Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 7th September 2020 Lords Chamber

Committee (1st Day)

14:47

Relevant document: 11th Report from the Constitution Committee

Clause 1: Repeal of the main retained EU law relating to free movement etc.

Amendment 1

Moved by

[Baroness Neville-Rolfe]

1: Clause 1, page 1, line 9, at end insert—
“(2) Within six months of this section coming into force, the Secretary of State must lay a report before Parliament on how the provisions under Schedule 1 are to be enforced.”

[Baroness Neville-Rolfe (Con)]

My Lords, I rise to speak to Amendment 1 in my name and that of the noble Lord, Lord Green of Deddington. I start by thanking my noble friend the Minister and her team for the briefing sessions arranged since Second Reading and the substantial package of materials circulated last week, including some illustrative statutory instruments, which I always find helpful in understanding how Bills will work. We will come on to those in later groups.

I know from all the legislation that I have made as a civil servant and as a Minister, and complied with as a businesswoman and a citizen, that how a new law is enforced and the resources devoted to it is almost as important as the law itself. Our amendment, the first in this group, is a probing one designed to elicit detailed information on enforcement ahead of Report. I note that there is very little in the Bill, no doubt because the enforcement provisions, penalties, powers of entry and enforcement officers responsible sit in existing legislation, but we need a road map. We need to know as much as possible now and, failing that, we need a public report to Parliament within six months, as stated in my amendment—the way the excellent Bill clerks thought that we could ensure the provision of adequate information.

As discussed at Second Reading, my general approach is that government policy should align itself more closely with the majority of public opinion, which has consistently held over many decades that more rigorous controls are needed and that the rules should be enforced fairly and firmly. This was shown unequivocally in the Brexit referendum.

There are a number of troubling issues with enforcement implications. The number of migrants seeking ever more novel ways to get into the UK illegally is growing. Last week, it was reported that a record 416 migrants exploited fine weather to make the crossing from France to England in one day, arriving on beaches all along the south coast. Immigration law can be enforced by tightening border controls or by deporting those without a right to remain in our country, yet we see repeated reports of the failure of government steps to remove migrants who have already sought asylum elsewhere or have no right to remain for other reasons. Last week, a charter flight took off for Spain that was meant to carry 20 such migrants; in the event, only 11 boarded the plane, after late legal challenges. The week before, the Government abandoned a similar flight with 23 migrants on board, after last-minute legal action. Many thousands are attracted to dangerous ways of entering the UK, because the authorities are known to be useless at enforcing the law.

We have passed many laws and regulations in recent years, including in 2014—when I had the pleasure of supporting the then Home Office Minister, my noble friend Lord Taylor of Holbeach—but enforcement has been weak. As a result, businesses, banks and landlords play a big part in policing the rules at very considerable cost to themselves—as I remember well from Tesco. Yet immigration continues to increase. There are large numbers here illegally, both putting pressure on our public services and housing and risking ill treatment and exploitation—for example, in modern slavery or in dangerous low-paid working environments.

The Bill focuses on the EEA and Switzerland, and migrants arriving from those countries are not exempt from the problems that I highlighted. There is never-ending pressure on the EU’s southern and eastern borders, and the growth of hotspots of deprivation in EU urban centres. This phenomenon, most shockingly shown by the queues across Europe a few years ago, helped to bring us Brexit. The Bill must provide the powers we need to tackle these issues properly or we will never be forgiven.

Against this background, I have some questions. First, where are the enforcement provisions that will apply to the Bill and regulations made under it? What are the fines and criminal sanctions that apply and to whom? Secondly, the Bill contains powers to amend primary legislation elsewhere. Can that include enforcement provisions and how would such powers be limited? Thirdly, what are the enforcement authorities—the Border Force, the police, local authorities, the Home Office or the DWP?

Fourthly, what resources are available for enforcement and how much will they be increased? For example, the UK points-based immigration system, set out in CP 258 and at the useful briefing arranged by my noble friend the Minister, requires a huge new administrative structure post Brexit and an ESTA-style system involving millions of individuals every week. According to the department’s interesting impact assessment—thank you to the Home Office for doing one, by the way—there were 142.8 million passenger arrivals in 2018. That included nearly 41 million from the EU and 20.5 million non-EEA citizens. That necessitates a lot of checking. Add to that the pressure on our authorities of the illegal attempts I described earlier, the complications of Covid and post-Brexit trade, and you have a case for much more resource.

Fifthly, what scope is there for the use of technology to ease the obvious pressures on our enforcement? Does that also have downsides too that have been anticipated? 

Finally, will the Minister take another look at the economics of deportation flights? At Second Reading, I suggested the Government take advantage of the current market to buy some small planes for this purpose. Having some experience in this area, I was not happy with the response in the Minister’s letter. Given the failure rate and the apparent ability of lawyers to delay deportation on flimsy grounds, I am sure it would be cheaper, in the longer term, than charter flights. I am clear that, given media coverage and public concern, the public would not put up with the use of scheduled or mixed flights for that purpose. This approach would generate more confidence, and we need that. I urge the department to work with the Treasury if necessary to do a proper cost-benefit analysis, rather than applying some narrow procurement mantra.

In conclusion, I support Clause 1. However, we need to be clear about the rules for enforcement and entry. The other amendments in this group cover other aspects, and I look forward to colleagues making the case for these, although I must to admit to reservations about some of them.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, in following the noble Baroness, Lady Neville-Rolfe, I agree with her that we need to tackle modern slavery and exploitation in the UK and that this is something the Government need to properly fund and prioritise, focusing on the exploiters, not the victims. I am, however, speaking in direct opposition to her statement as I am opposing Clause 1.

Today marks another step in the robbing of rights from millions of Britons that they were born with and the removal of rights for future generations. Clause 1 is a key step by which freedom of movement for Britons and to Britain ends. I believe we should not allow the destruction of rights and freedoms for Britons to pass unmarked, which is why I have put down my intention to oppose Clause 1 standing part of the Bill.

As I did that, I was thinking back a couple of years to a rally in the centre of Brussels, held in ankle-deep snow, where I heard from lots of Britons who had come from across the continent to talk about how freedom of movement had changed and improved their lives. In particular, I think of a woman who, when young, had upped sticks when her life in the UK had not worked out, moved to several European countries over the years, built a couple of different careers and made a full, interesting, varied life for herself. She came from a very poor area of England and from a family with few financial resources. But she had bought a cheap coach ticket, shifted across a continent and found opportunities, interesting experiences and a comfortable place for herself in the world.

The wealthy have always been able to do this and, no doubt, will always be able to. Many an aristocrat set out on the Grand Tour and, by choice, never came home. Many a black sheep from a wealthy family snuck off to the continent and rebuilt their life away from scandal. The arrival of freedom of movement meant the chance for everybody to exercise that freedom to seek the opportunities, the experiences, the enhancements of life that change can bring and the chance to meet new and different people, learn a new language and find a different culture, environment and way of life.

Making that opportunity available to all was a huge step towards balancing inequality, and now it is being wiped out. All our lives are much poorer with the loss of freedom of movement. Of course, it has also been a safety net. British builders escaping the deprivations of 1970s Britain in Germany became a stereotype, but it was a fact. In our shock-ridden, insecure and unstable world, how vital might that right have been to many in the future?

As a noble and learned Lord pointed out to me when I was discussing my intention with him, I do not have the power to simply restore that movement right for Britons. That right is granted by other states under EU membership, which we have now lost, and all those rights will go when we end the transition period at the end of this year. These are rights, incidentally, that quite a number of Members of the House of Lords have availed themselves of. Freedom of movement exercised before the end of December will continue, unless by tearing up the withdrawal agreement signed just eight months ago, as was being threatened this morning, Boris Johnson puts into question the rights of the 1.3 million Britons who thought they were secure through their existing residence in the EU. What I am proposing would keep the rights of citizens from EU states in the UK. But the principle of reciprocation is strong, and we could, in accepting these rights, expect that reciprocation.

Moving countries is something that many people will never consider. My aim will always be for a world where no one is forced to leave their home by poverty, war, discrimination or environmental crises. But there are always people for whom this is an exciting idea: for some, the possibility of escape is attractive, and for others, the possibility of a fresh start they cannot find in their birthplace is essential.

We are also denying ourselves the talents, skills and energy of people from across the continent, who, without free movement, will not have the same opportunities their elders enjoyed. I am sorry about that too.

When young British people ask me what I did to keep their freedoms and opportunities, I will be able to say I did my best to defend them. I ask Members of your Lordships’ House: how would you answer that question? I am not going to ask Members to put their votes on the line today, but I intend to in the future.

15:00

[Lord Pannick (CB) [V]]

My Lords, that was indeed a passionate speech.

When I was a first-year law student at Hertford College, Oxford, we learned that apparently the Roman Emperor Caligula ordered that laws should be displayed in small letters as high up as possible to make it difficult for people to know their legal rights and obligations. Amendment 3 focuses attention on an extraordinary provision in this Bill—paragraph 4(2) of Schedule 1—which, if enacted, will make it impossible for people today to understand their legal rights and obligations.

Paragraph 4 is concerned with the EU regulation on free movement of workers. Paragraph 4(1) is a model of clarity; it says that Article 1 of the regulation “is omitted”. However, paragraph 4(2) displays the parliamentary draftsman at his or her most coy. It is so extraordinary that it must be read out:

“The other provisions of the Workers Regulation cease to apply so far as—


(a) they are inconsistent with any provision made by or under the Immigration Acts (including, and as amended by, this Act), or


(b) they are otherwise capable of affecting the interpretation, application or operation of any such provision.”


It is simply not acceptable that when people want to know whether a provision of an EU regulation continues to apply, they must ask themselves whether the provision is

“capable of affecting the interpretation, application or operation"

of a provision of the immigration Acts. This is drafting so opaque that it puts a brick wall between the individual and the law which applies to him or her. It is drafting so lazy that it is comatose. The same woeful drafting technique also appears in paragraph 6(1) of Schedule 1, a provision addressed in Amendments 4 and 5 in this group tabled by the noble Baroness, Lady Hamwee, which I support. If the Government want to ensure that provisions of a regulation cease to apply, they should say so with clarity.

Amendment 3 is in my name, and in the names of two other members of your Lordships’ Constitution Committee, the noble Baroness, Lady Taylor of Bolton, our chair, and the noble Lord, Lord Beith. The Constitution Committee’s report, published last week, drew attention to paragraph 4(2) of Schedule 1 as unacceptably vague and inevitably productive of legal uncertainty. We quoted the evidence given to the Commons Public Bill Committee by Adrian Berry, the barrister chair of the Immigration Law Practitioners’ Association. He said of this provision:

“You need to make better laws. Make it certain and put on the face of the Bill those things that you think are going to be disapplied because they are inconsistent with immigration provisions.”—[Official Report, Commons, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 9/6/20; col. 52.]


I agree. Basic standards of legislative drafting need to be upheld. Paragraph 4(2) of Schedule 1 is way below what is acceptable. I can think of no precedent for such a provision.

I hope that the Minister says that she understands the objection to this provision and that she will bring forward a suitable amendment on Report. I give due warning that if the Government do not address this concern, and if other noble Lords share my concern, I will return to this topic on Report.

[Lord Beith (LD)]

My Lords, I support the amendment and the arguments advanced by the noble Lord, Lord Pannick. I apologise if the Committee starts its debate on another report from the Constitution Committee before this section is concluded.

In many respects this is a skeleton Bill, and in this area it changes significant amounts of primary legislation into secondary legislation, therefore making it open to less effective parliamentary scrutiny when powers are used. If something needs to be changed because of inconsistency, then the face of the Bill is the place to put it, but here we are with the concept of inconsistency so subjective and vague that it is difficult to imagine how a court would interpret it. Is

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

restricted to precluding the operation of the Act, or does it extend to casting doubt on provisions in this Act? What is it supposed to mean?

In our report on Brexit legislation, the Constitution Committee said that

“delegated powers should be sought only when their use can be clearly anticipated and defined”,

yet in this Bill we get terms such as “appropriate”, “in connection with” and the ones which I have just quoted. It is an unsatisfactory way of drafting, and I am bound to wonder what instructions were given to the parliamentary draftsmen when they worked on this section.

The Constitution Committee has had quite a bit of discussion over the last couple of years about the drafting of legislation and the circumstances in which parliamentary draftsmen should say, “No, this is not a way in which we write laws, this is not acceptable”, and if a dispute arises, then not only departmental Ministers but also law officers should be involved in defending the basic principles of law. Having looked at these provisions, which I hope the Government will find a way to remove, we concluded that

“they risk making a complex area of the law even more difficult to navigate and understand for practitioners and individuals alike”,

and that they threaten to

“frustrate essential ingredients of the rule of law.”

These seem to me to be compelling arguments for the Government to have more thought on this issue.

[Baroness Prashar (CB) [V]]

My Lords, the proposed new clause in Amendment 60, which has cross-party support and is sponsored by the noble Baronesses, Lady Fookes, Lady Garden of Frognal, and Lady Morris of Yardley, is largely self-explanatory. If accepted, it would continue allowing minors to travel from the European Union, other European Economic Area states and Switzerland to the UK on identity cards rather than passports beyond 31 December 2020.

Large numbers of junior nationals from these jurisdictions travel to the UK every year for school exchange visits, English language courses, adventure holidays and a range of sporting and cultural activities. Last year over 150,000 European Economic Area juniors travelled to the UK for English language courses alone, many of them travelling in groups for study programmes that lasted for less than two weeks. This is an invaluable cultural and educational exchange that builds friendships and fosters good will between the UK and other nations. Most of these students currently travel on identity cards. Many do not own passports but travel freely on identity cards throughout the EU and EEA states with no need for passports.

A survey last year by English UK, the trade association for English schools, showed that, in 2019, 90% of under-18 EU students who came to this country did so on an identity card to study at colleges accredited by the British Council, an organisation on which I served as a deputy chair for six years. The parents of these under-18s do not want to go through additional bureaucracy or incur the cost of getting a passport, having saved for the cost of the trip itself. Furthermore, if just one junior due to travel in a school exchange group is without a passport, the viability of the whole visit could be put in jeopardy. If this travel on identity cards ceases, the UK will lose out to other countries and its position as a popular destination could decline. This new clause would help to rectify the situation and sustain the UK’s position as a popular destination. I emphasise that the proposed extension of identity card-based entry for under-18s coming to the UK for a single stay of no longer than 30 days in any calendar year means that this concession would be available only to those presenting little or no border security issues or risk of abuse.

Some may object that allowing the continuation of ID card travel presents the UK with an unacceptable security risk. EU citizens with settled status will be allowed to continue to travel on ID cards, so why not children coming for short-stay trips, largely travelling in large managed groups?

Furthermore, the EU passed a regulation last year to increase the security of ID cards issued in EU states. The regulation requires that within two years of June 2019, all new ID cards need to be machine-readable biometric cards. Existing cards will be phased out by 2023 if they are not machine readable. This will bring the security features of ID cards into line with those of passports.

As this small exception would be a continuation of an existing procedure, I do not believe it will be very complex to administer. If the clause is accepted, it will be welcomed by our European partners as a significant gesture of good will. It is also worth noting that Iceland, Norway and Switzerland allow travel for EU nationals on an ID card, so I urge the Government to accept this amendment.

[Lord Green of Deddington (CB) [V]]

This is rather a mixed bag of amendments. I would like to return to Amendment 1, on enforcement; a very useful amendment proposed by the noble Baroness, Lady Neville-Rolfe. As she so clearly described, enforcement has long been one of the weakest points in our immigration system. Indeed, enforced returns have been in steady decline for years. They fell from 16,000 in 2010 to just under 7,000 in 2020—that is more than half—and that was the lowest level since records began. Voluntary returns have also fallen since 2015. Partly as a result of these failures, we now have 90,000 immigration offenders living in the community; that is somewhat more than the size of the British Army. Furthermore, more than half of them—about 55,000—no longer even bother to report to the Home Office as they are supposed to do: they have simply disappeared.

I shall make three brief suggestions about how this could be tackled. First, we should adopt a much tougher approach towards those countries that take an unreasonable attitude to taking back their own citizens—India, Pakistan and Iran come to mind, but there are a number of others. As noble Lords will know, illegal immigrants frequently destroy their documents, and these countries usually refuse to accept the biometric identity documents that the British Government produce for them. I think that our willingness to issue visas for the UK should take this attitude into account.

Secondly, we also need to retain—indeed, restore—the detained fast-track system for asylum claims that are obviously very weak. It was very effective for some years, but was quietly dropped by the Government quite recently after several years in a legal morass. Thirdly, we should be much more effective in enforcing the laws on illegal working. It is clear that this is a major pull factor for illegal immigration.

Finally, a particular difficulty facing the new immigration system is that of preventing EU visitors and other non-visa nationals working while in this country. A report to Parliament on enforcement, as proposed in this amendment, would be a valuable first step.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

The noble Baroness, Lady Taylor of Bolton, has withdrawn from the debate, so I call the noble Baroness, Lady Ludford.

15:15

[Baroness Ludford (LD)]

My Lords, I very much regret the end of free movement rights. This has often been presented as a one-way system, as if it applied only to nationals of other EEA countries inward to the UK, but it has of course been a two-way system, and something over 1 million UK citizens have taken advantage of their free movement rights to live, work and settle in other EU and EEA countries. When I was an MEP, I was proud to work on the 2004 citizens’ rights directive, which is often called the free movement directive. We did not get everything we wanted, as the European Parliament did not have quite the rights over legislation that it has today. However, it allowed lots of people who were not particularly well off to take advantage of EU rights to move, live and work abroad—it was democratised, if you like.

I fear that there could well be resentment in future, as divisions appear between those who retain a right to move around and those who do not. I also think that some British citizens who currently enjoy EU free movement rights may not fully have taken on board what is about to hit them. When I talk about divisions, for instance, there are those who will be able to get an Irish passport. I declare an interest here: apparently—I did not realise this until a few years ago—I am already an Irish citizen because my mother was born in Dublin. I have not yet got round to applying for the passport. I put it off partly in the hope that somehow Brexit would be averted, and also because I feel a little sheepish about my right to it. But I have not had to apply for Irish citizenship, as it has sort of fallen out of the sky, courtesy of my mother—or her mother, I should say.

There will also be people with means who will be able to move abroad. We know that it is possible to buy so-called golden passports in some EU countries. There are also investor visas. One way or another, it is not going to be the rich who will be affected by the grab of free movement rights.

This Bill is largely about the future of EU and EEA citizens in the UK and them coming under immigration control, but as the organisation British in Europe so splendidly details, we must remember the difficulties for UK citizens in EEA countries.

Reference has been made to Amendments 4 and 5, which my noble friend Lady Hamwee will probably talk about. The noble Lord, Lord Pannick, talked about Amendment 3. These amendments are similar in that they are objecting to wording about powers,

“capable of affecting the interpretation, application or operation of any provision … under the Immigration Acts … or … capable of affecting the exercise of functions”.

The two committees that have very helpfully reported to us—the Constitution Committee and the Delegated Powers Committee—have pointed out the legal complexity of immigration law. It is a complicated policy area. I think it was the Constitution Committee that said,

“the complexity of law had developed to the point that it was a serious threat to the ability of lawyers and judges to apply it consistently—not to mention raising rule-of-law concerns as to the ability of the general public to understand the law to which they are subject.”

This is the system into which we are catapulting EEA citizens who, up to now, have enjoyed the protection of EU law. I hope they continue to enjoy the complete protection of the withdrawal agreement, but noises off in the last 24 hours have not reassured people of the Government’s commitment to upholding all the provisions of the agreement.

This is a complex area. I know we are going to talk about the Immigration Rules on a later amendment but, as this Bill does not set out the domestic immigration framework that will apply to EEA citizens, there is understandable nervousness. One of the things that people are worried about is a retrospective demand to show private health insurance—the famous “comprehensive sickness insurance”. The Minister will know that it is interpreted by the European Commission—and was always understood when we were legislating on the citizens’ rights directive—that in a country such as the UK, which has a national health service, free at the point of delivery, the right to use the NHS is the comprehensive sickness insurance for people paying tax and national insurance. They should not be required to have private health insurance. There is a lot of worry that when people come to apply for citizenship the Government will say, “Show us that you had private health insurance all the time that you have been resident in the UK.” Perhaps the Minister will be able to reassure me on that point.

Colleagues in my party and, indeed, people in other parties believe that there should be an automatic system instead of the EU settlement scheme, which is an application system. A letter went to the Prime Minister yesterday from representatives of five parties, including my friend in the other place Alistair Carmichael MP, urging the Government, even at this stage, to replace the settled status process with an automatic right to stay for EU citizens, guaranteed in primary legislation, as a declaratory system. It is something that we have persistently asked for and will not stop asking for. I see that the Minister looks dismayed.

One group—I think it was Law Society of Scotland—raised an interesting question. Perhaps the Minister can clarify this. It asked whether Clause 1 is necessary in the light of powers in the EU withdrawal Act 2018 for Ministers to repeal retained EU law. I would be grateful for her guidance on that subject.

Finally, I thoroughly support Amendment 61 on EEA citizens having access to eGates, which the noble Lord, Lord Paddick, will speak to.

[Baroness Fookes (Con)]

My Lords, before I turn to Amendment 60 to which I have added my name, can I say, as a member of the Constitution Committee and a former chairman of the Delegated Powers Committee, I agree wholeheartedly with the searing criticism from the noble Lords, Lord Pannick and Lord Beith? I am appalled that we should start to have laws that are incomprehensible. It might be meat and drink for the satirist, but it should be no part of our arrangements.

By contrast, the amendment to which I have added my name, that of the noble Baroness, Lady Prashar, is clear, straightforward and simple to understand. The noble Baroness gave a very good account of it and its intentions so I will not repeat them now for lack of time, but I want to make a serious point. If young people—minors—are not able to come to this country without a full passport, it is unlikely, when things return to normal, that many of them will come at all. They are far more likely to go to some other English-speaking country—one thinks immediately of the Republic of Ireland or even Malta. One might even think of the Netherlands, where it seems to me that they sometimes speak English better than we do.

Be that as it may, this is a very real worry. It is bad enough that young people have suddenly stopped coming over to schools and organisations as a result of Covid-19. Such organisations are in dire straits and we do not want to put some ghastly obstacle in their way as things gradually return to normal. I hope that my noble friend the Minister will look carefully at this to see if we can simply have the identity cards, which are used at the present time and are simple and easy to use. They would be using only those that are properly instituted by the various countries of the EEA and Switzerland.

There is a further problem, looking forward. Many people first come to this country as a youngster on an exchange. Very often they will return, perhaps for higher or further education. We do not want to cut that off at the beginning. That would be extremely short-sighted.

Some areas of the country have a number of language schools. I am thinking of where I live in East Sussex where, within quite a small area of Hastings, St Leonards and around, there are three notable language schools. The same could be said of the constituency in Plymouth of which I had the honour to be the MP. If one looks round at some of the seaside resorts, one will find a good many more there too.

This is a useful, small part of the major issues of which this Bill is party, but I believe it is very important and I hope that my noble friend will be inclined to accept the amendment.

[Baroness Morris of Yardley (Lab)]

My Lords, along with the noble Baroness, Lady Fookes, I support Amendment 60, which the noble Baroness, Lady Prashar, spoke to so ably. It is a good thing for young people to come over to learn English here or to have adventure holidays or to do an exchange. We can all remember it if we had that opportunity. Those, who like me who were teachers, knew the benefit for children, and the children and grandchildren of many of us have taken this opportunity.

I cannot think of one reason why we would want to make it more difficult for these things to continue. It is one of those things that we can all agree on—it is what we would want for young people, whether they are our own children or somebody else’s. It is not just meeting people and learning the language, there is something about it that, perhaps, you only realise as you get older. The seeds that you sow in those early years, culturally and in terms of understanding, stay with you for life. Even if you do not come back to university in the United Kingdom in a few years’ time, in your heart you remain friends with somewhere you have been as a young person. I had an opportunity to be an exchange student in America when I was doing my teacher training. It has had a huge effect on me throughout my life. There is an affection, a loyalty and an understanding that I have never lost. Why would we want to make it difficult in the future for more children to have an opportunity like that?

There is a problem with the Bill. I do not think it is intentional, but an unintended consequence of the rules and regulations. It is not just a few young people who would be affected; most young people in this group travel with identity cards rather than passports, and that certainly makes it easier for the group organisers. If a card is lost, it is easier to replace it when you are abroad than it is to replace a passport. Quite simply, it is an extra cost, and parents will have choices—there are English-speaking nations other than ours that their children could visit. Therefore, it will make a difference. Schools are already trying to recruit for next year and they will be put at a disadvantage because we are now putting a further barrier in the way.

The noble Baroness, Lady Prashar, outlined the solution very clearly. Along with people who are here with European Union settlement status, for the next few years—at least, while we think this through—there should be the opportunity for people to make this kind of journey, restricted to 30 days once a year and very often to language schools approved by the British Council, with an identity card, rather than putting a barrier in their way and making them have a passport if they make such a journey.

15:30

[Baroness Garden of Frognal (LD)]

My Lords, having been reprieved from the Woolsack, I rise to speak on Amendment 60, to which I have added my name and which was so ably introduced by the noble Baroness, Lady Prashar, and to which the noble Baronesses, Lady Fookes and Lady Morris, have also spoken persuasively.

In the post-Brexit landscape, preserving good relations with our EU neighbours is of the utmost importance. Of course, freedom of movement is ending but that does not mean that we need to create unnecessary barriers to cultural exchange and destroy all the good will and soft power benefits created by school exchange visits, English language study programmes, sports, culture, leisure holidays and the like.

As someone who has covered, among other policy areas, education, rural affairs and tourism, either from the Opposition Front Bench or as a coalition Minister and Whip—we were multitalented in coalition—I can certainly attest to the important educational role played by school exchanges and the opportunities they afford our children to experience other cultures, as well as the economic contribution that the English language teaching sector makes to, for instance, rural and seaside communities here in the UK. Equally, the sector plays an important export role, as evidenced by its membership of the Education Sector Advisory Group, run out of the Department for International Trade.

As a linguist who studied French and Spanish at university before going on to teach both languages here and in Germany, I know the value of spending time in the country of the language being learned—it really is the best way to do so. I was a child in France and a student in Spain, and I lived in Germany with my RAF husband, where, as a French and Spanish speaker, I managed to get a job teaching in a German school, so I learned quite a lot of German as well. I fully agree with some of the other arguments that have been made in support of this proposed new clause. They are also familiar to me as a co-chair of the All-Party Parliamentary University Group and a vice-chair of the All-Party Parliamentary Group on Modern Languages.

As has been mentioned, many Europeans under the age of 18 do not own passports and their parents will find it expensive, cumbersome and unnecessary, in the ordinary run of things, to obtain them. If these trips do not go ahead because one or more of the children in a group does not possess a passport, that means that UK teenagers are likely to miss out too. School exchanges are just that—reciprocal exchanges. If schoolchildren from Europe cannot travel here for lack of a passport, ours are unlikely to be hosted by their counterparts in France, Germany, Belgium, Spain or other countries.

Currently, nearly 40% of UK children in our secondary schools take part in at least one international exchange visit during their school careers. This rises to nearly 80% of teenagers at independent schools in the UK. Therefore, while privately educated children from the independent sector may go on exchanges to wealthier parts of Europe, where parents may have less financial difficulty in obtaining a passport for their children to come to the UK, pupils in state schools could be very badly affected by this.

The stated aim of the Government is to boost these sorts of trips for all British schoolchildren, given the life-changing experiences and academic opportunities that they can afford them. However, the Government can hardly be said to be promoting this if one of their first acts is to place barriers in the way of under-18s from the European mainland coming here. A simple amendment to the Bill, in the form of this proposed new clause, allowing these children to continue to come to the UK on their national identity cards for short visits, would resolve this issue. As a former member of the EU Sub-Committee on Home Affairs in this place, I too look forward to hearing what the Minister has to say. This amendment will do the Government no harm and will generate a great deal of international good will.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am delighted to follow the noble Baroness. I associate myself with comments made during this debate by the noble Baroness, Lady Bennett, the noble Lord, Lord Pannick, and my noble friend Lady Neville-Rolfe, and I would like to ask a couple of questions in this regard.

If the purpose of the Bill is to repeal EU law on the free movement of people and if the provisions are not already enshrined in retained EU law elsewhere, can my noble friend the Minister take this opportunity to explain why, as has already been mentioned, Clause 1 is required? Like others, I would like to say how much I benefited from the free movement provisions—which have been in place since 1973—as a student and then as a stagiaire in the European Commission. I went on to practise European Union law before becoming an adviser to, and eventually being elected to, the European Parliament.

I come to my main concern with Clause 1. Can my noble friend put my mind at rest that, in repealing EU law on the free movement of workers from the EEA and Switzerland, we will still have access to a constant supply of labour in essential services such as health and social care? I would also like to add food production, farming, and vegetable and fruit growing. I know that the amendments failed in the other place, but I hope that my noble friend will look very carefully at this with fresh eyes.

It is also extremely important to ensure that those whom we welcome from the EEA and Switzerland after 1 January 2021 are made to feel welcome and are employed and given access on exactly the same basis as UK nationals. In this regard, will my noble friend confirm that migrants will continue to be employed on the same basis as UK nationals? Will the principle that has existed to date of non-discrimination on the grounds of nationality still apply, so that no employer can discriminate between a UK national and an EEA or Swiss national who might find employment in this regard?

I am conscious that there have already been a couple of very unfortunate cases of Covid-19 outbreaks in food processing plants, partly due to the fact that the working environment is very cold but also partly because, by necessity, the employees probably sit very close to each other. We will obviously need to revisit many of these conditions going forward, but will the principle of non-discrimination on the grounds of nationality still apply to the Bill and other provisions?

Given my background, I have some sympathy with those who have put their names to and supported Amendment 60, and I will listen very carefully to what my noble friend says in replying to that debate.

I support the comments of the noble Lord, Lord Pannick, who spoke to his amendment. I regret the lack of transparency and what appears to be very poor drafting, and, again, will listen very carefully to what my noble friend says in summing up on that. However, as regards this amendment, those are the questions I would like to put to my noble friend at this stage.

[Lord Kerr of Kinlochard (CB) [V]]

My Lords, I strongly support what was said so authoritatively about Amendment 3 by the noble Baroness, Lady McIntosh, and the noble Lord, Lord Pannick, supported by the noble Lord, Lord Beith, and the noble Baroness, Lady Fookes. We need to hear what our Constitution Committee has said, and I hope the Minister will tell us that the Government will do this.

My purpose is to say a few brief words on Amendment 61 in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. Before I do so, I want to say a quick word on the wider context. Admirable though the quality of this debate is, I cannot help feeling that we are fiddling while Rome burns. In Downing Street, it seems that the Government are planning to take powers in the internal market Bill to override certain provisions of the withdrawal agreement—in particular, Articles 5 and 10 of the Irish protocol. Tearing up ratified treaties is what rogue states do; sanctions usually follow. If such a proposal were put to us, I would expect us to examine it particularly stringently. I cannot recall any precedent in UK diplomatic history. What we are doing today is important, but what we might have to do then would be historic.

Turning to Amendment 61, it seems to me that it is either completely unnecessary or absolutely essential. I hope the Minister will be able to assure us that it is unnecessary because the Government have no intention of making our closest neighbours stand in a queue at the frontier. If she cannot make this assurance, we must surely ask the Government to think again.

It seems highly likely that, for the next few years, the relationship with the EU will become damagingly rebarbative. That would, of course, become a racing certainty if we tore up the withdrawal agreement, but even if we do not, the disruption, the economic damage and the inevitable frontier friction—deal or no deal—is likely to drip poison into the relationship for some time to come. So we should be careful about choosing to add insult to injury. We have left the EU, but we do not need to leave Europe. If the noble Baroness, Lady Hamwee, is right to detect a risk, we would be right to support her Amendment 61.

[Lord Paddick (LD)]

My Lords, I have Amendment 61 in this group, and I am grateful for the support that it is receiving. Clearly, the Government say that EU citizens will be allowed to continue to use e-passport gates at airports after the end of the transition period, but that is the problem. From what I can see, as a result of leaving the European Union, far from ending free movement of people, the Government are effectively opening it up to the citizens of more countries outside of the European Union, the EEA and Switzerland.

I must make it clear that, like the noble Baroness, Lady Bennett of Manor Castle, and my noble friend Lady Ludford, I am in favour of free movement. The point I am making is that lack of enforcement means that, in practice, free movement will not end at the end of the transition period.

EU, EEA and Swiss nationals have been able to use the e-passport gates at UK airports because, under European Union freedom of movement rules, they have been entitled to come to the UK without restriction. With the UK’s imminent departure from the EU, and the Government’s commitment to ending preferential immigration from the EU, the Government were faced with turmoil at the UK border if EU, EEA and Swiss nationals were not able to use the e-passport gates but had to be manually checked by Border Force staff; the queues for non-EU passport holders were already verging on the unacceptably long. Rather than remove the ability of EU citizens to use e-passport gates, the Government extended their use to citizens of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States of America, thereby delivering on their promise not to give EU citizens preferential immigration rights, as these are now shared with the citizens of some non-EU countries.

15:45

Continued use of the e-passport gates means that, at the end of the transition period, and as set out in documentation from the Government, EU citizens will be able spend up to six months in the UK with no visa and no stamp in their passport, and with no questioning of the purpose of their visit, how long they intend to stay, or how they are going to sustain themselves financially during their time in the United Kingdom. As far as I know, there is no way of checking whether they have left the UK before the six months expires—or gone to Lille for the day at the end of that time and then stayed here for another six months.

The Government may reply that these people will not be able to work or continue to live in the UK because of the hostile environment that they have created for those who plan to live and work in the UK illegally. Under the hostile environment strategy championed by the former Prime Minister, Theresa May, when she was Home Secretary, the onus has been put on landlords, banks, employers and even hospital staff to check the immigration status of those with whom they come into contact. However, according to a report in the Times on 3 September, an analysis of Home Office data carried out by the Institute for Public Policy Research found that these measures do not appear to be working.

The IPPR analysis comes up with different numbers from those given this afternoon by the noble Lord, Lord Green of Deddington, but it paints a similar picture. According to the report in the Times, since 2015, the number of undocumented migrants leaving the UK voluntarily has fallen from about 4,000 to 2,000 a year, and the number of controlled returns supervised by the Home Office fell from about 3,000 to less than a 1,000. Research cited by the National Audit Office puts the number of people in the UK with no legal right to remain at more than a million.

Let us take the right to rent as an example: can an EU citizen or a citizen from one of the other B5JSSK countries—those who are allowed to use the e-passport gates—rent a property? Noble Lords might think not, but, in A Short Guide on Right to Rent, the Home Office advises that landlords can establish a B5JSSK national’s right to rent by checking their passport—which will of course have no stamp to show when they entered the UK—together with evidence of the date they last travelled to or entered the UK. What happened to the solely digital system for proving immigration status? This evidence might be a boarding pass or an airline, rail or boat ticket, a booking confirmation, or

“Any other documentary evidence which establishes the date of arrival in the UK in the last six months.”

The Home Office guidance also confirms that, although visitors have only six months’ leave to remain in the UK, landlords who have conducted these right-to-rent checks correctly will obtain a statutory excuse against a civil penalty for 12 months from the date of the check.

So after the transition period ends, EU citizens can rent a property for six months from the date shown on any boarding pass or airline, rail or boat ticket they present to a landlord, who can rent the property to them for up to 12 months without fear of any penalty—a day trip to Lille on the Eurostar would provide new evidence of entry into the UK within the past six months. In fact, as long as someone has a ticket or a boarding pass, they may not even have to make the journey.

I asked at Second Reading how the Government will ensure that EU citizens who use e-passport gates at UK airports leave after six months, and ensure that, as the Government has promised, they cannot

“in effect live in the UK by means of repeat continuous visits.”

After repeatedly asking for a response, last Thursday I finally received an email; I am grateful to the Minister for that, although a letter copied to others who spoke at Second Reading, with a copy placed in the Library, would be usual. The email says, among other things, that “we are satisfied” that the use of e-passport gates

“has been implemented in a way that will still allow the Home Office and these nationals”

—that is, B5JSSK nationals—

“to continue to prove their status in the UK, as we use various data sources to confirm time spent in the UK, not just date stamps, and we are able to confirm their status in the UK if needed.”

My understanding is that, before they were allowed to use e-passport gates, about 1,600 United States of America citizens a year were refused entry to the UK by UK Border Force officials, mainly on the basis of the interview conducted at the border, where, among other things, the Border Force official was not satisfied that the passenger would leave the UK at the end of their permitted visit.

I understand that e-passport gates will deny entry only if an alert has been placed on the system against the passenger prior to their arrival in the UK. EU citizens seeking to live and work in the UK illegally are extremely unlikely to have an alert against their name. What data sources are the Home Office relying on to ensure that EU citizens leave before the end of their six-month permitted visit? I understand that the National Border Targeting Centre screens incoming passengers, but that is not linked to passengers leaving the UK. If their systems do not detect—if indeed they can—that the EU citizen has not left the UK, what systems will the Government use to find that EU citizen amongst the 66 million residents and the estimated 1 million who are already illegally in the UK?

Rather than taking back control of our borders by ending free movement of people from the EU, the Government have effectively opened up free movement by adding citizens from seven more countries to the citizens of the EU member states, EEA countries and Switzerland who have unrestricted entry to the UK.

The analysis by the IPPR and the examples I have given suggest that it would be very difficult if not impossible to ensure that, once in the UK, they leave again. Apparently, the end of so-called uncontrolled immigration from the EU, itself a fallacy, was a major if not a potentially deciding factor in the referendum on our continued membership of the European Union. If leavers believe the UK is taking back control of its borders at the end of the transition period, the evidence suggests they have been misled.

[Lord Adonis (Lab)]

The noble Lord, Lord Paddick, has raised pertinent points on which we look forward to hearing from the Minister. Like so many of the groups when we are in Committee, this is a massive catch-all group, and I sympathise with the Minister for having to cover so many bases at the end.

I completely sympathise with the noble Baroness, Lady Bennett of Manor Castle, in not wanting Clause 1, but we are a revising Chamber and have to take for granted that this broad power is going to be taken because it is consequential on us leaving the EU. The issue for us is what its specific and defined consequences will be. All the issues raised so far seem to be valid ones that we would wish to return to on Report if the Minister cannot give us sufficient assurance. On Amendment 60, tabled by the noble Baroness, Lady Prashar, I agree with everything that my noble friend Lady Morris said: it is vital we do not do anything to imperil the free exchange of students and young people in and out of the country. I cannot believe it is in the mind of the Government for that to happen. If this simple change in Amendment 60 can safeguard that, we should surely make that possible.

The noble Lord, Lord Paddick, and others have spoken powerfully about Amendment 61. The points made by the noble Lord, Lord Pannick, about the legal abuse involved in Schedule 1 were also very well made. Could I ask the Minister more about the consequences for British citizens when seeking to exercise their existing EU rights on the continent? One of the problems of legislating on this issue in real time is that it is not always clear to the House what we know and what we do not, and that will be important when we come to Report.

The big issue when we leave the EU is that the rights we take away from EU citizens are liable to be taken away from British citizens in respect of travel, work and study on the continent. As the noble Baroness, Lady Ludford, said, these are essentially reciprocal rights. It is hard to think that if we take the rights away from fellow EU citizens, they will not be taken away from us. The question is, what exactly are we taking away? The single biggest source of the exercise of these rights by UK citizens is those who want to travel as tourists and those who want to study, live or work on the continent. On the biggest group—those who travel—I want to ask the Minister if my understanding is correct because it will have some bearing on where we go on Report. My understanding at present is that for travel from 1 January 2021 no visa, or visa equivalents such as an ESTA, will be required for what are defined as short trips to the EU. Short trips are defined as 90 days in any 180-day period. I assume that that would be reciprocal. However, I quote from the Government website on changes from 1 January:

“You may need a visa or permit to stay for longer, to work or study, or for business travel.”


Therefore, under the current withdrawal agreement—that said, almost everyone is concerned that this could all be thrown up in the air—is there agreement that visas will not be imposed on EU citizens coming here, or vice versa for short, tourist-related trips, but it is entirely open as to what will happen about visas or permits required for longer stays or for work, study or business travel? If I have got that right, what is the regime likely to be for working longer periods and business travel, which is of huge consequence to us?

Just as the noble Lord, Lord Pannick, said, we are legislating in the dark for the withdrawal of many rights of EU citizens coming here, it is also true that we are legislating in the dark for the rights that we are going to be taking away from UK citizens that they can currently exercise in respect of their travel and legitimate business on the continent. That is not sufficiently appreciated. Could the Minister confirm the situation? What is definitely agreed? My understanding is that short trips will definitely not be covered by visas or ESTAs. Also, what is the situation for other forms of travel, work and study, including business travel?

It may seem an unlikely alliance but I agree entirely with the noble Lord, Lord Green, and the noble Baroness, Lady Neville-Rolfe, about the integrity of the immigration system. There cannot be any doubt that one of the things that causes most public concern about extending the rights of people to come here is the fear that those rights will be abused. In principle, their concern about the implementation of Clause 1 is well-founded, and it does not apply to policing and monitoring of the immigration system just for EU countries, but for other countries. This amendment, which is just a probing amendment, asks for a report after 90 days on what progress Government are making and their policy on security.

As our legislative stages are a process of mutual learning, I wonder whether I could put the debate back to the noble Broness, Lady Neville-Rolfe, and the noble Lord, Lord Green—particularly to the noble Lord, who is probably one of the greatest experts in the country on the detailed working of the immigration system. I can see the Minister is smiling; the noble Lord creates a great deal of work for her and others. I do not begrudge that: it is the job of people in this House and in interest groups and policy groups to see that we are well-informed. It would be useful for us to know, if they want to retable this amendment on Report, what specific changes and improvement to the policing of the immigration system they think Parliament should be considering. The noble Lord referred to recent changes to the policing and detaining of asylum seekers and illegal migrants. It would be useful for us to know what they would wish to do and see the Government report on within 90 days. That might get a more fine-grained debate on Report on what further steps we should take to police the immigration system.

16:00

Although the Bill is partly to do with EU withdrawal, it is also an opportunity to legislate on immigration issues more widely. We should not lose the opportunity to see that the system is as robust as it could be. Unless it is robust, what the noble Lord, Lord Green, raised in his important Second Reading speech may happen: the fear that we could find that, in the guise of taking back control, we have lost significant further control over the immigration system—the remarks of the noble Lord, Lord Paddick, in this respect were well made. If that were to happen, the great British public would feel a deeper sense of betrayal than there is now about the whole way the immigration system is managed.

[Baroness Hamwee (LD) [V]]

My Lords, we on these Benches—I am on them virtually—make no bones about how much we oppose the ending of free movement. That includes both welcoming EEA citizens—the collective term which includes the Swiss for this purpose—and their families to live and work in the UK, and the equal and opposite right for British citizens in the EU. For myself, it offends my politics, my emotions, my values, my logic and, you might say, my whole outlook on life. However, I will endeavour to keep my remarks within the scope of the Bill and not to seek to reopen what has irreversibly been decided—although “irreversible” may have gained a new definition overnight—nor do I want to make a Second Reading speech.

What is relevant is that the Bill does not set out what will be in place of the current arrangements. Like the noble Lord, Lord Adonis, I am with the noble Baroness, Lady Neville-Rolfe, regarding the importance of the integrity of the system. We might want different systems, but what we have should be robust.

The noble Baroness and the noble Lord spoke in terms of enforcement—a term used in the amendment. I prefer to talk in more inclusive rather than exclusive terms. She talked about so many of the issues that we are addressing now, or failing to address. One must use the opportunity to say that the best way to address them is to create safe and legal routes to the UK. I do not want to divert on to the wider question of those who seek sanctuary, but I have to disagree with her approach and some of the language that she used.

By no means all of the new, much-heralded immigration system which will apply to EU citizens is yet in the public domain. The noble Lord, Lord Adonis, referred to UK citizens in the EU; he may see that Amendment 23, which we will come to later, may give us more of an opportunity to discuss their position. When the system is in the public domain, however, we will not be able to rely on it in the same way as we can rely on primary legislation because of the flexibility—would that be a polite word?—provided by the Bill. So much of our system is contained in rules which Parliament cannot realistically amend, and indeed often it takes an awful lot of background knowledge and experience, application and concentration to understand those rules. It is no wonder that the Government had some years ago to require a particular level of expertise to advise on immigration. The rules are difficult for most of us—other noble Lords may say that they waltz through them with no difficulty; I do not—and they are often impenetrable to those directly affected. I have too often heard Ministers say, “It is on GOV.UK.” That is not everyone’s bedtime reading. Indeed, however detailed the rules and however much they flesh out the Bill, it remains a skeleton.

My noble friend Lady Ludford and I have three amendments in this group, all to Schedule 1. The noble Lord, Lord Pannick, referred to the coy but comatose draftsman—I may use that term on other occasions—and my noble friend Lord Beith asked an important question about what instructions had been given to the draftsmen and draftswomen. After all, the responsibility lies with Ministers.

Amendments 4 and 5 take out some of the most offensive words in Schedule 1, which I do not think I need to read into the record again, as others have referred to them. They are wide and imprecise; there are references to “application or operation of” provisions, and

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

If any of your Lordships on Opposition Benches were to produce amendments using that sort of terminology, we would quite rapidly be shot down, and rightly so, by the Government Front Bench.

A lot of functions are connected with immigration, and we will come on later to employment, renting property —the rest of the hostile environment. There are also all sorts of functions which I would accept are necessary but which I would not want brought within the repeal of

“rights, powers, liabilities, obligations, restrictions, remedies and procedures”,

to which Section 1 applies.

Amendment 6 in our names would add words to the schedule by not applying it to rights which do not arise under an EU directive. Directives which do not relate to immigration include, in our view: the protection for victims of trafficking in the anti-trafficking directive—there is an amendment specifically on that—the protection for asylum seekers in the reception conditions directive 2013/33, and the protection for victims of crime in the EU victims’ rights directive 2012/29. We do not suggest that we believe that these protections are at risk, but we do not know. If the Bill remains as it is when it becomes an Act, the only way to know for certain is to test the matter in the courts. The noble Baroness, Lady Neville-Rolfe, was critical in the context of removals from this country of applications to the courts. However, that is what they are there for, and they are applying law that has been made by Parliament, or by Ministers subject to the rather inadequate scrutiny that parliamentarians are able to give them.

On Amendment 6—this is something that has been identified by the Immigration Law Practitioners’ Association; the noble Lord, Lord Pannick, mentioned the comments on the Bill by its chair, Adrian Berry—the protections are potentially at risk as what the association describes as “collateral damage”. We hope that they do not fall within the scope of the Bill, but I think it is a matter for the Government to explain what the position is. This is all about the lack of clarity, the bad rule-making, to which other noble Lords have referred, all offensive to the rule of law.

To return to the first amendment in this group, I welcome reports to Parliament and parliamentary scrutiny. I am hesitant to criticise or comment on the wording of the clause, having learned from the noble Baroness that the clerks were involved in crafting it, but I am not sure that the provisions of Schedule 1 are correctly described as enforceable. A provision within six months would take us beyond the end of the year. However, I should not carp about that sort of detail because, whatever the language, I understand that the supporters of Amendment 1 are seeking to ensure that free movement ends and that Parliament is told how. We have made our views about the first part of that very clear.

Before I finish, I want to mention the amendment by the noble Baroness, Lady Prashar. I thought the points made by noble Lords were very telling regarding the reference to soft power. I was reminded of listening to the European Union Youth Orchestra a couple of years ago in Edinburgh. That was a very special experience and it rather goes to why we are so distressed by what we are having to go along with in the Bill.

I think I have said enough not to have to refer specifically to our opposition to Amendment 1.

[Lord Rosser (Lab)]

My Lords, this group of amendments seeks to address the issue of the lack of clarity in the Bill, not least in Schedule 1. I am sure we have reached the stage now where noble Lords want to hear the Government’s response. I wish to comment briefly on three of the amendments in this group, although all of them raise issues of significance, as my noble friend Lord Adonis has said. That has become clear from noble Lords’ contributions, even though noble Lords have not all been coming from the same direction.

Three days ago, we were sent a letter from the Government sharing illustrative drafts of regulations that they propose to make under the powers in Clause 4 of the Bill. One wonders why at least some of the terms of these draft regulations could not now be or already have been incorporated in the Bill and thus be open to proper parliamentary scrutiny.

Schedule 1 revokes Article 1 of the EU workers regulation, which provides freedom-of-movement rights. Paragraph 4(2) of that schedule provides that other parts of the workers regulation cease to apply so far as they are

“inconsistent with any provision made by or under the Immigration Acts”

or

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

This is a very broad drafting. Amendment 3, to which the noble Lord, Lord Pannick, spoke with his usual considerable authority, would remove paragraph 4(2), as it is so broad and lacks clarity. We share the concern that that amendment seeks to address.

No doubt the Minister, in giving the Government’s reply, will be giving a pretty comprehensive list of examples of how and why, in the Government’s view, other parts of the workers regulation might credibly become, first, inconsistent with provisions made by the Immigration Acts and, secondly, capable of affecting provisions made by or under the Immigration Acts.

16:15

My name is attached to Amendments 4 and 5, to which the noble Baroness, Lady Hamwee, has already spoken. Alongside those specifically repealed, Schedule 1 provides that other EU-derived rights and powers cease to be recognised and available in domestic law so far as they are

“inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts … or … they are otherwise capable of affecting the exercise of functions in connection with immigration.”

“Capable of affecting” in particular is very subjective and generalised wording that could be interpreted to cover a multitude of circumstances and situations.

Amendments 4 and 5 would tighten up the wording to a degree, so that only parts of the EU-derived rights that are inconsistent with provisions made by or under the Immigration Acts can cease to be recognised or available under domestic law. Once again, these two amendments provide the Government with an opportunity in their response to persuade the House, through a clear explanation of the specific circumstances in which the power would be applied, that the wording in paragraph 6(1) of Schedule 1 is not in reality “catch-all wording” enabling the Government to do whatever they want without further full parliamentary scrutiny in relation to the recognition and availability in domestic law of EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures related to immigration.

As has been said, our Delegated Powers and Regulatory Reform Committee and our Constitution Committee have expressed themselves in pithy and forthright terms about the sweeping powers that the Government are seeking to grab under this Bill. We await the Government’s response to this group of amendments with interest.

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

My Lords, I thank my noble friend Lady Neville-Rolfe, supported by the noble Lord, Lord Green of Deddington, for her thoughtful amendment. I understand noble Lords’ concern about the repeal of EU law relating to free movement set out in Schedule 1 and how that will be enforced. Before I address that, I want to pick up a question from my noble friend Lady McIntosh of Pickering, who wanted confirmation that the Bill was non-discriminatory. The whole point of this immigration Bill is that the whole world is treated the same, so I can confirm that.

Schedule 1 sets out a list of measures to be repealed in relation to ending free movement for EU, EEA and Swiss citizens, with the intention that both EEA citizens and their family members will fall within the scope of the Immigration Act 1971 and become subject to the UK’s immigration control—for ease of reference, I will refer to this group as “EEA citizens” during the committee debates. This will create a level playing field for EEA and non-EEA citizens. Those EEA citizens and their family members who arrive here after the end of the transition period from January 2021 must have leave to enter or remain. The Government want EEA citizens who are resident in the UK before that date, and who wish to do so, to stay, and our focus has been on helping them to apply for that status. They can apply online for the EU settlement scheme free of charge. As of 31 July, we have received 3.8 million applications, with plenty of time until the deadline of 30 June 2021.

In order to protect those living in the UK before the end of the transition period, we propose to use the power under Section 7 of the European Union (Withdrawal Agreement) Act 2020 to save free movement rights otherwise repealed by Clause 1 of the Bill and Schedule 1 so that those EEA citizens and their eligible family members resident by the end of 2020 but who have not yet applied to the settlement scheme will continue to be treated the same until 30 June next year. This will ensure that they are able to apply to the EU settlement scheme by the deadline and retain their existing rights in the meantime. This includes pending the decision on their application after that deadline and pending the outcome of an appeal against any decision to refuse status under the EU settlement scheme.

During this grace period, immigration officers who encounter EEA citizens who are still able to apply under the EU settlement scheme will not take any enforcement action but may encourage them to apply by the deadline. Furthermore, we have always been clear that where EEA citizens and their family members have reasonable grounds for missing the deadline, they will be given a further opportunity to apply. We will take a flexible and pragmatic approach to this, and those who need it will be supported through the application process.

Ultimately, however, we are aiming to reach the position where EEA citizens who do not qualify for leave are treated in the same way as non-EEA citizens. As such, if they require leave to enter or remain in the UK but do not have that leave, they will be liable to the same sanctions and enforcement measures. These enforcement provisions are set out in the Immigration Acts and my noble friend Lady Neville-Rolfe has mentioned that those cover the rights of access to work, renting property and banking services. It would take a long time for me to list all the relevant provisions here, but I would be happy to write to my noble friend to set those out.

In response to my noble friend’s question on whether this Bill can be used to amend the legislation, I do not think this is the right Bill in which to make any changes to enforcement provisions, which would need to cover both EEA and non-EEA citizens because it is limited to immigration changes as a result of EU exit. However, we are actively exploring legislative options to ensure that key elements of our immigration system, including around enforcement, can be tightened up. This work is at an early stage.

My noble friend also asked me about who the enforcement authorities are. They are primarily those of the Home Office Border Force and immigration enforcement, working in partnership with the police and other government departments, including the DWP, HMRC and the Ministry of Justice.

With regard to my noble friend’s question about available resources for enforcement using technology and the economics of charter flights, which she was right to ask, planning is under way to factor in the requirements of the new points-based system and ensure that all aspects of operational resourcing, recruitment and training are fully delivered. These plans include the redeployment and/or recruitment of new staff where appropriate to deal with applications from EEA citizens. Part of our long-term vision has always been to make better use of digital technology and greater automation to improve the passenger experience while maintaining security at the border.

In terms of staffing, we will always ensure that the Border Force has the resources and the workforce needed to keep the border secure. We will also introduce electronic travel authorisations—or ETAs—for visitors and passengers transiting through the UK who do not currently need a visa for short stays or who do not already have an immigration status prior to travelling. I hope that answers the question of the noble Lord, Lord Adonis. This will allow security checks to be conducted and more informed decisions to be taken on information obtained at an earlier stage as to whether individuals should be allowed to travel to the UK. Therefore, the ETA scheme will add an additional security measure while also providing individuals with more assurance at an earlier point in their time about their ability to travel. The noble Lord also asked about longer-term visit visas for EU citizens, and he is right. Arrangements for longer visas will be set out in the Immigration Rules for people coming to the UK.

On my noble friend’s question about charter flights, the majority of returns take place on commercially scheduled flights. Where a chartered flight is required, the Home Office procures the use of chartered aircraft through a broker to ensure competitive pricing and access to different aircraft and contractors depending on the requirements of the operation. We think that this blended approach provides the best value for money for the taxpayer. However, I will take her point back and ensure that it is made. I also assure noble Lords that the Home Office will be updating its published enforcement policy with regards to EEA citizens at the end of the transition period.

The noble Lord, Lord Green of Deddington, pressed that point about enforcing laws on illegal working, as did my noble friend Lady Neville-Rolfe. The overarching ambition of the illegal working strategy to tackle illegal working is to work with businesses to deny access to the labour market and encourage and ensure compliance. The illegal working strategy is intelligence-led and it focuses on three main areas: deterring illegal migration, safeguarding the vulnerable and protecting the UK economy,

The further report this amendment requires is unnecessary because policy guidance on enforcement is already published on the GOV.UK website. I can hear the noble Baroness, Lady Hamwee, virtually moaning from behind the screen on referring her to the website. However, I am sure noble Lords will join me in encouraging all those who are eligible to apply before the deadline expires next June. On that note, I hope that my noble friend will withdraw her amendment.

I turn now to the opposition of the noble Baroness, Lady Bennett, in total to Clause 1. The clause introduces the first schedule to the Bill, which contains a list of measures to be repealed in relation to the end of free movement and related issues. Noble Lords have asked whether it is needed at all. It fulfils a purely mechanistic function to introduce the schedule. Without Clause 1, we cannot deliver on the will of the people in the 2016 referendum result; we cannot end free movement without repealing Section 7 of the Immigration Act 1988.

In line with long-established practice, the detail of this future system will be set out in the Immigration Rules rather than in this Bill and it will be in place from January 2021. It is of paramount importance that, as an independent sovereign state, the UK must have the ability to forge its own immigration policy and depart from EU law. The people of the UK gave us the mandate to end free movement when they voted to leave the EU and the Government gave a commitment in their manifesto to deliver on that mandate. The people are now expecting us to uphold that commitment; Clause 1 is essential to doing so and this House should not stand in the way of delivering what is a priority for the people of this country. I hope that the noble Baroness, Lady Bennett, withdraws her opposition to Clause 1.

I turn now to Amendments 3 to 6. I thank the noble Lord, Lord Pannick, and the noble Baroness, Lady Hamwee, for speaking to their amendments. Their purpose is to retain rights derived directly from EU law after the end of the transition period. I say to the noble Lord, Lord Pannick, that, unlike Caligula, I am not going to put the law up at a height and in small writing so that people cannot read it.

However, I know that the noble Lord has an issue with paragraph 4(2) of Part 2 of Schedule 1 to the Bill, which disapplies directly effective provisions of the Workers Regulation where they are capable of altering the interpretation, application or operation of any part of the Immigration Acts. His amendment seeks to remove this paragraph, meaning that provisions within the Workers Regulation, which may be inconsistent with those in the Immigration Acts, will continue to apply.

16:30

For example, as we set out in the Explanatory Memorandum to the Bill, article 10 notes:

“The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.”

If the noble Lord’s amendment were accepted, it would permit an EEA citizen to claim a right of residence here if their child was in education here. It does not support the ending of free movement.

Paragraph 4(2) of Schedule 1 does not prevent the child of an EEA citizen who is legally resident and employed in the UK being able to rely on article 10 to access UK education on the same conditions as a British citizen. This remains unchanged by the Bill as it relates to education and not immigration. However, I note the noble Lord’s criticisms and will arrange a meeting before Report with noble Lords on this provision so that we can perhaps go through it more fully.

Paragraph 6(1) of Schedule 1 disapplies directly effective rights under EU law to the extent that they conflict with domestic immigration law or immigration functions. The amendments of the noble Baroness, Lady Hamwee, would instead allow directly effective rights to be retained in an immigration context. Directly effective rights are rights conferred on individuals in EU law that can be relied on in national courts, even without national legislation transposing them.

The European Union (Withdrawal) Act 2018 incorporates EU law into UK domestic law at the end of the transition period. It incorporates directly effective rights deriving from EU directives and treaties. If no action is taken to curtail those rights, they will continue to apply and be available in UK law after the transition period. EEA citizens could then attempt to rely on those rights to resurrect provisions of EU free movement law which had otherwise been repealed by the rest of this Bill.

I mentioned in response to the opposition of the noble Baroness, Lady Bennett, to Clause 1 the importance of the UK having the ability to forge its own immigration policy, independent of EU law. The Government are committed to delivering the people’s priority of ending free movement; terminating directly effective rights for immigration purposes is an essential part of that.

The purpose of paragraph 4(2) of Schedule 1 is to protect the new law the Bill outlines from being affected by any directly effective EU law not being repealed by this Bill. The paragraph ensures that the provisions of the Bill take effect as drafted, are not subject to interpretation and are clear. To remove this provision and potentially have the Immigration Acts operating in parallel with retained EU law, in so far as it is contained within the workers regulation, would have the opposite effect to the stated intention of the noble Lord, Lord Pannick. It would cause confusion in how the Immigration Acts operate and would allow EU law to continue to affect our immigration policy. We cannot allow that to happen.

In turning to the amendments proposed by the noble Baroness, Lady Hamwee, I note that the drafting of paragraph 6(1) of Schedule 1 ensures that nothing is missed that might mean free movement was only partially repealed. The noble Baroness proposes that we do not disapply directly effective rights deriving from EU directives. That would mean that all the rights conferred by the EU’s 2004 free movement directive—to enter and reside without leave and to be accompanied by family members—would continue even after the UK’s implementing legislation had been repealed. This would again lead to confusion and incoherence and would frustrate the will of the British people that EU free movement be ended, safely but completely.

Schedule 1 does not disapply directly effective rights in their entirety. Some, such as the right to equal treatment in the field of employment, as mentioned by my noble friend Lady McIntosh of Pickering, range more widely than immigration policy; they are disapplied only to the extent that they impact immigration laws or functions. With these reassurances, I hope noble Lords who have tabled these amendments will withdraw or not move them.

I move on to Amendment 60 in the name of the noble Baroness, Lady Prashar, supported by my noble friend Lady Fookes and the noble Baronesses, Lady Morris of Yardley and Lady Garden of Frognal. I thank the noble Baroness for her amendment, which, in light of the Government’s published intention to phase out the use of national identity cards for travel to the UK in 2021, seeks to encourage EEA minors to choose the UK for their English language studies by enabling them to travel here once a year using a national identity card. I note the concern of the noble Baroness, echoed today, that we might lose such students to Ireland or Malta.

We fully recognise the concerns of English language schools and acknowledge that they will have been exacerbated by the impact of coronavirus on travel, tourism and education this year. EEA students with status under the EU settlement scheme will be able to use their national identity card to enter the UK until at least 31 December 2025. However, it is our intention that all other EEA students should in future be treated like students from the rest of the world; they will be able to come either under the visitor route or as a student. We have, however, left the EU and it would not be appropriate for EEA students to be given the right of entry on production of an identity card that this amendment would confer.

Passports are required for travel to most countries outside the EU and are typically valid for between five and 10 years and priced accordingly, so should not be considered an uncommon or short-term investment. I also highlight that students of other nationalities, including those from the UK and from EU member states where ID cards are not available, must have a passport if they wish to travel abroad.

One alternative suggestion put forward by the noble Baroness at Second Reading was to create a passport-free joint travel document which could be used by a group of students travelling together with a group leader. The noble Baroness, Lady Morris of Yardley, alluded to that today. I am happy to report that such a document already exists in the form of the Council of Europe collective passport, which is a very good way for an organised group of young people to make a trip between certain European countries. While they are not widely used, the ratifying countries have the option to issue them.

The noble Baroness suggested that such a document would minimise delays at the border. However, for those eligible to use them, the fastest way to enter the UK is by using our e-gates. Following the end of the transition period, although we will keep our position under review, it is our intention that EEA citizens will continue to be able to seek entry to the UK using our e-gates—including 12 to 17 year-olds when accompanied by an adult—but only when travelling on a biometric passport.

The proposed amendment from the noble Baroness would also require an additional assessment of whether the EEA citizen was the right age and was seeking to enter the UK for the permitted period. That would further prolong the transaction time. Moreover, national identity cards are among the most abused documents detected at the border. Consequently, as well as reflecting our departure from the EU, limiting the use of national identity cards for travel to the UK to those with a retained right to use them under the withdrawal agreements will improve our national security.

Finally, the amendment proposed by the noble Baroness is inappropriate for this Bill because, as drafted, it does not recognise the ability of particular categories of EEA citizens to use their identity cards without restriction until at least 2025 under the terms of the withdrawal agreements. In addition, it would oblige us to treat certain EEA citizens without such rights more generously than others by giving them a right of entry at a time when we are ending free movement rights to align the immigration treatment of EEA and non-EEA citizens.

The noble Baroness also talked about improvements to the standards of ID cards. We recognise that EEA member states are looking to raise the standards of their ID cards, but the less secure documents will still be in circulation for quite a long time. I hope that, with all the explanation I have given, she will feel able not to press her Amendment 60.

I now finally move on to Amendment 61 in the name of the noble Lord, Lord Paddick, which seeks to ensure that EEA and Swiss nationals continue to have access to e-gates at UK ports. The Government have previously set out that EEA and Swiss nationals may continue to have access to e-gates at the end of the transition period. However, it has also been clear that this policy will be kept under review to ensure that we can run our border in the UK’s best interests. This position was most recently set out in The UK’s Points-based Immigration System: Policy Statement, published in July. Further details of any changes to border control procedures affecting EU citizens will be announced in due course, following the negotiations on the future UK-EU relationship.

Changes to the methods by which non-UK and Irish citizens may be permitted to enter the UK are usually covered by changes to the Immigration (Leave to Enter and Remain) Order 2000. The vires for the 2000 order are derived from Section 3A of the Immigration Act 1971, which allows the Secretary of State to make provision for how leave to enter may be granted. This secondary legislation process has already been used to extend e-gate eligibility, as the noble Lord pointed out, to nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the US.

The existing process of secondary legislation provides the flexibility required to run our border in the national interest, allowing us to respond quickly and appropriately to any changes in risk and threat. Therefore, we do not need to make the proposed change by way of this Bill, and noble Lords can be assured that there are processes available to make such an amendment to the 2000 order before the end of the transition period.

I finally turn to a question from the noble Baroness, Lady Ludford, on comprehensive sickness insurance; the Committee will come on to amendments relating to citizenship another day, but I will answer that. It is a requirement, under EU law, for EEA citizens who are students or self-sufficient to hold comprehensive sickness insurance but, if people who were previously here as a student or as self-sufficient lack this, it does not mean that an application will be refused. The British Nationality Act allows for discretion to be applied around this requirement in the special circumstances of a particular case. My officials will examine each application to understand why such a requirement has not been complied with, together with any grounds which can allow us to nevertheless grant an application. Our guidance reflects this, and our application form encourages anyone so affected to provide as much information as possible to allow us to reach a decision.

I am sorry I have gone on for quite a long time, but I hope that noble Lords will not press their amendments.

[The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)]

My Lords, I have received requests to speak after the Minister from the noble Lord, Lord Paddick, the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Pannick.

[Lord Paddick (LD)]

My Lords, I thank the Minister for her extended explanation. She talked about electronic travel authorisations and referred to The UK’s Points-based Immigration System: Further Details document. As far as ETAs are concerned, that document talks about the “border of the future” and that it is part of a phased programme to 2025. How will EU and EEA citizens using the e-passport gates be stopped from coming in if they have not provided details in advance? If it is not necessary for them to provide details in advance, why are the Government introducing ETAs for EU and EEA citizens up to 2025?

16:45

I am sorry to keep repeating this, but I specifically asked the Minister what the various data sources were to confirm time spent in the UK, to ensure that EEA citizens do not stay for more than six months if they use the e-passport gates or to stop them effectively having a continuous six-month rolling period by going out of the UK for a day and coming back again. She has not referred to that. In particular, I asked her what data sources would enable an EU citizen who had not left the UK after six months to be tracked down and, if necessary, deported.

[Baroness Williams of Trafford (Con)]

The noble Lord asked about the lead-up to 2025 and the ETA. It is a new immigration system—there will be a pragmatic approach to people coming in and out of this country, because it is a whole new system and will take some time to bed in. The ETA will give both security and certainty on people coming in and out of this country.

In terms of data sets, we obviously now use exit checks; if someone has a visa, it will be on their visa how long they are able to stay. The noble Lord talked about the person who literally went in and out of Lille in one day in order to update their boarding card. He makes a very good point.

This system will take some time to bed in. I will write to the noble Lord about some of the very specific supplementary questions he has asked; I am just giving him the answers that I know off the top of my head. As for sanctions for someone who has not complied, obviously it is easier for someone with a visa, and less easy for someone doing a series of short stays.

[Baroness Jones of Moulsecoomb (GP)]

I am very sorry to correct the Minister, but she made a statement earlier that was incorrect. In response to my noble friend Lady Bennett, she said of retaining—or not taking away —freedom of movement that it was the will of the people and what the people voted for with their Brexit vote. That is absolutely not true. We voted—I voted—for Brexit for many different reasons, and freedom of movement did not particularly come up as a reason. Quite honestly, none of us understood that the Government were going to make such a shambles of it. We could not have predicted that it could be so badly handled. So please, it is not the will of the people, and it was not what people voted for with Brexit. They voted for a variety of reasons.

[Baroness Williams of Trafford (Con)]

My Lords, we did vote to leave the EU, and I do not think anyone can be in any doubt about some of the reasons. People voted for a variety of reasons, but the noble Baroness will totally understand that I am not going to get into a debate about why people did or did not want to leave the EU. I will leave it there.

[Lord Pannick (CB) [V]]

My Lords, I am grateful to the Minister for her careful response to Amendment 3. It was very thoughtful—not a response off the top of her head. I am also grateful for the offer of a meeting, which I will happily take up.

The Minister gave an example of a provision in the regulations that she said was inconsistent with the immigration Acts. I accept that there may well be many such provisions. My point is very simple: spell them out in Schedule 1. Do not use this vague language of drafting which means that people cannot identify what their rights and obligations are. My amendment is not designed to keep or remove any particular right; it is simply designed to require the Government to instruct the parliamentary draftsman to produce a provision that implies basic standards of legal certainty. I hope the Minister has noted the substantial concern around the House at this lack of certainty in the drafting of Schedule 1. It is simply not good enough and it needs to be addressed. I look forward to discussing this with the Minister prior to Report.

[Baroness Williams of Trafford (Con)]

I totally understand the point that the noble Lord makes about certainty. In addressing this, I should like to meet him, because I totally get what he is saying. He is not being difficult; he is just asking that we lay out the law and provide certainty.

[Baroness Neville-Rolfe (Con)]

My Lords, I am grateful to all noble Lords who have taken part in the debate on this catch-all group of amendments. There have been some very high-quality contributions. In particular, I thank my noble friend for her careful and full answers; they have got us off to a good start.

I was rather surprised to hear the noble Lord, Lord Pannick, quoting the insights of the sociopath Caligula. However, I think he—and other noble Lords—made some good points about clarity of drafting and the complexity of immigration law, which makes its fair, efficient and firm enforcement more difficult. It also creates a great deal of work for lawyers. That is not an unvarnished advantage.

The noble Lords, Lord Beith and Lord Rosser, rightly referred to the use of secondary rather than primary legislation, and I am sure we will come back to that when we come to scrutinise Amendment 9.

We heard good support for the two practical amendments on minors visiting the UK using identity cards and on e-gates. The response was a bit disappointing on identity cards, but there were some very good points made about e-gates, and the Minister will obviously answer the more detailed questions on that from the noble Lords, Lord Paddick and Lord Adonis.

The most powerful intervention about robust enforcement was from the noble Lord, Lord Green of Deddington, whom I call a friend. He made a number of practical suggestions. I am not sure I have heard quite enough about how the Bill will be enforced or its “integrity”, to quote the noble Lord, Lord Adonis. I will talk to the noble Lord, Lord Green, and we may return to the issue on Report, in the same or in some alternative form, because enforcement of the law is very important. For now, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 1 agreed.

[The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)]

My Lords, we now come to the group beginning with Amendment 2. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in the debate.

Amendment 2

Moved by

[Lord Hunt of Kings Heath]

2: After Clause 1, insert the following new Clause—
“Duty to commission an independent review of the social care sector in regard to the effects of section 1
(1) The Secretary of State must commission an independent review of the matters under subsection (3) and lay the report of the review before each House of Parliament within six months of the day on which this Act is passed.(2) The Secretary of State must appoint an independent panel to undertake the review.(3) The review under subsection (1) must consider an assessment of the effects of section 1 on—(a) the social care workforce;(b) the adequacy of public funding for the social care sector;(c) the ability of care sector employers to improve the pay and conditions of their employees; and(d) such other relevant matters as the independent panel deems appropriate.(4) A Minister of the Crown must, no later than six months after the report has been laid before Parliament, make arrangements for a motion relating to the report to be debated and voted on by the House of Commons and the House of Lords.”Member’s explanatory statement
This new Clause would require an independent review of the impact of section 1 of this Act on the social care sectors to be produced and laid before Parliament.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I declare an interest as a member of the General Medical Council board.

I want to return to a major theme from Second Reading: the decision of the Home Office to exclude the great majority of care workers from the new health and care visa, as they do not meet either the income or the skills threshold. At Second Reading, the noble Baroness, Lady Williams, justified this by saying that employers had to end what she described as “the easy option” of using migrant labour to undercut our own workforce “for far too long”. She also pointed to the advice of the Migration Advisory Committee, which has maintained that the problems in the care sector are caused by a failure to offer competitive terms and conditions, in itself caused by a failure to have a sustainable funding model—quite.

I certainly do not need reminding of how important skilled care worker jobs are; I want to see more people training and entering the care sector at a decent wage. However, surely it is disingenuous for the Government to call for better wages and conditions, when they have so much influence on the financial health of care services. The Government are the main source of funds for local authorities; they are the direct funder of the National Health Service; and they set the conditions under which the private care market operates. The Home Office, which I have always thought of as being a bit semi-detached, is essentially saying that the Government—of which it is a part—has neglected the care sector over many years. They have been in government for 10 years now and have had a series of reviews, none of which has come to fruition.

Our own House of Lords Economic Affairs Committee reported that, in 2018, 1.4 million older people in England had an unmet care need. It found that publicly funded social care support is shrinking, as diminishing budgets have forced local authorities to limit the numbers of people receiving public funding. Just as demand goes up with the demographics, the funding of social care gets lower and lower in real terms.

When we turn to the workforce, we see a diverse range of nationalities and backgrounds. Some 83% of the workforce is made up of British nationalities, with 7% coming from other EEA countries and 9% from non-EEA countries. As such, the UK is reliant on a fair and balanced immigration system. Overall, however, the social care workforce is already facing a crisis, with more than 120,000 vacancies and a growing level of demand among people who need to access care services. This is a real problem for the future.

We also have the problem that the Government classify social care workers as unskilled. Unskilled? As Mencap points out, their colleagues are trusted every day with people’s lives. They are trained to provide medication, to undertake feeding, to deal with seizures and to administer first aid. They help people manage their finances, their health and their well-being, and they provide emotional support. Unskilled they are not. Yet as Unison has pointed out, many migrant workers are not included in the category of people who have had their visas extended free for a year. Many are struggling to save the large amounts needed for visa renewals.

The Minister says that staff should be paid more. I agree, but is she going to will the means? Will she commit to increasing the level of support to local authorities? Is she willing to see self-funders pay more? If she is, I remind her that if you took the current lifetime pension allowance of £1,730,000 and bought an annuity with it at age 60, you would not have enough to pay the average nursing home fee.

We are in a vicious cycle. After decades of reviews and failed reforms, the level of unmet need in our care system is increasing and the pressure on unpaid carers is growing stronger. The supply of care providers is diminishing and the strain on the care workforce is continuing. And that is before these new immigration controls are imposed at the end of the year.

At Second Reading, the noble Baroness said that she would not be drawn on the details of the long-term social care plan which apparently the Government are still promising to bring forward. She did refer to various sides in the Commons trying to sort a consensus on the way forward, but there is not much sign yet of the Government reaching out, and given the state of the public finances, I would not bet on immediate action in any case. I refer the noble Baroness to the letter in July from the Chancellor to Secretaries of State on the forthcoming comprehensive spending review. From that, it is clear that spending will come under a huge squeeze. It is noticeable that, while the Chancellor said then that he would prioritise the NHS, no mention was made of social care at all.

The argument I put before noble Lords is this. If the Home Office is convinced that the woes of the care sector are entirely down to the sector itself, let it produce the evidence. Let Ministers agree to the quick review that I suggest in my amendment, looking at the funding of the sector and the impact of Clause 1 before shutting off an extremely valuable source of labour for this important but vulnerable part of our society. I beg to move.

17:00

[Baroness Hamwee (LD) [V]]

My Lords, my noble friend Lady Brinton has her name to the amendment moved by the noble Lord, Lord Hunt, which we support. My noble friend is indisposed at present, but I know that she will be here in spirit. I start by saying to the Minister that I will try not to moan. I generally try not to moan. It is reasonable for her to refer a Member of the House to GOV.UK; my point was that most of the public would be bemused by the reference. I think I can see on my screen that she is nodding.

There was enthusiasm for tabling amendments quickly after Second Reading, especially on what were particularly topical issues. A health and social care visa was one such. It remains topical, as does the whole operation of the social care sector, even though it is not in the headlines quite so much. I have spoken about immigration arrangements being in the rules. The scheme set out in our Amendment 47 may not be ideal—I confess I do not think it is—but it is about pinning down the arrangements into primary legislation to make them not too easy to amend.

My noble friend Lady Brinton and I also have our names to Amendment 57, on a social care visa. Many of your Lordships will have direct experience of the work of those in social care and share what the noble Lord, Lord Hunt, has talked of—the importance of proper payment reflecting the level of skill, which is very significant. As it happens, I cannot praise too much someone who recently cared for a close relative. She came from Romania.

The essential core skills are not ones that can be trained into anyone; there are the practical, technical aspects of care, but you cannot train someone to care as part of their personality. They either have it or they do not. That is why so many carers, little supported, are people who look after their spouses, children or parents at home. I mention this because, last time I mentioned care at home, the Minister thought I meant domiciliary care. That is part of the subject matter of the amendment, but I depart from the scope of the Bill for a moment to recognise the dedication and sheer hard work that family members undertake, which is inadequately recognised. Other noble Lords in the debate may know how much, in pounds and pence, that work saves the state.

The noble Baroness, Lady Masham, will explain the importance of her proposal in Amendment 66. I simply say that my noble friend Lady Thomas of Winchester added her name to that amendment, and she is very sorry that she cannot take part in today’s proceedings.

Also in the group is Amendment 82 of the noble Lord, Lord Patel, which I thought was interesting. Some of us leap in; calmer heads propose an analysis of the issue. I suspect that will not preclude some pithy points in support of progressing with analysis.

[Baroness Masham of Ilton (CB) [V]]

My Lords, Amendment 66 would provide for the creation of a fast-track health and social care visa for EEA and Swiss nationals who provide personal care for severely disabled people, after the end of free movement. The visa would be limited to EEA and Swiss nationals who, immediately prior to the commencement of Clause 1 and Schedule 1, had the right of free movement into the UK.

Subsection (1) of my proposed new clause says:

“The Secretary of State must provide by regulations made by statutory instrument for the introduction of a fast-track health and social care visa for a relevant person who provides personal care for severely disabled people in the United Kingdom.”


Subsection (2) defines “fast-track” and “relevant person”:

“In this section, ‘fast-track’ means processed by UK Visas and Immigration within three weeks from the day on which the applicant provides their biometric information, and ‘relevant person’ means an EEA or Swiss national who immediately prior to the commencement of section 1 and Schedule 1 had the right of free movement into the United Kingdom.”


The proposed new clause would provide for the introduction of a fast-track health and social care visa for a person who provides personal care for severely disabled people. The visa would be limited to EEA or Swiss nationals who, immediately prior to the commencement of Clause 1 and Schedule 1, had the right of free movement into the UK. This is a probing amendment to see what consideration the Government have given to extending their new health and social care visa to persons who provide personal care for severely disabled people in the United Kingdom.

In July, the Home Secretary and Secretary of State for Health and Social Care announced that a

“new Health and Care Visa will be launched this Summer, creating a new fast-track visa route for eligible health and care professionals and delivering on a key manifesto commitment.”

However, the Government have been criticised for excluding care workers from being able to apply for visas designed to fast-track those coming to the UK to work in the health and care sector.

On 13 July, the Home Office released details of the UK points-based immigration system, which will come into effect from 1 January 2021. Under the new system, the health and care visa will allow people working in eligible occupations, who speak English and have a job offer, to come to the UK. Under this visa route, workers and their families will gain fast-track entry to the UK, with reduced application fees and dedicated support, the Government said. Those who are eligible to apply and their dependants will also be exempt from paying the immigration health surcharge—a move that has been welcomed by doctors. But applicants must meet a salary threshold of £25,600, which is €28,200 or $32,000, to be eligible to apply for the visa, unless they are entering a shortage occupation, such as nursing and medicine. The NHS workers’ union, GMB, said that this threshold would mean that many NHS cleaners, porters and support staff will not qualify for the visa.

The Government have faced a backlash because social care workers are not eligible to apply for the visa, although the Migration Advisory Committee, on whose advice much of the new system is based, recognised the workforce shortage faced by social care in its most recent report and did not recommend that care workers be added to the list of shortage occupations. I cannot understand this. Perhaps the Government can tell us why. Instead, the committee said that it hoped the Government’s forthcoming Green Paper on social care would provide more clarity on the future of the sector in the UK and contain concrete proposals to improve terms and conditions for care workers. Waiting is not acceptable. There is a crisis.

Critics have said that the exclusion of care home staff from a post-Brexit, fast-track visa system for health workers could prove to be an unmitigated disaster and may increase the risk of spreading coronavirus. Professor Martin Green, the chief executive of Care England, which represents the largest private providers, has said that the decision amid the pandemic in which 20,000 people have died in UK care homes has the potential to destabilise the sector even further, with disastrous consequences, confirming that there could be no special treatment for carers coming to the UK from the rest of the world.

The Government have said that they hope that Britons will fill the shortfall of around 20,000 workers, equating to 10% of all posts. Currently, 17% of care jobs are filled by foreign citizens. In the debate on Second Reading, I drew attention to this when I said:

“There is a danger that people who cannot get work of their choice are pushed into doing care work, with such horrifying results as happened at Whorlton Hall near Barnard Castle, Thors Park in Essex and Winterbourne View near Bristol, where patients were abused and bullied. This cruelty was exposed by ‘Panorama’. We must surely try to prevent this sort of thing happening again. I hope the Government will listen before it is too late.” —[Official Report, 22/7/20; col. 2251.]


The health and care visa has been designed to attract the brightest and best from around the world. It has been criticised for excluding front-line care home workers and contractors. It has been pointed out that the minimum salary threshold means that many cleaners, porters and other support staff will not qualify. This will discriminate against severely disabled people living in their own home who need paid carers. The Government are discriminating against any care workers.

Vic Rayner, the executive director of the National Care Forum, has said that in London, where around 38% of care workers are non-British, the policy could be “an unmitigated disaster.” She said:

“‘We have 122,000 vacancies, growing demand for our services, and then the tap is turned off like this … It is not good news at all. What you need for good care is a stable, skilled and plentiful workforce. And in the context of Covid-19, where you are trying to minimise movement of staff, any shortages might increase movement of staff and use of agency staff, which we are trying to avoid.’”


Robin Hall, the secretary of the Hampshire Care Association, has said that a shallower pool from which to recruit could drive up wages, which, without greater public funding, would mean fewer staff employed per resident. She said:

“‘That will damage the quality of care we can deliver … You also may have to get less choosy about who you employ, and that’s a dreadful thought. A lot of our EU staff are highly skilled. They are smart, articulate and speak three or four languages. We don’t get that quality of applicants from the UK because of the status the profession has.’”


With the advances in medical treatment made over the years, many severely disabled people are living in the community in their own home. Many of them need live-in or daily carers. We also have an increasing elderly population. A bright young man called David who broke his neck in a rugby accident and was paralysed from the neck down had been cared for by his mother. As she got older, her arthritis became worse. David was fearful that he might end up in a care home, which was something he could not accept. David lived in a comfortable bungalow with a garden and a lily pond. One day he was found drowned in that pond. In desperation, he had driven his electric wheelchair into it to end his life. Surely we do not want more cases like that.

Good care workers who work in people’s homes must be dedicated to the job, get satisfaction from it, be honest, skilled, compassionate and flexible. Caring for severely disabled people is not for everyone, but those who undertake these positions are special and they should be valued, not treated as “also rans”.

I look forward to hearing the Minister’s comments on Amendment 66, and I hope that it will be taken seriously.

17:15

[Lord Patel (CB) [V]]

My Lords, before I speak to my Amendment 82, I want to support strongly the noble Lord, Lord Hunt of Kings Heath, who spoke with his usual passion when presenting his amendment. I hope the Minister will respond to that.

Amendment 82 can be taken in the context of the Covid-19 pandemic which has highlighted the exceptional contribution and sacrifice made by our health and social care workers every day in protecting and caring for people in the community. It has also made clear how much we depend on our international workforce. Around 29% of doctors working in NHS hospitals and almost 14% of healthcare workers overall in the United Kingdom are from overseas. International workers account for approximately one-sixth of care workers in England.

The pandemic has had a profound impact on all aspects of our health services, but I draw the attention of the House to its impact on the all-too-often overlooked sector of social care. Between March and July this year, there were 30,500 excess deaths among care home residents as well as 4,500 excess deaths among people receiving care in their home. Figures from the Office for National Statistics also show that social care workers are among the occupational groups at the highest risk of Covid-19 mortality. The United Kingdom recorded the second highest number of deaths among healthcare workers in the world, second only to Russia, and a significant number of those deaths were among social care workers. These figures highlight the immense sacrifice and heartbreak that these workers have faced while trying to do their job in a system that was already overstretched. The vital contribution they make to the health system has been overlooked and undervalued for too long.

Adult social care is facing stark recruitment and retention challenges, with an estimated 122,000 vacancies, while the demand for social care workers is expected to rise in line with the UK’s ageing population. The CQC’s State of Care report concludes that workforce shortages in adult social care are

“affected by the lack of value given to social care by society and disproportionate levels of pay.”

The pandemic should serve as a wake-up call that we need to value our social care workforce more. In a sector where one in six of the workers are from overseas, any changes to the UK immigration system that could deter or prevent those who want to work in this country are of deep concern. There is a risk of significant implications for the staffing of health and social care services, as well as the quality of care and patient safety in the future. While measures to help recruit doctors to the NHS, including the fast-track NHS visa, are welcome, the lack of any route into the UK for social care professionals is extremely concerning. The average salary for a care worker in England is between £16,400 and £18,400, which means that individuals would fail to meet even the lower salary threshold of £20,480 to enable them to trade points to be eligible to work in the United Kingdom.

The current proposals for new immigration controls risk exacerbating the current social work workforce shortages and, as a result, putting some of the most vulnerable members of our society at risk, as already mentioned. Social care staff play an integral role in the efficient and safe running of the health service, and it is vital that any future immigration system recognises this. We owe our overseas health and social care staff a huge debt of gratitude. We should do all we can to keep these dedicated workers and ensure that there are no barriers to future recruitment.

It is important to grow our domestic workforce to help to meet workforce challenges, and to improve working conditions, pay and training as part of that. However, we must also provide an entry route for overseas staff who want to join such a vital part of a healthcare system that would struggle to cope without them. There is a consensus across healthcare organisations, as well as growing support for the idea from parliamentarians right across the political spectrum, that social care needs a long-term, sustainable solution that includes better funding. In the short to medium term, the immigration system must include a migratory route that meets the needs of the social care sector, which is facing severe challenges. We now need the political will to act and reverse this public policy omission.

I therefore hope that my amendment will be supported. It is supported from outside very strongly—by the Royal College of Nursing, the British Medical Association, UNISON, Independent Age and the Royal College of Physicians. It places a duty on the Government to report on migratory options for health and social care workers ineligible for the skilled-worker route.

The amendment would require the Secretary of State to lay before Parliament a report setting out in detail the options for overseas workers excluded from the skilled-worker scheme, within a period of 30 days beginning on the day on which this Bill is passed. It would need to specify a migratory route for care workers, home workers and healthcare support workers. It is time we recognised the vast contribution of the social care workforce to our community. Showing that there is a migratory route into the UK for them would be a step towards achieving this. They have demonstrated that in low-paid jobs they provide good social care, and even die for us, as shown by Covid-19.

I had not indicated that I intend to divide the Committee today, but I look forward to the Minister’s response and I will reserve my judgment. All I can say is that the support for this amendment outside and from all sides is immense, and I hope the Minister will respond to that.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I shall speak in favour of my Amendment 93. It is obvious that many of the amendments in this group are heading towards the same sort of thing, which is protection for people of all kinds as well as holding the Government to account for what they do. I support several of the amendments that have been spoken to, and I have been moved by some of the speeches from noble Lords.

My amendment is supported by over 50 organisations from all the devolved nations, including the Health and Social Care Alliance Scotland, Macmillan Cancer Support, UNISON and the Association of Camphill Communities. Amendment 93 would require an independent evaluation of the impact of the effects of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill on the health and social care sectors across the UK. This would be made after consulting the Secretary of State for Health and Social Care, the Scottish Ministers, the Welsh Ministers, the relevant Northern Ireland department, service providers, those requiring health and social care service and others. One would hope that this would be automatic with any measure that a Government introduce as they really need to know whether it is working or not.

Proposed new subsection (1) would require the Secretary of State to lay a copy of the report before both Houses of Parliament no later than one year after this Bill is passed. Proposed new subsection (8) would require a Minister of the Crown to make arrangements not later than six months after the report has been laid before Parliament, for the report to be debated and voted on in both Houses.

My amendment is necessary to safeguard the interests of the many people who rely on the contribution of EU citizens and non-EU citizens for the provision of health and social care across the four nations. This of course includes disabled people, children and young people, older people, unpaid carers and those with long-term health conditions. I should perhaps declare an interest in that I am getting older and this might apply to me in a decade or two.

Prior to the UK leaving the EU, a number of studies had highlighted the significant adverse impact of Brexit on the health and social care sectors across the UK. These studies, and the initial information about the points-based immigration system provided in the Home Office’s policy paper, The UK’s Point-Based Immigration System: Policy Statement, suggest that the ending of freedom of movement and the introduction of a points-based immigration system will potentially have a major adverse impact on the health and social care sectors across the UK. I think every speech so far has highlighted that fact.

The proposed independent evaluation that would be introduced by Amendment 93 could play a key role in supporting the health and social care sectors across the UK, helping them to address a range of concern about the proposals. These include concerns that many health and social care workers from other European countries, and from non-European countries, would not meet the proposed income threshold under this system, and that the requirement to have a job offer is unnecessarily restrictive, and will create addition administrative burdens and cost for health and social care organisations trying to recruit staff from abroad. As we have heard, there is a lack of recognition of health and social care specific skills, experience and professional qualifications in the proposed points-based system. As a result, it does not recognise the skills and experience of the workers from across the EU, and from non-EU countries, to enrich health and social care support and services here. Nor does it value the sector and its growing importance as a result of demographic changes.

There is much wrong with the Government’s immigration policy, but health and social care will feel a particularly brutal impact. This independent analysis is required so that the Government can think properly about the needs of health and social care and develop policy accordingly.

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I declare my interest as chair of the National Mental Capacity Forum. I speak to Amendments 2 and 66, to which I have added my name, and I strongly support Amendment 82, tabled by my friend Lord Patel.

The current proposals will exclude a group of workers we desperately need: carers for those with physical and/or mental disabilities, especially, as my noble friend Lady Masham highlighted, those with spinal injuries and similar severe physical constraints, and those with severe impairments of mental capacity for a wide variety of reasons. Many of these people are at a high risk of Covid and some will have been on the official shielding list. They wish to remain in their own homes and need care around the clock. For them, a live-in carer is the best option, but the annual salary of such a carer will fall below the level to accrue points in the system. That workforce just does not exist here. UK residents are not coming forward to train as live-in domiciliary carers.

Those carers already here are fearful that they will not obtain leave to remain. UNISON is calling for key workers to remain here and be eligible for NHS care—that is, to be exempt from the “no recourse to public funds” criteria—during the pandemic. Around 17% of the social care workforce is made up of migrant workers, with 115,000 European nationals and 134,000 non-EU nationals.

17:30

Vacancy rates in the care sector now stand at 6.5% in England, and 38% of care agencies report vacancies. In related sectors—sectors that support frontline, hands-on care workers—29% of hospital doctors in the NHS and 12% of healthcare workers overall are from overseas. Austerity has led to local authority spending on adult social care shrinking by 7% per person in the past decade. Price is by far the most dominant factor in decisions on care commissioning. Councils have tightened eligibility thresholds in recent years, meaning that at least 1.5 million elderly and disabled people have unmet care needs.

The sector was already in crisis before Covid-19. The problem will not be solved by rising unemployment: significant skills are needed to deliver high-quality care. Good care is complex; bad care kills. Just because care work is low paid and badly undervalued does not mean that it is low skilled. While staffing shortages and recruitment problems in the sector require a holistic solution, it is disingenuous for the Government to call for better wages and conditions in sectors left out of their new immigration plans. The criteria for the points system include the threshold of £20,480 for those with additional tradable points, such as an occupation on the shortage occupation list, and a fast-track NHS visa for applicants with a job offer who speak English and are trained to a recognised standard. [Inaudible]—workforce meets even these criteria. Others in low-paid health and social care sectors, such as clinical scientists, lab and theatre technicians, porters and cleaners, many of whom are EU nationals or from elsewhere overseas, play an integral role in the efficient and safe running of the health and care services, yet none of them would fit these criteria. I fear that the rhetoric of cutting immigration is being driven forward, ignoring the devastating effect on the NHS and social care sectors, despite all the nice words about how these people have coped and saved lives while themselves at risk during Covid.

Warning after warning has shown how the NHS and care sectors will collapse without their overseas workers. That is why there is a need for a fast-track category health and social care visa, as outlined by my noble friend Lady Masham, and an urgent need for the criteria to be looked at independently, as proposed in Amendment 2.

We cannot put our heads in the sand and think that unemployment will miraculously and rapidly create a workforce of skilled, low-paid carers to look after those with complex needs, and that vacancies will evaporate. They will not. I believe that we will be coming back to these issues at Report, and dividing the House.

[Baroness Meacher (CB) [V]]

My Lords, I speak in support of Amendment 47, to which I added my name, but I also strongly support other amendments in the group, particularly that of my noble friend Lord Patel, who spoke powerfully in favour of making sure that we do not create barriers preventing health and social care staff coming to this country. I do not want to duplicate what others have said, so I will speak briefly about the difficulties we have in recruiting staff over here, which others have certainly emphasised.

The NHS employs half a million staff and has 100,000 vacancies reported by trusts, many of them among low-paid workers. This figure is projected to rise over the coming years, rather than diminish. Our problems will become pretty well impossible to manage unless we do something about it.

We want more support staff employed in primary care. This has been a policy goal for a long time and the NHS long-term plan continues to reflect this ambition, but the number of support staff working in community services has continued to fall, and I expect it to continue to do so. GP surgeries are desperate to appoint support staff but cannot do so. As others have said strongly, a similar picture applies to the social care sector, where we have 8,632 vacancies, according to the latest available data—surely unsustainable, as the number of elderly people needing care rises relentlessly, not to mention, as others have, the many people with disabilities and a range of problems.

The NHS Long Term Plan acknowledges that international recruitment will continue to be vital in the short to medium term if we are to deal with our staff shortages. This is being constrained, says a report by the Health Foundation, by immigration policies. Surely the Government need to pay attention to that, and I hope the Minister will respond to that point. Immigration policies are really causing problems for our health and social care services. Instead of imposing barriers to EEA and Swiss entrants, would it not be better for Ministers to concentrate on reducing barriers to well-qualified migrants with good English from the rest of the world? Amendment 47 is key, as are the other amendments in this group, if we are to improve our health and social care staffing or to avoid a serious drop in the quality and availability of these crucial services. I look forward to the Minister’s response.

[Baroness Altmann (Con) [V]]

My Lords, I support all the amendments in this group. I have added my name to Amendments 47 and 66, but the intentions and sentiments already expressed so well by many noble Lords are ones that I fully endorse. I thank the noble Lord, Lord Hunt, the noble Baronesses, Lady Hamwee and Lady Masham, and other noble Lords for the excellent way in which they have explained the urgent need for measures in the Bill that specifically address the shortage of social care staff. I implore my noble friend on the Front Bench, who I know cares about this issue as much as so many of us around the House, to take back to the department the strength of feeling across the House on this matter and address some of these issues before Report.

We are talking here about the biggest failure of social policy in modern times. The inadequacy of our social care provision is already well documented and well known, and the Government are already committed to addressing this issue as soon as possible. We cannot move forward and improve the quality of social care without staff. We cannot mechanise this. Care workers may be low paid, but that does not mean they are low skilled. They are essential to enabling increasing numbers of people to live decent lives. We are not talking about bringing in low-paid shelf stackers; we are talking about the emotional, physical and mental well-being of some of our most vulnerable citizens.

Given that the Government are the main funders of social care and have not yet funded adequately social care providers who employ staff who might generally earn above the £25,000 cut-off, that imposes on the Government a duty to ensure that our immigration policy does not deter those who might be willing to work for less than that figure—most of the people who work in social care already do so—from coming to this country when, as we have already heard, around one in five of our social care staff is already from overseas.

I know my noble friend responded to these concerns at Second Reading by saying that the Government hope that Britons will fill the shortfall, but hopes are not good enough. It takes time to try to find any UK nationals, train them in the right skills and raise the standards of pay. What are these elderly and disabled people supposed to do in the meantime? They need care. I therefore hope my noble friend might still consider the implications of these amendments, or at the very least agree to a transitional, temporary social care visa, perhaps for five or 10 years, that specifically enables social care providers and individuals who need to employ somebody to care for them in their own home to find those overseas workers who are willing to come here and fill the gaps we currently have, rather than having an immigration system that rules out being able to bring them in.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

The noble Baroness, Lady Jolly, has withdrawn, so I now call the noble Baroness, Lady Lister of Burtersett.

[Baroness Lister of Burtersett (Lab)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Altmann, and I very much agree with what she had to say. I am speaking primarily in support of Amendments 2 and 93, but I am supportive of all these amendments. I underline the importance of what the noble Baronesses, Lady Masham and Lady Finlay, said about personal care.

When the Bill was postponed in the House of Commons, I thought that perhaps the Government were thinking again about the treatment of care workers in the points-based system in light of the Government’s and the country’s applause for them during the height of the pandemic. How naive I was; there was no rethink. Despite the crucial role they played and continue to play and the range of skills involved in their work—organisational, clinical and

“soft skills of empathy and patience”,

as the chief executive of the National Association of Care & Support Workers has explained—the Government, as has already been said, continue to confuse pay with skill and contribution.

Back in February, the Home Secretary herself conceded that

“care is not a low-skilled occupation”—

so why is it being treated as one now? To do so in the proposed points-based system is in effect discriminatory, as the equality impact assessment makes clear. It says:

“The Government is aware that prescribing a minimum … threshold could have differential impacts on individuals on the basis of their sex. Women may find it disproportionately more difficult to meet the threshold than men.”


Indeed, but there is no “could” or “may” about it. It will have a differential impact and women will find it disproportionately difficult because, of course, women make up the majority of care workers. Moreover, black and minority ethnic women are disproportionately represented in the care sector, and the equality impact assessment shows that BAME workers will also be adversely affected by the salary threshold.

In the Commons, the Immigration Minister said that

“our vision for the future of the care sector is about providing rewarding opportunities to UK-based workers, not basing it purely on immigration.”—[Official Report, Commons, 13/7/20; col. 1250.]

Likewise, the Minister, at Second Reading, said that

“the immigration system is not the sole solution to the employment issues in the social care sector.”—[Official Report, 22/7/20; col. 2232.]

No one is suggesting that immigration provides the sole solution or that the future of care should depend purely on immigration but, to quote the Cavendish Coalition of 37 organisations in health and social care:

“For a sector where one in six are foreign nationals and which is struggling with 122,000 vacancies in England alone it would be unwise to believe that domestic recruitment will solve all social care’s immediate problems.”


It warns that we are

“swiftly heading towards an alarming destination with no obvious solution for the care sector.”

Can the Minister explain how the Government will ensure that those “rewarding opportunities” to which the Immigration Minister referred are to be provided when local authorities are already on their financial knees? As we have heard, funding has gone down in the care sector and the Government have done nothing about it over their 10-year period in office. Do the Government believe that the market will miraculously provide the solution in the absence of immigrant labour?

17:45

I might feel greater confidence in the Government’s

“vision for the future of the care sector”—[Official Report, Commons, 13/7/20; col. 1250.]

if they actually had a strategy for it. But as my noble friend Lord Hunt reminded us, despite many a promise—I have lost count—we are still waiting for that strategy, like “Waiting for Godot”. As it is, it is irresponsible to go ahead with this policy in the absence of such a strategy—one that should include decent rewards for all those who work in the care sector. This is the kind of question that Amendments 2 and 93 would address. To refuse to accept the call for an independent review on these lines would be doubly irresponsible. What possible justification could there be for refusing such a review?

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, this has been an excellent debate. I associate myself in particular with Amendments 2 and 82 but, like other noble Lords, I support many of the amendments in this group in principle.

A constant theme since Second Reading is the need for key workers to continue to supply workforce in the UK, not least in the NHS and social care. It is a matter of fact that, quite apart from us potentially sending out the wrong message to those coming from countries other than the EEA and Switzerland—international care workers on whom we currently depend—many of our care home workers and care workers in general are sourced from Poland, Latvia, Estonia, Lithuania and other EEA countries. I therefore suggest that this is a wake-up call to the potential immediate crisis that the social care sector could face on 1 January next year as a result of the Bill, if my reading of it is correct.

I always remember that during my time as an MP, when I used to ask the local jobcentre where the main vacancies were, the answer usually came back that the vacancies that were the most difficult to fill and therefore the longest on the register were those in the care sector. I hope this might provide an opportunity to really look again at the status of social care workers. They are the flip side to the NHS family. I remind the Committee of my interest in that I come from a medical family; my brother and father were GPs, and I currently work with the Dispensing Doctors’ Association. We can see the extent to which we were dependent on care homes taking often still quite poorly patients out of hospitals in the immediate pandemic circumstances of Covid-19.

I hope that my noble friend the Minister will use her good offices to liaise with the relevant departments in this regard, particularly the Department of Health and Social Care, to look at valuing the skills and caring qualities of our social care workers and look to raise their salaries to more realistic levels.

I also ask my noble friend whether a compromise in this regard, particularly in view of the visa requirements, might be to look at whether it would be appropriate for the immigration system that will commence in the new year to have a two-year temporary work visa so as not to leave the country potentially short-staffed in this crunch period, as we deal with the knock-on effects of Covid and its economic consequences and as a result of our ending the transition period as we leave the European Union.

Furthermore, like other noble Lords who have spoken, I am deeply concerned that many of the details are not in the Bill and that we are relying very heavily on secondary legislation and a points system, the details of which are not that transparent.

I conclude by lending my support to Amendment 2 in particular, in the names of the noble Lords, Lord Hunt and Lord Adonis, and the noble Baronesses, Lady Finlay and Lady Brinton. It requires the Government to commission an independent review of the social care sector, which would, I hope, cover many of the points that I raised today.

I also support Amendment 82, in the name of the noble Lord, Lord Patel, which would introduce a duty to report on migratory options for health and social care workers who are ineligible for the skilled worker route. It is nonsensical to have such a constraint on a sector on which we are so heavily dependent.

I found the speech by the noble Baroness, Lady Masham, very moving. In my days as an MP, I visited a Leonard Cheshire home, where I encountered the tragic case of a young Olympic rower who had suffered a stroke and was incapacitated. If this Bill was passed, these two amendments—and all amendments in this group—could do so much good for people of all ages who are in care, particularly the vulnerable and the disabled in the community.

[Baroness Barker (LD)]

I want to return to the points made by the noble Lord, Lord Hunt of Kings Heath, in his introductory remarks. The important amendment in this group is Amendment 2. All the others could be things that potentially fall out of a review, and so the key is to have that review and then look at the most appropriate way forward.

Many of the issues that have been spoken to in this debate are not new; we have been talking about social care for as long as I have been in the House. We could say many things about the current situation we find ourselves in, and some of the issues are fairly long-standing. One that I talk about a lot, but not many others do, is the fact that there are currently about a million people who are ageing and do not have children. Our health and social care service is predicated on the fact that you have children who will look out for your needs in any health or care setting. We will have 2 million people in that position by 2030. We have, therefore, an acute and growing need for paid social care. Also, at the moment, a number of our biggest care providers are owned by private equity firms, run at very low cost and margins—they are not about to stay in this business if they cannot do that, and to them, it is a business.

At Second Reading, the noble Baroness talked about the need for the United Kingdom to stop colluding in an international trade in low-cost care. I can understand that argument but, at this moment, given where we are, we would be the first affluent western country to take itself out of what is, in effect, an international market in care. No other affluent western country—nor Australia, for that matter—has solved its care problem by suddenly turning off all access to people from other nations. It would be a very bold statement if we were to do that, but noble Lords have today pointed out the dangers of doing so.

The noble Lord, Lord Hunt, is right to argue that, at this moment, there is a case for a review. The Government, if they were not being so ideologically pure on the matter, would want to give themselves flexibility in addressing these issues as they arise. There is no need to do this: it is just government ideology. The Government could bring in a transitionary process, over about five years, that would enable people to get through a period of uncertainty. I therefore commend Amendment 2 to the Minister and ask her to look at some of the other amendments in this group.

[Lord Lilley (Con) [V]]

My Lords, I will focus on Amendments 82 and 93, and particularly their implications for reviewing the need, or otherwise, to recruit nurses and doctors from overseas. I am grateful to the noble Lord, Lord Patel, and the noble Baroness, Lady Jones, for tabling them.

I suspect, however, that these amendments are based on the common fallacy that the NHS needs to recruit doctors and nurses overseas because supposedly not enough British people want to do these jobs. That is simply untrue. The latest year for which UCAS figures are available is 2019; I apologise to the House for giving out-of-date figures at Second Reading. The most recent figures show that 53,000 young British people applied to train as nurses last year, of whom 20,250 were turned away—that is 43% of applicants, or nearly half of those who applied. UCAS unfortunately does not produce figures on the same basis for those seeking to train as doctors, but it is clear that an even higher proportion of those who apply to medical school are turned away.

This is a double scandal. First, it means that tens of thousands of young Brits who aspire to serve their country as doctors or nurses are refused that chance and have to pursue less attractive options. Secondly, we have to recruit tens of thousands of doctors and nurses from abroad, mostly from countries that are far poorer, have fewer medical staff per head of population, and can ill afford to train people who then migrate to the United Kingdom.

This double scandal is compounded by the way this issue is excluded from the national debate. Why do we allow this situation to persist? We allow effectively unlimited numbers of students to study every subject from art history to zoology. The only subjects where places are numerically restricted are medicine, where they are formally restricted, and nursing, where they are de facto restricted.

I will pass over the political reasons why it may have seemed wise to advocates of mass immigration to invoke the needs of the NHS and nurses and doctors to sanctify their cause. The other reason is nakedly economic: we found it cheaper, in the short term, to employ people trained at the expense of foreign taxpayers, rather than pay to train our own citizens. At the same time, relying on nurses and other health workers from abroad, on whom many other noble Lords have focused, helps to keep wages low. What a paradox it is that many noble Lords who have spoken today and railed against the level of inequality in our country pursue a policy whose prime justification, as they have made clear today, is that it depresses the wages of the lowest-paid people in this country and keeps them below what economists call the domestic market clearing rate—the rate at which we could meet our needs from our own employees.

I was at first minded to support these amendments, but, on looking more closely, I note that one thing the reports that they call on the Government to produce do not cover is the scope for training more of those aspiring to become nurses and doctors in the UK, so that we can end the plundering of foreign health services. That is a very significant omission and shows that there is a blind spot in this discussion, which I hope we will not perpetuate in future debates.

18:00

[Lord Green of Deddington (CB) [V]]

I had intended to withdraw from the debate, but having heard the noble Lord, Lord Lilley, I have to say that I agree very strongly with what he said. The debate so far has covered the case for a short-term arrangement to make sure that our failure to train in recent years can be made up for, but there is no justification in the medium term for taking doctors and nurses to look after people here from countries that need them far more than we do. That is our responsibility; it is time we trained our own and got a grip on it.

[Lord Blunkett (Lab)]

My Lords, I rise to support my noble friend Lord Hunt’s amendment and the brief, excellent speech he made at the beginning of this debate. I also want to reinforce points that have been made by the majority of your Lordships, with the exceptions of the noble Lords, Lord Lilley and Lord Green. Although I do not dispute for a minute that both noble Lords have a point, they have highlighted what I hope to put across this evening, which is the complete contradictions that exist in this debate.

I shall start by picking up those points made by the noble Lords, Lord Lilley and Lord Green. I am presuming that, when we reach Report, they will be moving amendments that will remove the so-called health and social care route announced in July, because under that route doctors and nurses could be recruited from across the world to fill vacancies at that level.

One of the contradictions that I want to highlight relates to young people. Young people who cannot find a job anywhere else due to the aftermath of Covid-19—the 20% drop in GDP and the knock-on effect on unemployment—might decide to go into social care. Most young people I speak to want a career and to be able to progress, and there is progression in both residential and social care. However, as things stand with the proposals by the Government, the area from which we would allow people to be brought in from overseas would be at that higher level, whereas at the lower level the vacancies that have been mentioned—122,000 in England alone—would not be fillable from outside the country. I do not know whether the Government believe that, given the crisis in unemployment that is about to accelerate, people will just take up those vacancies even if they are not emotionally and physically suitable to take up caring duties. As has been made clear in this debate, you have to be a particular type of person to take up some of the less attractive duties of caring for someone who is severely disabled or frail and has dementia.

The contradictions, also mentioned by the noble Baroness, Lady Barker, abound. We all want to see improved wages in this sector. That would not only reward people morally for what they do but help fill vacancies. But the danger of simply putting money into the sector, given the level of private equity ownership, might well be that it gets creamed off, rather than helping to fill vacancies. Or, they will simply close the homes if the money is not provided, which will cause an even bigger problem—as part of the contradictions, we would end up with older, frailer and more severely disabled people in hospital settings, which are more expensive but would allow for staffing to be brought in from outside this country. We saw that in March and April, when people who should have been in different settings in the first place were cascaded out into the residential sector unchecked for Covid-19 and ill-prepared in terms of PPE to be able to deal with it. The consequences, as the noble Lord, Lord Patel, said, are obvious for all of us to see.

The biggest contradiction of all—and I put this to the noble Lords, Lord Lilley and Lord Green—is that, on the centre-left in politics, people are generally suspicious of markets and, on the right, people generally embrace markets. But as I said on Second Reading, in the case of the labour market, the situation is reversed, and those who believe vehemently in markets are against a labour market and against being able to draw in from across the world those who have something to offer the area we are talking about this evening.

We need to sort out the contradictions. That includes the issue of austerity, which led to a bigger downturn in funding for local government services and those funded by local government than any other public service area in the country, with the result that local government has been struggling both with its own direct health provision and with funding in the market and the ability to sustain services.

I have one question—I have learned over the Covid-19 period that you do not get an answer from the Minister unless you ask them a question. My question is simple, and the Minister might be able to answer it tonight: we know what the vacancy level is, but do we have an up-to-date picture of the turnover level in the social care sector? The turnover gives you an idea of how long people can stand working in this challenging but often rewarding setting. What steps might have to be taken if the Government’s hope is that the downward pressure on job availability will help fill, in the short term, the vacancies that we have talked about?

At the end of the day, what we are talking about is the care of human beings. We are not talking about markets or political or economic theory; we are talking about the reality of caring for people in their own homes and stopping them, therefore, having to move into hospital, residential care or residential settings that are dealing with people at very difficult times of their lives. In the end, we have to care enough to get it right.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I listened carefully to the powerful opening speech from the noble Lord, Lord Hunt of Kings Heath, who is very experienced in this field, and to the speeches that have followed.

Who can argue about the need for a properly skilled, staffed, trained social care workforce? “Skilled and settled”, I think, was the phrase used by the noble Baroness, Lady Masham of Ilton. That is why the issues in subsections (3)(a), (3)(b), (3)(c) and (3)(d) in the noble Lord’s proposed new clause seem entirely appropriate questions to ask. But when they are tied back into an immigration Bill, I begin to get nervous. The noble Lord, Lord Blunkett, talked about contradictions, and I listened carefully to what he said, but the fact is that the issues in subsections (3)(a) to (d) are issues for the sector not linked directly to the immigration matter we are discussing this evening.

I recognise I am probably swimming against the tide, but it is important to realise that workplace psychologists will tell you that you go to work for three reasons. First, you go for the money, and let us not be precious about that. Secondly, and equally importantly, you go for what they call self-actualisation —to improve and increase your life skills, work with decent people, have career progression, have a good performance that is noted and rewarded and, hopefully, operate in an atmosphere of good team spirit. Those are the internal desires most people have in going to work.

The third area is external reputation. When you mention where you work, what do people say in the saloon bar of The Dog and Duck or around the table at a dinner party?

It is worth taking those three yardsticks and applying them to the social care sector. First, there is the money. There is no getting around it: £8.70 an hour is clearly not good enough when compared with £9 for stacking shelves in a supermarket. However, money is not the only motivator here, and when we turn to self-actualisation —the second of the criteria that I mentioned—the situation is quite serious. I have had the privilege of serving on the boards of many companies in my career. When I join one, I often say, “Tell me about your staff turnover.” No staff turnover is not an attractive thing; very often it means that the company has got a bit complacent and is not at the cutting edge, and that the service is not as good as it could be. You want some staff turnover—5%, 10%, that sort of level—to provide the dynamic but, if it rises above that level, it is operationally destructive, distracting and expensive, and the quality of the service starts to fall away.

I understand that in 2018-19 there was a 32.2% turnover in directly employed staff in the sector. Worse, among care workers the turnover was 39.5%. Further evidence of a lack of considered career progression is that half the workforce—excluding registered professionals —have no relevant social care qualifications, which seems to me a question not of money but of managerial grip and organisation, and of making the sector better managed.

Lastly, on the external reputation, one of the great advantages and developments of the pandemic is that people have begun to see how useful, worthwhile and attractive social care can be. People have begun to think about it. Long may that continue but, historically, we all must accept that its reputation has not been that good.

This is a system under acute stress, as many noble Lords have said. The danger of amendments such as these is that they will result in new arrivals, and that immigration will be used as a crutch to maintain what is close to being a broken system. I cannot believe that this is the right approach. More importantly, if the sector believes that it has a “get out of jail free” card, to use the inference that the Minister made when winding up at Second Reading, then there is no pressure on the sector to make any improvements or changes to how the businesses are run or operated, nor indeed is there any pressure on the Government to do likewise. We must find ways to improve the operational performance and the financial performance.

I have two final points. First, on the issue of morality, referred to by my noble friend Lord Lilley, the noble Baronesses, Lady Barker and Lady Meacher, and the noble Lord, Lord Patel, recruitment in this area is a zero-sum game. What we have, other people lose. Maybe one could say that within the EU there is sufficient prosperity for us not to worry about it, but the noble Lord, Lord Patel, mentioned the wider recruitment. This is a very serious issue. We must look ourselves in the mirror and decide whether it is right and fair for us to be recruiting doctors, nurses and care workers from less- developed countries. It may be serious within the EU, but it certainly is serious around the world.

I will give just one example. When the Ebola virus struck Sierra Leone, there were 136 doctors there, one for every 45,000 people; in this country, the equivalent figure is one for every 300 people. At that time, there were 27 Sierra Leone doctors working in the NHS. If we had not employed those people, we could have given a 20% boost to Sierra Leone’s health facilities. It is not the answer but when we set out our stall for the future we must consider our attitude towards the less developed world, and whether we will, as the noble Baroness, Lady Barker, said, take ourselves out of the international market for health and social care workers.

18:15

My other point is about the dependency ratio, the ratio between those in work and those who are in education or are retired. A 26-year old from overseas who comes to work in a care home here will, in 40 years’ time, be looking to go to the care home as a patient, not as a worker, requiring more people to come and look after them. Therefore, we will need to find other ways to boost the sector. David Attenborough has called this a population Ponzi scheme. The noble Lord, Lord Turner of Ecchinswell, who is not in his place today, said that if you wish to keep the dependency ratio as it was in 2006, you must plan to have 100 million people in this country by 2060, compared to the 66 million that we are today. While I absolutely understand the good intentions of all noble Lords who have been putting forward these very worthwhile amendments, on balance I must ask the Minister to reject them.

[Lord McCrea of Magherafelt and Cookstown (DUP) [V]]

My Lords, it is clear that many fear the impact that a sharp and purely tailored approach to ending free movement on growth could have in certain important economic sectors, especially within Northern Ireland. The move to reduce the £30,000 salary threshold to £25,600 for skilled migrants coming to the UK is welcome. However, it is not sustainable in Northern Ireland because quite a number of jobs, especially in the care sector, pay less than £25,600. The requirements of the sector have always been different from most of the rest of the economy, but I address my remarks mainly to Amendments 2, 82 and 93, and the need for workers in the health and care sector.

The pandemic has shown the enormous contribution of overseas workers to our health and social care system. Indeed, they have put their lives at risk to keep us safe. Over these last months the care sector has been under extreme pressure, and clearly any major changes will have serious consequences. Unless we have a breakthrough with a vaccine, care homes and that sector of our health provision will still be battling Covid-19. A large percentage of our doctors in the NHS are from overseas, yet there are thousands of posts vacant across the medical profession. There are serious staff recruitment and retention problems within health and social care, even with freedom of movement and flexibility of opportunity. Added to this is an ageing population with increasingly complex care needs. The Government have ambitious plans to fill staff vacancies, which noble Lords have spoken about, but it will take a concerted effort and a very considerable period of time to train doctors and nurses—even if they are recruited tomorrow—and to provide thousands of professional care home staff for our various facilities across the United Kingdom.

In my opinion, this is a mammoth task. It is not realistic to pretend that we can address the vacancy shortage within a short period. To suggest that those who have lost their employment elsewhere would adequately fill these vacancies is also unacceptable, as we are speaking about a caring profession; vulnerable people who need assistance need loving, professionally skilled attention. I fear that deterring the recruitment from overseas of care assistants and other junior care workers who already have skills will lead to a serious decline in the quality and availability of care for the most vulnerable in society.

We also need an independent evaluation of the impact of the Bill on the health and social care sector across the United Kingdom. The appointment of a person independent of government should be done following consultation between the Secretary of State for Health and Social Care and the relevant Ministers in the devolved Administrations. If what is being done under the Bill is right and professionally competent, there is nothing to fear from such a comprehensive independent evaluation. This new clause requires the Secretary of State to lay a copy of the report before both Houses of Parliament no later than one year after the Bill is passed, and that no later than six months after the report is laid it will be debated and voted on in the Commons and Lords. The effects of these changes on disabled people, older citizens, children and young people and those with long-term health conditions—in other words, those who rely on the service provided by health and social care to make life bearable—could be profound. Therefore, we had best be sure that we get it right.

[Lord Hain (Lab) [V]]

My Lords, I wish to speak particularly to Amendments 2, 47 and 57. I strongly agree with the excellent opening speech on this group by my noble friend Lord Hunt and with many other speeches, including those of the noble Baroness, Lady Altmann, and my noble friend Lady Lister. This Bill illustrates that the pandemic has revealed fundamental flaws in the present United Kingdom non-EU immigration system and the Government’s post-Brexit plans for immigration. In an economy which previously had record levels of employment, and despite the joblessness effects of Covid on the labour market, their proposed points-based system could produce damaging labour shortages in many sectors, including the NHS, social care, which has been spoken about authoritatively in this debate, farming, food processing and construction.

None of this should come as a surprise, as the 2016 referendum campaign was based on rhetoric falsely linking the free movement of EU workers with the legacies of Tory austerity: housing shortages, depressed wages and huge cuts in public services, especially social care. The promise to take back control of borders may have appealed to nationalistic jingoism, but it was never rooted in the reality of modern Britain, where EU and non-EU migrants of all skills levels and income brackets keep the economic and social wheels turning. EU and other migrant workers were always, in fact, net contributors, through tax and national insurance, to the National Health Service, social care and other public services. Despite the Government’s intention to equate low pay with low skills and low value, the pandemic has abruptly brought migrants’ significant front-line roles as key workers in keeping the country afloat to the attention of the public, among whom it is now widely recognised, whereas perhaps it was not in 2016. As the Joint Council for the Welfare of Immigrants has stated, the Bill

“will deny our communities the care and professionalism contributed by migrants in these areas, to our own detriment.”

The Bill does not set out in detail what the future points-based UK system will look like. These changes will be covered in unamendable Immigration Rules. The Bill gives the Government Henry VIII powers to modify primary or secondary legislation as appropriate. Despite the Government’s claims that these powers are usual, they will diminish the role of Parliament in an area of policy where many, including the Lords’ Delegated Powers and Regulatory Reform Committee in its 2019 46th report, have concluded that greater scrutiny is already required.

In the social care sector, on which millions of extremely vulnerable British people depend—many of them our relatives, in care homes and in their own homes—the vast majority of social care roles do not meet the planned immigration system’s salary threshold of £25,600. The noble Lord, Lord McCrea, who spoke immediately before me, emphasised that point in relation to Northern Ireland. Using data collected before—I stress, before—the height of the Covid-19 pandemic, Skills for Care estimated the number of vacancies in the sector at 133,000. It also estimated that 5% of the 1.65 million workforce, or more than 80,000 staff, are at risk of losing their employment rights at the end of the transition period, in a sector where nearly half of employers are already struggling to fill existing vacancies because of low pay, anti-social hours and the demanding nature of care work.

The Government, in their wisdom, have decided that front-line social care staff will be excluded from their fast-track health and care visa, with the Home Secretary stating that this will encourage employers to invest in workers from the UK. Who is going to pay for this? Will it be people receiving care, cash-strapped local authorities, whose budgets have been massively cut, or private-sector care providers, many of whom are teetering on the brink of financial collapse? Parliament’s library briefing confirms that

“a wide range of organisations are concerned that short-term funding pressures remain. In 2018, the Local Government Association estimated that adult social care services faced a £1.5 billion funding gap by 2019/20 and £3.5 billion gap by 2024/25.”

While the points-based system is a fundamental change, other aspects of the non-EU immigration system such as enforcement, the right to bring dependants, settlement criteria, asylum, no access to public funds and more will remain unchanged when EU citizens without settled status become subject to them in 2021—next year. The pandemic has demonstrated that because of these policies, many such migrants are at significant risk of exposure to the virus, fear accessing healthcare, lack access to safe housing and are unable to stop working or to self-isolate because they are on poverty wages. This is not only detrimental to the health of migrant communities; the health of the wider public is also put at risk.

The Bill is a missed opportunity to deal with many more important questions, on which I support contributions and amendments from noble colleagues, including measures to combat modern slavery and indefinite detention, and to address family reunion for refugees and safe routes for unaccompanied children. These unresolved issues mean that the existing UK immigration regime for non-EU immigration is already a stain on our national reputation. Its extension to EU citizens from 2021 is a matter of deep regret, creating a new Brexit generation alongside the Windrush generation.

All British citizens living in the EU want to be reassured that we will uphold the treaty rights of EU citizens in the UK, the better to insist that they are upheld for our citizens in the EU. The Bill fails to provide that reassurance. If the Government want to retain the respect of our former friends and partners, they should listen to the concerns expressed by EU ambassadors and others and accept amendments which will guarantee the rights of the Brexit generation of European Union citizens, including vital social care workers, who have legally made their lives in our country, by writing them into this primary legislation.

18:30

[Baroness Ludford (LD)]

My Lords, we have heard from across the Committee the concern about this crisis in social care. Many noble Lords have considerable expertise on this topic and I am grateful to them for sharing their knowledge.

History will record the failure to deal with the fragile state of the provision and funding of social care as one of the major failures in domestic policy, and one has to say that particularly of the last 10 years of Conservative and Conservative-led government. I wish that as much energy had been applied to this subject as to Brexit. It shows a peculiar set of priorities.

I do not know whether the Government are being ideologically pure, to use the term employed by my noble friend Lady Barker. I certainly think that they are being obdurate and, I am afraid, unintelligent in not responding to the enormous problems in social care. The idea that in a short space of time we are going to find loads of people in the United Kingdom who want to work in this sector when they have never previously shown any interest in, inclination towards or aptitude for such work is pie in the sky. We learn that there are 120,000—the noble Lord, Lord Hain, referred to an estimate of 133,000—vacancies in the social care sector. When a quarter of a million social care workers—that is, 20% of the workforce—are EU or non-EU nationals, the ending of free movement under this Bill will lead to even greater shortages of staff.

I agree that it is wrong to exclude care workers from the health and care visa route, since only maybe senior care workers will be included under the salary level criterion. My understanding is that Canada and New Zealand have sector-specific visa routes. Since they are flavour of the month, why don’t we follow countries like them?

I was very moved by the tragic account from the noble Baroness, Lady Masham, of the suicide of quite a young man through the fear of a lack of care. I experienced this a little when my late husband, four years before he died, had to have a leg amputated due to sepsis. He benefited from carer support, as well as, I hope, from my support. I can absolutely relate to the emotions—the fear and anxiety—of people, whether the elderly or those with a range of disabilities, who do not know whether they will be able to get care either in a care home or in their own home.

As many noble Lords have pointed out, low skilled and low paid does not equal low value. My noble friend Lady Hamwee and the noble Lord, Lord McCrea, referred to the right caring personality being one of the necessary skills, but somehow that seems to be disregarded as though it comes with the territory, not least with women. Women are expected to be natural carers; well, we are not necessarily.

My noble friend Lady Barker referred to an acute and growing need for paid social care as the number of people without children grows to, I think she said, 2 million in 2030. I am one of those guilty parties—I have failed to grow the population—and my noble friend makes a very good point. Many families are not necessarily in a position anyway to provide care within the family, but she makes a very good point about a factor that increases the necessity.

Various amendments call for a review. Some of them could talk about health and social care but the emphasis in this debate, just like Amendment 2, which was very ably moved by the noble Lord, Lord Hunt of Kings Heath, has rightly been concentrated on the social care sector, which is where we are facing a crisis. One of the factors in that crisis is going to be the lack of an adequate workforce, and quite honestly it is astonishing if the Government do not respond to that. I hope the Minister can give us some hope of progress when she replies to the debate.

[Lord Rosser (Lab)]

Like the noble Lord, Lord Patel, and others, I congratulate my noble friend Lord Hunt of Kings Heath on his powerful speech opening this debate. I wish to speak in particular to Amendment 57 in this group, to which my name is attached, although I agree with the concerns that have been expressed by noble Lords who have spoken to other amendments in this group. I note that the noble Lord, Lord Hodgson of Astley Abbotts, advised the Minister to reject my amendment before I have even spoken to it, though I fear that my speech will probably only reinforce his view of his advice to his noble friend.

The amendment would make provision for the Secretary of State to provide a dedicated social care visa for EEA and Swiss nationals who had the right to free movement and have a job offer to work in the social care sector, and to their dependents. They would not be subject to the NHS surcharge or the immigration skills charge and the visa route would be available for three years from the end of the transition period, with the option to extend for further years if necessary.

The thinking behind the amendment is that the Government’s intention to suddenly shut the entry door at the end of the transition period in a few months’ time on the overwhelming majority of future overseas social care workers under the criteria laid down in the new points-based immigration system, and the exclusion of care workers from the qualifying list for the health and care visa, will have serious and immediate adverse consequences for our already stretched social care provision in the UK. The amendment would remove the suddenness associated with this policy change through the social care visa available for three years with an option to extend, and would give the social care sector a realistic chance of being able to adjust to the loss of a significant source of labour.

A Commons Home Office Minister said in July said that the reason why care workers had been excluded from the qualifying list for the health and care visa was that the Government had a “vision” for the social care sector that it should no longer

“carry on looking abroad to recruit at or near the minimum wage”,

and that the Government’s priority was that in future care sector jobs would be

“valued, rewarded and trained for, and that immigration should not be an alternative.”—[Official Report, Commons, 13/7/20; cols. 1249-50.]

If that means significantly better rates of pay and an associated increased degree of widely accepted and acknowledged professionalism in the underpaid and undervalued social care sector, that is to be welcomed—a widely accepted and acknowledged professionalism that does not leave care homes and care workers at the back of the queue when it comes to personal protective equipment and does not regard the care sector as so forgotten and unimportant as to send vulnerable people from hospital into care homes who have not been tested for Covid-19.

The fundamental change needed is far from the current position and cannot be achieved in the space of the next few months, when the transition period ends, without potentially serious adverse consequences for those who are vulnerable and dependent on care provision either at home or in a home. It requires a change of culture and attitude both towards and within the sector, a change that the Government have to accept is their responsibility to lead. That will take time, as the Government implicitly accepted when they said in July that with the vast majority of social care staff employed in the fragmented private sector, their

“ability to influence pay rates there”

is limited.

Some 17% to 20% of the social care workforce are migrant workers, with 115,000 EEA nationals and 134,000 non-EEA nationals. Vacancy rates in the care sector now stand at 6.5% in England and 5.5% in Scotland. Since there are already 100,000-plus vacancies in England’s care sector alone and the current flow of people from abroad to fill low-paid care sector jobs is about to dry up, the Government cannot possibly have been able to satisfy themselves that not only will UK-based workers immediately appear to fill that gap but they will be there in sufficient numbers—with the right training, aptitude and caring qualities for social care work—to lower the vacancy levels in the sector as well.

One assumes in making that statement that the Government do not believe that anyone can successfully do this kind of work and that anyone available should be recruited. We are told that the Government have an “oven-ready plan” to address the issue of funding the increasingly expensive social care sector. Unfortunately, the person claiming to have this plan for more than 12 months now has been unable to figure out how to turn the oven on.

If higher pay rates did suddenly materialise in the social care sector in a few months’ time, which would apparently solve the labour shortages—as the Government seem to assume will happen as a result of the points-based immigration system and the drying up of non-British labour—there will presumably be a potentially significant increase in the cost of providing social care. What do the Government think that increase in cost will be since it is only a few months ahead of us in a sector with a 30%-plus annual staff turnover rate, a high vacancy rate and a major source of labour about to end? Will it be the elderly, vulnerable care-home residents and people receiving care at home—the self-funders—who will have to find yet more money? Will it be the already cash-strapped local authorities? Will it be the providers of care provision or will it be the Government themselves financing the cost of a much better paid, more highly valued, more highly trained and increasingly professional social care workforce? I hope that the Government will provide an answer to this point in their reply.

The care sector was in crisis before Covid-19. Local authority spending on adult social care in England has fallen, I think, by some 7% per person in the past decade, thanks to austerity and cuts in grants from central government. Councils have had to tighten eligibility thresholds as cost, rather than need, has become the dominant factor in decision-making. One inevitable result is that some 1.5 million elderly and disabled people have unmet care needs and care workers are often expected to deliver home care within a 15-minute visit or less.

The work is usually low paid and seriously undervalued. However, high-quality care is not low skilled and the Government’s apparent policy that the rising unemployment on which they are banking will solve problems of staff shortages is misguided and potentially dangerous. What is needed is a better funded and resourced care sector with a new focus on training and continuing professional development. We need a cultural change in how we view social care and the value we place on those who work in the sector, including the way in which the immigration system regards social care workers—a change that recognises that there is direct competition from the NHS for many care staff, an NHS that offers higher pay levels and a career structure. With nearly one-fifth of the adult social care workforce being from overseas, in a sector with already high levels of vacancies and turnover rates it is unrealistic to believe that the effect of shutting the door to future care sector staff being recruited in any numbers from overseas can be overcome in rapid time by finding and training appropriate personnel with an aptitude for care sector work from within the ranks of British citizens, both already employed and unemployed.

18:45

I hope that the Government will reflect further not on their apparent aim for a much better-paid social care sector, but on their view that we can achieve that better- paid, resourced and valued and increasingly professional care sector at the drop of a hat in a few months’ time simply by cutting off the supply of staff from overseas. We cannot. We need a period of time, as provided for in Amendment 57, to sort out the increased funding, the finance for the better pay the Government envisage, and to find, recruit and train—from within this country—the hundreds of thousands of increasingly professional staff with an aptitude and a desire to work in the care sector that are going to be needed. I hope the Government can give a positive reply to this group of amendments.

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken in this debate. The noble Lord, Lord Blunkett, says that we are a contradictory lot and I do not disagree with that, but what we are all consistent on is that this is a matter that, through Covid, we have seen as incredibly important. We need people with these skills; they are valued and their careers can progress in this sector. He raised a very pertinent point around the turnover. I think you can tell the state of a sector or indeed a business by its turnover. Turnover is high; it is estimated to be around 31%. That is a high turnover in anyone’s book. I will confirm that figure because it is one that I have on the top of my head but my officials might disagree with it. If it is any different, I will confirm that in writing.

The amendments cover a range of issues, all of which relate to health and social care. They can be broadly split into three themes: the need to review the effects of the new immigration system on the health and care sectors, dedicated visa routes for health and social care workers, and immigration routes for those who do not meet requirements under the future skilled workers route. I am grateful to the noble Lords who tabled the amendments because they give us an opportunity to discuss a very important issue. It might be worth reflecting that there is nothing more important than how we, as a society, look after the most vulnerable people, be they young or old.

I will say another general thing about the health and social care sector, not as a Home Office Minister or even a Member of your Lordships’ House but as someone who formerly led one of England’s major metropolitan councils—which, as with all local authorities, was a significant user of care services, which consumed a substantial portion of the council’s budget. I became leader in 2004; it was an issue then and it is even more so now. I assure noble Lords that the Government very much appreciate the contribution of the social care sector, and its value to this country has never been better demonstrated than during the Covid crisis, as the noble Baroness, Lady Lister, and the noble Lord, Lord Patel, said. The Government are working alongside the sector to ensure that the workforce has the right number of people to meet increasing demands with the right skills, knowledge and behaviours to deliver quality, compassionate care.

I will respond to the point of the noble Baroness, Lady Lister. The Department of Health and Social Care has recently launched a new national recruitment campaign, called “Every Day is Different”, to run across broadcast, digital and social media. The campaign highlights the vital role that the social care workforce is playing right now during this pandemic along with the longer-term opportunities of working in care.

The Government have commissioned Skills for Care to scale up capacity for digital induction training, provided free of charge under the DHSC’s workforce development fund. This training is available for redeployees, new starters, existing staff and volunteers through 12 of Skills for Care’s endorsed training providers.

Finally, of course, I must mention—and I am sure noble Lords have heard me saying this before—that the Government are also providing councils with access to an additional £1.5 billion for adults and children’s social care in 2021. This is a significant funding uplift.

On the amendments, I will start by addressing Amendment 2 from the noble Lord, Lord Hunt of Kings Heath, and Amendment 93 from the noble Baroness, Lady Jones of Moulsecoomb, which are similar in intent. Both would require an independent review of the effect of our new points-based immigration system on the care sector. I very much agree that it is essential that policies are kept under review, particularly when the Government are introducing a new, points-based immigration system from January. Independent scrutiny and review are a good thing, but I am not sure that we need to legislate to provide a whole new mechanism.

We are very fortunate in already having the Migration Advisory Committee, a body that is widely recognised for its expertise and impartiality. It is testimony to the MAC’s standing that it has operated under a Labour Government, a coalition Government and Conservative Governments. In each instance it has been valued for the quality of its advice, and its recommendations have been accepted. Noble Lords should be in no doubt about the close interest that the MAC takes in the health and social care sectors. To put it into context, social care featured prominently in the MAC’s report from January of this year on salary thresholds and the points-based immigration system, just as it did in its report from last year on the shortage occupation lists, where there was a dedicated section on the sector, and in its 2018 report on EEA migration. I can assure noble Lords that the MAC will continue to look at these issues, particularly as the effects of the new immigration system start to be felt.

I also remind noble Lords that the Government has expanded the MAC’s remit. It is no longer constrained to reacting only in response to specific commissions from the Government; it now has licence to consider, and comment on, any aspect of immigration policy. To that end, we have asked it to start producing annual reports that not only cover issues such as its budget or staffing but provide a commentary on the operation of the immigration system. The MAC has accepted this challenge with customary gusto, and I understand we can look forward to the first such annual report later this year.

Therefore, while I totally understand the sentiment behind Amendments 2 and 93, they are not necessary. We already have a world-class, independent body to review the operation of our immigration system. Accordingly, I hope that the noble Lord will withdraw the amendment.

I turn to Amendment 47 from the noble Baroness, Lady Hamwee, Amendment 57 from the noble Lord, Lord Rosser, and Amendment 66 from the noble Baronesses, Lady Masham, Lady Finlay and Lady Thomas. I join noble Lords in having been profoundly moved by the words of the noble Baroness, Lady Masham. These amendments seek to introduce a dedicated route for health and care workers to come to the UK. I do not think that any of us would disagree about the value of the work that migrants and all staff working in the health and care sector do, and I recognise that these amendments were tabled to highlight and enhance this vital sector. That is obviously of great importance to those individuals with severe disabilities and care needs, who will rely even more on the support of health and care workers.

That is why I am pleased to be able to confirm that the Government launched the health and care visa on 4 August. The visa is available to health and care workers, and their families, from all parts of the world, not just EEA and Swiss nationals. Applicants pay a visa fee of £232 for a visa lasting less than three years, and £464 for a visa lasting more than three years. Applicants, and their families, are also exempt from having to pay the immigration health surcharge. Finally, most applicants for the health and care visa can expect a decision within just three weeks of enrolling their biometrics.

That leaves two further points for discussion. First, if inserted into the Bill, these amendments would require the Government to establish a scheme to admit care workers. I am not sure that that would be a wise way to proceed. The decision not to offer a general immigration route for those who do not meet the skills and salary thresholds is not one the Government have taken lightly. We have done so on the advice of the MAC which, as outlined earlier, are the Government’s independent advisers on migration issues. We also need to respect the wishes of the people of the UK, as expressed in the referendum vote four years ago.

The MAC has been very clear that the solutions to the challenges which the care sector faces do not lie in migration. My noble friend Lord Lilley and the noble Lord, Lord Green, made this point, as, largely, did my noble friend Lord Hodgson of Astley Abbotts. I draw your Lordships’ attention to the evidence which the chair of the MAC, Professor Brian Bell, gave to the committee in the other place. When asked about a visa route for care workers, he said:

“If people say that the response to the social care issue should be, ‘Well, employers should be allowed to bring in as many migrants as they want at the minimum wage’, first, that does not sound like the low-wage problem of the social care sector is being dealt with and, secondly, it suggests that one of the groups that will really suffer from that is the social care workers. You are saying that you are going to keep on allowing their wages to be held down by allowing employers to bring in workers at the minimum wage, whereas we want to see wages rising in that sector.”


That is a telling point. It would be a very odd position for this Government and for noble Lords to take if we were to conclude that the best way to reward those working in the care sector—the vast majority of whom are British—for their selfless and unstinting actions over the past few months was to institute a visa regime which, as the MAC chair has indicated, has the effect of depressing their wages.

Amendment 57 from the Official Opposition suggests putting in place a scheme for three years to tide the sector over and allow for some adjustment. Again, it is worth reflecting on the wise words of the chair of the MAC—this time when he appeared before the Home Affairs Committee in June. On the issue of some sort of temporary or transitional scheme for those working in social care, Professor Bell said:

“The risk is that you say that there needs to be a temporary arrangement for social care to make sure it can still access workers at usually minimum-wage wages from the rest of the world. That often then becomes a permanent solution”.


Indeed, I note that Amendment 57 explicitly contains a provision to allow it to be extended beyond its three years.

In the very next question, the chair of the Home Affairs Committee asked Professor Bell whether there would be a transitional scheme for social care workers, something my noble friends Lady Altmann and Lady McIntosh of Pickering talked about. He explicitly said that he did not advise that course of action. He went on to say:

“If unemployment rises very substantially in the next few months, of which there is certainly a risk when the furlough scheme unwinds, there will be a large supply of workers in the UK looking for work. If social care is ever to succeed in attracting workers, that is a pool of workers that they should be able to attract. If they can’t, I go back to my point that there is something fundamentally wrong here and it is nothing to do with immigration.”


These amendments seek to exempt health and care sector employers from paying the immigration skills charge. However, we consider it is right that the immigration skills charge continues to apply. In its September 2018 report on the impact of EEA migration in the UK, the MAC supported continued application of the immigration skills charge, without exceptions for particular sectors, alongside salary thresholds, as a way to protect against employers using migrants to undercut the domestic workforce, as my noble friend Lord Lilley and the noble Lord, Lord Green, said.

The Government stand by this requirement, given our desire for immigration to be considered alongside investment in, and development of, the UK’s resident workforce. My noble friend Lord Hodgson of Astley Abbotts made the point very strongly about the sector taking responsibility here; my noble friend Lord Lilley and the noble Lord, Lord Green, also made these points. This has only become more important due to the uncertainty that many UK resident workers will face as a result of the current pandemic.

19:00

On Amendment 82 from the noble Lord, Lord Patel, I recognise that he is looking for the Government to reassure Parliament that we will continue to support our essential health and social care sector and ensure that it has the staff it needs to support the health and well-being of the citizens of the United Kingdom. I hope that I can provide that reassurance today.

We recognise that the proposals under the UK points-based immigration system represent a significant change for employers in the UK and those migrants who would previously have benefited from free movement. It does not mean that employers will not be able to fill vacancies in the health and social care sector. As mentioned earlier, the Government are working closely with Skills for Care to help employers to train new recruits and volunteers and refresh the skills of their current workforce, in addition to introducing a proper career structure, as the noble Baroness, Lady Lister, talked about. This will provide opportunities for those in the sector and make it an attractive profession for prospective careers.

We must also keep in mind that, sadly, many people have lost their jobs because of the pandemic. It is right that the Government encourage employers to look first at the domestic labour market. As is now the case, there will continue to be a source of people with general rights to work in the UK: for example, people who come as dependents, on a youth mobility scheme, and on some family routes. We have already guaranteed the rights of many EU family citizens and their family members who are working in the social care sector; as noble Lords will know, there have been over 3.8 million applications to the EU settlement scheme. I can absolutely assure noble Lords that we will continue to keep labour market data under very careful scrutiny to monitor pressures in key sectors.

I hope that noble Lords can see that there are a range of options for those working in health and social care. Ultimately, it will be for individuals to consider the most appropriate route for them based on their specific circumstances. The sector, as my noble friend Lord Hodgson of Astley Abbotts says, needs to rise to that challenge. I hope that with those words, the noble Lord will feel happy to withdraw his amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been an excellent debate, and I am grateful to noble Lords who have given their support to my and other noble Lords’ amendments.

The Minister and the noble Lords, Lord Lilley and Lord Green, say we should not be using migrant labour to undercut our own workforce. Let me make it clear: I absolutely agree. I also agree with the noble Lord, Lord Hodgson, that the current turnover of care staff is appalling and cannot possibly be defended. But, as my noble friend Lord Rosser said in his marvellous winding-up speech, you will not solve the care sector’s problems by suddenly snapping off its ability to recruit staff from abroad from the end of the year. All you will do is tip it into an even bigger crisis than it is in. This is complete madness. We know what is going to happen; towards the end of the year, or at the beginning of the new year, there will be a total panic in the Government and they will reverse the decision. They have had practice at reversing decisions in the last few months, have they not?

On those pressures, noble Lords who oppose what I am saying seem to think it is the care sector’s fault. This is a government-controlled sector. The Government are the main funder and regulator; they set the whole context in which the sector operates. They have had countless reviews but will not face up to coming forward with a costed solution. We all know that the Green Paper, if it eventually comes, will be about funding the sector 20 to 30 years in the future. It will not deal with the issues as they now are.

The noble Baroness, Lady Williams, says that, if you go for my noble friend’s amendment, which I commend, a transitional arrangement will become permanent. That is the point: it is down to the Government to make sure that it is not permanent. The beauty of my noble friend’s amendment is that it sets the challenge to Government. Let us go for a transitional arrangement but, if the Government want it to end, they have to come forward with effective proposals to reform and sort out the care sector, once and for all.

I do not see the Migration Advisory Committee in the same way that the noble Baroness does. She quoted the chair of that committee presumably proclaiming the rise in unemployment that he foresees as the solution to the care sector problem. I have been trying to ponder the Government’s Brexit strategy. Clearly they are prepared to let the automotive and aerospace industries go to the wall and, presumably, they are happy about that, because the care sector’s problems will be solved as a result of the decimation of people working in those sectors. You could not make it up. This is the worst Government there has been in my lifetime. From issue to issue, they clamber around with some ideological nonsense about what the British people were supposed to have voted for in the referendum, and we end up in this dire situation. Having said that, it has been a great debate, and I beg leave to withdraw my amendment.

Amendment 2 withdrawn.

Schedule 1: Repeal of the main retained EU law relating to free movement etc.

Amendments 3 to 6 not moved.

19:07

Sitting suspended.

19:36

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, we now come to the group consisting of Amendment 7. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in the debate.

Schedule 1: Repeal of the main retained EU law relating to free movement etc.

Amendment 7

Moved by

[Lord McColl of Dulwich]

7: Schedule 1, page 8, line 35, at end insert—
“( ) The reference in sub-paragraph (1) to any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures does not include a reference to any rights, powers, liabilities, obligations, restrictions, remedies and procedures arising under the EU Anti-Trafficking Directive (2011/36).”Member’s explanatory statement
This is a probing amendment to confirm the status of the EU Anti-Trafficking Directive under EU retained law and how it might be affected as a result of Schedule 1, paragraph 6.

[Lord McColl of Dulwich (Con) [V]]

My Lords, I have tabled Amendment 7 because, as I raised at Second Reading, there is a great deal of concern about the situation that will be faced by victims of modern slavery after the Brexit transition period concludes at the end of December. Other noble Lords raised this concern at Second Reading, including the noble Lords, Lord Morrow and Lord Randall, the right reverend Prelate the Bishop of Bristol, who has kindly added her name to my amendment, and the noble Lord, Lord Kennedy, who was gracious enough to support the Private Member’s Bill in my name, to which I shall return later.

The Minister will know that I firmly support the Government’s aim of bringing immigration policy solely within the control of the UK Government and that leaving the EU should also mean that the UK is not bound by EU law, other than that which we have chosen to incorporate into domestic law. However, I was and remain a strong advocate for the content of the EU anti-trafficking directive which the Government agreed to adopt in 2011. Having left the EU, exercising our sovereignty does not compel us to make fewer provisions for victims of trafficking than those available under the directive. Indeed, I suggest that we should use this freedom to ensure that we have the very best provisions for victims of human slavery.

Since the Government opted into the directive, we have passed the excellent Modern Slavery Act 2015. However, that does not contain any provisions relating to immigration status or access to support or benefits for victims, something which my Private Member’s Bill, the Modern Slavery (Victim Support) Bill currently before the House, seeks to rectify.

The directive has filled this gap to a degree, since the direct effect of the EU directive in practice made it part of domestic law, unlike the statutory guidance and the Council of Europe anti-trafficking convention. The statutory guidance is valuable but does not have the force of law and can easily be changed; the convention creates obligations for the Government, but these are not rights which would take precedence over other UK law such as, for example, immigration law.

I hope noble Lords will bear with me as I detail some background to my amendment. In a nutshell, there is uncertainty about whether aspects of the directive remain part of what is known as EU retained law. If parts of the directive are retained EU law, it is also uncertain whether they could then be disapplied by this Bill under paragraph 6 of Schedule 1, because they conflict with immigration policy

On the first uncertainty—namely, whether rights under the anti-trafficking directive remain recognised and available in domestic law—the answer depends on whether rights under the directive fall within the relevant definitions in the European Union (Withdrawal) Act 2018. The key definition is set out in Section 4(2)(b) of the 2018 Act, which requires that the rights in question are

“of a kind recognised by the European Court or any court or tribunal in the United Kingdom”.

Given that definition, part of the problem associated with trying to understand whether rights will obtain after the end of this year is because, to my knowledge, the phrase “of a kind” has yet to be interpreted by the courts. The Explanatory Notes to the 2018 Act offer some assistance, indicating that where a UK or EU court has recognised rights arising under directly effective provisions of directives, these will remain in law, meaning that they

“could be relied upon by other individuals who are not parties to that case”.

What is less clear, however, is the status of other rights in the same directive that may meet the test for having direct effect but have not yet come before the court. Will these be “‘of a kind” with those other rights and be available in domestic law? Or, as the Explanatory Notes—but not the legislation itself—seem to imply, will those rights no longer be available simply because they will not yet have been tested in court?

The second area of confusion relates to those rights that do fall within the withdrawal Act definition and have been retained in domestic law. The issue here is the broad nature of the terms used in paragraph 6 of Schedule 1 to this Bill, which could see those retained rights being disapplied because they conflict with immigration policy. Since the majority of the victims of modern slavery in the UK are not British nationals, there is necessarily an intersection between immigration policy and the rights relating to the support and other treatment of those victims. It is the combination of these two uncertainties that compounds the risk for victims of trafficking.

Experts who support victims of modern slavery, including the Immigration Law Practitioners’ Association —the ILPA—have said that, in the light of the above concerns, some of the protections which may be lost include the

“protection against removal of a victim of trafficking because they never received sufficient support and assistance under Article 11, or because an investigation was never conducted, or the protection against removal during their reflection and recovery period.”

19:45

In reply to a Written Question I asked earlier in the year about the status of the directive, the Minister said that EU law ceases to have effect. Knowing my concerns about the directive, the Minister kindly arranged for a government position on the directive to be sent in advance of this debate, which states: “We do not consider that any directly effective rights which may exist under the EU Anti-trafficking directive 2011/36 conflict with or will conflict with the Immigration Acts or immigration functions (per the disapplication provision in para 6 of Schedule 1 to the ISSC Bill)”.

I am extremely grateful to the Minister for giving us this information before the debate, but it highlights the problems faced by victims and those supporting them. The Minister refers to “any directly effective rights which may exist”—the Government are not referring to rights that do exist, but rights which “may” exist. Which are these rights? Is it certain whether they will exist or not? I am asking the Minister to put on the record specifically which rights will exist and which will not. Will all existing rights and obligations under the EU anti-trafficking directive remain part of domestic law following the end of the transition period, separate from any rights and obligations set out in the Modern Slavery Act, statutory guidance and the Council of Europe anti-trafficking convention? If her answer does not clearly address this broader question, how can this House, and trafficking victims, be reassured that the rights will not be disapplied by this Bill?

I am strongly of the view that Brexit should not lead to fewer protections for victims of human trafficking. It is not clear to me that victims will be able to rely on all the rights they had under the directive, but to settle for anything less would damage the integrity of the Brexit project in a way that is unthinkable. Leaving is not about gaining sovereignty so that we can have worse laws, but so that we can have better laws. At minimum, I urge the Government to use our sovereignty to ensure that our laws afford victims of modern slavery the same statutory rights next year as they enjoy this year, which I think will require further amendment to this Bill.

Rather than constraining their vision, I urge the Government to seize the opportunity to go further than the directive and boldly use our sovereignty to put in place a more robust system of protections for confirmed victims of human trafficking, as set out in my Modern Slavery (Victim Support) Bill, which is so ably championed in another place by the former Conservative Party leader, Sir Iain Duncan Smith. This would make sure that all victims in England and Wales have recourse to statutory support and assistance for a minimum of 12 months, something that does not apply in this jurisdiction. They would also be provided with leave to remain during their recovery period. My Bill would bring certainty for victims and help us to move into the Brexit age with a truly enlightened use of our new-found sovereignty. I urge the Government to make time for my Bill as soon as possible. I beg to move.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

The right reverend Prelate the Bishop of Bristol has withdrawn, so the next speaker is the noble Lord, Lord Randall of Uxbridge.

[Lord Randall of Uxbridge (Con) [V]]

My Lords, it is a great pleasure and an honour to follow my noble friend Lord McColl, who has been such a doughty campaigner on this issue. I would like to say at the outset that I would be a strong supporter of his Private Member’s Bill. I should start by declaring that I am a vice-chairman of trustees of the Human Trafficking Foundation, a position I share with the noble and learned Baroness, Lady Butler-Sloss, who with her legal background is more able to discuss these matters.

I share the concerns of my noble friend Lord McColl that the anti-trafficking directive from the EU will not necessarily be implemented into domestic law; he has explained clearly the exact position. I would like to say this. There has always been a conflict between the victims of modern slavery and the people who find them, who are often the same officers who check on illegal immigration. Many of the victims, certainly those not from the EU, could well be illegal immigrants. When they were EU citizens who had free movement, even if they were brought here under duress or false pretences they would not have been illegal immigrants. What will happen is that there will probably be more of an impetus to remove people, even though they are victims. That is not what the Government intend, and I am sure that the Minister will say so, but it might well be the result. In theory, the fact that we are supposed to be taking control of our borders might well mean that we should be in a position to stop more people coming in who are actually victims, and particularly to try to stop the evil purveyors—the traffickers themselves.

I am proud that when the Modern Slavery Act was brought in, I was still in the other place and able to be part of that. However, it is light on victim support. While it is acknowledged that it is world-beating in many respects, its provisions on victim support are not sufficient. There is therefore, as my noble friend Lord McColl has said, a real opportunity for this country to prove once again that we take the terrible crime of modern slavery extremely seriously and to be the world leader in how we deal with its victims.

I want also to commend to my noble friend on the Front Bench the review recently instigated by the Government. I am not sure, but I think that we are still waiting for a response to some of the points raised in the review by the noble and learned Baroness, Lady Butler-Sloss, the soon to be ennobled Frank Field —I do not know whether technically he is yet a Member of the House—and Maria Miller, an esteemed Member of the other place. While this is a probing amendment, we want assurances. This is a fantastic opportunity to do the right thing and to do it very well.

[Lord Morrow (DUP) [V]]

My Lords, I am pleased to speak in support of Amendment 7 in the name of the noble Lord, Lord McColl. I was one of those who raised concerns about paragraph 6 of Schedule 1 at Second Reading. As I stated then, an important body of EU-derived rights stems from the anti-trafficking directive—in particular, victims’ rights to support, assistance and protection. I have a particular interest in this subject because I took Northern Ireland’s equivalent legislation to the Modern Slavery Act—the human trafficking and exploitation Act—through the Northern Ireland Assembly. Although one of the central purposes of the directive is that the assistance and support should

“enable the victim to recover”,

there is no statutory requirement for support and assistance for victims in the Modern Slavery Act.

Section 50 of the Act, which deals with the statutory requirement to provide victim support, has never been used and remains optional, depending on the views of the current Minister. In this respect, the Modern Slavery Act is quite unlike the human trafficking and exploitation Act in Northern Ireland or, indeed, the Human Trafficking and Exploitation (Scotland) Act, in both of which the obligation to enable the victim to recover is transposed from the trafficking directive and on to the face of law in Northern Ireland and Scotland.

I note that, when previously challenged on this point, the Government said there would be no erosion of the rights of victims of human trafficking in England and Wales following the demise of the directive at the end of this year because legal obligations to victims under the Council of Europe human trafficking convention and under Article 4 of the European Convention on Human Rights remain unchanged. However, this assertion is deeply problematic and, to remind noble Lords why, I ask your Lordships to recall the period of May 2010 to March 2011. In May 2010, Britain was subject to both the Council of Europe trafficking directive and Article 4 of the ECHR, and the Government decided that they would opt out of the EU anti-trafficking directive because they claimed we did not need it. There was then a public outcry and a campaign by NGOs and Members of this House which resulted in the Government U-turning and opting into the directive in March 2011.

The convention covers much of the same ground as the directive, including victim support. The reason why those who work with victims of trafficking were not prepared to say, “Don’t worry about the EU anti-trafficking directive, because we are already signed up to the convention,” is very simple. The sanctions that exist in international law are much weaker than those in domestic or EU law. The passion that drove those who care for victims of human trafficking to campaign for Britain to opt into the EU anti-trafficking directive between May 2010 and March 2011, when we were already signed up to the human trafficking convention and Article 4 of the ECHR, means that the ongoing presence of the human trafficking convention and Article 4 of the ECHR are never going to result in those of us who speak for victims of human trafficking meekly trading the directive for the Modern Slavery Act, as currently defined, when that Act provides no statutory right to victim support.

Some might say, “But isn’t the statutory obligation to provide victim support part of retained EU law?” If we could be clear today that victim support is part of retained EU law, then the Government could respond to this debate by promising not to use the powers in paragraph 6 of Schedule 1 to remove these rights. That would at least provide an assurance as far as the current Administration are concerned.

20:00

The problem rests with Section 4(2)(b) of the European Union (Withdrawal) Act 2018, which makes it plain that the legal rights of victims in the directive will be deemed to be part of retained EU law only if they are

“of a kind recognised by the European Court or any court or tribunal in the United Kingdom”.

As the noble Lord, Lord McColl, has pointed out, the difficulty here is that the meaning of this is currently unclear because the phrase “of a kind” has not been interpreted by the courts. This concern is validated by the Explanatory Notes, which state:

“rights arising under a particular directive that have been recognised by a court before exit day as having direct effect, could be relied upon by other individuals who are not parties to that case, in circumstances which the directive is intended to address.”

This implies that any rights not recognised by the court will no longer be available to victims. In this context, the Immigration Law Practitioners’ Association suggests that victims of trafficking could lose the protection against removal, because they never received sufficient support and assistance under article 11 of the directive, because an investigation was never conducted, or the protection against removal occurred during the reflection and recovery period.

This situation is politically unsustainable, especially when seen from the perspective of the campaign for the Government to opt into the EU anti-trafficking directive between May 2010 and March 2011. Unless the Minister can provide an assurance that the Government will not use its powers, under paragraph 6 of Schedule 1, to remove retained EU rights to victims, and clearly demonstrate that the victim support rights in the directive will constitute part of retained EU law, then action must be taken between now and the end of the year to place victim support on a robust statutory footing.

Having taken up the case for victims of modern slavery in 2015—just as we took up the cause in 1807 and 1833—it is politically unthinkable that we should now stand by and allow an erosion in the rights of victims of modern slavery in this country. Brexit is supposed to be about allowing the UK to better express its true values and identity, not about being disinherited from them. The Government are confronted by a considerable opportunity in this regard. While Brexit certainly should not provide the occasion for the erosion of the rights of victims of modern slavery, neither should it provide the occasion for us to use our sovereignty to simply follow the EU. Instead, the Government should use our new-found sovereignty to lead the way, just as we did in 1807, and provide more robust rights for victims than those set out in the directive.

In that regard, the Modern Slavery (Victim Support) Bill—sponsored as it is by two eminent Conservative parliamentarians, the noble Lord, Lord McColl, and a former Conservative Party leader, the right honourable Sir Iain Duncan Smith—is now surely a Bill whose time has come. Reflecting the wisdom and experience of those working in the field, the Bill recognises that in order for a confirmed victim of modern slavery to recover, such that they are no longer vulnerable to re-trafficking and have the boldness to give evidence in court against their traffickers, thereby making convictions possible, a minimum of 12-months’ support must be offered. Moreover, the Nottingham University Rights Lab report has demonstrated that, rather than costing money, this will actually save money. This is a win-win for the Government that will also open the door for Northern Ireland and Scotland to make similar provisions, which we currently cannot do because some aspects of the modern slavery Bill pertain to non-devolved competences.

[Baroness Hamwee (LD) [V]]

My Lords, this afternoon my noble friend Lord Newby, speaking on a business Motion, made the point that Private Members’ Bills should come back on to our Order Paper. This would certainly be a candidate for that. I referred to this directive when I spoke to my Amendment 6 earlier today. We have heard long, careful and impassioned speeches from previous speakers, so I do not intend to say a great deal, but that should not be taken to be any indication that I do not feel strongly about these issues.

The amendment moved by the noble Lord, Lord McColl, is about how the support that we would all want to see for victims of trafficking is given. The Modern Slavery Act is only five years old, but thinking has moved on since then. Knowledge and understanding have moved on. We need to continue to develop and refine the support that is made available and recognise it as a right beyond guidance. It is a moral duty and it needs to be made certain in law. It does not require much imagination to understand that the need for protection varies from victim to victim, but it is likely to have to be long and intensive and, as we have debated in other contexts, certainty is an important component of recovery. I support this amendment very warmly.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I am delighted to support amendment moved by the noble Lord, Lord McColl of Dulwich, and I pay tribute to his tireless work in this area over many years and I wish him success in the future. I am sure he will be successful. I hope we will shortly hear a positive reply from the noble Lord, Lord Parkinson of Whitley Bay, confirming that the EU anti-trafficking directive will still apply and that the Government will go further. As the noble Lord, Lord McColl, told us, leaving the EU does not compel us to offer less protection and less support to victims of modern slavery and trafficking.

I am also aware that in March, only a few months ago, the Government said that at the end of the transition period the UK will no longer be bound by the trafficking directive but they have not set out plans to retain or incorporate any of the directive into UK law. That is a worrying and alarming position. I will go further and suggest that it is hugely damaging to our reputation abroad. The UK has a reputation of being a safe haven for people fleeing persecution and for people in distress. We have a reputation as a compassionate country that deals with victims of abuse, trafficking and slavery justly, fairly and properly, but there have been too many occasions when this Government have shown a cruel, uncaring streak which I would not expect from a Government of the UK. The noble Lord, Lord Parkinson of Whitley Bay, can take up the challenge of the noble Lord, Lord McColl of Dulwich, and provide the Committee with the reassurance for which it is asking. At a minimum, we need to hear from the Government that they will put in place legislation that ensures that no matter what else happens as a result of Brexit, victims will be no worse off and will have no fewer rights than they have at present. In many areas they need to have more rights and to be treated with more compassion.

We also need to have on the record from the noble Lord, Lord Parkinson of Whitley Bay, the effect as he sees it of paragraph 6 of Schedule 1 on the position of victims of trafficking and their current protections. I support the call from the noble Lord, Lord Morrow, for at least a commitment from the Government not to use these powers to erode the rights and protections of victims.

I have in the past supported, and will continue to do so until he is successful, the noble Lord, Lord McColl, in his entirely correct campaign to speak up for the victims of modern slavery and afford them the same protections in England and Wales that legislation in both Northern Ireland and Scotland provides. The noble Lord, Lord Morrow, should be congratulated for taking the equivalent legislation through the Northern Ireland Assembly. It offers more protections that I, the noble Lord, Lord McColl, and other Members of this House want to see applied to England and Wales.

I support the call from the noble Baroness, Lady Hamwee, for Private Members’ Bills to come back on the business agenda, and for me the Private Member’s Bill from the noble Lord, Lord McColl, should be top of the pile. It is a matter of great regret that the Government have not been prepared to support the noble Lord’s Bill. It is passed by this House and then crashes on the rocks in the other place, not even getting to the point of being discussed. That is a matter of much regret. The Government could in future agree to support the Bill and give it government time or, even better, announce maybe today or later that they will table a government amendment to appropriate legislation to ensure that the protections victims have in Scotland and Northern Ireland in terms of further care from the state will now be afforded to them in England in Wales.

Other than that, the Modern Slavery Act is a very good Act. Lots of good work was done by the former Prime Minister, when she was Home Secretary, to get it; she made a personal commitment to do that. My noble friend Lady Kennedy of Cradley served on the joint Bill committee to look at the legislation—I know lots of good work went on—but there is one area of further protections that the law is missing, and we should do more in that regard. For that reason, I very much support the call of the noble Lord, Lord McColl. I look forward to the noble Lord’s response to this debate.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I begin by echoing the words of the noble Lord, Lord Kennedy of Southwark, paying tribute to my noble friend Lord McColl of Dulwich for not just his important contribution to the debate this evening but his long-standing interest and valiant work in the field of tackling modern slavery. As he knows, the Government are firmly committed to tackling this appalling crime, ensuring that victims are provided with the support they need to begin to rebuild their lives and that those responsible for these crimes are prosecuted.

In October last year the Prime Minister reiterated his commitment to continue my right honourable friend Theresa May’s world-leading work in tackling modern slavery, which I am pleased the noble Lord, Lord Kennedy, has paid tribute to this evening. As a result of that work, we are now identifying more victims of modern slavery and doing more to bring perpetrators to justice than ever before.

As your Lordships have heard, in 2015 the Government introduced the landmark Modern Slavery Act, which gave law enforcement agencies the tools to tackle modern slavery, including maximum life sentences for perpetrators and enhanced protection for victims—but as my noble friend Lord Randall said, there is always more we can do. As my noble friend Lord McColl put it, we should seek to have the very best provisions. As the noble Lord, Lord Morrow, said, we should show the way here. The noble Baroness, Lady Hamwee, is absolutely right that we see the tactics of the criminals evolve over time and we have to make sure we keep pace.

That is why the Government are currently undertaking a programme to transform how we identify and support victims of modern slavery, emphasising our continued commitment to having a world-leading system as we leave the European Union. As part of this, we are looking carefully at the legal framework in this area.

As I hope my noble friend Lord McColl will recognise, the system of identification and support for victims of modern slavery and the legal framework around it go far beyond the scope of the Bill we are debating. Indeed, the most commonly represented nationality among those referred to the national referral mechanism in 2019 was British. It is important to see this as distinct from an immigration issue alone.

20:15

With regard to the EU’s anti-trafficking directive, I am very happy to put on record that the Government do not consider that any directly effective rights which may exist under the directive conflict with, or will conflict with, the immigration Acts or immigration functions as a result of the repeal of provisions in paragraph 6 of Schedule 1, and they are not therefore disapplied by this Bill. As my noble friend Lady Williams of Trafford made clear in her response on Schedule 1, there is no definitive list of directly effective rights available, since this category also includes rights arising from judgments of the European Court of Justice. It is not therefore possible to list them exhaustively but we have provided an indicative list in the Explanatory Notes. I reiterate that paragraph 6 of Schedule 1 only disapplies directly effective rights to the extent that they conflict with domestic immigration law or immigration functions. The Bill does not disapply such rights more widely than is strictly necessary.

At the end of the transition period in December this year, therefore, the UK will no longer be bound by EU law. However, the Modern Slavery Act 2015 and the Council of Europe’s convention against trafficking in human beings, which sets out our international obligations to victims, and which we already exceed, will be unaffected. I also reassure my noble friend and other noble Lords that the UK’s obligations under Article 4 of the European Convention on Human Rights will not be affected by our departure from the European Union. We are happy to continue discussing these important issues with my noble friend Lord McColl and other noble Lords who are interested, but I hope this gives him the reassurance he needs to withdraw his amendment.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Kennedy of Southwark.

[Lord Kennedy of Southwark (Lab Co-op)]

I want to respond to a couple of points. The Modern Slavery Act, which has been mentioned, is a very good piece of legislation, but I hope that the noble Lord will agree to talk to his colleague the noble Baroness, Lady Williams, and others in the Home Office, because the noble Lord, Lord McColl, has a real point here. Good though it is, the Act is not as good as the legislation that the assemblies in Wales and Northern Ireland have put on the statute book. This point has been raised persistently. For some reason, the Government, while willing to talk about it, are not willing to act. That is regrettable, because in other ways it is very good legislation. It would be good for our country if all our legislation was comparable. The protection of victims is deficient compared with other parts of the United Kingdom.

[Lord Parkinson of Whitley Bay (Con)]

I am very happy to make that commitment to speak not just to my noble friend but also to the relevant Minister, Victoria Atkins, who I know is looking carefully at the legal framework here and will want to be sure that she has taken note of the contributions made this evening. I will pass them on to her and have that discussion.

[Lord McColl of Dulwich (Con) [V]]

My Lords, I thank all noble Lords who have taken part in this debate, and I am very grateful to the noble Baroness and to the Minister himself. It is very encouraging. I think the gist of it is that victim support rights specifically within the directive will definitely be part of retained EU law. I am thankful for that, and beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Schedule 1 agreed.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, we now come to the group beginning with Amendment 8. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or any other amendment in this group to a Division should make that clear in the debate.

Clause 2: Irish citizens: entitlement to enter or remain without leave

Amendment 8

Moved by

[Baroness Hamwee]

8: Clause 2, page 2, line 13, at end insert—
“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he or she concludes that, due to the exceptional circumstances of the case, the public interest requires deportation.(7) No person of any nationality is liable for deportation under section 3(5)(b) on the ground that they belong to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (3)(a) is satisfied in respect of that Irish citizen.(8) An Irish citizen may not be deported or excluded from the United Kingdom if—(a) the Irish citizen was born in Northern Ireland; and(b) at the time of the Irish citizen’s birth, at least one of his or her parents was—(i) a British citizen; or(ii) an Irish citizen; or(iii) a British citizen and an Irish citizen; or(iv) otherwise entitled to reside in Northern Ireland without any restriction on their period of residence.”Member’s explanatory statement
This amendment protects the threshold for deportation of Irish citizens and ensures that no-one born in Northern Ireland may be deported.

[Baroness Hamwee (LD) [V]]

My Lords, Amendment 8 concerns protections against deportation for Irish citizens. It might seem a little counterintuitive to noble Lords that it is necessary to provide protection at all because it is inherent, as it were, given our relationship with Ireland, the common travel area and so on.

Since 2007, the Government’s policy position has been to deport Irish citizens only where a court has recommended it in sentencing or where the Secretary of State concludes, due to exceptional circumstances, that the public interest requires it. That reflects the special status that Irish citizens have, as I have mentioned, with close historical community and political ties, as well as the common travel area.

However, this is a matter of executive policy not protected by any level of legislation. It currently permits the deportation of Irish citizens in a range of circumstances, circumscribed by EU law relating to free movement. The protections of EU law come to an end in less than four months, so there will be no law to stop a future Government reversing the position. Domestic law would allow them to do so. However, that is completely separate from the UK’s membership of the EU. There is not a democratic basis on which to remove these protections when free movement comes to an end.

The Government have expressed no intention to change the policy position, so it would be good to take the opportunity to incorporate the greater protective status for Irish citizens into law. The position is particularly confusing, given that the Government have taken steps to remove Irish citizens from the automatic deportation regime. They could easily have done so for the rest of the regime and not just when an individual is sentenced to more than 12 months’ imprisonment. The legal position is not corrected by the Bill, and in fact Clause 2(2) weakens the protection because it does not put in place a replacement for the safety net that EU law has provided.

The Good Friday agreement envisages that Irish citizens from Northern Ireland should not, as a matter of law, be able to be excluded or deported from the UK, but that is not currently reflected in UK immigration law. Because British citizens cannot be excluded or deported from the UK there is a risk that, when an Irish citizen from Northern Ireland is threatened with deportation, they will have to assert British citizenship in order to continue to live in Northern Ireland. That goes against both the spirit and the terms of the Good Friday agreement, which allows all people of Northern Ireland to remain in the territory whether they identify as Irish, British or both.

Mentioning the Good Friday agreement reminds us of the importance of the involvement of the devolved Administrations—the different experiences, economies and needs in Scotland, Wales, Northern Ireland and England. However, we also need to keep in our minds the Good Friday agreement and the opportunity that we have here to set what is executive policy into law.

Amendment 58 in the name of the noble Lord, Lord Rosser, requires the Secretary of State to publish a report on the reciprocal rights of the common travel area. I obviously do not oppose the substance of this but we are very near the end of the transition period. The law being created by the Bill—or perhaps I might say the law being destroyed by the Bill—will happen in less than four months, and the protection of rights is a matter for now.

Late on Friday, the Government published a draft statutory instrument, which we will have a word about when we come to the next group. It was only when I looked at the fact sheet that I saw something positive about Irish citizens. The clearest part of the instrument relates to exclusions but I would like to be inclusive. Therefore, although I support the sentiments of Amendment 58, I really think it is a matter for now, and I hope that noble Lords can support Amendment 8, which I beg to move.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I thank the noble Baroness, Lady Hamwee, for her very clear introduction and explanation of the reasons for Amendment 8, to which I am delighted to attach my name. The noble Baroness set out very clearly the need for legal certainty and security for Irish citizens and people born in Northern Ireland.

Rather than repeating all these things again, I think it is worth very briefly addressing the whole issue of deportations. Of course, in this context, I cannot avoid mentioning the Windrush generation, the hostile environment and the fact that we have increasingly come to see people who have perhaps spent effectively all of their life in the UK, who have very close ties to the country and whose entire upbringing and experiences are in the UK facing deportation. That is utterly unacceptable in any circumstances but the situation with Irish citizens and the Common Travel Area involves two countries between which there has been continual, regular interchange and movement. A large number of people could potentially be affected by this situation, people who could see their lives torn apart. It is crucial that we build in these protections.

We have a great deal to do and it is already late so I will not go on too much longer, but I also want to mention briefly—having listened very closely to the noble Lord, Lord McColl, and the debate on the previous amendment, in which many expressed the sentiment that we should have world-leading protection in the UK for victims of trafficking and modern slavery—that I associate the Green group with those sentiments.

[Baroness Ludford (LD)]

My Lords, I speak strongly in support of Amendment 8 as moved by my noble friend Lady Hamwee and supported by the noble Baroness, Lady Bennett. Like my noble friend, I understand Amendment 58 but, as she said, we need statutory underpinning rather than exploration of the situation because there is no one place where rights under the Common Travel Area are collected. They are still largely expressed in a bilateral convention and now a memorandum of understanding.

The Common Travel Area rights have been overlaid in recent decades by EU free movement rights, so it is entirely legitimate to worry about rights under the CTA when free movement is stripped away. My friend in the other place, Stephen Farry of the Alliance Party —I call him a friend because it is the Lib Dems’ sister party—said that there had been mixed and confusing signals about Irish citizens and the EU settlement scheme. Some have been told that they need not apply but they can, while Irish citizens from Northern Ireland are told that they should not apply. As he also said, on the face of it, Clause 2 goes some way towards giving reassurance and addressing anomalies. However, it spells out not rights but only ministerial powers, and it only applies to immigration issues—especially deportation —whereas the EU settlement scheme covers a much wider range, such as family reunion, equality of treatment, rights of the employed and self-employed, recognition of qualifications and voting. Stephen Farry recalled that only the right of voting for Irish citizens is explicit in UK law. Ideally, therefore, there should be a UK-Ireland treaty perhaps or, at least, an elaboration in statute of the rights of Irish citizens.

20:30

Stephen Farry said:

“The Northern Ireland Human Rights Commission has referred to the common travel area as being ‘written in sand’. There was no public consultation on the memorandum of understanding, so it has not been stress-tested.”

He went on:

“There may well be concerns, whenever we look to the implementation of the citizen clauses of the Good Friday agreement”.—[Official Report, Commons, 30/6/20; col. 251.]

Similar concerns were expressed at Second Reading in this House by the noble Baroness, Lady Ritchie of Downpatrick.

Clause 2 should be brought in line with the Good Friday agreement, making it clear that Irish citizens born in Northern Ireland cannot be deported or excluded from the UK, as specified in Amendment 8. This position is not currently reflected in UK immigration law; this Bill is a missed opportunity to implement the Good Friday agreement. As my honourable friend said, there is a risk that, when an Irish citizen from Northern Ireland is threatened with deportation, they will be forced to assert their British citizenship to continue to live in Northern Ireland—something which goes against the Good Friday agreement.

As to other Irish citizens, the provisions regarding possible deportation are set out only in executive government policy, not in legislation. Hence, the other arm of Amendment 8 sets out a public interest test—which is in policy—in the Bill. I understand that the policy position of a public interest test was established in 2007, but being in policy is not strong enough; this needs to be in primary or secondary legislation.

It is not clear why the opportunity to incorporate these greater protections into law has not been taken. The Government did take steps to remove Irish citizens from the automatic deportation regime under—I believe—the 2019 regulations, but they have not done so for the rest of the regime; that is incorporated in law. Indeed, Clause 2(2) as currently written in the Bill has the effect of weakening the legal protections for Irish citizens because it fails to put in place a replacement for the safety net that EU law offers on deportation. It is necessary to amend Clause 2 to make sure that the protections against unfair, unjustified deportation are written into statute and not left to ministerial powers.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I am delighted to support Amendments 8 and 58. On Amendment 58, I speak as a person who holds Irish nationality but lives in the United Kingdom. For me, the purpose of this amendment is to oblige Ministers to provide a report that draws on the scope of the common travel area-associated rights, cross referencing and contrasting these with the rights under the EU settled status scheme. This would allow Irish citizens to make informed decisions on securing their rights after the end of the transition period. As a result of an amendment in Committee in the other place, information was received on the issue of deportation and the Government confirmed that the one advantage to an Irish citizen of applying to the EU settlement scheme is the right to a family reunion. The Government had not made that clear beforehand.

Clause 2 will establish a stand-alone right for Irish citizens to enter and reside in the UK. However, under the Good Friday agreement citizenship provisions, the people of Northern Ireland have birth-right entitlements to be British or Irish, or both, and to equality of treatment regardless of that choice. In practice, the legal underpinning of equality of treatment for British and Irish citizens in Northern Ireland on matters such as entry, residence, work and social protection, and so on, has been provided almost entirely by EU free movement law. After Brexit, the people of Northern Ireland who are Irish citizens, including dual British-Irish citizens, will retain EU citizenship, but the only route to retain access to such EU free movement rights is through the EU settled status scheme. This is the domestic route for EU citizens and their family members in the UK prior to Brexit to retain EU rights and benefits under part 2 of the withdrawal agreement, which are usually retained for life.

I understand that the Government’s position is that Irish citizens do not need to apply for the EU settled status scheme, but may wish to do so. The reasoning behind the Government’s position that Irish citizens do not need to apply for settled status is that Irish citizens can still rely on the associated reciprocal rights of the UK-Ireland common travel area. However, at the time of the referendum, reciprocal rights of the CTA barely existed at all in UK law across key areas and thus a non-binding memorandum of understanding has been entered into since. With the exception of social security, CTA provision remains vague. In the words of the Human Rights Commission report, it is “written in sand”, as the noble Baroness, Lady Ludford, already referred to, and it

“can be characterised by loose administrative arrangements or provisions that can be altered at any time.”

While the clock ticks on the closing of the opportunity to apply to retain EU free movement rights under this settled status scheme, it is not possible for Irish citizens at present to make an informed choice because it is unclear ultimately what the associated CTA rights will cover and whether they will be enshrined in a legally binding manner.

The Home Office also initially debarred all people of Northern Ireland from applying for settled status, further to a policy position adopted in 2012 to treat all persons born in Northern Ireland as British. The decision was adopted to impede the exercise of EU rights by Irish citizens in Northern Ireland to be joined by non-EU family members. That position was challenged by the Emma and Jake DeSouza case, and the Home Office recently announced a policy change which will allow certain amendments in that area. It will also allow open access to relevant persons from Northern Ireland through the settlement scheme. Therefore, the purpose of this amendment is to oblige Ministers to provide a report that draws out the scope of the CTA associated rights, cross referencing and contrasting them with the rights under the EU settlement scheme.

In conclusion, I have two questions for the Minister. First, given that the opinion of both human rights commissions on the island of Ireland is that the rights of the common travel area are written in sand, what do the Government intend to do to enshrine those rights and ensure that they can be used to obtain legal redress? Secondly, in the absence of a report from the Government that contrasts the scope of the CTA rights with the rights provided for under settled status, do the Government accept that Irish citizens are left with little information to enable them to determine whether they wish to apply for settled status? I look forward to answers from the Minister in your Lordships’ House this evening.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, there are two amendments in this group: Amendments 8 and 58. Amendment 58 is proposed by myself, the noble Baroness, Lady Ritchie of Downpatrick, and my noble friend Lord Rosser. The purpose of this amendment is clear and was ably illustrated by the noble Baroness, Lady Ritchie, a moment ago.

We often discuss matters around Ireland and Irish citizens, and I am always conscious that the noble Baroness, Lady Williams of Trafford, who is first-generation Irish, usually speaks for the Government, and I, who am second-generation Irish, respond for the Opposition. In addition, if you look at the number of people connected to Ireland around the House or in the other place, it sets out the great contribution that Irish people have made to this country and the great links we have there, whether in the Republic, Northern Ireland or elsewhere. Those links have done wonders for both our countries, and we must always ensure that we underpin that so the strength grows. My own parents lived in the UK for many years and have now retired back in the Republic. Amendment 58 seeks to add clarity to the situation for citizens that could be affected, which is always important when it comes to people’s rights. People could lose their rights, so clarity is important.

The Bill as it stands ends EU free movement and establishes a stand-alone right for Irish citizens to enter and reside in the UK. As noble Lords have heard, under the Good Friday agreement citizen provisions people in Northern Ireland have a birth-right entitlement to be either British or Irish or both. Equality of treatment is regardless of that choice, which is a very important underpinning. Nothing must be allowed to unpick that. The Government’s position is that Irish citizens do not need to apply to the EU settled status scheme; they can rely on the associated reciprocal rights of the common travel area, but they can apply if they wish. We have heard talk about the common travel area’s rights being written in sand. It is fair to say that we need clarity here, and that is the purpose of this amendment.

The amendment seeks that, within 30 days of the Bill becoming an Act, the Secretary of State must publish a report setting out in detail the rights of citizens under the common travel area, EU rights and benefits under the EU settlement scheme, and then delineate between the two so that we know exactly where we stand. This is necessary due to the inconsistency of the Government on a whole range of policy areas. Let us be clear: matters can be changed, clarified, replaced, restored, reversed, revisited, substituted, switched, U-turned and varied with such speed that, even when the Prime Minister was on his feet in the other place, the latest Government U-turn was under way. To expect people to rely on what the Government announce is not credible. We need this amendment on the face of the Bill, and we need the Secretary of State to produce the report.

Amendment 8, in the names of the noble Baronesses, Lady Hamwee, Lady Ludford and Lady Bennett of Manor Castle, seeks to put the protections enjoyed by our citizens on the face of the Bill. If the Government are not prepared to accept that amendment, can the noble Baroness set out how the rights as expressed in Amendment 8 will be protected and guaranteed by the Government?

20:45

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken to these amendments. As the noble Lord, Lord Kennedy, says, I often speak as first-generation Irish and he speaks as second-generation Irish, so I think one could say that we have a personal interest in getting this right and reiterating those rights in the Bill. Both the UK and Irish Governments have committed to maintaining the common travel area, which I will now call the CTA. It is underpinned by deep-rooted, historical ties and, crucially, predates our membership of the European Union.

It has been agreed with the EU that the UK and Ireland can continue to make arrangements between themselves when it comes to the CTA. This means that we will continue to allow British and Irish citizens to travel freely between the UK and Ireland and reside in either jurisdiction, and commit to protecting a number of wider rights and privileges associated with the CTA. These include the ability to work, study and access healthcare and public services. Both Governments confirmed that position on 8 May last year, through signing a CTA memorandum of understanding, referred to by the noble Baroness, Lady Ludford. The Government has included Clause 2 in the Bill to ensure that Irish citizens can enter and remain in the UK, without requiring permission, regardless of where they have travelled from, except in a limited number of circumstances.

Amendment 58 also seeks to require the Government to publish details of the rights and benefits provided by the EU settlement scheme. The European Union (Withdrawal Agreement) Act 2020 protects the residence rights of EEA citizens and their family members for those individuals who are resident in the UK before the end of the transition period and for eligible family members seeking to join a relevant EEA citizen in the UK after that time. By applying for UK immigration status under the EU settlement scheme, they can also continue to work, study and, where eligible, access benefits and services, such as free NHS treatment, as they do now.

While Irish citizens resident in the UK by 31 December 2020 can apply to the EU settlement scheme if they want, they do not need to. Their eligible family members can apply to the scheme, whether or not the Irish citizen has done so. However, Irish citizens resident in the UK by 31 December this year may wish to apply to the scheme to make it easier to prove their status in the UK in the event that they wish to bring eligible family members to the UK in the future.

The Government have therefore already made it clear that both the CTA and the EU settlement scheme provide Irish citizens with a number of rights following the end of free movement, and we will continue to emphasise that commitment. I hope that that gives the noble Lords, Lord Rosser and Lord Kennedy, and the noble Baroness, Lady Ritchie, comfort enough not to move Amendment 58.

Turning to the question of deportation raised by either the noble Baroness, Lady Ludford, or the noble Baroness, Lady Hamwee—it is getting late—Amendment 8 seeks to make additional provision with regards to the deportation of Irish citizens and their family members. First, subsection (6) seeks to ensure that the Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good, unless she concludes that, due to the exceptional circumstances of the case, the public interest requires deportation.

Subsection (7) seeks to ensure that the family member of an Irish citizen can be deported only on the grounds that their family member is or has been deported, where the Secretary of State has concluded that the deportation of the Irish citizen is conducive to the public good and, due to the exceptional circumstances of the case, the public interest requires their deportation.

I use this opportunity to reiterate our approach to deporting Irish citizens. While Clause 2 disapplies the right to enter and remain in the UK, without leave, for those Irish citizens who are subject to a deportation order, in light of the historical, community and political ties between the UK and Ireland, along with the existence of the CTA, Irish citizens are considered for deportation only where a court has recommended deportation or where the Secretary of State concludes that, due to the exceptional circumstances of the case, deportation is in the public interest—much in the way that was pointed out by the noble Baroness.

The Government are firmly committed to maintaining this approach. Irish citizens were exempted from the automatic deportation provisions in the UK Borders Act 2007 by the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, which were laid in February 2019, as the noble Baroness, Lady Ludford, pointed out.

Under the Immigration Act 1971, the family member of an Irish citizen would not be considered for deportation on the grounds that their family member is or has been ordered to be deported, unless a deportation order was made in respect of that Irish citizen. The amendment also seeks to prevent the deportation or exclusion from the UK of an Irish citizen if they are among the “people of Northern Ireland” entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish agreement of 1998.

I make it absolutely clear that the Government are fully committed to upholding all parts of the Belfast agreement, including the identity provisions which allow the “people of Northern Ireland” to identify as Irish, British or both, as they may so choose, and the citizenship provisions which allow the “people of Northern Ireland” to hold both British and Irish citizenship. Recognising the citizenship provisions in the Belfast agreement, we would consider any case extremely carefully, and not seek to deport a “person of Northern Ireland” who is solely an Irish citizen. Exclusion decisions are taken on a case-by-case basis by Ministers. Exclusion of a person from the UK is normally used in circumstances involving national security, international crimes—including war crimes, crimes against humanity or genocide—serious criminality or corruption and unacceptable behaviour. It is essential to the security of the UK that Ministers retain the power to exclude in such serious circumstances, although of course all cases are considered extremely carefully.

I hope that with these explanations, the noble Baroness can withdraw her Amendment 8.

[Baroness Hamwee (LD) [V]]

My Lords, the Minister was unsure whether points were made by my noble friend Lady Ludford or by me. I cannot speak for my noble friend, whom I am very happy to be confused with, but speaking for myself, I cannot claim any Irish family connections, although I have a lot of friendships. Amendment 58, calling for a report, begs the question of what would happen if the report showed that the current position is inadequate, as I think it would. That is the thrust of Amendment 8, and why it is seeking to use the opportunity of the Bill to set the position in stone rather than sand.

The Minister’s response seemed to confirm the points that I had made. She talked about the common travel area memorandum, but it is only a memorandum. The Bill has the effect of weakening the legal protections. It does not reflect the spirit of the Belfast agreement.

I thought it was telling—and frankly embarrassing and even shaming—to hear the noble Baroness, Lady Ritchie, reminding the House that the protection depends on EU law. She made the point that it is not possible to make an informed choice, which is also extremely telling because, as she said, the common travel area arrangements are written in sand. I had not thought of that when I tabled my amendment, but it is intended to ensure that those sands do not shift.

I do not disbelieve what the Minister has said, but she has talked about the Executive attitude, not the legal position. While of course I do not question her integrity, she will know as well as I do that Executives change, as do their views. I am sorry that we have not been able to make more progress on this. I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Clause 2 agreed.

Clause 3 agreed.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, we now come to the group beginning with Amendment 9. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment, or any other in the group, to a Division, should make that clear in the debate.

Clause 4: Consequential etc. provision

Amendment 9

Moved by

[Baroness Hamwee]

9: Clause 4, page 2, line 34, leave out “appropriate” and insert “necessary”
Member’s explanatory statement
This amendment would restrict the Secretary of State’s discretion and preclude her or him from making regulations which are not necessary.

[Baroness Hamwee (LD) [V]]

My Lords, in moving Amendment 9, I shall speak also to Amendments 10, 11, 13, and 35 to 38, in my name and that of my noble friend, and to my objection that Clause 4 should stand part of the Bill.

In the debate on Amendment 3, we heard some precise and forensic criticism of the drafting of the Bill. I could almost say—but I will not—that we could just read across to this group all that was said in that debate. I will resist that temptation.

Clause 4 provoked the Delegated Powers and Regulatory Reform Committee to repeat the view of the Constitution Committee that skeleton Bills inhibit parliamentary scrutiny, that it is difficult to envisage any circumstances in which their use is acceptable, and that the Government must provide a justification for them. The committee describes the Bill as leaving so much of the post-transition period regimes for immigration and for social security co-ordination—the subject of Clause 5— to be “provided for in regulations”. “By-passing Parliament”, the phrase used, must cause anyone with any interest in the governance of the UK to be really worried. I must say that people are worried about the governance of the UK whether they think about it in those terms or, as is currently the position, they do not under- stand what the Government are telling them to do.

There is a need for the provision of mechanics for ending free movement; this has not suddenly come upon us out of the blue. While of course I accept that this is a complex area, it means that there is all the more need to have got on with the detail and published it, even during the Parliament before last, so that we could have considered it. After all, the referendum was held four years ago last June, and Article 50 was triggered in March 2017.

The “breathtakingly wide” powers—I quote the Public Law Project—which it is proposed will be given to the Secretary of State, would give anyone pause. The Public Law Project says that its work on Brexit

“seeks to promote Parliamentary sovereignty.”

That is a point worth making in the context of this debate. The term “parliamentary sovereignty” may have a familiar ring in the context of Brexit.

21:00

The Minister has circulated an illustrative draft statutory instrument, and I thank her for that. However, noble Lords will not miss the significance of the terms “illustrative” and “draft” coupled with “statutory instrument”. For those who have not looked at it, it has 42 pages. I am not suggesting that it is totally impenetrable, but you need to have both the expertise and the time to work through all the omissions of certain words, or their substitution for other words, in section such-and-such of such-and-such an Act. I, for one, do not feel capable of making comments on that, given the short period for which we have had this statutory instrument, since late on Friday. In any event, it is illustrative and a draft, so it may not be in its final form at all. If this were to be the final form, it would have the inherent limitations of which we are all aware.

This group of amendments consists of omitting words which add up to what I regard as an offensive provision, together with the objection to Clause 4 in its entirety, to which I have put my name. Amendment 9 substitutes the word “necessary” for “appropriate”, to restrict the discretion of the Secretary of State; “appropriate” does not provide for the objectivity of “necessary”.

Amendment 10 would limit the regulations to those “in consequence” of primary legislation, not “in connection with”. In paragraph 12 of its report, the Delegated Powers and Regulatory Reform Committee said that:

“The combination of … the permissive concept of ‘appropriateness’ … the words ‘in connection with [Part 1 of the Bill]’ … the subject matter of Part 1 (ending free movement), and … the large number of persons who will be affected, make this a very significant delegation of power from Parliament to the Executive.”

Amendment 11 would limit the use of regulations to matters for which the Government have already indicated they are intended to be used: the coherence of legislation; the consistency of treatment of differing nationalities; and the retention of the rights of persons with leave to enter or remain in the UK. This amendment does not seek to do anything against government policy. Amendment 13 would also set limitations.

Amendments 35 to 38 relate to the mechanisms. Clause 4(6) would make the first statutory instrument “made affirmative”; why? As the DPRRC notes, this could mean that the first regulations could be in force for a lot longer than 40 days without scrutiny. However, as it happens, the House has got to the Bill so late, and after the Summer Recess—I do not foresee any other long recesses this year, unless it is to shut us up a bit— and so this is not the issue that it was. However, that does not detract from the importance of having timely scrutiny of the first regulations. In the context of Covid, there have been many recent examples of regulations coming into force and being superseded, before either House has had an opportunity to consider them.

I will of course wait to see what the noble Baroness, Lady Neville-Rolfe, says about her Amendment 32. I do not disagree with the point, but it seems to be expressed rather narrowly.

This group of amendments amounts to opposition to the whole approach of Clause 4. I look forward to what I hope may be quite excoriating speeches from noble Lords. I beg to move Amendment 9.

[Baroness Neville-Rolfe (Con)]

My Lords, I rise to speak to my Amendment 32 and to thank the noble Lord, Lord Green of Deddington, for his support. This amendment would ensure that the powers in Clause 4 were limited in line with the spirit of the Long Title, which addresses EU law, and would not allow the Secretary of State to change the rules regarding non-EEA or Swiss migrants under the cover of “connected purposes”.

I tabled this amendment for two reasons. First, like the noble Baroness, Lady Hamwee, I am concerned about the wide nature of the powers in the Bill—breath-takingly wide, in her words—and the excessive use of secondary legislation. Others have already made this point better than I can in earlier discussion, and I look forward to hearing the Minister’s response to concerns expressed today and to the recommendations of the Delegated Powers and Regulatory Reform Committee. It would be a great pleasure to hear from its chairman, my noble friend Lord Blencathra, who is sitting next to me in a socially distanced manner.

Secondly, in discussion with our excellent clerks, it emerged that amendments to Clause 4 tabled in this House could relate only to EEA or Swiss citizens. Examples include Amendment 26 in the name of the noble Lord, Lord Green, on immigration caps, Amendment 27 on the prior advertising of jobs in the domestic market—to which I have added my name—and Amendment 29 on the employment of asylum seekers in the name of the noble Baroness, Lady Meacher.

My reading of the paperwork on, for example, the points-based immigration system, and the discussion to date is that the Clause 4 power may be used to set down immigration rules or revisions which apply to third-country citizens as well. I must ask my noble friend the Minister for a clear answer on whether this is the intention or not. If that is the case, I am sure that she and the whole House would agree that we must be able to table amendments to the Bill that relate to third-country citizens as well, otherwise we will not be scrutinising the Bill properly.

[Baroness Ludford (LD)]

I also very much look forward to hearing from the noble Lord, Lord Blencathra, as his committee has provided us with two excellent reports which have been of great assistance, particularly with regard to Clause 4.

My noble friend Lady Hamwee pinched one of my quotes, but I will use the other one from the Delegated Powers Committee report, which stated that

“we are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous”,

and by negative procedure regulations, unless it amended primary legislation. I think we can take from that that they do not think very much of Clause 4 and the schedule.

Even if there is some value in the fact that the first regulations are by “made affirmative” rather than negative procedure, those rights could be abolished by new regulations under Clause 4, when the negative procedure would apply. Therefore, any value there is in “made affirmative” over negative procedure could be removed by some deft sequencing of regulations. Everything points to the justification of having a test of necessity.

Paragraph 6 of Schedule 1 is also problematic. It potentially disapplies any retained EU law in the context of immigration. This could lead to the repeal of legal protections far beyond the realms of free movement. It could dent the EU law retained by Section 4 of the European Union (Withdrawal) Act 2018 because, even though provisions might have been partially saved by the Act, those provisions would not apply to the extent that

“they are inconsistent with or otherwise capable of affecting the interpretation, application or operation of any provision made by or under the Immigration Acts or otherwise capable of affecting the exercise of functions in connection with immigration”.

That is amazingly broad. We had some fun over the Brexit draft legislation with delegated powers, Henry VIII clauses and so on, but I have not seen anything quite to match this. The phrase

“functions in connection with immigration”

can relate to almost any aspect of immigration control within the UK. This is broadened even further when it is linked to the test of “capable of affecting”. It lacks any objective parameters by which to be able to ascertain the intended targets. Immigration practitioners trying to advise clients will be totally at sea. It undermines the rule of law if people do not know what the law is or could be in this area. They are going to be unable to make their behaviour fit the law.

A number of measures could be cited. Trafficking victims have already been discussed on an earlier group of amendments. Asylum seekers were protected under the reception conditions directive, which the UK opted into although it did not opt into all the asylum legislation. During the debate on an earlier group of amendments, my noble friend Lady Hamwee mentioned the protection of victims of crime and the victims’ rights directive. These protections are potentially at risk as collateral damage from the ending of free movement. Even if the Government do not intend at this moment to repeal these provisions, they must explain why they could fall within the Bill and how they are going to introduce some rigour into the drafting of the Bill, such that this collateral damage does not happen.

With my support, my noble friend Lady Hamwee has put forward one solution in Amendment 11. All the amendments in this group are intended to provide the tightening up that is so sadly lacking from the drafting of the Bill as presented to us.

[Baroness Bennett of Manor Castle (GP) [V]]

It is my pleasure to follow the three noble Baroness who have spoken. In our earlier session I strongly disagreed with the noble Baroness, Lady Neville-Rolfe, but in this case, I agree with her concerns and share her experience of apparent inequality. I sought to table a number of amendments to the Bill to deal more broadly not with just EU and EEA citizens, but I was told that they were outside the scope, yet it appears that the Government are being given open slather to address anything they like through the Bill.

21:15

I rise specifically to speak to Amendment 11 in the name of the noble Baronesses, Lady Hamwee and Lady Ludford, to which I was pleased to attach my name. As other speakers have said, this group of amendments broadly addresses the problem that this is a skeleton Bill that gives the Government a huge range of powers and opportunities to make decisions in an undemocratic, untransparent way, and to make mistakes.

I reflect on that particularly because last week I took part in the debate on the Jobseekers (Back to Work) Schemes (Remedial) Order. The Grand Committee of your Lordships’ House spent a fair bit of time disentangling something that had been going on for the best part of a decade, with inadequate and inaccurate information being provided to people being forced into workfare. The Minister told us it affected some 5,000 people, who spent 30 hours a week on it. The Bill’s skeleton framework gives the Government powers that are so much broader and larger in terms of the impact on people’s lives that it will be as large as workfare was.

This Bill gives the Government the chance to decide at the stroke of a pen where people can live and work, where they can form relationships and whether they can spend years of their life living with their children. If they lose those years they will never be able to get them back. Given the capacity taken up by one error in workfare, does your Lordships’ House and the whole system have the capacity to deal with the level of mistakes and legal errors and do the courts have the capacity to deal with issues being taken through them? We need to focus on the human impact.

The explanation given by the noble Baroness, Lady Hamwee, for Amendment 11 is that it limits the use of regulation-making powers to matters for which Her Majesty’s Government have indicated that they are intended. In this area—in every area, as we soon will be talking about the Agriculture Bill, which is crucial for our environment and society—but particularly when we are making crucial decisions about people’s lives, there has to be legal clarity. As the noble Baroness, Lady Ludford, said, for people to be able to follow the rules, they have to know what the rules are, the intentions behind them, and that Parliament has been able to scrutinise them democratically.

[Lord Green of Deddington (CB) [V]]

My Lords, I am glad to support Amendment 32, which is an important amendment tabled by the noble Baroness, Lady Neville-Rolfe. As she indicated, this amendment bears directly on the anomaly that lies at the heart of the Bill. It purports to deal with aspects of our withdrawal from the EU, so one would expect it to deal with the consequences for citizens of the EU and the EEA only. However, in its report of 2 September the Constitution Committee stressed that this Bill effectively changes significant areas of immigration law from primary to secondary legislation.

I expect the Government to argue that changes to Immigration Rules have long been dealt with by a process similar to that for statutory instruments, but to introduce an entirely new system in this way is a very different matter. Furthermore, in its report of 25 August, the Delegated Powers Committee, from which we will hear very shortly, pointed out that the “made affirmative” procedure that the Government have chosen will mean that the new regulations will come into force before they are debated in Parliament.

Finally, as I understand the position, the Home Office is working on a complete revision of the Immigration Rules which might run to several hundred pages. They could be put through Parliament with no serious examination before they come into force. I think the Minister mentioned something to this effect earlier. Will she clarify the position? Is this indeed what is likely to happen?

[Baroness Meacher (CB) [V]]

My Lords, I support the noble Lord, Lord Rosser. As a member of the Delegated Powers Committee I strongly support all the points made in our report and, along with other noble Lords, I very much look forward to hearing from our chairman, the noble Lord, Lord Blencathra.

I am aware that part 6A of the Immigration Rules sets out the points-based system which applies to migrants from the rest of the world. EEA citizens will move from a position of free movement to having to find their way through a thicket of literally hundreds of pages of rules and guidance currently applying to the rest of the world. Will the points-based system be adjusted for EEA citizens? If so, in what ways will the EEA rules diverge from the current system set up in part 6A? The framework should surely be in the Bill.

Clause 4 has potentially life-changing consequences for a large number of people—an issue raised by the Delegated Powers Committee report. Ministers are given the power to modify primary legislation or to modify retained EU legislation, which has a similar status to primary legislation, as noble Lords know. These provisions, together with the power for Ministers to introduce regulations on any subject in connection with Part I of the Bill, provide incredibly wide powers for Ministers.

I want to take just one example of an issue which needs to be dealt with in the Bill and I am sure that the noble Lord, Lord Blencathra, will raise a number of others. Tier 3 of the PBS which applies to unskilled workers has never been opened. We know that the UK is likely to face severe shortages of so-called unskilled workers in some sectors, most particularly health and social care but a number of others as well. Can the Minister press her colleagues to spell out in the Bill the key changes envisaged to the PBS, at least for the short to medium term, to keep the UK economy functioning adequately? Then, of course, Ministers could have the powers to introduce regulations to adjust the system over time. I fully recognise that there would be a need for that.

We all understand the need for Ministers to be able to introduce consequential amendments through secondary legislation, such as removing the references to free movement scattered across the statute book. Typically, however, most consequential amendments are put in the Bill and then regulations are used to tidy up the bits and pieces that were somehow missed during its passage.

We are invited by counsel to the Delegated Powers Committee to consider whether Ministers’ powers to make consequential amendments through regulations should be restricted by a test of necessity. Can the Minister convince the Committee that the wide powers to make consequential amendments to this Bill are in fact necessary? It would be very interesting to hear the Minister’s defence, if you like, of the breadth of those consequential amendments left to regulations. Why cannot most such amendments be included in the Bill before Report? I am sure colleagues would support a short delay before Report to allow that to be done.

Even more serious than the power to make unlimited consequential amendments is the power to make regulations in connection with Part I of the Bill, as other noble Lords have mentioned. I strongly support the amendment from the Baroness, Lady Hamwee, to deal with that issue. This would of course become redundant if Clause 4 were replaced with a string of substantive clauses.

Can the Minister provide an adequate justification for the broad discretion given to Ministers to levy fees or charges on anyone seeking leave to enter or remain in the UK who until the end of the transition period would have had free movement rights under EU law? If not, then these matters must surely be in the Bill with provision for Ministers to adjust the fees or charges over time. As others have said, transitional protections for EEA nationals who are resident in the UK before the end of the transition period are surely known. Why are they not in the Bill? Perhaps the Minister could explain that.

Finally, I had understood that Brexit was all about restoring the sovereignty of the UK Parliament. This is just one of a series of Bills transferring powers from the EU not to the UK Parliament but to Ministers. We know that even where the affirmative procedure will be used, Parliament has no real power to influence the shape of those regulations. I hope the Minister will do all she can to achieve a more democratic outcome to this Bill, even at this late stage, by replacing Clause 4 with a series of clauses spelling out the Government’s policies, or at least the framework of those policies, to adjust the points-based system to meet the needs of the UK economy in the post-Brexit world.

[Lord Blencathra (Con)]

It is a delight to follow the noble Baroness, Lady Meacher, one of the most distinguished members of the Delegated Powers Committee. I am particularly grateful that she has not stolen all the sexiest bits of our report and has left me some original bits to quote, although a number of noble Baronesses and the noble Lord, Lord Green of Deddington, also quoted extensively from it. Perhaps I should sit down and say, “I agree with everyone who has gone before me”, but since I have been here in the Palace for about eight hours, working upstairs, I feel I should earn my crust.

I am speaking on Clause 4 stand part only to draw attention to some of the key points of the Delegated Powers Committee report on the Bill. I am privileged to chair that committee but, in view of some of the highly critical reports we have made recently, my noble friends may be pleased to know that I will be standing down as chair. My term is up by Christmastime, so there may be a more emollient chairman in future.

Last week I spoke on the Delegated Powers Committee report on the medicines Bill and quoted extensively from it. Our report then was hard hitting and I make no apology that I was robust—I suppose I was not robust but scathing—in my condemnation of the delegated powers, which in my opinion were an affront to democracy. I said then that the Bill was “not unique”, just another in a long line of skeleton Bills with all the blank spaces to be filled in by delegated legislation—much of it negative, of course.

Today I will not be as vicious in my remarks, but I report in sorrow that this Bill also has some fundamentally excessive delegated powers. Clause 4(1) confers on the Secretary of State powers to make regulations containing

“such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision”

of Part 1 of the Bill, including Henry VIII powers to amend primary legislation. The combination of the permissive concept of whatever the Minister thinks appropriate, as opposed to necessary, the words “in connection with” the Bill, the subject matter of Part 1, ending free movement, and the number of persons who will be affected make all this a very significant delegation of power from Parliament to the Executive.

With regard to those provisions, my Committee said:

“As we said in our earlier Report, we are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations (assuming no amendment was made to primary legislation).”


As for the scrutiny of regulations, we are concerned that the first set of regulations would be made by the “made affirmative” procedure, avoiding legislative scrutiny before they come into effect, but subsequent ones would be draft affirmative—but only if they amended primary legislation. Everything else would be negative, even if the regulations amend or repeal what is known as retained direct principal EU legislation. By contrast, the approach in the European Union (Withdrawal Agreement) Act 2020 is that the affirmative procedure is mandatory where regulations modify retained direct principal EU law.

We were also concerned that delegated legislation could alter fees and charges enacted in primary legislation. As mentioned by noble Baronesses earlier, it is usual for legislation to have a schedule at the end listing consequential amendments and a provision that regulations can tidy up any missing bits or loose ends with further consequentials, but in Clause 4 the bulk of the consequentials will be done by regulations afterwards.

So we concluded, overall, the following:

“We remain of the view, expressed in our earlier Report, that clause 4(1) contains an inappropriate delegation of power and that the Bill should be amended so that: the words ‘or in connection with’ are removed from clause 4(1); consequential amendments are included in the Bill itself, but with a power to add others (subject to a test of necessity) by regulations (subject to the affirmative procedure if primary legislation or retained direct principal EU legislation is amended or repealed); transitional protections for EEA nationals who are resident in the UK before the end of the transition period are included on the face of the Bill; clause 4(5) (about fees and charges) is removed, unless the Government can provide full justification for its inclusion and explain how they intend to use the power; and clause 4(6), which provides for the first set of regulations under clause 4(1) to be subject to the made affirmative procedure, is removed from the Bill.”


Those were the principal conclusions that we reached.

21:30

Most noble Lords will know this but perhaps I may point out just for the record that my committee does not take a view on the merits of the Bill. We consider not the policy nor the politics but whether the proposed delegation of powers to Ministers is appropriate. If we had a Bill before us on the slaughter of the firstborn, we would comment not on the merits but on whether the powers delegated to Herod’s satraps or his personal guard, the Doryphnoroi, were appropriate and whether his earlier demand for all of Judea to be taxed should be on the face of the Bill. That would be our concern in the Delegated Powers Committee.

Nor have we changed our criteria one iota for what we consider to be inappropriate. It has stayed the same since 1922—I mean 1992; that was a Freudian slip from a member of the Conservative Party—when the committee was created. What has changed over the years, and not just in the last few years, has been the number of Henry VIII clauses included, regulations masquerading as protocols in order to avoid scrutiny, skeleton Bills, and the great myth perpetrated by the parliamentary draftsman’s department that there can be only negative or affirmative procedures, and draft affirmatives and made affirmatives do not seem to exist.

We reached exactly the same conclusion with regard to Clause 5, but I have no intention of boring the Committee by making the same arguments again. Noble Lords can take it as read that we have exactly the same concerns on that clause.

Therefore, I hope that the Government will make at least some of the amendments that we suggest. They will still get a good Bill which will deliver all they want and be able to deliver it just as quickly but with some proper parliamentary scrutiny added to it.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this group of amendments is concerned with the purpose, scope and extent of delegated powers conferred on Ministers by Parliament. I am grateful to the Delegated Powers and Regulatory Reform Committee for its report on the Bill and to the members of the committee who have spoken, including their chair, the noble Lord, Lord Blencathra.

The report raises serious concerns about the inappropriateness of the delegation of powers to the Executive and proposes changes which I fully support and endorse. However, it is disappointing that, as the noble Lord, Lord Blencathra, highlighted, the committee has over some considerable time produced such reports but then the next Bill has come along and the same issues have been identified.

During the Brexit campaign, we kept being told about taking back control and the sovereignty of our Parliament, but here lots of things are being passed on to Ministers and that does not quite seem to me to be taking back control. It is a bit like the pledge about the NHS on the side of the leave campaign bus that has quietly been forgotten about.

Amendments 9 and 10 seek to deal with the first two points raised by the committee by removing the word “appropriate” and inserting “necessary”, and removing the words “or in connection with”. They are amendments to which I have put my name and which I fully support.

Amendment 11 seeks to put on the face of the Bill what the power to make regulations is intended to do. I look forward to hearing the Government’s explanation if they are not prepared to accept this.

Amendment 13 again adds “only”, seeking to ensure the powers taken are used only for what they are intended to do. That seems sensible to me. I hope the Government will accept it.

Amendment 32, in the name of the noble Baroness, Lady Neville-Rolfe, also seeks to ensure that the Bill does only what the Government say they want it to do. Like other amendments in this group, that seems a very sensible and proportionate measure, and I hope the Government will support it.

Amendment 35, which I have signed, seeks to implement the recommendations of the Delegated Powers and Regulatory Reform Committee and ensure that SIs under Clause 4(1) are affirmative. Amendments 36, 37 and 38 follow on from that. The clause takes considerable powers for the Executive, as we have heard from a number of noble Lords tonight. These powers are not justified, and I support those noble Lords, including my noble friend Lord Rosser, who have opposed the clause standing part of the Bill.

Your Lordships need only look at some of the points raised by the committee to see why noble Lords have tabled their opposition to the clause standing part. In paragraph 19, the committee is “disturbed” that the Government would use words to grant and confer permanent powers on Ministers to make whatever legislation they considered appropriate. In paragraph 26, the committee argues that

“transitional arrangements to protect existing legal rights … should appear on the face of the Bill”.

In paragraph 28, its expressed view is that

“clause 4(1) contains an inappropriate delegation of power”.

I hope that, in the response to the debate, we will see considerable movement from the Government and that they take on the comments from the committee, which I fully support.

[Baroness Williams of Trafford (Con)]

My Lords, I think I get the committee’s views on the delegated powers in this Bill, and they are not pretty. However, I thank the committee for making them.

I first thank the noble Baroness, Lady Hamwee, for speaking to this group of amendments and my noble friend Lady Neville-Rolfe for speaking to Amendment 32. These amendments seek to limit the scope of the regulation-making power in Clause 4 and address the parliamentary procedure for the regulations. It is right that Parliament pays close attention to the provision of delegated powers. I have noted the recommendations made by the Delegated Powers and Regulatory Reform Committee in its latest report of 25 August.

I am pleased that we have been able to share draft illustrative regulations to be made under this power later this year, subject to Parliament’s approval of the Bill. The draft regulations—which I understand will not be subject to any significant change, to answer the point of the noble Baroness, Lady Hamwee, from tonight and the other day—will, I hope, provide some reassurance as to how the Government intend to use the regulation-making power in Clause 4.

There are clear constraints on the use of the power in Clause 4. It can be used only to make regulations that amend primary or secondary legislation

“in consequence of, or in connection with”

Part 1 of the Bill on ending free movement and protecting the rights of Irish citizens. It cannot be used in relation to the UK’s withdrawal from the EU more generally or to make wider immigration changes.

Amendment 9 seeks to limit the use of the power to making changes that are considered “necessary”, not “appropriate”. Amendment 10 seeks to limit the power to changes that are only a consequence of Part 1 of the Bill and not in connection with it. I invite noble Lords to consider the illustrative draft of the regulations and take comfort that this power is specifically to deliver the end of free movement; it is not to be used for general changes to the immigration system.

The regulations will make the statute book coherent on the repeal of free movement, align the treatment of EEA citizens arriving from next year with that of non-EEA citizens and implement our obligations to afford equal treatment to those within scope of the residence provisions of the withdrawal agreement—nothing more than that.

Furthermore, Amendment 10 prevents the Government making changes required to align the treatment of EEA and non-EEA citizens in the immigration system, which would undermine the new global points-based system. We cannot, therefore, accept these amendments.

The Government have made every effort to specify in the delegated powers memorandum the type of changes to legislation required as a result of ending free movement and protecting the rights of Irish citizens, and to make provision for them in draft regulations. However, Amendment 11 would prevent the Secretary of State from making appropriate provision and would unacceptably narrow the scope of the power. Amendment 13 would have the effect of restricting the scope of the power to the powers listed in Clause 4(3).

Amendment 32, tabled by my noble friend Lady Neville-Rolfe, seeks to confine changes to fees and charges to EEA and Swiss citizens. That is already the principal purpose of Clause 4(5). However, the amendment would then prevent us from applying the skills charge to non-EEA family members of EEA citizens and from exempting from the skills charge a non-EEA family member with rights of residence and equal treatment under the withdrawal agreement. It would amount to a breach of the UK’s commitments under those agreements, and for that reason alone we cannot accept the amendment.

It is the will of the British people that we bring free movement to an end. This means ending the bias in our immigration system that favours EEA citizens over the citizens of any other country, which is the primary purpose of the Bill. Limiting the Government’s ability to apply a skills charge to EEA citizens in the same way as they apply to non-EEA citizens would mean that certain elements of free movement had not been fully repealed by the Bill, and that EEA citizens still had an advantage in our immigration system. That is not an outcome that the Government can accept.

On Amendments 35, 36, 37 and 38, to which the noble Baroness, Lady Hamwee, has spoken, the first set of regulations made under this power will be subject to the “made affirmative” procedure, whereby they must be approved by both Houses within 40 days of being made if they are to remain in force. The “made affirmative” procedure is needed in the likely event that there is a short window between Royal Assent to this Bill and the end of the transition period. For that reason, the affirmative procedure proposed by the noble Baroness does not work.

The people of the UK voted to leave the EU and take back control of our laws and our borders. It is therefore imperative that this House helps to deliver on that democratic mandate by ensuring that free movement is brought to an end by 31 December. It is important to ensure that regulations made under this power commence by then. Under the “made affirmative” procedure, both Houses will be asked to approve the regulations within 40 days of them being made for them to continue in force, so Parliament has scrutiny over the use of this power. If Parliament does not approve the regulations then they will cease to have effect, but subsection (10) preserves the effect of anything done under them before that point in order to ensure legal certainty. Using this power does not mean avoiding parliamentary scrutiny—far from it—as the secondary legislation to be made under the power is subject to full parliamentary oversight using established procedures.

I think it is right that Parliament should set the scope of the power in Clause 4 in terms that are appropriate to the purpose of the Bill in ending free movement and protecting the rights of Irish citizens. It is also right that Parliament should retain appropriate oversight over the exercise of this power. However, the Government are committed to ending free movement now that we have left the EU, and this parliamentary procedure is an essential part of delivering that. I hope the noble Baronesses and my noble friend Lady Neville-Rolfe have been assured of the content of the draft regulations and the explanation of how the Government will use the delegated power. I therefore ask the noble Baroness to withdraw her amendment.

Furthermore, some noble Lords have spoken to oppose that Clause 4 stand part of the Bill. I must emphasise the importance of this power for the effective implementation of the Bill. I trust that sight of the draft regulations provides further reassurance that the power does not give Ministers a blank cheque to make wide-ranging changes to immigration policies. The power can be used only to make provision as a consequence of or in connection with Part 1 of the Bill on the ending of free movement and protecting the status of Irish citizens, but without the power we cannot align immigration treatment between EEA and non-EEA citizens, and cannot then build up our global points based system.

The regulations will be subject to full parliamentary scrutiny using well-established procedures. Free movement must end on 31 December and the “made affirmative” procedure is needed to ensure regulations made under this power align the treatment of EEA and non-EEA citizens who arrive in the country from 1 January 2021. It is important to debate the appropriate use of delegated powers, but the Government are committed to ending free movement now that we have left the EU and this clause is an essential part of it.

21:45

[Baroness Hamwee (LD) [V]]

My Lords, the noble Baroness, Lady Neville-Rolfe, expressed some frustration about the limitations arising from the scope of the Bill. The noble Lord, Lord Green, referred to similar points on the report of the Constitution Committee. I have long taken the view that, when people with very differing views have the same criticism as I do, we must have a point.

I omitted to thank the Delegated Powers and Regulatory Reform Committee and its chair, although my thanks must be implied by all the references I made to them. That I quoted from the report did not steal the thunder of the noble Lord, Lord Blencathra, at all. He cannot be surprised, because they were very good quotes. I said that I hoped for some excoriating speeches. I had him in mind, but he has moved on to sorrow. However, he did not disappoint.

When I started to read Clause 4, I picked up my pen and did not put it down, which was obvious from my raft of amendments, which almost amounted to an edit of the clause. The Minister says that she seeks to reassure us about how the Government intend to use the powers. As I so often say, I do not doubt the good intentions behind all this, but I ask her if she would be comfortable if—unlikely as it may seem—our positions were reversed. Would she take comfort if I produced a draft that was illustrative only? She said several times that the Government cannot accept the amendments. It really amounts to “will not” accept the amendments. As regards “made affirmative”, how realistic would it be for Parliament to block the instrument regarding the ending of free movement, after free movement had ended?

There is such an absence of detail on the workings of the policy. The six “consequential repeals” in Schedule 1 do not “scratch the surface”; that is not my analysis but that of the Bingham Centre for the Rule of Law, given the huge amount of immigration legislation. It also says that “a solitary page”, paragraphs 5 and 6 of Schedule 1, purporting

“to remove all rights, powers, liabilities, obligations, restrictions, remedies and procedures which derive from EU law … is lazy law-making. If people are going to have their rights removed, it is incumbent on Government to list precisely what those rights are and then specifically to remove them.”

It says that that would also enable

“parliamentarians to know precisely what they are voting for”.

To revert to the reference made at the beginning of today’s debate by the noble Lord, Lord Pannick, Caligula might have been proud of Clause 4. This is not the time to pursue the matter, although I am clear that we have to return to it. I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendments 10 and 11 not moved.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

We come now to the group beginning with Amendment 12. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment, or any other in this group, to a Division should make that clear in debate.

Amendment 12

Moved by

[Baroness Hamwee]

12: Clause 4, page 2, line 40, at end insert—
“(2A) The power to make regulations under subsection (1) does not include power to make provision inconsistent with the withdrawal agreement as defined by section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”Member’s explanatory statement
This amendment would ensure that the power cannot be used inconsistently with the Withdrawal Agreement.

[Baroness Hamwee (LD) [V]]

My Lords, in moving Amendment 12, I shall speak also to Amendments 18, 19 and 83.

There is nothing subversive in Amendment 12—there is no cunning plan. All the amendments in this group are intended to ensure consistency with the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020. It does what it says on the tin. In the light of Clause 4, which spells out the power to make regulations which “among other things” may modify primary legislation, these amendments seem to us to be necessary.

I was about to refer to the British in Europe group as a campaign group, but it is far more than that: it represents its stakeholders and argues very powerfully for the interests of British citizens in Europe. As the group puts it, the withdrawal agreement is the vital underpinning of rights created in UK law for UK citizens living in the EU and for EU citizens living here. In various debates over the past few months, noble Lords have tended to focus on the latter, because living here means being subject to UK law. But British citizens in the EU are British and must not be prejudiced by anything that is not in accordance with an international treaty.

I say that without having heard much news since this morning because of being, as it were, in the Chamber, but the news this morning was very much about not following through—not complying with—an international treaty. After all, we should all be entitled to rely on an international treaty.

Immigration law is so complex that to allow an inconsistency to slip through unintentionally is a real danger. Amendment 12, therefore, provides in terms that the power to make regulations does not include a power to make a provision inconsistent with the withdrawal agreement.

Amendments 18 and 19 aim to bring the clause into line with the two pieces of legislation that I have mentioned. Section 7(2) of the European Union (Withdrawal Agreement) Act 2020 provides that, if the Minister considers it appropriate, regulations under subsection (1) may be made so as to apply both to persons to whom the provision in question applies and—this is the relevant point—to persons to whom the provision does not apply but who may be granted leave to enter or remain in the UK by virtue of residence scheme immigration rules and who do not have such leave. Amendment 18 would replicate that.

Amendment 83 deals with Clause 5, and it may be appropriate to come back to it when we debate Clause 5. However, again, its purpose is to ensure that the power created by the clause can be used only in ways which are consistent with our country’s obligations under the withdrawal agreement. “Retained direct EU legislation” is the full gamut of EU legislation on social security co-ordination, and under the withdrawal agreement the UK is committed to applying this legislation to all those who come within the scope of Part 2. Among other things, the legislation covers the aggregation of social security contributions made in different countries, mutual healthcare arrangements, the payment of pensions and pension increases for pensioners living in different countries, and the regulation of other cross-border benefits.

In practical terms, the most important aspect for British citizens covered by the withdrawal agreement is the continued right for them to receive their pension and pension increases. Many noble Lords will recall debates regarding pensions and pension increases for people who have moved away from the UK, outside the EU, and whose pensions have been frozen. Other aspects are the continued right of pensioners to healthcare under the S1 scheme, which enables a pensioner residing in a country not responsible for their pension to receive healthcare in the country of residence at the expense of the country paying the pension contributions. This is a mutual arrangement that also applies to EU pensioners living in the UK. One aspect of this is the continuation of the scheme whereby those who have worked in the UK and one or more EU countries have their contributions aggregated, so that they do not fall foul of the national rules on minimum contribution periods.

One of the very big concerns of people who lose the right of free movement is the impact on their retention of rights and ability to move in the course of work as their careers develop and their jobs take them to different countries. Without this scheme, many people who have contributed for a full working life but have moved several times would end up without a pension at all. Again, we are faced with the possibility of a Government modifying—or worse, perhaps—these provisions by regulation alone.

All the points that have been made this afternoon and this evening about what could happen are relevant here. Social security legislation probably rivals immigration legislation in its complexity, so the point that was made earlier about unwitting breaches of the withdrawal agreement would apply as well. I assume that we will have similar answers to this amendment, but, although the points may be similar and parallel, they are no less important or worthy of being pressed and explored, as I am seeking to do with Amendment 83. However, at the moment, I will formally move Amendment 12.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

I call the noble Lord, Lord Flight. Lord Flight? As he is not present, I call the noble Baroness, Lady Altmann.

22:00

[Baroness Altmann (Con) [V]]

My Lords, I have added my name to the amendments in this group. I echo the words of the noble Baroness, Lady Hamwee, who moved them clearly and explained the importance of what is being sought by introducing them.

As the noble Baroness mentioned, this seems timely, given some of the recent very troubling reports. Lately, the possibility has arisen that the Government are not satisfied with the withdrawal agreement in some way, having signed it recently in good faith, while working, hopefully, towards an agreed exit after the transition period at the end of this year. I hope the Minister will be able to reassure the House that there is no intention of trying to override the withdrawal agreement in any way and that our country will not be seen to be trying to renege on an international agreement, especially so soon after having signed it.

I hope that UK citizens living in the EU can be reassured that the measures in the Bill will not be affected deleteriously by future regulations that might change what they thought was already enshrined in this international agreement and that pensions, pension increases, other benefits and health care will be protected, as was intended and implied in the withdrawal agreement. I also hope that the measures in the Bill will remain consistent with the withdrawal agreement and that no powers under the Bill will be used to make provisions inconsistent with that agreement.

I know these are probing amendments and I hope that the reassurances or necessary changes can be made to satisfy the House. I support the intention of these amendments and look forward to my noble friend’s response.

[Baroness Ludford (LD)]

My Lords, this group of amendments, led by my noble friend Lady Hamwee, is about ensuring that the Government cannot legislate by regulation, contrary to the withdrawal agreement. This is a prescient set of amendments, tabled when it might not have been thought that there was a particular danger of that happening. However, the pronouncements and press reports since last night—there is some backtracking going on, however, which we will debate in the Chamber tomorrow—raise serious fears about the Government’s reliability and integrity in respecting the withdrawal agreement, and, indeed, any other treaty commitments. It raises the question of whether they can be trusted.

We will be debating separately the question of the Government’s refusal to give settled status applicants a physical document, not just a digital code. I will raise a brief query here: whether a digital code alone would satisfy the requirement in Article 18 of the withdrawal agreement for

“a document evidencing such status which may be in a digital form.”

Those latter words were added at the UK’s insistence, as we understand it, but it still talks about a document evidencing status. I wonder whether a digital code is a document.

Not least as a feature of the settled status scheme which has been flagged up by the3million, which does excellent work and has provided some fantastic briefing—I shall use this occasion to thank that organisation along with the organisation, British in Europe—non EU-national family members get a physical document in the form of a biometric residence permit. Since Article 12 of the withdrawal agreement requires the Government not to discriminate on the grounds of nationality, it is odd that EU citizens do not get a physical document but those in the family who are not EU citizens have a biometric residence permit. That is rather strange.

In the context of group 1, I raised comprehensive sickness insurance. The Minister said that the Government would use their discretion in deciding whether the absence of CSI in the past would bar a person from getting UK citizenship. I know that this will come up again in a later group. However, it is important to note that the UK is regarded by the European Commission as being in breach of EU law by insisting on the term “comprehensive sickness insurance” as it is in the 2004 citizens’ rights and freedom of movement directive. The Commission insists, as indeed MEPs did at the time, that this means only that relevant persons should have access to whatever the health system is locally, so the Government’s insistence that they should pay for private health insurance is, as I understand it, the subject of ongoing infringement proceedings.

In 2017, Prime Minister Theresa May promised EU citizens that the CSI—I prefer to call it private health insurance because that is what we are talking about—for those who had been economically inactive would be dropped as a requirement for settled status under the new system. However, what is happening now is that those people applying for citizenship are at risk of having their applications refused because in the past they did not have private health insurance, even though they had been told that they did not need it for their settled status application. When they apply for citizenship, they are told that retroactively they will be barred if they did not have private health insurance in the past. This feels like moving the goalposts, playing cat and mouse and so on, and the Government will not make any friends by this. The Minister referred to a power of discretion, but I do not believe that any details have been made known about how that would be applied, so that leaves people in the dark and in a state of anxiety.

I should mention also that Article 10 of the withdrawal agreement states that those covered by the citizens’ rights provisions of the agreement include

“Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law”.


Union law—that is, EU law—means that the ability to use the NHS qualifies as “comprehensive sickness insurance”; that is the view of the European Commission, which as I say is following infringement proceedings. If the Government persist with this, I fear that they will come up against problems under the withdrawal agreement and there is a risk that they would be seen to be acting in bad faith. The amendments in this group therefore insist that the Government must abide by the withdrawal agreement in making regulations under both Clause 4 and Clause 5, and that should include doing away with the retrospective demand. I hope that the Minister will be able to give us some reassurance on that point.

A great deal of justified concern has also been expressed about children either in or leaving care. I do not have time to talk about this now because it will come up again at least in part in a later group, but it is a matter of great concern. Local authorities, even with the best will in the world, have found over the past six months with the challenge of Covid that they have not had or have not applied the resources to assist children who ought to be applying under the settlement scheme. They are finding it very difficult to get the evidence together, so I hope that the Government can give some reassurance about the assistance that they will be given. We will also talk later about the dangers of another Windrush.

[Lord Rosser (Lab)]

My Lords, Amendments 12 and 83 provide that regulations under Clauses 4 and 5 respectively cannot make a provision that is inconsistent with the withdrawal agreement. Amendments 18 and 19 alter the language of Clause 4 to bring it in line with the 2018 and 2020 withdrawal Acts. The wording of the Bill does not appear to preclude the concerns which these amendments seek to address. Indeed, Clause 4(1) states that

“The Secretary of State may by regulations made by statutory instrument make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision of this Part”,


namely Part 1 of the Bill.

Clause 5 deals with the power to modify retained direct EU legislation relating to social security co-ordination, and again appears not to provide for the limitations sought in Amendment 83. Presumably it is not the Government’s intention to nullify or weaken the terms or protections of the withdrawal agreement, or the terms or protections of the withdrawal Acts, by regulations that avoid the full and proper parliamentary scrutiny and challenge that is achieved only in respect of primary legislation. That should become clearer from the Government’s response, which will be interesting in the light of media reports today of their allegedly negative attitude to keeping to the terms of the withdrawal agreement. Whether there is any significance to the wording in Clause 4(4) being different from the terms of the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 will also become clear.

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, for speaking to this group of amendments, which concern the scope of the delegated regulation-making power under Clause 4 and, in the case of one of the amendments, Clause 5. As I have said, it is right that Parliament pays close attention to the provision of delegated powers, and to assist we have shared draft illustrative regulations to be made under Clauses 4 and 5, subject to Parliament’s approval of the Bill.

Amendments 12 and 83 prevent the Government from using the powers in Clauses 4 and 5 to make regulations which are inconsistent with the EU withdrawal agreement. We already have a legal obligation to comply with that agreement, which also has direct effect in domestic law in accordance with the European Union (Withdrawal Agreement) Act 2020. These amendments are unnecessary and would call into question why they are not included in every other item of legislation across the statue book.

I turn to Amendments 18 and 19. Clause 4(4) allows the regulation-making power to make provision for those who are not exercising free movement rights at the end of the transition period. This group may nevertheless be eligible for status under the EU settlement scheme and are therefore still affected by the repeal of free movement. Clause 4 does not allow changes to the statute book for migrants from the rest of the world, who are not affected by the repeal of free movement. The suggested amendments are unnecessary and would add confusion and hinder our ability to make appropriate provision for those affected by that repeal.

It is right that Parliament should set the scope of the power in Clause 4 in terms appropriate to the purposes of this Bill in ending free movement and protecting the rights of Irish citizens. It is also right that Parliament should retain the appropriate oversight over the exercise of that power. The Government’s intention here is simply to ensure absolute clarity of purpose.

The noble Baroness, Lady Ludford, mentioned some issues that I have already addressed, namely comprehensive sickness insurance and the form versus the digital form. Article 18(1) explicitly provides that a document evidencing status may be in digital form. She also talked about children and the EU settlement scheme, specifically children whose parents—or indeed institutions in which they live—may not have signed them up. We will provide for reasonable excuses; I believe that we will come to that later in the Bill.

[Baroness Hamwee (LD) [V]]

My Lords, I am particularly grateful to the noble Baroness, Lady Altmann, with her knowledge of pension provisions, for contributing to this debate. My noble friend said that I must have been prescient in tabling this amendment. I think it was more about a continuing, underlying, and rather generalised sense of anxiety—not about resiling from the withdrawal agreement, which had not struck me as a possibility until a few hours ago.

The Minister has given us some reassurance; I hope that I have heard correctly over the airwaves about the legal obligation to comply with the withdrawal agreement. I suppose that this does not mean there will not be an attempt to change that legal obligation in some way. Anyway, that is not for tonight and certainly not for after 10.15 pm. Probably the best I can do at this moment is to beg leave to withdraw Amendment 12; I do so now.

Amendment 12 withdrawn.

Amendment 13 not moved.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this might be a convenient place to pause in our proceedings.

House resumed.