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

Baroness Bennett of Manor Castle Excerpts

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

[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.

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[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.

--- Later in debate ---

[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.

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

Baroness Bennett of Manor Castle Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd July 2020 Lords Chamber

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

My Lords, many laws come before the House of Lords that I disagree with but few deserve the label “tragedy”—but the Bill now before us does. In introducing the Bill, the Minister set it out plainly:

“The heart of the Bill is that it ends free movement.”


She said it. The Bill deliberately and bluntly ends something deeply precious that had been available to hundreds of millions of people for decades—a freedom and an opportunity for a wider life. It is a tragedy that we are today, in a stroke, preparing to reduce the freedoms and opportunities of 450 million European citizens and the chances for them to come to the UK and contribute their skills, knowledge and energy to our life.

I will focus on the far greater reverse loss for 66 million Britons, and particularly our young people. Denying free movement from the EU to the UK also means the reverse. We lose freedom of movement in the EU in more than a score of countries spread across a good part of a continent.

Lots of this debate has focused on economics, as far too much of our debate assumes that people exist to serve the economy and not the reverse, but I will focus on people’s lives, hopes, loves and, yes, even whims; the chance to up sticks and move, to stop in your travels, to experiment and to change—an opportunity that this Bill wipes out for Britons.

Movement is integral to the nature of our species—indeed, the nature of our genus, when you look at how far even our ancestor Homo erectus spread around this planet. With this Bill we are choosing to deny it to ourselves. It is traditional in your Lordships’ House to declare interests, although I know that as soon as I open my mouth it is evident that I grew up in one place, which I did not much like, and decided to see what was on the other side of the world, being lucky enough to have that opportunity open to me.

Huge numbers of people in the world move not by choice but by force of war and civil conflict, climate emergency and nature crisis. We should be working towards a world where no one has to move, but we should want a world in which everyone can move and make choices. That option is always available to the rich; there are always ways. Losing freedom of movement is profoundly an issue of inequality. It is those without the cash, connections and languages who will be stuck while the few wander the globe at will.

Many noble Lords have outlined how we might make this Bill slightly less disastrous, prevent children being torn away from their parents and couples from each other, protect child refugees and stop Henry VIII powers, and in Committee I will join in that work. Today I ask your Lordships to consider taking a bold, brave step, stop a tragedy and stand up for a deeply precious right: freedom of movement.

Covid-19: UK Border Health Measures

Baroness Bennett of Manor Castle Excerpts

Thursday 4th June 2020 Lords Chamber

[Baroness Williams of Trafford]

My Lords, it is fair to say that SAGE advises the Government and the Government make decisions on the back of that advice; SAGE also published the minutes up to 1 May. There would be no point in having SAGE if the Government did not at least value the quality of its advice. At the beginning of this, the noble Lord, Lord Rosser, thanked Border Force. I neglected to join him in doing so, but I also put on record my thanks to SAGE, which has been phenomenal throughout this process.

[Baroness Bennett of Manor Castle (GP)]

My Lords, from 8 June, some people arriving here will not only face 14 days of quarantine but have stamped in their passports “no recourse to public funds”. I am sure that the noble Baroness the Minister—unlike the Prime Minister—knows what that means: that they cannot access universal credit and disability, housing and child benefits, and are therefore at grave risk in the midst of the Covid epidemic, of which, as the noble Lord, Lord Bethell, said this morning, we face a second spike. Yesterday, a court ruled that the policy is unlawful. Will the Government remove the requirement of “no recourse to public funds” to ensure that everyone in Britain has access to the help that they need?

[Baroness Williams of Trafford]

I absolutely assure the noble Baroness that everyone in Britain will have the help that they need. “No recourse to public funds” does not mean that people will not have access to healthcare; they will. Nobody needs to find themselves without accommodation—the Government have purchased hotel rooms to ensure that—and nobody will find themselves without access to food either.

Windrush Compensation Scheme (Expenditure) Bill

Baroness Bennett of Manor Castle Excerpts

3rd reading & 2nd reading & Committee negatived & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard) & Committee negatived (Hansard): House of Lords
Tuesday 21st April 2020 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow three such powerful contributions in this debate. Along with others, I welcome the fact that we are talking about and providing compensation, but I am worried about the slow pace of the claims being made and the concerns which have been expressed about the details of this Bill, but of course this House has no power to change those details. What I want to do in this short Bill is to address four points, although of course we are to have a broader debate later. One of my points is the narrative around the Bill while another is about what actions have been taken following the Windrush scandal. I also have two pressing questions, which cannot wait until 6 May, about the risks of the next Windrush.

I turn first to the narrative. In introducing the Bill, the Minister did not really address the framework for how we got to the point of needing to pay compensation. If we go back to the Second Reading debate in the other place, we can see that the Secretary of State said that

“the whole country was shocked by the unacceptable treatment of … members of the Windrush generation by successive Governments over a significant number of years … yet they were … told that they were not welcome.”

I do not believe that anyone would challenge anything in that statement. The right honourable Lady went on to say

“This was a terrible mistake by successive Governments”.


Also from the government side in that debate, the right honourable Member for North Dorset said that the scandal

“was not a conspiracy but a cock-up of the most enormous magnitude.”—[Official Report, Commons; 10/2/20, cols. 618-20.]

That must be parliamentary language since it is in Hansard.

Since that debate was held, we have had the independent report about the scandal which says that the behaviour of the Home Office was

“consistent with some elements of the definition of institutional racism.”

In her response to today’s debate, I hope that the Minister will acknowledge that this was not a mistake or an accident but that there was racism behind the way the Windrush generation was treated, so it is very important that we acknowledge that.

The report says that the scandal was “foreseeable and avoidable”. That then raises the next urgent question: what direct action is being taken? The report quotes a Home Office official as saying:

“I think it is unfortunate that most of the policymakers were white and most of the people involved were black.”


What steps are the Government taking to address imbalances in the Home Office to ensure that its culture changes? These urgent questions cannot wait. We must acknowledge, accept and apologise for the treatment of the Windrush generation throughout their time in the UK, not just during recent immigration events.

The independent report was called the Windrush Lessons Learned Review, but we have to ask whether lessons have been learned. The noble Baroness, Lady Bull, raised the issue that was raised this week by the3million, a group campaigning for the rights of EU citizens, and others about universal credit and people in the UK with settled status. This cannot wait. These people are at risk of being left destitute and penniless because of the colour of their passport, even though we have said that we accept them as a member of our society. That threatens to be one of the next Windrushes.

Another issue that has been raised today by people from a range of political groups, including the Mayor of London, is that of people in the UK who have the status of no recourse to public funds in the crisis caused by Covid-19. Many of these people will be working. Some of them may be dependents in households where they are at risk of domestic abuse. With that status attached to them, they may be forced to put themselves in danger or face starvation. Obviously, our treatment of them is a question of humanity; it is also a question of public health and safety. Will they be forced to drive a minicab? Will they be forced to work in a store, even if they are ill or have been exposed to illness, because they have no real alternative because of their immigration status and the way we are treating that status?

My underlying question concerns that horrendous phrase “hostile environment”. It was not the party of our current Government who invented the phrase, I am afraid to say—it was a preceding Government—but the party of the current Government has certainly ramped up its application hugely. Are we at a point where the hostile environment is utterly reversed and our Government are saying that migrants are welcome?