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Arrangement of Business
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The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
My Lords, the hybrid Grand Committee will now begin. I will not read out the formalities, with which we are quite familiar, but draw noble Lords’ attention to the microphone system. Microphones are no longer turned on at all times, in order to reduce the noise. When it is your turn to speak, please press the button on the microphone stand. Once you have done that, wait for the green flashing light to turn red before you begin speaking. Okay, let us begin. The time limit is one hour.
Social Security Co-ordination (Revocation of Retained Direct EU Legislation and Related Amendments) (EU Exit) Regulations 2020
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Baroness Stedman-Scott
That the Grand Committee do consider the Social Security Co-ordination (Revocation of Retained Direct EU Legislation and Related Amendments) (EU Exit) Regulations 2020.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Stedman-Scott) (Con)
My Lords, these regulations, which concern policy areas of my department and Her Majesty’s Treasury, and apply UK-wide, were laid before both Houses on 16 November. They are required to clear the way for the legislation which will implement our new system of social security co-ordination with the EU, EEA states and Switzerland.
The current EU social security co-ordination regulations—I will refer to these as the SSC regulations—operate to facilitate the EU’s free movement rules. They ensure that individuals pay social security contributions in only one member state at a time; they set out which member state is responsible for the payment of social security benefits; they require the export of some benefits to claimants resident in the EU; and they provide for the aggregation of social security contributions when claiming certain benefits and the state pension. These rules require equal treatment for citizens across the EU, overriding any domestic legislation. They have continued to apply to the UK throughout the transition period.
As the Committee will be aware, the Immigration and Social Security Co-ordination (EU Withdrawal) Act came into force on 11 November 2020, Section 6 of which provides a power to modify these SSC regulations, which have been retained in UK law. Before I go into the detail of the draft regulations, I will provide the Committee further details on the context in which they are being made. I hope noble Lords will forgive the lack of originality in what I am about to say, which is very similar to the update provided by the Minister in the other place yesterday.
As I have stressed to your Lordships on a number of occasions, citizens covered by the withdrawal agreement and related agreements with the EEA and Switzerland will be unaffected by these regulations as long as they remain covered by those agreements. Arrangements in this area for UK and Irish nationals moving between the UK and Ireland will also continue unchanged under a recent reciprocal agreement with Ireland.
The Government are negotiating future arrangements with the EU, similar in kind to the social security relationships the UK has with nations outside the EU. This means that there will be changes in social security co-ordination policy with the EU from the end of the transition period, regardless of the outcome of negotiations. The Government have been clear about this, including as the ISSC Bill passed through Parliament and in public communications.
As the Committee will be aware, negotiations with the EU are at a very advanced stage. It is the Government’s position that new rules, whether or not there is a future agreement, should take effect from the end of the transition period. These regulations are a core part of our legislative preparation and will stand whatever the outcome. We are also in discussions on future social security co-ordination rules with a number of EEA states and Switzerland.
I will now summarise the regulations we are debating today. Part 1 sets out that the regulations come into force at the end of the transition period, with the exception of some amendments being remade in Part 4. These amendments will come into force on the day after the day on which the regulations are made.
Part 2 revokes the EU SSC regulations retained under Section 3 of the European Union (Withdrawal) Act 2018 and the unilateral fixing statutory instruments made under Section 8 of that Act. The fixing SIs were brought forward to prepare for a scenario in which the UK did not leave the EU with a withdrawal agreement and would have enabled the UK to operate some of the retained SSC regulations unilaterally, so far as possible. This revocation is in line with the approach the Government set out in the draft illustrative regulations shared with the House during the passage of the ISSC Bill.
This means that the rules for those individuals who are not covered by the withdrawal agreement and move between the UK and the EU, EEA states and Switzerland after the end of the transition period will be determined by any new international agreements in place or, in the absence of an international agreement, the respective domestic law in each country. For UK benefits this means, for example, that the UK will no longer export child benefit to children living in the EU, with the exception of Ireland, delivering on the manifesto commitment. For national insurance contributions this means that, where no reciprocal agreement applies, the rules on payment of national insurance contributions for individuals moving between the UK and the EU, the EEA and Switzerland will be the same as the rules for the rest of the world.
These regulations make four limited savings from the general revocation of the retained SSC regulations in Part 3. First, they save the retained SSC regulations on the co-ordination of benefits in kind; namely, health- care, which is a policy competence of the Department of Health and Social Care. DHSC has made separate secondary legislation in respect of the reciprocal healthcare aspects of the retained SSC regulations.
Secondly, they save the existing debt recovery provisions which will enable the UK to collect overpaid HMRC benefits and social security contributions on behalf of a foreign social security authority where the individual or employer is present in the UK, as part of a reciprocal agreement on social security. Full details of the specifics of these provisions have also been set out in public correspondence.
Thirdly, they save the retained SSC regulations to the extent necessary to provide for continued operation of the agreement on social security between the Governments of the UK and Gibraltar. I can confirm that it is the intention of the UK and Gibraltar Governments to agree a new relationship not based on the EU SSC regulations. Once that has been implemented, this saving will no longer be required and will later be revoked.
Fourthly, they save provisions relating to aggregation and uprating of the state pension in the absence of agreements being in place with the EU, EEA states and Switzerland by the end of the transition period. This saving will provide for continued state pension aggregation and uprating in those countries up to the end of the financial year 2021-22. In the absence of a future agreement with the EU, the UK would seek to put in place reciprocal agreements on social security with individual EU countries instead; even where such negotiations are progressing well, the saving may be needed for a short period beyond March 2022 to finalise and implement bilateral agreements. For this reason, the saving is not time limited. However, it is a strictly interim measure targeted at those who move to the EU, the EEA and Switzerland after the transition period, while future arrangements are put on a reciprocal footing.
Part 4 makes related amendments in other EU exit legislation. This includes bringing forward the day on which amendments will be made to Section 179 of the Social Security Administration Act 1992 and the equivalent Northern Ireland Act. These amendments were previously made by the Social Security (Amendment) (EU Exit) Regulations 2019 and the equivalent Northern Ireland regulations, which are not revoked by this instrument. These amendments were otherwise due to come into effect at the end of the transition period.
While the UK has left the EU, we are not leaving the European Convention on Human Rights; in my view the provisions of the Social Security Co-ordination (Revocation of Retained Direct EU Legislation and Related Amendments) (EU Exit) Regulations 2020 are compatible with the convention.
In summary, these regulations make changes to prepare the statute book for the end of the transition period, particularly in relation to preventing the unilateral export of benefits, delivering on the manifesto commitment to prevent people claiming child benefit for children living outside the UK. They also ensure that the Government have the option to make a future social security co-ordination agreement with the EU through an Order in Council before the end of the transition period, should this be needed. I beg to move.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
My Lords, for the information of those on remote calls, the first 90 seconds of the Minister’s speech were lost, but I think the gist of the speech was contained. If there are any particular issues that noble Lords wish to tease out during the questioning, I am sure the Minister will be happy to respond in her summing up. I call the first speaker, the noble Baroness, Lady Ludford. I understand she is having technical difficulties, so we will come back to her. We move on to the noble Lord, Lord Bhatia.
Lord Bhatia (Non-Afl) [V]
My Lords, this SI has been prepared by the Department for Work and Pensions. It will ensure that, aside from some specific saving provisions, the EU SSC regulations, which are retained on a unilateral basis under Section 3 of the EU withdrawal Act, will not take effect in domestic law from the end of the transition period in the areas of DWP and HMT policy. Now that the UK has left the EU, it is necessary for the new arrangement to be in place from the end of the transition period.
The Government published their approach to negotiations on 27 February 2020 in which they set out their intention to negotiate a future EU-wide agreement on social security co-ordination. The UK is now able to negotiate social security co-ordination arrangements with the EU as a sovereign country, ending free movement. The Government are also in discussion with EEA and EFTA countries and Switzerland about future social security arrangements that will apply between the UK and those countries after the end of the transition period. Thousands of UK citizens work in the EU and other countries in Europe. Similarly, thousands of citizens of the EU and European countries work in the UK.
Can the Minister inform the House that the formalities have been properly laid in the UK, the EU and other countries, so that businesses and individual consultants are not disadvantaged? I particularly wish to highlight the banking and insurance industries, which have thousands of offices in the UK and EU, employing thousands of professional people. If simple processes are not in place at the end of the transition period, a very chaotic situation could arise that affected the property and job markets across Europe. Surely we must not create another problem while we are fighting Covid-19.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
My Lords, the next speaker is the noble Baroness, Lady Janke. She is not there, so we will move on to the next speaker and come back to the noble Baroness later. I call the noble Baroness, Lady Sherlock.
Baroness Sherlock (Lab) [V]
My Lords, I thank the Minister for her explanation of these regulations. I am also grateful to her for giving me access to her officials, who have been a source of very helpful briefing throughout this process.
Ministers have explained previously that their intention was to revoke the provisions of the social security co-ordination regulations at the end of the transition period, the idea being to clear the decks for the implementation of the contents of a deal with the EU and/or with the EEA and Switzerland. I have repeatedly asked the Minister over the year to spell out what will happen to social security co-ordination after the transition period for those outside the scope of the withdrawal agreement.
Ministers have consistently declined to answer questions on the grounds that the Government aim to get a deal, and that if we can wait until then we will be told everything. We are now here, three weeks before the end of the transition period, debating regulations that terminate the current co-ordination provisions, and we still do not know what is to replace them because we still do not know if there will be a deal.
Can the Minister tell the Committee how, if there is a deal, its provisions will be enacted in law? Specifically, how will Parliament get to examine the content and implications of the deal? If there is no deal, anyone moving between the UK and the EU, including the EEA and Switzerland, will be in the same position as somebody currently moving between here any other country in the world, except of course that we have agreements with many other countries, and far more people move between the UK and the EU and the EEA than anywhere else. According to the House of Commons Library, last year there were some 3.7 million EU nationals living in the UK and the best part of a million UK nationals living elsewhere in the EU, excluding Ireland.
If we end up without a deal, what will the position be? It is good to have it clarified that the regulations save provisions relating to the aggregation and uprating of the state pension. So if there is no deal in place by the end of the transition period, there will at least be continued state pension aggregation and uprating in the EU and EEA states and Switzerland up to the end of the next financial year and potentially for a wee bit longer, if necessary, for ongoing negotiations.
The intention is presumably that, in the absence of an EU-wide agreement, the UK would seek to put in place reciprocal arrangements with individual European states instead. Just for the record, can the Minister confirm that in the absence of a deal with the EU, this means that if a British pensioner moves to France in January she will find that her state pension is uprated in April as though she had never left the UK? Will there be any reimbursement of healthcare charges for her, or indeed for anybody getting long-term exportable benefits? Will there be any healthcare coverage for someone making a short stay in an EU state from the UK after the transition period? What will happen to those affected by Covid, such as students who started their courses virtually, intending to move physically next term? What will be the impact on their entitlements?
The fact that nothing else is safe will leave people moving between the UK and the EU very exposed. The obvious exception is Ireland, with which we now have an agreement, and we are told that there is an intention to have a deal with Gibraltar. These regulations save the intended SSC regulations on social security between the Governments of the UK and Gibraltar. Can the Minister confirm—I apologise if she did this in her opening remarks—whether the extent of those savings is just on uprating and aggregation, like a state pension, as it is with the EU as whole, or whether it is broader for Gibraltar?
The other outstanding areas relate to things such as double payment or aggregation of national insurance contributions. I understand that, at the moment, if there is no deal, the rules that apply to any other country in the world that does not have a reciprocal agreement with the UK will also apply to those moving for work between the UK and the EU or EFTA or Switzerland. I presume they will pay NICs for 52 weeks and then be subject to the local regimes. Could the Minister confirm for the record that someone in that position would therefore end up being potentially liable to paying contributions in both countries, while being insured in the UK only?
Finally, the Explanatory Memorandum says that no impact assessment has been prepared for this instrument, but that, when negotiations are concluded,
“DWP intend to publish … an update to the social security co-ordination impact assessment published during the passage of the … Act.”
Can I ask the Minister why no impact assessment was prepared? How soon after negotiations are concluded will DWP update the impact assessment published during the passage of the Act? If there is a deal, can the Minister assure the Committee that we will see an impact assessment for any measures brought forward to implement the deal and an updated impact assessment for these measures before the provisions of any deal are implemented?
This entire process is highly unsatisfactory. We are three weeks from the end of the transition period and Parliament is being asked to approve regulations that remove the transitional provisions without any clarity as to what will replace them. That leaves uncertainty for anyone moving between the EU and the UK who is outside the scope of the withdrawal agreement. It leaves us, as parliamentarians, with no knowledge as to when, how or even if Parliament will get to scrutinise and debate what is coming next. I deeply regret that Parliament has been put in this position, but I look forward to hearing any further clarification the Minister is able to give.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
My Lords, I apologise to the noble Baroness, Lady Ludford. We have been unable to connect with her because of various technical reasons, for which I apologise. I return to the noble Baroness, Lady Janke. I hope we can now speak with her.
Baroness Janke (LD) [V]
I thank the Minister for her presentation. I and others supported efforts to restrain the transfer of widespread powers to Ministers under the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. The DPRRC recommended the removal of this clause from the Bill.
This order, as the Minister has said, is laid through the powers of the Bill, which are seen by many to be excessive and undemocratic in their scope and the authority they give to Ministers. Revocation of the clauses in this order dismantles the system of reciprocal arrangements for future workers from the EU or the EEA. The social security regulations are widely recognised as a well-established system of administrative co-operation between countries that ensures the effective operation of the co-ordination rules, dispute resolution and secure data sharing. Although the order and the revocation of these clauses from UK law does not apply to existing EU citizens living in the UK or UK citizens in the EU, it is a retrograde step to inhibit and hinder workers, many of whom are essential to the UK.
Like the noble Baroness, Lady Sherlock, I wonder why there is no impact assessment on, for example, how this will affect the care services or the National Health Service. Has there been any consultation with caring services or the NHS? If so, why are we not seeing the results? What about businesses dependent on workers from the EU and the EEA, such as the tech industries, aerospace and the automotive industry?
As others have said, the exercising of these powers underlines the inadequacy of the procedure for amending primary legislation and the use of the wide-ranging powers the Government have given themselves. Important questions arise here, as the messages the Government are sending out at the moment are at best ambiguous and at worst undermining of confidence in the future of the UK economy. The value of and benefits from trade deals and investment depend on the quality of the relationship between Governments. Trust and confidence are key factors.
The whole issue of good faith and trust is in question due to powers the Government have given themselves in the United Kingdom Internal Market Bill. The revoking of the social security regulations adds to the lack of international confidence in the UK. If we are unwilling to ensure future arrangements for such things as pensions and benefits to citizens from other countries —people who bring their essential skills and experience to work here—how can other countries, business and investors have confidence in the UK or its economy?
If these revocations and the revocation of the fixing arrangements that were put in place in case of no deal are agreed, there will be a policy vacuum. How is that to be addressed? What are the Government’s plans, and what is the timescale? Are we talking about reciprocal arrangements between each EU country? Presumably that will take quite a long time. Are we correct in assuming that this will be addressed through secondary legislation and that Parliament will have no role to play in future agreements?
It will be important to reassure future trade and investment partners of the robustness of the arrangements underpinning the UK economy. As the noble Lord, Lord Bhatia, said, it is important that this does not end in chaos in our new global context. I would welcome some understanding of how the Government will address this and in what timescale. I look forward to the Minister’s response.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
We have been having some gremlins today, but we will try to return now to the noble Baroness, Lady Ludford.
Baroness Ludford (LD) [V]
Thank you. My sincere apologies: I am jinxed on the IT front today. I am on the phone.
I repeat the objections to the powers in Clause 5 of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which became Section 6 of the Act, which I and others expressed during the passage of the Bill. I cited then the reports of our Delegated Powers Committee, which were rightly damning about the extent of these powers, which include Henry VIII powers.
The committee said in its 49th report of January 2019 that this provision was
“an inappropriate delegation of power”
and that
“the clear impression is that the Government are seeking these powers in order to avoid … having to prepare a detailed bill implementing their policy once it is settled, and any future arrangements with the EU are concluded”.
In its 22nd report of August 2020, the committee said that it was a “significant open-ended power”.
This statutory instrument fully illustrates the problem. If these regulations were just tidying-up measures, they could have been done under Section 8 of the European Union (Withdrawal) Act. In fact, they make new policy, and that should be done by primary legislation.
This instrument brings forward the day on which amendments will be made to primary legislation: the Social Security Administration Act 1992 and its Northern Ireland counterpart. The Explanatory Memorandum says that these amendments are
“for the purpose of implementing, and giving effect to, reciprocal agreements with international organisations”.
Such organisations include the EU.
Can the Minister tell us what other international organisations it is envisaged signing reciprocal agreements on social security with? Can she also tell us what will fill the void as far as the EU is concerned? As I said in Committee on the Bill, and I apologise for quoting myself:
“There is a range of possibilities for a future arrangement on social security co-ordination, from ‘skinny’ coverage … to something much more similar to the present coverage. The draft agreement that the UK Government published in May 2020 was quite limited. They already said that they would stop the export of child benefit, and expect that arrangements regarding disability and unemployment benefits will change and are less likely to be comprehensive in future. They forecast that some benefits would be available for a time-limited period.
Altogether, these would be quite substantial changes. One other that pensioners fear is the possibility of no uprating in pensions for UK citizens resident in EEA countries in future. Certainly, the draft text of the agreement published by the Government in May did not cover cash benefits other than state pensions. It also did not cover healthcare costs for pensioners in EEA countries, where they now get a so-called S1 form, which enables them to get healthcare coverage.”—[Official Report, 16/9/20; col. 1363.]
I assume, as perhaps I did not understand at the time, that that issue is covered by regulations from the Department of Health.
Can the Minister now tell us what we can expect as content for a social security agreement with the EU? Can she also explain why these amendments to primary legislation will be made the day after this instrument is made, rather than on what the Government call IP completion day but the rest of us call the end of transition; namely, 31 December? By the way, if there is an implementation period for any deal that is reached this week, the Government will have a challenge as to what to call it.
The idea of the four fixing SIs was apparently to ensure that the retained EU social security co-ordination regulations were operable in the event of the UK leaving the EU without a deal. Unless the Minister knows something I do not, whether the UK is leaving with or without a deal is currently unresolved. If we leave with a deal, might we again need the fixing SIs, and indeed the five EU regulations to come back into UK law?
The Explanatory Memorandum recalls that EU law, including the five social security co-ordination regulations, will continue to apply to the EEA citizens covered by the withdrawal agreement, and that hence that law continues to form part of domestic law for those purposes. Thus, the Explanatory Memorandum says that this instrument has no impact on anyone covered by the withdrawal agreement.
However, can the Minister explain how revoking the EU SSC regulations in this instrument ensures that they are retained in domestic law for the purposes of the withdrawal agreement? I have not understood—that is probably my limitation—how those Chinese walls work legally and legislatively.
I would also be grateful if the Minister could explain a little more how the savings in Part 3 of this statutory instrument are to work. She referred to this in her opening speech, but I do not quite understand how we revoke the amendments for some purposes but we save them for others. It is a bit of a jigsaw, and I find myself in some difficulty in trying to understand it all.
Leaving those questions aside, the bigger issue is that what is created by the revocation of the five EU regulations which until now were retained law, along with revocation of the four fixing SIs of 2019, is a void. The Government propose to fill that void without any reference to Parliament whatever; they propose to use the amended power in the 1992 Act to implement by Order in Council any reciprocal social security agreements reached and to amend or modify retained EU legislation in order to give effect to them. So Parliament will have no role at all in assessing or agreeing such agreement, which is a perfect illustration of how the Brexit slogan of “take back control” meant only take back control for the Executive. This instrument, as foreseen by our Delegated Powers Committee, is a democratic travesty.
What proposals are there to consult the public and not just the Social Security Advisory Committee on the content and implementation of any new reciprocal agreement? Surely, the Government do not intend to shut out the public as well as Parliament. I thank noble Lords for tolerating my IT problems.
Baroness Stedman-Scott (Con)
I thank the noble Baronesses, Lady Sherlock, Lady Ludford and Lady Janke, and the noble Lord, Lord Bhatia, for their contributions.
The noble Baroness, Lady Sherlock asked about process and timing. I recognise that it is late in the transition period, but that is the nature of EU negotiations. Good progress has been made in this area, and we hope to get the deal over the line. The Government are prepared for all outcomes and have been communicating to citizens the importance of being prepared for rules in this area to change, in all scenarios.
While I acknowledge the points on the timing of the process, I have set out the baseline provisions that will apply on the state pension and national insurance contributions. There will be no unilateral measures in relation to other benefits where long-standing domestic rules do not already provide for this. These affirmative resolution regulations offer an opportunity for the House to scrutinise and approve the baseline that would apply in the absence of future agreement. The Government’s position is that it would not be appropriate to continue unilaterally to operate EU rules after we have left the EU and the transition period ends, in doing so creating different dates of change, additional cohorts and complexity for staff and citizens.
The noble Baroness, Lady Janke, talked about plans for bilateral agreements. As I set out, the Government would seek to put in place reciprocal agreements with member states swiftly if no agreement can be reached with the EU. As the Minister in the other place set out, securing reciprocal provisions on the state pension and national insurance contributions are priority areas for the DWP and HMRC but cannot be effectively operated on a unilateral basis. We would prefer a single deal with the EU, of course.
The noble Baroness, Lady Sherlock, asked how the future agreement would be implemented. The mechanism by which any future agreement will be implemented in the various circumstances we could yet find ourselves in remains under review. These regulations ensure—this is a point that the noble Baroness, Lady Ludford, raised—that the Government can use existing powers for this purpose between now and the end of the year, should this be required.
We expect a number of social security benefits to no longer be exportable to the EU in future; this is in line with long-standing UK policy on certain benefits. Certain benefits, such as disability and unemployment benefits, are not exportable when an individual permanently leaves the UK even when there is a social security agreement in place, and in line with communications which the Government published on GOV.UK before the summer.
The noble Lord, Lord Bhatia, and the noble Baronesses, Lady Sherlock and Lady Janke, raised the subject of impacts. As the Minister said in the other place yesterday, the Government remain committed to publishing an updated impact assessment once the outcome of negotiations is known. I can confirm that those impact assessments will be brought forward. Those covered by the withdrawal agreement are not impacted by this instrument. The measure does not impose any costs on business and ensures that once the SSC rules cease to apply between the UK and the EU, businesses can apply the standard rest of the world rules for national insurance where there is no reciprocal agreement.
The noble Baroness, Lady Sherlock, raised the question of students. The Government have provided guidance to all UK universities via Universities UK to make them aware of the need to communicate to EU students who have moved to start their courses in person in the UK by the end of the transition period that they will need to apply under the points-based immigration system. They will not be covered by the withdrawal agreement’s provisions on social security co-ordination and will be subject to any new reciprocal agreement with the EU or any individual member states.
The noble Baroness, Lady Sherlock, also asked about Gibraltar. I can confirm that the Government will seek a bilateral agreement with Gibraltar similar in kind to that agreed with Ireland.
The noble Baronesses, Lady Sherlock and Lady Janke, raised the issue of healthcare. While that is a matter for the Department of Health and Social Care and not in scope of these regulations, the Government will assess their options for reciprocal healthcare if we do not achieve an EU-wide agreement. The Department of Health and Social Care is aware of the concerns of people with pre-existing health conditions and is carefully looking to the impact of any loss of necessary healthcare provisions.
On matters of governance, the UK’s proposed legal text, published in May, contains provisions on dispute resolution, data sharing and administrative co-operation between social security authorities. As is standard practice in international social security arrangements, we have been clear when it comes to future arrangements that there should be no CJEU oversight. We remain in close collaborative discussion with member states in this area through the administrative commission, which the UK continues to attend and will continue to attend in an observer capacity.
These regulations are an essential part of the legislative programme and have been laid in preparation for the end of the transition period, as we reset our relationship with the EU. Not proceeding with this legislation would result in the UK unilaterally operating EU rules after the end of the transition period, regardless of the negotiations. For the reasons I have set out, that would not be desirable.
The noble Baroness, Lady Sherlock, asked what would happen if there was no deal. If a British pensioner moves to the EU, the EEA or Switzerland in January 2021, their state pension will be uprated in April 2021. She also raised the issue of double contributions. On social security contributions, the standard rest of the world rules limit the possibility of UK-based employees working overseas and their employers being required to pay social security contributions in two countries at the same time to 52 weeks, while ensuring that they avoid creating gaps in their national insurance record in the UK for short periods of work overseas.
The noble Baroness, Lady Janke, raised the use of delegated powers. During the passage of the parent Act, I set out the exceptional circumstances under which we are operating, and shared draft illustrative regulations for scrutiny at that stage.
The noble Baroness, Lady Ludford, talked about the primary purpose of the amendments for the 1992 Act being to provide powers to conclude an agreement with the EU. She asked whether we would need the revoked provisions again. No, we are saving the only provisions that we may need to rely on.
The noble Baroness asked what a deal would contain. We have set out our approach to negotiations and have been negotiating in line with that. In particular, we are seeking arrangements on state pension and national insurance contributions.
On the issue of consultation, the UK has left the EU and the Government have acted in response to the manifesto commitment to end free movement. The SSC regulations facilitate free movement between member states of the EU on a reciprocal basis. The Government have repeatedly set out an approach to seeking a deal with the EU in this area to reflect the agreements that we have with countries outside the EU. There have been a number of publications to this effect, including our approach to negotiations published on 27 February. The UK has a long-standing policy in relation to the exportability of benefits, and negotiations with the EU have been consistent with that policy.
I thank again all noble Lords for their contributions to the debate on this SI. We will look at Hansard and make sure that we have answered all questions. If we have not, we will write to noble Lords—and, in that instance, I beg to move.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
The Grand Committee stands adjourned until 3.30 pm. I ask Members to sanitise their desks and chairs before leaving.
Arrangement of Business
(3 years, 11 months ago)
Grand CommitteeRead Full debate Read Hansard Text
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
My Lords, the hybrid Grand Committee will now resume. I will not repeat the usual instructions because your Lordships are aware of them by now. The microphone system for physical participants has changed. Your microphones will no longer be turned on at all times, in order to reduce the noise for remote participants. When it is your turn to speak, please press the button on the microphone stand. Once you have done that, wait for the green flashing light to turn red before beginning to speak. Okey-dokey, let us kick on. The time limit is one hour.
Prohibition on Quantitative Restrictions (EU Exit) Regulations 2020
(3 years, 11 months ago)
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Lord Callanan
That the Grand Committee do consider the Prohibition on Quantitative Restrictions (EU Exit) Regulations 2020.
Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, these draft regulations were laid before the House on 8 November 2020. As I am sure noble Lords will recognise, it is important that we have full sovereignty over our regulatory regime for goods at the end of the transition period. This SI will help ensure that we are not challenged if we choose to diverge from EU regulations by removing retained EU treaty rights.
At the end of the transition period, EU treaty rights on the movement of goods stemming from Articles 34 to 36 of the Treaty on the Functioning of the European Union will be retained in UK law unless they are removed by this SI. The rights flowing from these EU treaty articles prohibit the imposition of quantitative restrictions or equivalent measures, such as regulatory requirements, on imports and exports by member states, unless justified under Article 36. This is to encourage the free movement of goods within the single market.
The UK will have its own regulatory regimes after the end of the transition period and the EU will not be treating UK goods as it would goods from a member state. Therefore, these provisions are no longer appropriate to retain, and could impede our ability to diverge from EU goods regulation in future. This is because the provisions prohibit quantitative restrictions or equivalent measures on imports and exports, meaning that divergence from EU regulatory requirements could result in a challenge from a business or importer if it resulted in being a barrier to placing its goods on the market in Great Britain.
Of course, I understand that there is a lot of interest in precisely what these new regulatory arrangements will be. First, I cannot emphasise enough to noble Lords that this instrument does not introduce any of these new regulatory arrangements or any divergence. Any measures relating to specific regulatory arrangements are being dealt with in separate regulations; nor does this instrument deal with other matters, such as the Northern Ireland protocol or the UK internal market, which I know are also of great interest to noble Lords.
I will, however, say a few words on the new regulatory arrangements. Different goods are currently subject to different regulatory regimes. Cosmetics, food products, machinery, et cetera, are all dealt with in their own way, and that will continue to be the case. So I cannot give a detailed overview here, especially as these matters are not themselves the subject of the regulations before the Committee. What I can say is that by and large the regulatory requirements for goods as of 1 January 2020 will remain largely the same as they are now.
The main changes for the end of the transition period are to reflect the fact that we are no longer part of the single market; for example, the CE marking, which denotes compliance with EU rules, will be replaced by the UKCA marking, which shows that a good meets UK rules and was tested, where needed, by a UK-recognised body. This Committee debated that SI a week or so ago. Of course, any further regulatory changes will be a matter for future consultation and future legislation as appropriate.
The Government have published detailed guidance on these new regulatory arrangements and published guidance on the movement of goods between Northern Ireland and the UK. While many of the new arrangements will not apply in Northern Ireland from 1 January next year due to the Northern Ireland protocol, the Government have been categorical in our commitment to unfettered access to the rest of the UK market for Northern Ireland goods. But, again, I stress that these are matters that fall outside the scope of the regulations before your Lordships.
I return to what this SI does. It will remove the aforementioned EU treaty rights so that they no longer apply in England, Scotland or Wales. As some areas of goods fall under devolved competence, my officials have engaged regularly with officials from the Welsh and Scottish Governments. The Government have written to counterparts in Wales and Scotland to formally seek their consent to lay this SI, which they have confirmed. This SI does not cover Northern Ireland as the treaty rights in question will continue to apply in Northern Ireland as of 1 January 2021 by virtue of the protocol.
As I have already mentioned, these regulations will not result in any changes for businesses. However, they will give businesses greater certainty that when UK rules change they will not be rolled back after legal challenges based on treaty articles that no longer make sense once we have left the EU. A stable statute book is clearly in the best interests of businesses.
To be clear, this SI is not a pre-condition for divergence. As of 1 January, Parliament will have the ability to introduce new regulations—or not, as the case may be. Instead, is it about removing potential grounds for legal challenge based on retained treaty articles that have no place in our statute book once we have regained our full independence.
In conclusion, this SI will remove the rights flowing from Articles 34 to 36 of the Treaty on the Functioning of the European Union—reciprocal rights between member states that no longer have a place in a post-exit independent UK. This will protect our ability to regulate goods as we see fit and ensure that potential challenges do not require us to keep in line with EU regulations.
I reassure noble Lords that we have engaged with the devolved Administrations in Scotland and Wales on the changes that this SI makes, have ensured that they have been kept informed of its progress and have obtained their consent.
The safety of individuals, families and communities is a top priority for the Government. As I am sure noble Lords will recognise, it is essential that the UK is able to protect its sovereignty and that we can make our own rules to protect consumers and to prevent unsafe and non-compliant products entering the UK market. I commend these regulations to the Committee. I beg to move.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I thank the Minister for his explanation of these regulations. I declare my interest as a member of the Common Frameworks Scrutiny Committee of your Lordships’ House.
I understand that this very technical statutory instrument, which deals with England, Scotland and Wales, is to end the application of directly effective rights that flow from EU treaty provisions that prohibit the imposition of quantitative restrictions, such as administrative or regulatory requirements, which restrict free movement of non-harmonised goods within the EU or between the EU and Switzerland or the EU and Turkey.
At the end of the transition period, from 1 January 2021, GB will have its own regulatory regime for goods and the intention of this instrument is apparently to ensure that there is no barrier to diverging from EU rules should GB seek to do so after the end of the transition period. As I understand it, it is a protective instrument.
In that regard, will the Minister spell out the nature and the number of meetings and discussions with the devolved Administrations in Scotland and Wales? Can he advise what preparations have been made and what further support funding will be provided for businesses? They have probably been ravaged this year by Covid and because of the uncertainty as we advance towards the end of the transition period. They need help, because many of them are competing with Amazon and the online businesses of the UK.
Furthermore, will common standards for trading be agreed via the common frameworks process and will that be put on a statutory basis? I know there is no reference to that within the statutory instrument, but I appreciate that that could be a direct, or maybe indirect, consequence of this.
Furthermore, I understand that EU rights will continue to apply in Northern Ireland by virtue of the protocol. On that, I am pleased that a “deal” was reached in the joint committee about a couple of hours ago on Northern Ireland border checks that will provide a solution for businesses and, I hope, result in the withdrawal of those controversial clauses in the United Kingdom Internal Market Bill. If the Minister is not able to provide detail and clarity on that today—I suppose that it does not relate directly to this statutory instrument—perhaps he could do so in writing. I hope it will be possible to achieve a free trade agreement that prevents customs friction and provides an implementation period, because that is a vital to all businesses in Northern Ireland or Great Britain.
Obviously, I have read the House of Commons debate on this issue and what was said in your Lordships’ Secondary Legislation Scrutiny Committee, which referred to how the statutory instrument could impact on the flow of goods between Northern Ireland and GB. The Minister and the noble Lord, Lord True, have insisted throughout this process and during debates on the United Kingdom Internal Market Bill that there will be unfettered access for goods between Northern Ireland and Britain. The Bill makes provision for that unfettered access for qualifying goods and for the application of market access principles of mutual recognition and non-discrimination. Can the Minister define those qualifying goods? What are they? Businesses trading in Britain, and those trading in Northern Ireland, would like to know what that definition is. What are the qualifying goods in that regard?
It is interesting that an amendment was tabled on Report on the Trade Bill, which should have been reached last night but was not, that sought to ensure that there would be no discrimination in respect of goods and services coming from Northern Ireland into Great Britain. I want assurances from the Minister: will this draft statutory instrument, which deals specifically with England, Scotland and Wales, ensure that there will be no discrimination of goods and that there will be unfettered access for goods and services from Northern Ireland to GB? Maybe he could go a little further and explain the processes involved in that.
We do not want to see a threat to existing supplies of any type of goods within England, Scotland and Wales. The same applies to Northern Ireland. I hope the statutory instrument provides the pathway to do just that. I realise it is highly technical and simply protects the market to allow divergence from EU rules to take place, but in so doing it is important that businesses are protected and that there is no diminution of any type of rights, or any type of damage to businesses, in the short and long term.
Lord Bassam of Brighton (Lab) [V]
My Lords, I ought to make it clear from the outset that we do not oppose the statutory instrument because we recognise that it is a natural consequence of leaving the EU at the end of the transition period. The instrument was debated some two weeks ago in the House of Commons, when the shadow Minister said that businesses were being left “completely blind” about how to prepare for the end of the transition and that:
“We are no further down the road with a deal, and they have no idea of the terms under which they are going to be trading in a few weeks’ time.”—[Official Report, Commons, 24/11/20; col. 735.]
Two of those weeks have now passed, yet what is so worrying is that those words still bear repeating. Perhaps with the exception of the Northern Ireland protocol issue, which appears to have been resolved today, we are still very much in the dark about what comes next.
The issue with this instrument, as with so much that we in both Houses are being asked to consider, is that it leaves as many questions as answers, as we still do not know what will replace the aspects of the current EU framework that we are disapplying. The Government’s argument for getting these instruments on to the statute book without certainty as to what will replace them appears to be that time is running out to pass all the necessary legislation before the end of the transition. We of course appreciate those circumstances, but do the Government not understand that the same pressures apply to businesses in every corner of the country? They also need time to prepare before the Christmas period arrives. This intense uncertainty comes after a year of hardship, closure and uncertainty due to the Covid panic. It is up to the Government not to continue to add to that burden.
I am grateful to the Minister for his explanation, but the statutory instrument will end the application in England, Wales and Scotland of the rights derived from Articles 34 to 36 of the Treaty on the Functioning of the European Union. The removal of these provisions is to ensure that there is no barrier to divergence from EU rules should the Government choose to diverge from them. What update can the Minister give us on what rights and protections will be in place for EU-UK trade before the end of the transition period? When will businesses have those details?
The statutory instrument does not in itself create divergence, but it is part of paving the way for it. Is the Minister therefore able to update the Committee on where he believes we might seek to diverge from the EU’s standards and requirements? What work is being done to ensure that any divergence is beneficial to British and Northern Irish businesses, and does not create new costs and barriers to trade?
What is crucial is that this issue relates not just to UK-EU trade but to the requirements for a new framework for UK-wide trade, because current treaty provisions also govern trade in goods across the UK. We have shown our commitment, not only on the Labour Benches but across the whole House, on the United Kingdom Internal Market Bill to ensuring that there is a strong internal market for the UK, working with the devolved Administrations through common frameworks on a statutory footing. However, yesterday the Government saw fit to overturn all the amendments to strengthen the role of the devolved Administrations that this House sent back to the Commons. In our way of thinking, that does not show a Government who are working to respect the devolved settlements and build a strong internal market for the future.
The noble Baroness, Lady Ritchie, as ever, asked a number of important questions on Northern Ireland. This SI implicates goods moving between Northern Ireland and Great Britain. We support unfettered access for Northern Ireland businesses to the rest of the UK market. However, the Minister knows that there are concerns over the temporary definition of qualifying goods. Is he in a position to give us any further update on this issue?
Finally, we should always remind ourselves that at the last election the voters were promised an oven-ready deal with
“no tariffs, fees, charges or quantitative restrictions across all sectors”,
and protections for the environment, our workers’ rights, our customers’ rights and our security. However, we are a matter of days away and people in every region of the UK are still waiting to know how their livelihoods will be affected. I particularly want to mention the Government’s so-called levelling-up agenda. If the Government do not get this deal right, it will be the sectors and areas of the UK that can least afford it that will bear the brunt of that fallout.
This statutory instrument might look like a narrow change, but it raises many vital questions about what comes next. I look forward to the Minister’s reply.
Lord Callanan (Con)
I thank the noble Baroness, Lady Ritchie, and the noble Lord, Lord Bassam, for their consideration of this statutory instrument and their valuable contributions and questions—I shall endeavour to deal with as many of them as possible.
I have set out today the importance of this SI and the importance of having full sovereignty over our regulatory regime for goods at the end of the transition period. I emphasise that this SI is not a precondition for divergence; nor does it introduce any divergence from our current rules. By supporting the SI, we will ensure that we are not faced with legal challenges that seek to keep us in line with EU regulations.
To recap: treaty rights provisions prohibit quantitative restrictions or equivalent measures on imports and exports. Therefore, future divergence from EU regulatory requirements could result in a challenge from a business or importer if it led to a barrier being created to placing their goods on the market in Great Britain. This SI will ensure that we have the freedom to regulate goods in Great Britain as we see fit, along with considering the impact on businesses and consumers, while ensuring that the UK product safety system remains among the strongest in the world.
As advised, these regulations will not result in any changes for businesses. However, they will give businesses greater certainty that, if UK rules change, they will not be rolled back after legal challenges based on treaty articles that no longer make sense once we have left the EU.
The noble Baroness, Lady Ritchie, raised the important subject of working with the devolved Administrations. I repeat what I said in my introduction: my officials have had a number of informal meetings with officials from the Governments of Scotland, Wales and Northern Ireland, all individually, on this SI. Officials have also hosted regular meetings with officials from the devolved Administrations to discuss progress in negotiations and the regulatory requirements for goods at the end of the transition period. I say again that consent to this regulation was given by all the devolved Administrations.
The noble Baroness also asked about goods moving from Northern Ireland to Great Britain. We are laying this legislation to ensure that we do not face challenges from manufacturers or importers if in Great Britain we decide to change our regulation of goods in a way that creates barriers to trade with the EU. This does not mean that there will be barriers for goods flowing from Northern Ireland into Great Britain. We have laid legislation to prevent such barriers, including the United Kingdom Internal Market Bill and the unfettered access legislation. This SI will not undo any of those protections. I shall write to both noble Lords on the definition of Northern Ireland qualifying goods.
The noble Lord, Lord Bassam, asked about the protection of rights. The vast majority of these changes will take place regardless of the agreement that we have reached with the European Union on our future trading relationship so that businesses can be confident that their plans and preparations to date have not been wasted.
We also recognise the impact that the pandemic will have had on industry’s ability to prepare. For that reason, we are taking a pragmatic and flexible approach to using some of our retained powers as a sovereign nation to allow businesses time to adjust.
The noble Lord also asked about legislative time. More than 150 SIs required by the end of the transition period have already been laid. Good progress is being made and we remain confident that all required SIs will be in force by the end of the transition period.
The noble Lord and the noble Baroness, Lady Ritchie, also asked about the important subject of business readiness. We are listening to businesses and recognise that they have faced many challenges, particularly from Covid-19. For goods with the new UKCA marking, we are permitting the use of the CE marking for goods in scope of the SI until 1 January 2022 as long as Great Britain and EU technical requirements remain the same. There are easements allowing the UKCA marking to be affixed to a label on a product or on a document accompanying the product until 31 December 2022, and we are allowing new importers of products from the EEA to set out their details on a document accompanying their products until 31 December 2022. Those are all ways in which we are helping to ease the burden on business.
Since the summer, the Government have also been providing support through an ambitious series of business readiness events. My department has published a range of guidance. However, I stress once again that this SI does not introduce any changes for businesses.
The UK will have its own regulatory regime after the end of the transition period and the EU will not treat UK goods as it would goods from a member state. Therefore, the provisions to which this SI relates are no longer appropriate to retain and could impede our ability to diverge from EU goods regulation in future. I commend the regulations to the Committee.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
The Grand Committee stands adjourned until 4.30 pm. I remind Members to sanitise their desks and chairs before leaving the Room.
Arrangement of Business
(3 years, 11 months ago)
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The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, the hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear a face covering except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any surfaces they may touch.
The microphone system for physical participants has changed. Your microphones will no longer be turned on at all times, to reduce the noise for remote participants. When it is your turn to speak, please press the button on the microphone stand. Once you have done that, wait for the green flashing light to turn red before you begin speaking. The process for unmuting and muting for remote participants remains the same. The time limit for this debate is one hour.
Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020
(3 years, 11 months ago)
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Lord Stewart of Dirleton
That the Grand Committee do consider the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, this instrument forms part of the Government’s ongoing work to ensure that there are functioning domestic laws dealing with cross-border civil, commercial and family law matters in place at the end of the transition period that are consistent with the UK’s obligations under the withdrawal agreement.
This instrument is made under Sections 8 and 8B of the European Union (Withdrawal) Act 2018. It amends a number of statutory instruments made to remedy deficiencies in domestic legislation arising from the UK’s withdrawal from the European Union. The amendments address minor defects in those instruments, clarify the interaction of international conventions and domestic law after the end of the transition period, and ensure that two of those instruments are consistent with the provisions of the withdrawal agreement.
First is the amendment to the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, which revoke the Brussels Ia regulation, the key EU instrument dealing with jurisdiction and the recognition and enforcement of judgments in cross-border civil and commercial matters. In its place, domestic private international law rules will apply to cross-border cases involving parties from EU member states. However, to ensure that certain employees are not disadvantaged by this change, the civil regulations transpose special protective jurisdiction rules for employment cases from Brussels Ia into UK domestic law. One of those rules ensures that employees who do not have a habitual place of work in any one country can sue their employer in the courts of the EU member state where the business which engaged the employee is or was situated.
An error has been identified in the way the civil regulations transpose this rule. The Government’s exit policy intention is to replicate as closely as possible the Brussels Ia employment jurisdiction rules, modified only as necessary to make them work in the UK. However, in relation to one ground of the special jurisdiction rules, the rule has been inadvertently broadened to cover employees without a habitual place of work in any one part of the UK, rather than employees without a habitual place of work in any one country, as is the case in Brussels Ia.
This effect of this is that a larger group of employees will be able to sue employers in UK courts under this rule. This does not reflect the Government’s policy intention; nor is it a desirable outcome, as it would mean that employees who have a habitual place of work in another country will now have the option of suing in the UK courts instead, even where the connection to the UK is more tenuous—being only that the employee was engaged by a business situated in the UK. The purpose of the Brussels Ia rule was to provide a jurisdiction only in cases where that other place, a place of habitual work, was not available.
This instrument addresses the issue by amending the civil regulations to ensure that the Brussels Ia employment jurisdiction rules are correctly transposed into UK domestic law, modified only as necessary to make them work in the UK context. It does not represent any reduction in the protection available to employees, but merely properly replicates the existing EU rules.
The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 revoke the Brussels IIa regulation, the main EU regulation dealing with jurisdiction and the recognition and enforcement of judgments in parental responsibility cases, and the maintenance regulation, the main EU regulation dealing with jurisdiction and the recognition and enforcement of judgments in maintenance cases. In their place, the UK will move principally to the 1996 Hague convention for cross-border parental responsibility matters involving parties from EU member states and the 2007 Hague convention for the cross-border recognition and enforcement of maintenance involving parties from EU member states. Where there are no applicable Hague convention rules, the family regulations make provision for the rules that will apply. In the case of maintenance jurisdiction, these are largely the rules as they existed prior to the relevant EU rules taking effect.
Two minor errors have been identified in the amendments made to domestic legislation by the family regulations to reinstate the pre-EU jurisdiction rules for maintenance cases in Scotland. The first of these is the carrying through of a reference to
“actions for adherence and aliment”.
These concepts have been abolished in Scots law, making this reference obsolete. This instrument addresses this by simply deleting the reference.
The second error has the unintended effect that, from the end of the transition period, certain applicants seeking maintenance, referred to as “aliment” in Scotland, would be disadvantaged. This would be where that claim is not connected to divorce or other proceedings; the applicant in such a case would be unable to bring the proceedings in Scotland and would have to pursue the paying party in the courts of the country where the paying party is domiciled. This problem is addressed in this instrument through an amendment to the family regulations to restore the jurisdiction of the Scottish court to hear claims for aliment where the applicant is domiciled or habitually resident in Scotland. We have worked closely with the Scottish Government to identify these errors and agree suitable remedies via the instrument we are debating today.
Additionally, the Government recognise that some of the precise effects of the provisions of the family regulations are potentially open to argument. We are grateful to the family law practitioners who have raised concerns about a lack of certainty in the application of the saving and transitional provisions in the family regulations. These intend to ensure that cases started under Brussels IIa or the maintenance regulation rules before the end of the transition period continue under those rules after its end. The concern is whether it is clear enough that those provisions apply to cases begun under the intra-UK maintenance jurisdiction rules, which was the Government’s intention. They have also highlighted a possible lack of clarity over the relationship after the end of the transition period between domestic jurisdiction rules in parental responsibility and maintenance matters and the relevant Hague convention rules.
This instrument addresses these areas of uncertainty through amendments to the family regulations to make clear and put beyond doubt that the saving and transitional provisions apply to intra-UK maintenance matters and that the relevant Hague convention rules take precedence over the domestic jurisdiction rules in cases that properly fall under the relevant Hague conventions.
The Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019 revoke or amend, as appropriate, domestic legislation which gave effect to the EU mediation directive, other than court rules and matters within the legislative competence of the Scottish Parliament. One of the domestic instruments amended by the mediation regulations, the Fair Employment and Treatment (Northern Ireland) Order, has been amended further by the Employment Act (Northern Ireland) subsequent to the making of the mediation regulations. This amendment came into effect on 27 January 2020; as such, the mediation regulations do not take account of it. This instrument amends the mediation regulations to take account of this later amendment to ensure the meaning of the relevant provision in the Northern Ireland order is clear once it is amended by the mediation regulations.
The Family Procedure Rules 2010 and Court of Protection Rules 2017 (Amendment) (EU Exit) Regulations 2019 make amendments to the Family Procedure Rules and the Court of Protection Rules that are consequential on the main civil judicial co-operation exit instruments. The instrument we are debating today addresses some minor technical errors in the rules regulations, re-establishing a link between the Family Procedure Rules and the transitional provisions in the civil regulations in respect of maintenance cases arising under the Lugano Convention 2007 and fixing a cross-referencing error in, and omitting an erroneous reference to “EU member state” from, the amendments to the Court of Protection Rules.
In addition to these corrective and clarifying amendments, this instrument amends two of the civil judicial co-operation exit instruments to ensure that their provisions are consistent with the UK’s obligations under the withdrawal agreement. The first of these instruments is the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019, which amends the Rome I and Rome II regulations. These EU instruments set out the rules for determining, in cases with a cross-border element, which country’s law applies, respectively, to contractual obligations and non-contractual obligations. The application of Rome I and Rome II have been extended to intra-UK matters, so are also used, for example, to determine whether English or Scots law should apply to a contract connected to both countries.
The Rome I and Rome II regulations have been retained under the withdrawal Act and will apply as domestic UK laws from the end of the transition period. The Rome regulations amend the retained versions of Rome I and Rome II to take account of the UK no longer being an EU member state. While the amendments are minor, it means that the Rome rules as retained are slightly different in some respects from the EU Rome regulations. The other instrument is the aforementioned family regulations. Both the Rome regulations and the family regulation were made in contemplation of the UK’s exit from the EU without an agreement on the terms of our departure. As a result, neither instrument takes account of the withdrawal agreement subsequently agreed by the Government and the EU.
Title VI of Part 3 of the withdrawal agreement contains provisions that determine how transitional matters—that is, matters that commence, but do not conclude, before the end of the transition period—are to be treated. In the case of applicable law rules, Article 66 of the withdrawal agreement provides that the Rome I regulation shall apply in respect of contracts concluded before the end of the transition period and that the Rome II regulation shall apply in respect of events giving rise to damage, when such events occurred before the end of the transition period. The Rome regulations do not reflect Article 66. Instead they provide that the retained versions of the Rome I and Rome II rules as amended by that instrument, and not the EU Rome I and Rome II regulations, apply to such contracts and events.
Likewise, Article 67 of the withdrawal agreement provides that the Brussels IIa regulation and the maintenance regulation continue to apply to matrimonial, parental responsibility and maintenance matters where proceedings are instituted in relevant proceedings before the end of the transition period. The family regulations contain a saving and transitional provision which, although largely consistent with Article 67 in terms of proceedings commenced under Brussels IIa and the maintenance regulation, extends to matters not dealt with in the withdrawal agreement, such as choice of court agreements in maintenance. This instrument amends the Rome regulations and the family regulations to align these instruments with the UK’s obligations under the relevant provision of the withdrawal agreement —Article 66 in the case of the Rome regulations and Article 67 in the case of the family regulations.
I should add that this is the first of two instruments that will amend the civil judicial co-operation exit statutory instruments to ensure that their provisions align with the requirements of the withdrawal agreement. The second of these instruments is still being finalised and will shortly be laid before Parliament.
On impacts, as I have noted, the amendments in this instrument correct minor technical errors and clarify ambiguities in the civil, family, mediation and family, and COP rules regulations, and will ensure that the family regulations and Rome regulations are consistent with directly applicable provisions of the withdrawal agreement. As such, they are not expected to have any significant impact on business, charities or the voluntary or public sectors. Indeed, in terms of the errors and ambiguities corrected, the amendments will ensure the civil, family, mediation and family, and COP rules exit SIs have the impact intended by the Government when they were laid before Parliament, as is reflected in the Explanatory Memoranda for those instruments and, in the case of the civil, family and mediation exit SIs, in the impact assessments published in respect of those instruments.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I thank the Minister for explaining in some detail this statutory instrument. This SI fixes the defects in civil regulations, family regulations, mediation regulations, Rome regulations and even the rules of regulations. Is the Minister satisfied that all the problems have been ironed out? With only 24 days until we leave the EU, how many more instruments can we expect to see before the House before we go? Can he confirm that none of the amendments in this statutory instrument are in any way being discussed in Brussels today as part of the negotiations for when we finally leave?
I move on to an issue that I raised with the Minister when we had a private talk with the Minister in another place, Alex Chalk, on a specific concern of mine. I remind the Minister that I sit as a family magistrate in London and deal with the reciprocal enforcement of maintenance orders, which come under these regulations. The issue that we have in our courts is with the question of enforcement of these orders. As the Minister said, they will principally move to being enforced under the Hague conventions of 1996 and 2007. However, the issue that we have in our courts is that we have no powers, as far as I am advised by legal advisers, to enforce these maintenance orders.
Lord Thomas of Gresford (LD) [V]
I have been overlooked and it has gone straight to the noble Lord, Lord Ponsonby.
Lord Ponsonby of Shulbrede (Lab) [V]
I was just concluding my comments, but I think that the noble Lord, Lord Thomas, is after me on the list.
The Deputy Chairman of Committees (Lord Lexden) (Con)
When I am in the chair, there is no possibility of the noble Lord, Lord Thomas of Gresford, ever being overlooked. I call him now.
Lord Thomas of Gresford (LD) [V]
I am very grateful. I am sorry if there has been a glitch. I was ahead of the noble Lord, Lord Ponsonby, on the list that I received this morning.
I do not mind mistakes—everybody makes them—and the helter-skelter of amending the statute book in time for our leaving the EU has no doubt led to many errors in the wave of 2019 regulations put before us. If the mistakes could not be spotted at the time by government lawyers, perhaps the opposition parties can be forgiven for letting them through. I understand that another SI to amend mistakes is in the pipeline, similar to this, and I would expect others to follow.
First, the 2019 civil jurisdiction and judgments regulations inadvertently broadened the special jurisdiction rules, with the effect that a larger group of employees than the Government intended would be able to sue employers in UK courts. Secondly, the jurisdiction and judgments family rules contain two minor errors. The first are references to “actions for adherence and aliment”, concepts that had been abolished in Scots law before I ever came to know that they existed and, secondly, they inadvertently took away jurisdiction from the Scottish court to hear claims for aliment not connected to divorce or other proceedings.
The 2019 cross-border mediation regulations did not take into account alterations made by the Employment Act (Northern Ireland) 2016. Similarly, family procedure and Court of Protection rules contained minor errors. Two of the civil judicial co-operation exit instruments of 2019, which are very important to ensure co-operation with our former European partners, have been overtaken by the provisions of the withdrawal agreement.
I welcome this SI not so much for what it contains but because of its limited purposes—to use the powers that have been granted under various statutes to put right mistakes. There is nothing grandiose about it. The objection, that we hear so much, to the use of Henry VIII powers arises when they purport to carry into effect policy, not when they rectify errors, as here. By contrast, the powers to make secondary legislation that have been so offensive—the ones put back last night into the United Kingdom Internal Market Bill and abandoned this morning—were not just those which would have permitted a Minister to break the law and are contrary to the rule of law championed for so long by this country; that offence was compounded on this occasion by the unprecedented attempt to give such unlawful secondary legislation the status of an Act of Parliament, so that the use of unlawful powers could not be challenged in the courts by judicial review. The proposal was an extraordinary and unprecedented step, which I hope will never be repeated.
Today is an interesting day, not just for last night’s reassertion of illegality by a pack of Tory MPs, but as the day that the Prime Minister heads off to meet the head of the European Commission to assert the primacy of British sovereignty, having desperately weakened his own bargaining position by demonstrating that the United Kingdom cannot be trusted to keep its word. But I must be up to date. Perhaps honour has been saved this morning, not by the tooting John Soane-ian cavalry coming over the hill, but by that parfit gentil knight in tarnished armour, Michael Gove, the man the Prime Minister most trusts above all others to put a drooping lance into his back—ironic, is it not?
I take the Whig view of history: that, steadily but assuredly, humanity progresses from darkness into light. Such progress involves the necessary recognition of the rule of law, of human rights, and of international co-operation as an expression of our common humanity. In my lifetime, there has been progress. The forces of fascist dictatorship were crushed in the Second World War. International institutions such as the United Nations and its many agencies were created in its aftermath. Domestically, the welfare state, which had its origins in the reforms of Lloyd George in the early part of the 20th century, progressed and was entrenched. It gives us the National Health Service, and today, V for vaccination day.
However, in the last few years, progress has stumbled. Narrow nationalism proclaimed by populist leaders has re-emerged, blinking, into the light. The most notable instance has been the Donald Trump years—America first, when international co-operation in tackling climate change was abandoned, alliances were broken, the international order challenged, and internally, the concept of welfare, as illustrated by Obamacare, was attacked. It was all un-American.
Today, Mr Johnson will, in the Trump tradition, be arguing for British exceptionalism—Britain first. He will be asserting a faded—
Lord Parkinson of Whitley Bay (Con)
I wonder if the noble Lord, with his Whiggish view, could come back to the regulations in hand.
Lord Thomas of Gresford (LD) [V]
I am just about to complete. I was about to say that Mr Johnson will be asserting a faded and outdated concept of Machiavellian sovereignty for which Charles I lost his head and the British Empire went to the wall. Not much to do with this statutory instrument, you may think—as the noble Lord who interrupted suggested, and he was right—but this proceeding does for once give me a platform to add a very small footnote to what is an historic day.
Lord Stewart of Dirleton (Con)
My Lords, if I may answer the noble Lord, Lord Ponsonby, first—however the order should have been, he spoke first. He asked whether it could be confirmed that the amendments under discussion today, as part of this statutory instrument, are not being discussed in Brussels. I am able to confirm that is the case. The United Kingdom will not be asking for bespoke arrangements on civil judicial co-operations such as these.
The noble Lord raised again the matter of enforcement power in magistrates’ courts where he sits, as he did in another context to me. I regret to advise the noble Lord that I do not have specific matters in relation to his concerns, but if I can ask him to show patience I will write to him on the matter and hope to allay fears that he may have.
The noble Lord, Lord Thomas of Gresford, spoke generously and gave a generous analogy—the helter-skelter of the times and circumstances in which the instruments containing minor errors were inaugurated. With respect, the noble Lord is quite correct to describe the circumstances with the analogy that he used. I have spoken at some length to members of the Bill team as to how these things happened. They confirmed that it was indeed a matter of the extreme and unprecedented urgency with which drafting took place. I stress to the Committee that these statutory instruments have never been enacted into law; the errors that are identified in the present statutory instrument, correcting those in the previous ones, are not errors that have caused any inconvenience to any litigant or any member of the public; and they have no caused any disruption to the court system in any part of the United Kingdom. They have been identified in good time and I freely acknowledge the assistance of the specialist stakeholders who have been in touch to point out these recondite areas in which the statutory instruments fell into error or were insufficiently clear.
Finally, the noble Lord, Lord Thomas, raised the matter of his position—interpreting history from a Whig standpoint. I am more of a Butterfield man, and refer to his book The Whig Interpretation of History. That is a huge field of history on which I look forward, when leisure permits, to having an interesting discussion with the noble Lord. I beg to move.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, apologies are due to the noble Lord, Lord Ponsonby, and to my fellow Petrean and historian, the noble Lord, Lord Thomas of Gresford, for the confusion over the batting order this evening.