in the United Kingdom.

The motive for both these amendments is probably best summed up in a note from the3million. As the Government have stated, those who fail to successfully apply by the deadline can be deported. They become fully illegal immigrants overnight: by simply remaining in the country, they commit a criminal act. They have no right to reside, to keep their jobs or to access benefits or healthcare. In closing, I support Amendments 2 and 3.

[Baroness Williams of Trafford]

My Lords, I thank all noble Lords who have spoken in the debate on this group. I take note of the words of the noble Lord, Lord Warner, about the 500 civil servants who could end my career—I am surprised I have lasted so long, given that there are so many people out to get me.

I commend noble Lords for what they seek to achieve in their amendments, because they do not seek to achieve anything different from the Government: to reassure those highly valued EU citizens already resident here that they will have the right to remain after exit. However, the amendments take a slightly different approach to getting there, and we think they undermine the whole approach under the EU settlement scheme in the creation of a declaratory system.

Under the proposed new clause in Amendment 2, EU citizens would be able to apply for a document confirming their residence status if they wished, but would have to provide evidence of their rights if they wanted to access benefits and services. This is inconsistent with our international obligations under the withdrawal agreement. Alternatively, the proposed new clause in Amendment 3 would make provision for rights to be automatically conferred and enable EU citizens to register for a document confirming their residence status only if they wished to do so. This change in approach would cause confusion and uncertainty among the very EU citizens who we are trying to protect, including the over 2.8 million people who have already applied under the EU settlement scheme.

16:30

After the implementation period, free movement will end and those who are not British or Irish citizens will require a UK immigration status to enter and reside in the UK. The EU settlement scheme is a vital part of transitioning the UK from free movement to a new points-based immigration system which starts in 2021. The UK’s immigration system has long been predicated on individuals applying to the Home Office to be granted leave to enter or remain, under what we call a “constitutive” system. A requirement to apply for an individual status by a deadline provides a clear incentive for EU citizens living here to secure their status in UK law and obtain evidence of it.

By contrast, a declaratory system, as proposed by both the amendments and under which individuals automatically acquire an immigration status, would significantly reduce the incentive to obtain evidence of that status. This risks creating confusion among employers and service providers, and inevitably would impede EU citizens’ rights to access benefits and services to which they are entitled. Notwithstanding the protections that the proposed new clause in Amendment 2 seeks to provide, such an approach could also lead to EU citizens who had not applied for documentation suffering inadvertent discrimination compared with those who had.

This must be giving your Lordships déjà vu, because this is exactly what happened to the Windrush generation. The Government are adamant that we must avoid a situation in which, years down the line, EU citizens who have built their lives here find themselves struggling to prove their rights in the UK.

The approach suggested in the amendment is also unnecessary. Managing the end of free movement in the UK and the transition for resident EU citizens has been an absolute priority. We believe that the current constitutive approach under the EU settlement scheme is the right one. The proof of the pudding is that it is already working well.

[Lord Warner]

I am sorry to interrupt the Minister’s flow, but how many people who have already registered have sought hard copy or physical evidence of their registration and status?

[Baroness Williams of Trafford]

If you apply and are successful for either pre-settled status or settled status, you will receive a letter. That is not in itself proof of your status, because your status is a digital one, but you will receive a letter to confirm the success of your application.

[Lord Warner]

I am sorry, but that is not my point. How many people have applied for a document saying that they have settled status, which they can show to a GP or a landlord?

[Baroness Williams of Trafford]

I do not have the numbers for how many people have applied for a document that confirms settled status, but I can find out. The fact that 2.5 million people have been successful should partly satisfy noble Lords that the system is working well. Also, there have been only five rejections on the system so far. I will come to the point made by the noble Baroness, Lady Ludford, later, but that is quite a decent statistic when you think about the—

[The Lord Bishop of Leeds]

I thank the Minister for giving way. Does she agree that many of the 2.5 million people who have registered have done so resentfully and unhappily, because the process that they have been made to go through is effectively applying for a status that many of them have for decades felt that they should have had automatically? Even though I accept that the system might be working successfully, and I applaud that, there are still some reassurances to be given—the soft power, if you like—to those, many of whom I know in my own diocese, who have applied with a great deal of resentment and unhappiness.

[Baroness Williams of Trafford]

My Lords, I have spoken to my noble friends beside me and I have not had any feedback on resentment. I have had feedback on the fact that we have made the scheme free, which was a noble thing for the previous Home Secretary and Prime Minister to do. The fact that so many people now have a status they can prove can be only a good thing.

We are processing 20,000 applications every day. We are working with communities—sometimes on a one-to-one basis because some people find the filling-in of any application process difficult.

[Baroness Hamwee]

I am not sure whether I am hearing this right, but I think the Minister is responding to the amendments as if the proposal was to replace digital with documentary evidence. In fact, it is proposed that the documentary evidence would be supplemental to the digital provision.

[Baroness Williams of Trafford]

My Lords, I would not agree with two systems because that really would confuse people. If I could get to the end of my comments, I would be grateful.

The scheme already allows EU citizens protected by the agreements to obtain UK immigration status to enable them to remain here permanently after exit. Both EU citizens with pre-settled status and those with settled status will be able to continue to live, work and access benefits and services in the UK after the end of the implementation period on the same basis as now. If individuals with pre-settled status go on to acquire settled status, they will then be able to access benefits and services on the same terms as comparable UK nationals. This is consistent with the approach taken under EU law, and we will assess individuals at the point they apply for benefits or when accessing services such as the NHS.

The proposed new clauses would interrupt the flow of a system which is already working well and achieving precisely what it was designed and implemented to do, providing certainty to those people who have made their lives here.

Under the future immigration system, EU citizens who are in the UK before the end of the implementation period will have different rights compared to those who arrive afterwards. It is essential, therefore, that EU citizens have the evidence they need to demonstrate their rights in the UK. This is also why many other member states are planning to take exactly the same approach and establish a constitutive system for UK nationals living in the EU. I shall come on to UK nationals in the EU shortly.

The EU settlement scheme means that those who have built their lives here do not find themselves struggling to evidence their rights in the UK or having to carry around multiple bits of paper and documents to evidence their previous UK residence. As I pointed out to the noble Lord, Lord Warner, we are legally required to issue all successful applicants under the scheme with formal correspondence setting out their immigration status, and this status can also be viewed online and shared with others. We do not want to go back to issuing physical documents when our vision for the future is a digital status and service for all migrants.

I should perhaps make a point about data protection, on which some noble Lords are very keen—certainly on the Liberal Democrat Benches. Under the digital system, employers, immigration control or whoever it might be will have access to the information on a need-to-know basis: not everything will be written down on a piece of paper, which is an important consideration. A continued declaratory system in the form suggested by noble Lords in Amendments 2 and 3 would force banks and other service providers either to wade through various documents, which they perhaps have no right to see, to establish for themselves whether the person is protected by the agreements or has been granted rights while they complete the registration process as envisaged in Amendment 2.

Additionally, Amendment 3 would grant EU citizens automatically conferred rights under the agreements, creating two groups of EU citizens: those with a registration document and those with no evidence at all of their status. There is therefore a high risk of inadvertent discrimination, particularly for those with no evidence at all in years to come.

[Lord Greaves]

There was controversy not very long ago about allegations that the settled status database would be shared with outside organisations, perhaps abroad. Is that completely untrue?

[Baroness Williams of Trafford]

The noble Lord outlines the point that I have just made about information being seen by people who are entitled to see it for the purposes for which it should be seen.

[Lord Scriven (LD)]

The Data Protection Act protects all data whether written or digital. Therefore the argument is nonsensical.

[Baroness Ludford]

I think my noble friend is forgetting that immigration data is not protected under the Data Protection Act put through last year or the year before. I think there is litigation going on about that.

[Baroness Williams of Trafford]

The point I am making is that if you have a physical document which outlines everything, people have access to everything. When people go into banks, they do not necessarily know which documents to bring. Under the digital status, employers and landlords are entitled to see only the data which they need to see.

[Lord Warner]

Before the Minister moves on, sticking with this issue, I am totally confused—more than usual. The Minister said earlier that, if I have been sent my letter from the Home Office describing my status, I can then apply for another document of some kind that I can produce to other people who want the other document. That seems to be an alternative to the code. Will the Minister explain what is the difference between the letter and the other document that I can apply for, which apparently I can use to satisfy someone that I am entitled to something?

[Baroness Ludford]

Before the Minister gets up, I do not think I heard her answer the question about whether the settled status database is going to be available outside the Home Office, within government and to third-parties outside government. Will she answer that very precise point?

[Baroness Williams of Trafford]

I shall start with the point made by the noble Lord, Lord Warner. The letter is confirmation that you have been successful. It is not evidence of your status, but it is there for anyone who wishes to have a physical document to say that they have been successful.

On the digital status—this comes to the point made by the noble Baroness, Lady Ludford—if you want to rent, it could be accessed by the landlord. There is access to the data for people who need to see it for the purposes for which they need to see it.

[Lord Warner]

The second document—

[Lord McNicol of West Kilbride]

There is only one document.

[Lord Warner]

Regarding the document that I apply for after my first letter—the Minister is saying that there is a second document—why would I apply for something that I already have?

[Baroness Williams of Trafford]

My Lords, you automatically get a letter confirming that you have been successful. There are not two documents. You have online status and you get a letter confirming that you have been successful. There are not two documents.

16:45

[Lord Warner]

This is rather a critical issue. Is the Minister saying that the document I have can be used? It apparently cannot be used to satisfy landlords and GPs, so what is the person going to do if the landlord, the GP and everybody else is not satisfied with the Home Office document?

[Baroness Williams of Trafford]

My Lords, the document that the noble Lord refers to is a letter confirming that a person has been successful. Anyone who is successful in obtaining the status could show that letter to a landlord and say, “There. Go and look online to confirm that I have the status”. However, it is not a proof; it is a confirmation. Does that help the noble Lord? I see that it does. Thank goodness.

[Lord Greaves]

Can I ask another question?

[Baroness Williams of Trafford]

No. I am going to continue, and the noble Lord can speak when I have finished if he wishes.

I want to move on to the point that the noble Lord, Lord Oates, made about the criminalisation of people who do not apply by the deadline. That is a very important point—made also, I think, by the noble Lord, Lord McNicol. An EU citizen who fails to apply to the EU settlement scheme before the deadline will not be acting unlawfully in the same way as an illegal entrant or overstayer would be. They will not have knowingly entered the UK in breach of the Immigration Act or overstayed their leave. That is an important point to make. Once free movement has ended, they will need leave to remain in the UK—there is an important distinction there. We set up the EU settlement scheme to provide a quick and easy way to secure that leave, confirming their status in the UK.

We have been very clear that we will take a pragmatic approach, in line with the agreements, to provide those who have reasonable grounds for missing the deadline with a further opportunity to apply. I hope that that helps the noble Lord. He might want to intervene to ask what constitutes reasonable grounds for missing the deadline. We have deliberately not published a list of acceptable grounds for missing the deadline. As the noble Baroness, Lady Ludford, requested, we will send reminders to those with pre-settled status six months before their leave expires so that they can apply for settled status. In the first instance, we want to continue to encourage people to apply. We do not want to provide an exhaustive list as we want to give ourselves the maximum possible flexibility when this situation arises. Examples of people in such a situation might include a child whose parents or guardian failed to apply on their behalf, people in abusive or controlling relationships who are prevented from applying or from obtaining the documents they need, or those who, as I said before, lacked the physical or mental capacity to apply.

The noble Baroness, Lady Ludford, pressed me again on the automatic reminder. I have previously confirmed that there will be an automatic reminder. In fact, in the EU Settlement Scheme: Statement of Intent, published in June 2018—quite some time ago—we committed to reminding people ahead of the expiry of their pre-settled status and it remains our intention to do so. That is not in place yet, as it will not be needed until five years after the first granting of pre-settled status, if that makes sense, so it will be September 2023 at the latest. The noble Baroness is looking puzzled. That is because March 2019 was day one, so it will not be needed for another five years.

[Baroness Ludford]

If they had already had two years, they would not need another five years.

[Baroness Williams of Trafford]

The noble Baroness is absolutely right. I think that my last statement was wrong, but I shall confirm that to her in writing.

The noble Baroness talked about people struggling, and I think that I have outlined some of the ways in which we are trying to help people to make their application. She will have heard me say previously how we have put money into various centres around the country to help people.

The noble Baroness also asked whether we are still granting permanent residence. Yes, we are.

On the question of why settled status is better than permanent residence, you do not have to be exercising treaty rights to get settled status; there is a more generous right of return—so five years rather than two years permitted absence—and there is an automatic entitlement, as a UK national, to benefits for those with settled status. However, that does not stop people from applying for permanent residence, and they do.

Finally, my noble friend Lord Hamilton of Epsom and the noble Viscount, Lord Waverley, talked about UK nationals in the EU. I recall the discussion that we had about unilaterally guaranteeing the rights of EU citizens, but they asked about UK nationals in the EU. The withdrawal agreement that we have reached with the EU provides reciprocal protections and certainty on citizens’ rights. The agreement applies equally to EU citizens here and UK nationals in the EU, in their member state of residence, by the end of the implementation period. Ministers and officials have already engaged extensively with UK nationals across the EU and will continue to do so. I am very pleased to hear about the good experiences of the noble Viscount, Lord Waverley, in Portugal.

[Lord Hamilton of Epsom]

I am grateful to my noble friend for giving way. Does she agree with the noble Lord, Lord Cashman, however, that the EU will treat British citizens in the EU as foreigners who are unable to travel from one EU country to another? Surely, if we had balanced these negotiations, we might have been able to wring that concession out of the EU so that our citizens living there could travel from one country to another.

[Baroness Williams of Trafford]

I agree with my noble friend; of course, that will be a matter for future negotiations. In the meantime, I ask the noble Lord to withdraw his amendment.

[Baroness Ludford]

I should correct myself. The Minister was kind enough to say that she would have another look at that reminder system. After all, people could have four years and 300 or whatever days, just not five years. That system needs to come in a lot sooner; they might need a reminder in the next few months. Also, I do not quite understand—it may just be that I do not understand immigration—why the Home Office is twin-tracking settled status and permanent residence. I take the point that for settled status you do not have to be exercising treaty rights and perhaps simply have to meet a tougher standard for permanent residence. However, I do not see the value, either to the applicant or to the aim of simplicity and understanding of the immigration system, to have these two systems running coterminously.

[Baroness Williams of Trafford]

I ask the noble Baroness to understand that perhaps they might not be EU citizens.

[Lord Greaves]

My Lords, I did not get an answer to my question about the numbers. I have checked: there were 2.6 million at the end of November; there are now 2.8 million. Of the extra ones, does the Minister have a breakdown between settled and pre-settled? Should she not have the answer now, it would be helpful if she could let us know.

Secondly, something has occurred to me while listening to all this about documents. If I want to order a railway ticket in advance, I order it on my computer and print it off. Some might not, but I do. People do different things; they take their devices with them and even buy tickets. Regardless, I can print off a railway ticket. If I have settled status and I want to prove it, why can I not bring it up on my computer, take a screen shot and use that? What legal validity would that have?

[Baroness Williams of Trafford]

My Lords, by preference I do my tax online and get an email confirmation. If I book a train ticket, it is on my phone. In fact I rarely take my credit or debit card out any more; everything is on my phone. However, if the noble Lord is honestly suggesting screenshotting your settled-status proof online and then printing it off, I suggest that that might be forgeable.

[Lord Oates]

My Lords, I am grateful to all noble Lords who have taken part in this debate. This discussion, and even the confusion from the Dispatch Box about some of the rules, demonstrates the issues that are going to be faced by EU citizens if there is not even clarity in this House.

I want to pick up on a number of points. The noble Lord, Lord Hamilton, talked about reciprocity. As the Minister has explained, Part 2 of the withdrawal agreement, on citizens’ rights, applies equally to UK citizens in the European Union. I was a little astonished because I thought I heard the noble Lord arguing for free movement. He is notably not a pro-European so I am a little baffled by that. I can only guess that because, I understand, he has Liberal politicians in his ancestry, perhaps he has a genetic disposition to Europhilia that he cannot escape from.

A more serious point is this: the current Prime Minister and Home Secretary made a categorical, unequivocal commitment to European Union citizens. It was not based on whether the EU did this or that; it was a categorical statement. The noble Lord, who sits on the Conservative Benches, seems to be saying, “It’s absolutely fine—we should use EU citizens as bargaining chips”. I am glad that the Government have not done that; it is absolutely the wrong approach. All the bodies representing UK citizens in the EU that have been in contact with me and, I am sure, many other noble Lords in this House have always made the point throughout these negotiations that Britain should act early and unilaterally. I am glad that we did eventually but goodness me, it took a long time.

The Minister said that it was a very noble decision of the former Home Secretary to waive fees on this scheme. I find that an astonishing statement. EU citizens had rights in this country that they were going to lose as the result of a referendum in which they had no say whatever, and then we were planning to charge them for the privilege of retaining any rights. To call it “noble” to not charge them I find astonishing.

Physical proof has been discussed at length. The Minister said that two systems would confuse people. It is not two systems—it is one system that has a digital output and a physical one. That is pretty common and it is not confusing. While the Minister says we should not have these two systems because they are confusing, she then tells us that we do have two systems: the European Union settled status scheme and the permanent residence scheme. If we want to avoid confusion, perhaps we should address that point.

The noble Lord, Lord Warner, made the important point that we have to live in the real world of how these things work. I know this from experience because my partner is not a citizen of the UK—not a citizen of the EU, I should say—but a citizen of the United States. He has in his passport his permanent residence stamp that he can show to people. That is quite a simple thing and I am sure that we could apply such a system as well. Doubtless, it is also on an official computer system somewhere—I hope so.

17:00

We have had real examples of these digital systems going wrong, as in the case with the United States. When we first used to go to the United States, my partner was detained on every single occasion, even though he was an American citizen. Apparently, there was somebody with the same name on the Department of Homeland Security no-fly list. He was detained every time. He was not the person and looked nothing like the person. After the poor officials had been through the process, which usually took about an hour, they would say, “Well, you’re not the person.” He said, “How can I stop this?” They said, “You can’t. It is the computer system.” Eventually, the Department of Homeland Security thankfully came up with a scheme, issuing him with a letter which effectively says: “This is not the guy you are looking for.” It has changed our lives, because we now go through and it is fine. He gets the letter out and they go, “That’s great, thanks.”

In this country, we are sending all the people who have settled status a letter that says they have settled status, but the letter also says that it is not proof of settled status. It is a crazy Kafkaesque world. Obviously, a letter on its own is not enough; you need some documentation with watermarks or whatever. As I said, we do this at the moment with indefinite leave to remain status. It is not beyond the wit of this Government to do it. European Union citizens ask for this on a wide scale, as they are extremely concerned. It is particularly concerning for elderly EU citizens. I do not like to think of my elderly relatives being told first that they have to apply for the right to live here, having done so for maybe 40 years, and then being told, “You’ve got it but this piece of paper we’ve given you doesn’t prove it. It is on some system in the cloud.” I ask the Government and their Ministers to please think about the human experience and, as the noble Lord, Lord Warner, says, to live in the real world. I hope that the Government will take this back and really think about it. This is not a partisan point but a genuine appeal. Please can we look at this again?

On the declaratory principle, we have been told by the Minister that, in a way, we do not need to worry too much because after the registration date has passed, there will be some bases on which people will be given a further opportunity to apply—the Minister explained why she did not feel she could list them all, but she gave some examples. However, this will of course be entirely a matter of discretion; the courts will probably interpret what a good reason is. Simply not having been aware, for whatever reason, of the importance of meeting that deadline will not be seen as a good reason—we know that. However, we do not know the following: if somebody is allowed to apply after the date because they were hospitalised during that time, for example, and the Home Office—hopefully—regards that as a legitimate reason, is there clarity about their payment during the period in hospital when they were an illegal resident? If they were not legally resident, who is responsible? Do they have to pay during that period? As I understand it, even if the issue is corrected and they are given residence, it is not backdated.

The Minister said that we do not need to worry because people who do not meet the registration date and therefore become illegal residents in this country are not illegal on the same basis as people who had come into the country illegally. If they are breaking the law but in a different way, I am not sure about the reassurance on that. Are they breaking the criminal law or is it a matter of civil law? Where is the reassurance? To be told you are breaking the law in a different way does not seem terribly reassuring.

We know that mistakes are made in systems all the time. That is why the declaratory system will allow that leeway. We have had examples of people resident in this country for 15 years being given pre-settled status, entirely wrongly, so we know that mistakes are happening. It may well be that only five people have been refused under the scheme but 40%—or more on the last figures, I think—have been granted pre-settled status and not settled status. That is a materially significant difference. If you are offered a job, maybe on a contract to work for three years outside the country, but have pre-settled status you cannot go because you would lose your rights.

The final point is about putting these rules into primary legislation, which is such an important issue. Because of all the back-and-forth and bad faith on this, it really is important that people are given that reassurance. I fully accept that the Minister has told me that the problem with putting the rules in is because I do not have the amendment exactly right. I am very happy to sit down with her and her colleagues on this. Let us get it right and put it into primary legislation to reassure people. It cannot be that hard to do and the unwillingness of the Government to put this into primary legislation, particularly given that senior Ministers have already not lived up to their commitments, is a matter of great concern.

Both these amendments raise incredibly important points. I ask the Government to go away and think about them in a non-partisan way, from the point of view of the human beings who are having to deal with this situation. I really hope that they will take them on board and with that, I withdraw my amendment.

Amendment 2 withdrawn.

Amendment 3 not moved.

Clause 7 agreed.

Clauses 8 to 10 agreed.

Clause 11: Appeals etc. against citizens’ rights immigration decisions

Amendment 4

Moved by

[Lord McNicol of West Kilbride]

4: Clause 11, page 14, line 2, leave out subsection (1) and insert—
“(1) A person may appeal against a citizens’ rights immigration decision to the First-tier Tribunal.”Member’s explanatory statement
This amendment would give a right of appeal against a citizens’ rights immigration decision.

[Lord McNicol of West Kilbride]

My Lords, I shall speak also to Amendments 8 and 9 in my name and Amendment 10 in the name of my noble friend Lady Hayter. These are relatively short amendments, but they cover a very important issue.

The settled status scheme does not currently provide a right of appeal, causing unnecessary confusion and frustration for applicants who do not receive the decision they were expecting, and in many cases were entitled to. Under the current scheme, if somebody’s application is unsuccessful, they may be able to apply for an administrative review at a cost of £80. The administrative review process applies for people whose applications were refused on eligibility grounds, or where they applied for full settled status but were awarded only pre-settled status. As we have recently heard, the percentages of those awarded pre-settled status is anywhere between 40% and 47%.

While the Bill’s current provisions allow for regulations to be made providing for appeals, this does not amount to a legal obligation, and neither does it guarantee equal treatment in all cases. There is a clear need for a formal appeals process, as we can see from the Government’s wish through making provision in the Bill to deal with this under regulation. A statutory right of appeal should be set out in primary legislation. These are important rights that should not be played with at the whim of individuals.

There have been several cases where EU residents have submitted documentation demonstrating residency for a period of more than five years, yet they have been granted only pre-settled status. The Home Office claims that the scheme is a success because only a small number of people have had their application rejected—we have heard that the number is five—largely due to the criminality of the individuals. As you would expect, we support those rejections. However, the figures discount those who may have wrongly received pre-settled status. My understanding is that the most recent statistics show that the figure for those being granted pre-settled status is, as was touched on earlier, as high as 40%. But this is a temporary form of leave lasting up to five years; it is not indefinite leave to remain. A number of NGOs have expressed concern that outstanding administrative reviews at the end of the implementation period could leave individuals in difficult and possibly hostile situations. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support Amendment 4, to which I have attached my name, as well as Amendment 8 and others in this group. As currently drafted, the Bill does not match the Government’s previous assurances that EU citizens’ rights will be protected. It is impossible to deny that massive errors occur in the UK immigration system. People are wrongly deported, sometimes in tragic circumstances leading even to death. While many of these tragedies occur whether or not there has been an appeals process, it is certain that many more injustices will happen if an appeals process is not available. For that reason, the Bill must set out a clear right to an appeals process. It is not good enough to leave it to Ministers to decide on an appeals process in the future, because the Bill does not give a date by which an appeals process should be brought into force. This means that Ministers might never create an appeals system at all.

Also, no principles are set out, or basic rights which must be protected, or rules which must be obeyed. I do not want a situation where government inaction, for whatever reason, leads to injustice or, worse, citizens’ rights becoming another bargaining chip in the next stage of Brexit negotiations. I say this as someone who voted for Brexit—but I did not vote to be nasty or to make people feel vulnerable and at risk of being deported, and I did not vote to ruin people’s lives.

Surely the Minister understands that the Government are creating a quite complex new immigration status for EU nationals and that it is almost certain that administrative errors will happen, so a clear appeals process must be set out in this important legislation. I therefore make a plea to the Minister to take the amendment away and discuss it with his officials. We need something like this in the Bill so that errors can be put right and so that our EU friends and neighbours know that justice will be done.

[Viscount Hailsham (Con)]

My Lords, I rise briefly to speak to Amendment 10 in this group, to which I have put my name. From my point of view, the amendment is more by way of a probing amendment, because I appreciate that the regulation-making powers that are provided for in Clause 11 are subject to the affirmative resolution procedure, as set out in Schedule 4. However, my concern is that the regulations could strike down the ability to make an effective appeal review under judicial review, and I would like to know why this is.

Judicial review is a very important remedy so far as the citizen is concerned, because they can challenge the power of a public authority on the grounds that it is, for example, unlawful, unreasonable or ultra vires, or on a number of other grounds. I appreciate that the courts have sometimes gone a bit far in their interpretation of their powers, in that they have on occasion usurped the executive functions of Ministers—but that is by the way. What I would like to know in this case is why we are extending the power in the regulations to tackle judicial review, and in particular what kinds of changes the Minister has in mind when contemplating this power in the statute.

17:15

[Baroness Hamwee]

My Lords, I have put my name to Amendment 10. As the noble Viscount said, judicial review—the right to apply to the courts to review the decision of a public body—is hugely important. I do not share the view that the courts have acted inappropriately and entered the political arena when they should not have, but, as he says, that is not the point.

[Viscount Hailsham]

I was not trying to suggest that, for example, striking down the Prime Minister was in any way wrongful. I would have done so if I had been in the Supreme Court. What I am suggesting is that quite often courts do intervene on executive matters. I certainly do not include in that the decisions made by the Supreme Court at the back end of last year, which I profoundly supported.

[Baroness Hamwee]

I was not seeking to have a go at the noble Viscount. If judicial review has grown inappropriately, that is a separate matter. It is dangerous if the Executive are seeking through this provision to protect themselves from proper oversight by the courts.

In the Commons, a Member said on rights of redress for EU citizens that

“appeal rights and judicial review are enshrined”.—[Official Report, Commons, 7/1/20; col. 330.]

The Minister endorsed that, at col. 336. But Clause 11(3) seems to “deshrine”—if that is a word—judicial review. I too am concerned that at the least we understand what we are doing, but, if it is as I understand it, that we do not do it.

[Lord Greaves]

My Lords, I added my name to the amendments in the name of the noble Lord, Lord McNicol of West Kilbride, on behalf of the Liberal Democrat group. I have one or two other amendments in this group. One is on the judicial review point, and I am perfectly happy to leave the lawyers to argue the case on that, which they know far more about than I do.

Amendment 6 relates to Clause 11(1), on appeals against citizens’ rights immigration decisions, which says:

“A Minister of the Crown may”—


I would prefer “must” but I accept that “may” means it is probably going to happen—

“by regulations make provision for, or in connection with, appeals against citizens’ rights immigration decisions of a kind described in the regulations.”

Clause 11(2) defines a “citizens’ rights immigration decision” for the purposes of the Bill and it talks about various kinds of entry clearance, decisions in connection with leave to enter or remain, a deportation order, and

“any other decision made in connection with restricting the right of a relevant person to enter the United Kingdom”.

That all seems fairly comprehensive. What I do not understand, which is why I tabled Amendment 6 to probe this, is what is meant by

“of a kind described in the regulations.”

Does it mean that some of the things listed will not be covered by the regulations and the right to appeal? If so, what is the Government’s thinking about which ones they may be, or do they intend that they will all be covered, in which case why does the kind have to be described in the regulations since it is set out here in the Bill?

On the question raised by the noble Lord, Lord McNicol of West Kilbride, and other noble Lords, it is fairly clear that many people who have been given pre-settled status because they have not been living in the United Kingdom for five years or, in some cases, cannot prove that they have been doing so. There is also a significant number of people—I have no idea how many—who have been living here for five years but whose applications have been found difficult, for some reason or other. Rather than refusing them, the scheme is giving them pre-settled status because establishing the true facts would take a lot of time, energy and workload and, as the Minister said, millions of people are applying. It would be helpful to know what proportion of the people who have got pre-settled status have been, or say they have been, living here for more than five years—in some cases, they have been here pretty well all their lives—and have been given that status to give them something without prolonging the argument. In those cases, does the provision that they will automatically get settled status once they have been here for five years still apply?

[Baroness Williams of Trafford]

My Lords, I thank noble Lords who have spoken to these amendments. We cannot support them, and I will outline why. The Government will provide for a right of appeal against citizens’ rights immigration decisions. While I commend noble Lords for their commitment to citizens’ rights, these amendments create unnecessary changes to the wording of Clause 11 and, at worst, undermine our ability to provide for a right of appeal in all circumstances and ensure consistency for judicial review, and even create perverse incentives to appeal decisions to gain the benefits of indefinite leave to remain.

Amendments 4 and 9 are unnecessary. EU citizens who are appealing a decision on residence must be able to appeal if refused leave, or given what they believe is an incorrect status under the EU settlement scheme, under our international agreements. It is also damaging, as a power is required to implement the numerous situations requiring appeals.

Amendment 5 is at best unnecessary and, at worst, could prevent the provision for necessary appeals. This Government will provide for a right of appeal against citizens’ rights immigration decisions. This is an essential part of our commitment to protecting the rights of EU citizens, EEA EFTA and Swiss nationals under the withdrawal agreement, the EEA EFTA Separation Agreement and the Swiss citizens’ rights agreement.

On Amendment 6, the current wording of Clause 11(1) allows the Government to make sufficient regulations in relation to appeals against citizens’ rights immigration decisions. It fulfils our commitment in the agreements and provides certainty to EU citizens that they shall have a right to appeals. Moreover, the Delegated Powers and Regulatory Reform Committee has recently commended the powers in the Bill as,

“naturally constrained by the scope of the particular matter contained in the Agreements”.

As such, Amendment 6 is unnecessary.

As for Amendment 7, it is in the public interest to make reviews of exclusion directions made in respect of those protected by our implementation of the withdrawal agreements consistent with how similar reviews are treated now. This power enables us to do this, but Amendment 7 would remove that ability.

Amendment 8 would make it harder for EU citizens to challenge an exclusion direction, would prevent the Government being able to prevent removal unless the appeal is certified and would create a perverse incentive for individuals to launch appeals to gain access to the benefits of indefinite leave to remain.

Amendment 10 seeks to limit the power in Clause 11 in relation to judicial review. It is in the public interest to make reviews of exclusion directions made in respect of those protected by our implementation of the agreements consistent with how similar reviews are treated. This power enables us to do this, but the amendment would remove that ability.

[Viscount Hailsham]

Will my noble friend give way?

[Baroness Williams of Trafford]

I will, but first I reiterate that appeals processes will be set out in the regulations to be made under the power in Clause 11. The regulations will be made in the last week of January, to answer the question asked by the noble Baroness, Lady Jones of Moulsecoomb. I may now be answering my noble friend’s question, because he asked whether we have a power to make changes to reviews, including judicial reviews. This limb of the power will be used to ensure that the legislation that interacts with new citizens’ appeal rights continues to function appropriately. It ensures that we can amend Section 2C of the Special Immigration Appeals Commission Act 1997 to provide that the Special Immigration Appeals Commission can hear reviews in respect of those protected by the agreements in the same way as they hear reviews in other cases, such as the most sensitive immigration cases. We will not be restricting the availability or scope of judicial review.

[Viscount Hailsham]

I would like just a little more clarity, although my noble friend has given quite a lot. Do I understand that what the Government are thinking of doing is procedural only, and they are not seeking in any way to curtail the substantive rights that presently arise under judicial review?

[Baroness Williams of Trafford]

I can confirm that.

[Lord McNicol of West Kilbride]

My Lords, I thank all noble Lords for taking part in the debate on this group of amendments and the Minister for her response. Mistakes can be made in any process and, as the Minister said, the Government will be moving to provide the right of appeal. These amendments seek to put that right of appeal in the Bill and ensure that it is dealt with properly at this stage. With that, I beg leave to withdraw Amendment 4, but I will continue to push the points that have been made.

Amendment 4 withdrawn.

Amendments 5 to 10 not moved.

Clauses 11 and 12 agreed.

Clause 13: Co-ordination of social security systems

Amendment 11

Moved by

[Baroness Hayter of Kentish Town]

11: Clause 13, page 17, line 12, at end insert—
“( ) No regulations may be made under this section after the end of the period of two years beginning with IP completion day.”Member’s explanatory statement
This amendment introduces a two-year sunset on the delegated powers relating to the coordination of social security systems, ensuring any subsequent changes must be enacted through primary legislation.

[Baroness Hayter of Kentish Town (Lab)]

Amendment 11 concerns a sunset clause and deals with one of the most crucial aspects of the Bill as it affects EU and UK citizens: the implementation of the guarantee that all their health, pension and benefit rights will continue after exit. It is true that there is a fixed cohort of citizens, perhaps up to 5 million EU citizens here and UK citizens abroad, who will be covered by these provisions as at the end of December. However, some of the rules and regulations will have a very long tail, affecting the access those 5 million people and their dependents will have to a range of payments and services long into the future. Ministers may well say, “It’s a fixed cohort, but these rights, and therefore the regulations affecting them, will go on a long time; that’s why we need the powers to continue to make tweaks and adapt to changing circumstances”.

17:30

There are two flaws in this argument. First, doing this by statutory instrument means that there will be inadequate scrutiny—by those representing recipients to check that their interests are being well served, and by Parliament to ensure that the original aims are being met. This is particularly the case, as we set out yesterday, given the lack of statutory parliamentary oversight of the Joint Committee, which will have oversight of the implementation of such measures and decide on any disagreements over how social security and other issues are being dealt with. We will not have proper scrutiny of the Joint Committee; if there were disagreements which could not be resolved in the Joint Committee and so went to arbitration, under this Bill Parliament would only be notified and have no say over the outcome or any changes one would want to make after it.

Our concern is that, possibly many years in the future—because this will go on into the future—Ministers could be making some pretty crucial decisions with scant reference to Parliament. At that stage, some Members of Parliament might have forgotten the original purpose of the power, so it will be even more important that it is brought to Parliament’s attention.

Secondly, as our Constitution Committee pointed out in its report this morning—this is the other flaw in the Government’s argument that they will need these powers ad infinitum—given that there will be a detailed statutory scheme in a future Bill, it is not clear why the powers in Clause 13 of this Bill are required beyond the implementation period, or perhaps a year or so afterwards, as this could be dealt with in the future detailed statutory scheme. Our Select Committee therefore asks for a better explanation of why these powers need to continue or to include a sunset clause, which, in anticipation of the report—which I had not seen—we had nevertheless tabled. Amendment 11 would include a sunset clause on these powers. I beg to move.

[Viscount Hailsham]

My Lords, I very gratefully support the points made by the noble Baroness, Lady Hayter. I entirely agree with her; I think it is necessary to have a sunset clause, and if it is not necessary it behoves the Minister to tell us why. One of the central problems arising all the time is whether secondary legislation, whether affirmative or negative—I acknowledge that in this case it is very largely affirmative; I am aware of that—is unamendable. Statutory instruments are often published very close to the time when they are to be considered by both Houses, with the consequence that you do not get proper consideration by members of the public or people who have an interest in what is proposed. I hope that the Government will give serious consideration to a sunset clause. If we are told that two years is too short a time, let us have an argument about that. I am sure we could come to a date that would be acceptable to all parties. Could we please have a reason why a sunset clause is unacceptable in principle to the Government?

[Baroness Hamwee]

My Lords, my name is also put to the amendment. In the Commons, the Minister said that the clause enables the Government to

“maintain our statute book in accordance with the social security co-ordination provisions”.—[Official Report, Commons, 7/1/20; col. 323.]

That puzzled me, because they do not need this to do that. Both noble Lords who have spoken pointed out the potential problems. The noble Viscount, Lord Hailsham, reminded me that, so often when the House is asked to look at secondary legislation—or is given the opportunity to do so, having had to take positive steps to raise the issue—people who are affected and organisations that know about it make really valid and useful points. It does no good to the reputation of the House to be able to do no more than say, “Well, I’ll raise that in debate”, because we know that we cannot make any changes. I support what is proposed here; it is entirely sensible and in no way wrecking.

[Lord Howarth of Newport (Lab)]

My Lords, Clause 13(5) contains a Henry VIII power; it is admittedly constrained by the specific subject matter and context of the Bill, but is none the less within those constraints a wide-ranging power:

“The power to make regulations … may … be exercised by modifying any provision made by or under an enactment.”


Henry VIII clauses are in principle objectionable, and in principle the Government ought always to explain to us why they think they are justified.

[Lord Bethell (Con)]

My Lords, I am enormously grateful for the opportunity to respond to the amendment of the noble Baroness, Lady Hayter of Kentish Town, and others. I thank all those who have contributed to this debate.

The noble Baroness put it very well; the importance of this measure should not be underestimated. As we leave the EU, protecting the rights of UK nationals in the EU and EU citizens in the UK, including EEA, EFTA and Swiss nationals remains a massive priority for this Government. It is a commitment that we have delivered very clearly in the withdrawal agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement. For those noble Lords who have enjoyed the pleasure of reading those pages, it is a really hefty chunk of the withdrawal agreement. The detailed and complex nature of these commitments is testified to by the large number of pages taken up describing them. For brevity’s sake, I will not go through these pages and will refer to EU citizens and agreements thereafter.

The dynamic nature of the EU’s social security co-ordination rules means that, following the end of the implementation period, updates at the EU level to the EU social security co-ordination regulations will be reflected in the agreement and therefore apply to those citizens within the scope of the agreement. The current social security system is dizzyingly complex. These updates are also very complex; they include minute changes to things such as definitions, the templates in which organisations communicate with each other and the line by line minutiae of the regulations. They ensure the clarity and delivery of benefits for citizens and the operational viability of the overall system. This clause ensures that the appropriate authorities, including the devolved Administrations, have the power to make regulations to align the domestic statute book with the amendments made in these regulations.

A question was asked about Henry VIII powers. I reassure the House that these provisions are focused solely on the regulations described in Part Two, Title III of the withdrawal agreement relating to social security co-ordination, as well as to the supplement, and deal only with matters arising.

[Lord Howarth of Newport]

The Minister pointed out that the regulations are extraordinarily complex. Would he accept that, the greater the complexity, the greater the need for accountability?

[Lord Bethell]

No, that is a neat way of putting things, but it is not quite the point I was trying to make, which is that they are very closely defined in terms of breadth and that the detail of the regulations is so minute that it would waste the time of these Houses to go through them line by line. It is important for solidity and confidence in the system that they are expedited quickly and resolved without delay. Without wishing to give the game away regarding what I am about to say, the bottom line is that we simply do not have the legislative capacity in these Houses to go through all the complexity of the details as they arise at an EU level.

[Viscount Hailsham]

That is a serious statement to make. My noble friend is saying that Parliament cannot do its job. Does that not mean that these matters need to be considered by the commission on the constitution—and preferably a royal commission?

[Lord Bethell]

No; my noble friend puts it well, but I am alluding to the fact that there is a hierarchy of priority, and there are matters of significant policy and implementation that are of a sufficiently high level to warrant the attention of the House. However, this clause refers to matters of an operational nature, which are there to implement the agreed clauses of the withdrawal agreement.

There is no question of this clause being used to bring in new policy, new arrangements or the kinds of policy changes that, frankly, would warrant discussion in the Houses. That is the reassurance that I am trying to communicate to the House, that any changes in the actual policy and arrangements and the benefits of those in the 5 million, whom the noble Baroness, Lady Hayter, accurately referred to, are absolutely not part of either the intention or the way in which these clauses are written.

[Lord Howarth of Newport]

If there is no intention to change policy, why is Clause 13(5) in there?

[Lord Bethell]

All the arrangements within this part of the Bill are heavily constrained to Title III of Part Two of the withdrawal agreement. There is therefore no need to escalate to questions of policy; if there are questions of policy, they will be brought to the House but in a completely different way. The purpose of this clause is to make sure that there are no conflicts or inconsistencies in domestic law that refer to the current commitments within the withdrawal agreement, which could give unfair treatment and uncertainty about the rights and benefits of the 5 million in the group of people who benefit from these arrangements. It allows Ministers to protect the entitlements—

[Baroness Hamwee]

Can the Minister point us to where in the clause we can find reassurance that, if there is a change in policy, it will not be dealt with through regulations?

[Lord Bethell]

That reassurance is not in the clause; it just does not provide the necessary powers, and without those powers, the ability to change policy does not exist. I hope that noble Lords will agree that the way in which it is written is tightly refined around the specific arrangements of implementing the detailed clauses in the withdrawal agreement. That is its confined and determined nature. What it does, in a focused way, is to allow Ministers to protect the entitlements of those in the scope of the agreements, and only that. It includes both EU citizens living in the UK, as the noble Baroness, Lady Hayter, explained, and UK nationals who have chosen to work in or retire to EU member states before the end of the implementation period. Many of those people will have lifetime rights within that agreement which may last many decades, and the effect of the changes of EU regulations will continue to need to be tweaked during those decades.

This power is therefore essential to give the Government the flexibility that we need to provide legal certainty to individuals subject to these rules as the EU social security co-ordination regulations evolve over time. We have an important duty to protect the social security co-ordination rights of those in this scope, to give them that confidence, and for the lifetime of these agreements. This power enables us to protect those rights, and without prejudice to any future system that would apply to those not covered by these agreements.

17:45

It is important to note that the power is restricted to making provisions which implement, supplement or deal only with matters arising out of the relevant sections in the agreement relating to social security co-ordination; I reassure the House on that point. That is why we cannot accept this amendment, which would sunset the powers to make regulations only two years after the end of the limitation period, whereas the withdrawal agreement social security co-ordination provisions have no such sunset and potentially may last decades for many people. To put an expiration date on the power could therefore prevent the UK ensuring—

[Lord Kerr of Kinlochard (CB)]

I understand the point the Minister is making and that the scope of action is limited to the areas covered in the withdrawal agreement—I understand all that. However, would it not be more reassuring to recipients if the sunset clause were there, and if changes could be made only after the expiry of the period by primary legislation? I understand the argument, but if the argument is reassurance, surely it is more reassuring to people that changes could be made only by primary legislation than that they could be made using these Henry VIII powers laid out in these provisions.

[Lord Bethell]

My Lords, the point is well made, and I understand the desire of the Houses to keep scrutiny on measures, which is entirely fair. However, in this case, confidence, solidity and a sense of commitment can be promised and delivered by the Government only if they do not have the fear that the pipeline of legislation going through the House might delay important technical changes and hold up the delivery of these benefits. It would put a huge pressure on these Houses of a kind that is not realistic or reasonable to have the entire legislative timetable of our proceedings held hostage to the microchanges and small needs of EU social security regulations and improvements, which may in decades to come affect only hundreds of thousands of people and require small administrative changes in regulations.

[Viscount Hailsham]

Hundreds of thousands is quite a lot.

[Lord Bethell]

My noble friend puts it well; I am not trying to brush off hundreds of thousands. I am trying to communicate a sense of this long tail of microregulatory changes, which are technically incredibly important. However, the priority is to demonstrate commitment and security to those millions of people today who will look to the Government to make a commitment to deliver those in years to come. To put an expiration date on the power could therefore inadvertently prevent the UK ensuring that its statute book complies with its international obligations under the agreements, and put in jeopardy the Government’s unequivocal guarantee to protect citizens’ rights. I therefore urge the noble Baroness, Lady Hayter of Kentish Town, to withdraw this amendment.

[Baroness Hayter of Kentish Town]

I welcome the noble Lord, Lord Bethell, to the Bill; I assume that this is only the first of his outings on it. I thank my noble friend Lord Howarth, the noble Lord, Lord Kerr, the noble Baroness, Lady Hamwee, and the noble Viscount, Lord Hailsham. I urge the Government to listen to what they say.

Perhaps the Government are saying that there will be so many small technical changes—but we would need to know that. If there was a sunset clause—possibly for longer than two years, as the noble Viscount suggested —we could see whether we are talking about lots of changes, but the Minister has not answered the question of why this cannot be dealt with more properly in a detailed statutory scheme where we will have a greater handle, or a greater grip, on these sorts of amendments.

I am concerned about what is referred to as “complex” or “technical” or a “tweak”. Over the past 10 or 15 years, we have seen pension regulations change: as we brought in civil partnerships, the right to a pension or the age of dependants also changed. These are big issues. These are not small tweaks where you report to this pension authority rather than that one. As has been said, some big issues could be addressed here without giving people outside this House enough time to comment on them. Remember, we are talking about people in Spain and Luxembourg, for example; by the time they hear that a statutory instrument is coming, it will probably have been passed. We are talking about a group of people who are very disparate and yet could be seriously affected by what is said to be a tweak.

I am still slightly concerned that, by enabling this to be there for all time, changes may be made to people’s death benefits, pensions or health provision, for example, without a proper discussion here. It would be a good idea, after I withdraw the amendment, for the Government to look closely at our Select Committee’s recommendation on whether there is a better method of achieving what the Government want to achieve, perhaps through moving an amendment to put in a sunset clause. Perhaps it could be for five years; in that time, we really would be able to see whether it is working as envisaged. Just having an open-ended commitment for all time on issues that will possibly affect people’s pensions or benefit payments seems to be a wide-ranging Henry VIII power.

[Viscount Hailsham]

Might I make a suggestion to the Government through the noble Baroness? One way would be having an extended sunset clause—for five years, for example—with a power to extend it further through an affirmative resolution procedure if, as the noble Baroness suggested, it appears to be working all right.

[Baroness Hayter of Kentish Town]

I think that what we are urging is: can we look at this and can we not get hung up on “We don’t want any amendments to this Bill”? If it were a government amendment, it could get nodded through and we could pretend that it had not happened, if the Government want a clean Bill—we will not even tell anybody, just send the tweak through. But it is important to get this right rather than worry about one’s amour propre. For the moment, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Clause 13 agreed.

Clause 14 agreed.

Clause 15: Independent Monitoring Authority for the Citizens’ Rights Agreements

Debate on whether Clause 15 should stand part of the Bill.

[Lord Greaves]

My Lords, Clause 15—and Schedule 2, to which it refers—is about setting up a new quango, if I can use that term, created as an independent monitoring agency on citizen’s rights, which is what its title will be. It occurred to me when I was in a hurry that a simple clause stand part debate would give the Government an opportunity to provide more explanation and information on how this new quango will work. Then, when I found myself with a bit of spare time this afternoon, I looked at Schedule 2 in detail and tabled amendments.

Together with the amendments, this clause stand part debate allows the Government to tell us how the IMA will work. I particularly want to probe them on the timetable. How quickly will they set it up? At what stage will the interim chief executive be appointed? At what stage is it expected that the body as a whole will be appointed? If it is to do a useful job it ought to be in place as quickly as possible so that it can monitor the transitional process as it takes place.

As ever, I looked in the Explanatory Notes. There tends to be two different varieties of Explanatory Notes: those that just rewrite the Bill in more understandable words and those that actually explain what is underneath it all. The notes state:

“Paragraph 1 sets out that the IMA is not to be a Crown body.”


Yes, okay. I looked at the Bill, where there is quite a bit more explanation of what that means than in the Explanatory Notes. I will therefore put the notes to one side because they do not tell you anything more than you can get from an intelligent reading of the Bill.

What can the Government say about the timetable? What can they say about the estimated cost? The published impact assessment suggests that the cost of the whole Bill will be about £167.1 million, but it says:

“The bulk of the costs are due to the setup”


of the IMA. What is the bulk? Is it £150 million, for example? How much money will we spend on this? I suppose that we can make assessments of the nature of the organisation from the amount of money.

Nevertheless, how many employees do the Government expect to take on? That is important. What will be the location of the IMA and, indeed, its employees? Will some of them work in different parts of the UK? On the main headquarters, we have heard a lot recently about the new Government wanting to decentralise the Civil Service and send some departments to places such as Doncaster, Grimsby and Workington—perhaps even Nelson and Colne. However, we have heard a lot of this in the past; after the 1960s, none of it ever really came to much. Is it expected that the headquarters will be used as part of the Government’s attempt to decentralise things from Westminster, Whitehall and London?

The amendment about the interim chief executive is important. It concerns paragraph 3 of Schedule 2, which suggests that the interim chief executive will be appointed before the IMA is set up; presumably, they will also take part in that set-up. Paragraph 3(1) states:

“The Secretary of State may appoint a person to be the IMA’s chief executive”.


Paragraph 3(2) states:

“A chief executive appointed by the Secretary of State may incur expenditure and do other things in the name and on behalf of the IMA”


until the IMA is set up. Paragraph 3(3) states:

“In exercising the power in sub-paragraph (2), a chief executive appointed by the Secretary of State must act in accordance with any directions given by the Secretary of State.”


In the brief discussion about the IMA at Second Reading yesterday noble Lords talked quite a lot about whether the IMA will be genuinely independent of the Government. That is my next major question.

In the first instance, my sub-question, as it were, is this: how can the IMA be independent of the Secretary of State if the interim chief executive is appointed by the Secretary of State and has to act, as paragraph 3(3) says,

“in accordance with any directions given by the Secretary of State”?

This seems important, and it would be interesting to hear what the Government have to say.

I have a small amendment to the mention of “gratuities”. It may well be that all government legislation talks about paying people gratuities as well as their salary and expenses, but I have not noticed it before. I looked in the dictionary, and it said what I thought it meant—things you give to waitresses and taxi drivers—but also payments to people when they leave. It seems to me that employees in a government-related agency ought to have a contract that tells them how much they are paid and what their conditions and expenses are, and that we ought not to be looking at lots of golden goodbyes. Perhaps I am unduly concerned about that, but I would like to know what the Government have to say.

18:00

Amendments 54, 55 and 56 are about transparency. It is not completely clear how transparent this organisation will be. The schedule gives examples of where it has to publish its reports and send them to the Secretary of State, et cetera, but it seems not too thorough in applying the standards of transparency and integrity we ought to expect in public bodies, which, as a Member of the House of Lords and a local councillor, I certainly have to abide by.

I turn to Amendment 54. The wording in paragraph 9(6)(c) of Schedule 2 is curious. It says:

“The arrangements must oblige each member … to declare all financial interests … to declare any other personal interest relevant to the exercise of a function, and … to withdraw from the exercise of any function to which an interest of a sort mentioned in paragraph (a) or (b) is relevant”.

This is all what I would expect as a local authority member, but then it says

“unless the IMA is satisfied that the interest will not influence the exercise of the function.”

Either you have a declarable financial interest or you do not. That is how it works in local government, and it is fairly clear whether you have. You do not ask the council: “Can they stay after all? We really think they’re honest people, so it won’t influence the exercise of the function.” That seems wrong. The point is that honesty and integrity have to be seen to be happening, regardless of the honesty and integrity of the individual concerned. That is a fundamental principle, and I think that bit of this schedule is wrong.

Amendments 55 and 56 say that the IMA should publish the minutes of its meetings and committees, so that after the event you know what it is doing and talking about. We have to remember that this body will not take up individual cases. It is not an ombudsman-type body, as I understand it. It will take an overall review of the operations of this Bill, so it is vital to publish the minutes and the annual plan.

Amendment 57 goes rather wider. It is to challenge the Government as to whether this is really just about the operation of the provisions of this Bill or whether the IMA will be able to undertake reviews about questions connected to the European citizens it is overseeing, overlooking and monitoring—even though, strictly, other legislation might be concerned—or perhaps the way they are treated by local authorities or other public authorities. Or will it really be very restrictive and operate only within the terms of this Bill and therefore of the withdrawal agreement?

Amendment 61 is a probing amendment: will the IMA be allowed to charge for any of its services? It is a simple question. It is not very clear whether it is able to do that or whether the Government will want it to.

Finally, Amendment 68 would introduce a stricter level of parliamentary scrutiny, which would fit into the packed timetable that the noble Lord, Lord Bethell, was talking about—it will be nice to have a packed timetable in this House for a change, after the last year. I suggest the procedure that was invented in the Public Bodies Act and is now pretty well over as far as the bodies in that Act are concerned. It concerns the Government’s ability to abolish, change or transfer the IMA’s functions to any other body. The Public Bodies Act lays down a longer timetable that gives more time for parliamentary scrutiny. It worked very well indeed under the Public Bodies Act, which was seen through this House expertly by the noble Lord, Lord Taylor of Holbeach, quite a long time ago—eight or nine years ago. I remember his famous comment after there was a huge amount of criticism of it when it first came here; it started here. He stood up in the House and said: “It is my job to put this Bill in proper order before it leaves this House”. Indeed, he did that very well. One of the things invented was this procedure for dealing with public bodies; it was all part of the bonfire of the quangos at the time. It worked very well, and the procedure is still there in that Act, although it is not used any more because that Act has done its job. It would be very helpful for it to apply to this body.

Finally, I ask the Government some questions. Why is there a provision to transfer the functions to another body? What kind of body do the Government imagine or think it should be transferred to? In what circumstances might this be thought necessary, and why?

[Lord Wigley (PC)]

My Lords, I believe I am right in saying that Amendment 59 is associated with this group.

[Lord Greaves]

No, it is coming later.

[Lord Wigley]

It is coming later. I beg your Lordships’ pardon.

[Lord McNicol of West Kilbride]

No, it is. The noble Lord is correct.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

I should correct the noble Lord. Amendment 59 is part of this group, and therefore if he wishes to speak to it, he should do so.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I confess my inexperience in this court of Parliament in knowing whether it is the right opportunity to raise Amendment 59. I will do so. This may seem a very small point, but it goes to two points that underlie the amendments to which we will turn in due course. The first is the need to ensure that the Bill respects our constitution as regards devolution and that the devolution statutes that form part of our constitution are altered in a proper and constitutional manner. Secondly, going forward with our life outside the European Union, we achieve a stronger union by making sure that there is the closest possible working together of the devolved Governments, Assemblies and Parliaments with the Government at Westminster.

Although the amendment is addressed to deal with the position in Scotland, Northern Ireland and Wales together—logically it has to be—I approach this from the standpoint of Wales, for two reasons. First of all, my own experience of that devolution settlement is much clearer than my experience of the others. Secondly, I really think it of importance that in this House we try to do all we can to make sure that Wales, the Welsh Government and the Welsh Assembly understand that the union will work for the future as envisaged in the devolution statutes.

It may seem that devolution is not that important at this time in the context of this Bill, and I can well understand that view. But it is important to reflect for the future and to realise that much will need to be done to the way in which devolution operates when we are outside the European Union and with our own internal market. Those are the general points that underline my seeking to make this amendment.

The purpose of the amendment is to ensure that the principles agreed in respect of the IMA’s composition, as set out in the schedule, are carried forward in the event that a new body is created pursuant to the powers that have been added to the Bill. As regards the obligation to appoint the non-executive members of the IMA, provision is made in the Bill that the Secretary of State will appoint those with experience in relation to Scotland, in relation to Wales and in relation to Northern Ireland, who understand how the systems there work. This is plainly a proper and right provision as, over the past 20 years, as any examination of the detailed operation of devolution will show, things have changed. I find it sometimes regrettable that those who occupy the ministries in Whitehall do not realise the extent of that change. I therefore appreciate what the Government have done through this provision and the further discussions they have had of the role of the Welsh Administration and Welsh Ministers in the selection of the appropriate person. However, the provision is not carried forward if the functions of the IMA are transferred to a new body.

I accept that it is a small point, but small points can go a long way to ensure that the spirit of devolution and the constitution is respected. Of course the Government can say that there will be no change, no statement made and no clarification, but would that be wise? With the utmost respect, I suggest that it would not be wise because it would point out that even a small change that can capture the spirit of the way forward is something that the Government will not contemplate. On the other hand, if some assurance were given about any future transfer to a new body, is not that the first step in showing that the spirit of a post- devolution UK will be respected by this Government?

[Lord Wigley]

My Lords, I am delighted to support Amendment 59, standing in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, to which I added my name, although too late for it to appear on the Marshalled List today.

The IMA is intended to provide assurance to EU citizens who have already established their rights to live and work in the United Kingdom that, after we leave the EU, they will continue to enjoy the same rights as they do now, which flow from the principle of freedom of movement under which they first moved to the United Kingdom. The IMA will be able to investigate complaints by individual EU citizens and members of their families if it believes these complaints to have been compromised in any way.

Since such rights include access to public services, such complaints could be directed against one of the devolved Administrations. An example pointed out to me is of a Polish citizen who moved to Wales perhaps 10 years ago, and who might take up a question with the IMA if they believed that, in 2022, changes to administrative procedures in the Welsh NHS had made it impossible for them to access its services on the same basis as UK citizens. That is a matter that quite clearly has a direct relationship to the responsibilities of the National Assembly for Wales, and there will be parallels in Scotland and in Northern Ireland. It is therefore essential that the IMA has a good knowledge and understanding of the circumstances in each part of the United Kingdom. This applies to its non-executive members, as well as to its staff, who I understand are likely to be based in Wales—perhaps the Minister can confirm that.

18:15

I understand that the Welsh Government have had intensive negotiations with UK Ministers to establish an appropriate role for Welsh Ministers in the appointment of an IMA member with knowledge of conditions in Wales. This does not involve Welsh Ministers appointing such a person, or them having a veto on any such appointment. However, I suggest it does require that UK Ministers seek the agreement of Welsh Ministers to the appointment of a named individual, and, if such agreement is not forthcoming, to make public their reasons for this.

When this agreement was reached between Ministers at Westminster and the Welsh Government, the draft Bill did not contain any provision for Ministers, by regulation, to transfer the functions of the IMA to another body. That is why, now, we need this amendment. It is necessary to include this provision to ensure that there is no danger of UK Ministers circumventing the appointment of members. Over the decades, there could be good reasons for a number of cases falling and for the merging of the IMA’s functions with another tribunal or court. If that is to happen, it is essential that these safeguards are built in. The point of this amendment is to try to ensure that that happens, if not in the Bill then perhaps by a statement from the Minister responding tonight. That would give some assurance that the agreement reached privately in Cardiff underpins the Government’s thinking at this stage in the process of the Bill.

[Baroness Finlay of Llandaff (CB)]

My Lords, the background to this amendment has been well explained by both my friends who have spoken. I would like to stress the importance of this as signalling to the Welsh Government a way forward and a real commitment to make sure that the devolution settlement is respected, now and into the future. Amendment 59 seeks to ensure that if the functions are transferred to another body—I stress “if”—the same obligations should apply as far as is possible in respect of the appointment of a member with a knowledge of Wales.

We now have legislation and regulations in Wales which are interpreted as providing a degree of divergence in some areas; health has already been cited and other areas include education, agriculture and local environment. Therefore, a very real difficulty could arise if the function is transferred to a body that has a mandate only for England, or to a body with governance that does not involve members from Wales who have a working knowledge of Wales and understand the detail of the regulation by which the Welsh Government have overseen services and their organisation and strategy.

If the Minister believes that such an amendment is unduly detailed for inclusion in the Bill, I hope that, at a minimum, he will make a commitment before the House that Ministers intend to act in accordance with the spirit of the provisions on the IMA if functions are at any time transferred to another body.

[Baroness Humphreys (LD)]

My Lords, my contribution to this debate on Amendment 59 will be very brief, because everyone has said what I want to say. I am grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, for tabling this amendment and giving me the opportunity to add my name to it. I am also grateful for the detailed analysis that he and the noble Lord, Lord Wigley, provided, and for the comments of the noble Baroness.

The independent monitoring authority for citizens' rights will, as noble Lords have outlined, be composed of an independent board of members with experience of matters covered by the citizens’ rights agreements, and—this is important—knowledge of the relevant laws and issues in Scotland, Wales, Northern Ireland, and, I believe, Gibraltar. As the noble Lord, Lord Wigley, pointed out, it is important to note that these qualifications for membership of the IMA are the result of many hours of negotiation between the Government and the devolved Administrations. The qualifications have been taken very seriously. The amendment seeks to ensure that if the functions of the IMA are transferred to another body, the same qualifications for membership of the new body should apply. This seems to be an eminently sensible, simple and straightforward request. I hope that the Minister can commit to it from the Dispatch Box tonight.

[Lord Howarth of Newport]

My Lords, I want to underscore the very important point that was very well made by the noble and learned Lord, Lord Thomas, about the need for courtesy and respect. The union is under considerable stress. The stress is perhaps less severe between Wales and England, because Wales voted to leave the European Union. None the less, we are dealing with very sensitive matters. It is surely elementary that the UK Government in London should consult and proceed with the maximum delicacy and sensitivity. There will be sensitive questions when it comes to the implementation of many of the arrangements that feature in our EU withdrawal. The right of Wales to diverge on the implementation of these regulations and other matters will obviously be important to respect.

At the same time, it will be very important that in Wales there is a recognition that divergence can be a fairly perilous course. Given this range of sensitivities, it would send a very helpful signal if the Government accepted Amendment 59. I cannot imagine why they would have any difficulty in doing so. It would signal their intent to continue in a fully conciliatory, fully constructive spirit of co-operation and respect for the rights of the devolved Administrations.

[Lord McNicol of West Kilbride]

My Lords, I rise to speak to Amendments 58 and 60. The noble Lord, Lord Greaves, has touched on many of his probing amendments, and there has been much debate about Amendment 59, so I do not need to cover that.

The establishment of the independent monitoring authority is an important step in implementing the UK’s obligations to EU citizens under the withdrawal agreement. However, the Government’s approach to the IMA leaves a number of important questions unanswered, hence the large number of probing amendments in this and other groups. There are concerns regarding the delegated powers, allowing Ministers to transfer the IMA’s functions—or even wind the organisation up—by statutory instrument, hence the amendment in my name.

At ministerial briefings, the Minister has explained that, later in the withdrawal process, it may make sense for the IMA’s functions to sit elsewhere. Can the Minister give an example of where those functions may be moved to, and why this would be preferable to maintaining an independent body? Can he also confirm that in the event of such transfers there will be no practical impact on citizens? Finally, can he provide assurances that, in the spirit of co-operation, the Joint Committee will be fully briefed regarding any changes to the IMA or the exercise of its functions? To touch very briefly on Amendment 59, in the name of the noble and learned Lord, Lord Thomas, again many important issues are raised regarding the transfer of functions, aiming to ensure that the new executors of such functions would need specific knowledge of UK nations and the regions.

[Lord Keen of Elie]

I am obliged to all noble Lords who have contributed. Like many noble Lords who have already spoken, I am conscious of the sensitivities that surround the devolved settlement that could impinge upon its success in the future.

Let us be clear: Clause 15 is essential to implement our international legal obligation under the withdrawal agreement and under the EEA-EFTA separation agreement, which requires that we establish an independent monitoring authority. I hope that it also demonstrates our commitment to protecting the rights of those citizens covered by the agreements. Therefore, it is necessary for Clause 15 to stand part of the Bill.

Of course, the IMA will offer an important layer of additional protection over and above the wide range of complaint and appeal routes that already exist for EU citizens in the United Kingdom. However, expanding the IMA scope through Amendment 57—as proposed by the noble Lord, Lord Greaves—would, I fear, divert the body’s resources from its important role monitoring citizens’ rights and obligations. Therefore, I would resist such an amendment. It also risks creating unhelpful duplication, with all the confusion and wasted resources that could accompany that, so I invite the noble Lord, Lord Greaves, to withdraw that amendment.

The withdrawal agreement requires that the IMA be established by the end of the implementation period; that is the goal. The appointment of an interim chief executive to the IMA—a point raised by the noble Lord, Lord Greaves—is considered vital to meeting that deadline, as it will be essential from the point of view of staffing and procurement decisions that will need to be taken in advance of that date. Indeed, there have been other examples of interim chief executives being appointed to such bodies in order that suitable preparation can be made for them to be up and running at the appropriate time. Removing that provision through Amendment 47 would jeopardise the timely establishment of the IMA, and risk putting us in breach of our international law obligations. I hope that I have explained the rationale for that approach.

In order to give full and proper effect to our obligations in international law, we have designed the IMA to be robust and independent, in line with the best practice for the establishment of new public bodies. While I understand the intention behind a number of the amendments in the name of the noble Lord, Lord Greaves, which he perceives as strengthening the independence and robustness of the IMA, I hope I can assure him that they are unnecessary. I appreciate that they are essentially probing amendments in order that we can explain the position.

[Lord Kerr of Kinlochard]

Perhaps I may probe a little further. The independence of this authority is important—important because we have agreed to introduce an independent authority and important to those whose affairs it will be keeping an eye on.

When I was a Permanent Secretary, I would have had no difficulty in coming to the conclusion that a number of non-departmental bodies could be abolished and their functions transferred elsewhere because it would be more efficient, effective and economical to do so. The test in paragraph 39(2) of Schedule 2 is not hard for the Executive to meet. Does the Minister think that the body is more likely to be independent, feel independent and be seen as independent if it is continually under the threat of the sentence of death in paragraph 39(1), which says that its powers can be transferred? I agree that it is a habit for quangos to survive long beyond their natural useful lives, but what is the rationale for this power transfer by regulation? Is the Minister convinced that the test of efficiency, effectiveness and economy does not slightly conflict with the requirement for independence?

18:30

[Lord Keen of Elie]

My Lords, the noble Lord perhaps anticipates what I shall come to in the course of my reply—how prescient he is in that regard.

The body is not under a sentence of death and the rationale for the ability to transfer was hinted at by the noble Lord when he talked about bodies that had long outlived their usefulness. I will elaborate on this point in a moment, but I certainly do not consider that the provisions of paragraph 39 impinge on the effective independence of the IMA. I would add—I will elaborate upon this—that we must have regard not only to the intentions of the Executive but to the joint committee and, therefore, to the interests of the other party to the international agreement that has given birth to the IMA.

Let me continue with the point I was about to raise on some of the further amendments spoken to by the noble Lord, Lord Greaves. First, on Amendments 52 and 53, which seek to remove certain standard provisions for remuneration in respect of public bodies, he alluded to the term “gratuity”. There are circumstances in which public servants are brought into a body but, for one reason or another, their position is terminated early or prematurely and consideration has to be given to the question of gratuities. Where public servants are already employed in a position where they can be remunerated and there is a provision for gratuities to attract suitable employees into bodies such as the IMA, one must generally have regard to equivalence of terms and conditions. Therefore, because that appears in the context of other public bodies, it is repeated in the context of this legislation.

Amendment 54 would remove provisions that provide a proportionate and sensible way of approaching potential conflicts of interest for IMA members. At all times those members will be expected to adhere to the Cabinet Office Code of Conduct for Board Members of Public Bodies, and the approach set out in this paragraph in its unamended form is consistent with the code. For example, an individual member may make a subjective decision that they should disclose a conflict of interest but the board may determine objectively that it is not a pertinent conflict of interest and that they can therefore continue. That is why the matter is expressed in those terms.

The Government also expect the IMA to follow best practice in relation to its own transparency. Therefore, we regard Amendments 55 and 56 as unnecessary. Indeed, amending the Bill in the way proposed by the noble Lord, Lord Greaves, would take decisions around its transparency away from the IMA and thus, essentially, undermine its status as an independent body. We regard the IMA as essentially an independent body but, while enjoying the status of an independent body, it must be able to discharge certain functions as it sees appropriate, albeit while having regard to the relevant codes.

There is also a reference to not charging for the body’s functions in Amendment 61. That is unnecessary because this body will not charge for its functions. They are essentially systemic—as the noble Lord, Lord Greaves, appreciated, it is not a case of individual applications and individual disposals—and there is no room for any form of charging. Again, we feel it is unnecessary to consider that amendment.

On the point raised by the noble Lord, Lord Kerr of Kinlochard, important though the IMA will be in providing additional assurances that citizens’ rights will be protected, we do not expect its functions to be required in perpetuity. Indeed, the withdrawal agreement recognises that reality. Years from now, it might be more appropriate and effective to protect these rights differently. It is for this reason that we have included two powers in Schedule 2: one to transfer the IMA’s functions to another body under paragraph 39 and the other to remove or abolish the IMA’s functions under paragraph 40, but only following a decision by the relevant joint committees to do so.

As noble Lords have appreciated, the first power is about future-proofing to make sure that citizens’ rights obligations are monitored as effectively and efficiently as possible in the future. Indeed, years from now, the type of oversight needed for the UK’s citizens’ rights obligations and the wider UK regulatory landscape may have changed materially from what it is today, and in such new circumstances it may be more appropriate and effective for another public body to perform the IMA’s role. Removing that power, as would be required by Amendment 58, spoken to by the noble Lord, Lord McNicol, would make us less capable of ensuring that we are in a position to provide an efficient and effective monitoring of citizens’ rights and obligations.

In any event, we would be sure to keep the EU and the EEA EFTA states appropriately informed of any decision to transfer the IMA’s functions. Again, that would be by way of the joint committee and would not involve some unilateral executive action by the UK Government. Indeed, if this power were ever used, we have ensured that it would not affect the independence and effectiveness of how citizens’ rights obligations are monitored. The Secretary of State must have regard to the need for the transferee to possess the necessary independence and resources to provide effective oversight of citizens’ rights obligations.

Let me reassure the House that the commitments we have made to the devolved Administrations about their role in the Independent Monitoring Authority will be upheld in the event that its functions are transferred to another public body. We have designed this power so that the Secretary of State can make any modifications that he considers appropriate to the constitutional arrangements of the transferee. This will ensure that an equivalent to the important role of the devolved Administrations in the IMA is replicated for the transferee. I hope that reassures the noble and learned Lord, Lord Thomas of Cwmgiedd—I apologise if I have mispronounced the Welsh—and other noble Lords that, in these circumstances, Amendment 59 is unnecessary.

As I indicated, we have included a second power to abolish the IMA, which can be exercised only following a decision by mutual consent through the relevant joint committees, comprising representatives of the UK on the one hand and the EU and EFTA states on the other. This power can do no more than give effect to a decision at the international level. It cannot be exercised following a unilateral decision by the Secretary of State or the Executive. We would give extremely serious consideration to any decision to agree to abolish the IMA and I am confident that the EU and EFTA states would do likewise.

[Lord Wigley]

Will the Minister also confirm that if we were to find ourselves wanting to propose such a change to our former European colleagues there would have been consultation with the devolved authorities before that stage?

[Lord Keen of Elie]

My Lords, it is of the nature of the IMA’s function that it involves consideration of the views of the devolved Administrations and Gibraltar. It also involves consideration of the interests of those in England. We have to have regard not only to Wales, Northern Ireland and Scotland but, in this context, England and Gibraltar. It would be appropriate to consider all their interests if we were to put forward a proposal for the abolition of the IMA. Indeed, I find it difficult to conceive of a situation in which we could put forward a proposal for the abolition of the IMA at the joint committee without having consulted the devolved Administrations. It strikes me as so improbable that one should not give much weight to it.

[Baroness Finlay of Llandaff]

I hope the Minister will forgive me interrupting. I was wondering whether I would wait until the end of his remarks, but this follows on from the question asked by the noble Lord, Lord Wigley. In the event of the transfer to another body and a view that the IMA could be slimmed down, can the Minister provide assurance that the required consultation of the devolved Administrations would happen—with the devolved Administrations having a say rather than it being tokenistic consulting; I am not asking for a veto—and that there would be no possibility of them then being charged in any way or being requested to provide financial support for having as a member somebody who had particular knowledge of their area, whether it is Wales, Scotland, Gibraltar or Northern Ireland?

Can the Minister explain to me—this is my ignorance —why paragraph 39(1)(b) of Schedule 2 is in italics and the other parts of the Bill are not? Is there some significance to it being in italics?

[Lord Keen of Elie]

My Lords, I am not immediately aware of the significance of the italics, but no doubt someone will pass me a piece of paper in a moment that explains them—or not, as the case may be.

We have not yet determined the cost—this also responds to a point made by the noble Lord, Lord Greaves—or budget requirements for the IMA. I therefore cannot comment further on that. The obligation to ensure that it is fully and properly funded lies on the Secretary of State and therefore on the UK Government. What further or future negotiation there might be about cost sharing is a matter beyond the terms of the Bill. I would imagine that if we start with an obligation that lies with the Secretary of State and the UK Government it will not easily be transferred in any form to the devolved Administrations. Perhaps one day we will have a reverse Barnett formula, but we do not have one at present.

In the circumstances I have set out I hope it will be appreciated by the noble Lord, Lord McNicol, that Amendments 58 and 60 are not required in this context. The approach that we take to exercising the powers with regard to the IMA will be proportionate and appropriate and it would therefore not be necessary or appropriate that the procedures in the Public Bodies Act 2011 should apply. The bodies to which that procedure usually applies are those established on the basis of domestic policy. It will be appreciated that this is a rather different body which is the product of an international agreement and therefore it has to comply with the obligations we have entered into at the level of international law and it should not be tied to domestic legislation.

On the noble Baroness’s observations about the italics that appear in the Bill, it may well be that she alighted upon an issue that may arise later in the day, but I am advised very clearly that it is a misprint. Apparently, the entire Bill should have been in italics.

I have sought to reassure noble Lords about the concerns that have been raised and which have motivated these amendments. We have sought to design the IMA to provide robust, effective and fully independent oversight of citizens’ rights and our commitment to citizens’ rights. It is necessary to bear in mind that we are implementing international law obligations that we have incurred by entering into the withdrawal agreement. The clause and the schedule in their present form meet those international obligations and the demand for robust, effective and fully independent oversight of citizens’ rights and obligations. I hope that noble Lords will not press their amendments.

[Lord Greaves]

My Lords, I am very grateful to the Minister for the time and effort he has taken to go through all the points raised and, I think, to give us a certain amount of new information or extra information about how the IMA will work and about the Government’s thinking on it. This debate has been valuable. I am grateful to everybody who has taken part, and particularly for the snapshot we have had of the devolutionary thinking among Welsh Members of the House. I found it very interesting and useful.

The only question the Minister did not answer was about whether the IMA is going to be based in the north of England. Perhaps that is beyond his pay grade —I think he agrees with that.

Clause 15 agreed.

Clauses 16 to 20 agreed.

House resumed.