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

Debate between Baroness Hamwee and Baroness Stedman-Scott

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 16th September 2020 Lords Chamber

[Baroness Stedman-Scott (Con)]

My Lords, I thank the noble Baronesses, Lady Hamwee and Lady Ludford, for tabling Amendments 86 to 90 and 92. I sincerely apologise for any effort on my part that allowed the noble Baroness, Lady Hamwee, to get lost in my explanation. That was never the intention. I can confirm to all noble Lords that we will write, as requested. I hope it is clear that, as in the run-up to Committee stage, our door is open for further meetings for clarification.

These amendments seek to probe and limit the consequential powers at subsections (3), (4) and (5) of Clause 5, which are intended to provide the flexibility needed to fully implement, across the statute book, policy changes arising from the outcome of negotiations with the EU. In general, the provisions at subsections (3) and (4) provide the Government with the ability to give full effect across the statute book to policy changes arising from the modification of the retained SSC regulations listed at subsection (2), based on the outcome of negotiations with the EU in this area.

The purpose of these powers will be to ensure that there are no inconsistencies or gaps in provision between domestic social security legislation and retained SSC regulations following modification of the regulations at subsection (2). Such inconsistencies could potentially hamper the operation of domestic social security law where there are references to the regulations at subsection (2). Subsection (4) is not a “new power”, as the noble Baroness suggests. Nothing in subsections (3) or (4) enables the Government to do anything that does not arise as a result of changes to the SSC regulations. In particular, changes made under subsection (4) are limited by Clause 5(3)(c).

Wording used in Clause 5(3)(a), (b) and (d), for example, in relation to the use of discretion, as well as making different provision for different categories and purposes, reflects largely common wording in social security and other legislation which ensures that the regulations made under Clause 5(1) can appropriately reflect the different categories and statuses of those affected. I have previously mentioned the withdrawal agreement and the agreement that we have with Ireland on social security. Both are examples of where, for persons in scope of those agreements, we have already made provision for different categories of persons and for different purposes, and may need to do so again under regulations made under Clause 5 through subsection (3).

Subsection (4) simply ensures that any changes directly related to the retained SSC regulations can be fully implemented—for example, where supplementary or transitory provision is required in other legislation arising from the changes to the SSC regulations. The terms used at subsection (3)(c) allow for the making of provisions that arise from the changes to retained SSC regulations and for temporary or time-limited provisions that assist in the implementation of any changes brought about by the outcome of negotiations with the EU, if appropriate. The removal of subsection (4) could result in incomplete or incoherent amendments to domestic legislation or retained EU law not mentioned in subsection (2), potentially affecting the functioning of domestic social security law and a future agreement in this area.

We have shared with the Committee an illustrative draft statutory instrument that would be made under Clause 5. The draft SI includes a section which makes consequential and supplementary amendments of different types and purposes that arise elsewhere in the statute book as a result of the modification of retained SSC regulations. It is important that the Government have the power to make such consequential changes to avoid inconsistencies, gaps and inoperabilities across the statute book.

In my previous comments I gave an example of where the Government could not use this power to stop the export of the state pension. The state pension is payable worldwide under domestic legislation. Therefore, this power could not be used to such effect. With regard to Amendment 90, subsections (5) and (6) simply ensure that there are no unintended interactions between areas of EU law and new policies for those not covered by the withdrawal agreement. We have been very clear that there will be new policies in this area, which will mean that there will be a change in social security co-ordination entitlements for future cohorts of claimants.

These amendments would restrict the Government’s ability to reflect changes and to make appropriate changes across the statute book to ensure the full implementation of any outcome of negotiations with the EU. I think I have confirmed to the noble Baroness, Lady Sherlock, that I will respond to her in writing. To the noble Baroness, Lady Hamwee, on lack of scrutiny, I have set out under the previous group the specific consequences that justify this approach. I say to her also that, on Amendment 89 on the use of discretion, reference to discretion is standard wording in social security legislation and can be found in many Acts of Parliament. On the issue of why Amendment 85 is unnecessary, I will happily write to the noble Baroness, Lady Hamwee.

I hope I have addressed noble Lords’ concerns, and I ask the noble Baroness to withdraw her amendment for the reasons outlined.

[Baroness Hamwee (LD) [V]]

My Lords, it is not the Minister’s fault that I was confused in the previous group. I certainly was not accusing her of anything—it is entirely my own fault.

I am interested to hear that Clause 5(3)(d) is standard in social security legislation. It is not something that I am accustomed to in Home Office legislation—this Bill brings the two together—but I may be wrong in that and might not have noticed it before.

The Government have got themselves into a pretty tight timetable on this. That is why they want scope to make changes. I do not doubt the noble Baroness’s intentions; she sounded very reassuring. But it is not about being reassuring now, it is about what is possible under the very wide powers, as I and other noble Lords have been pointing out. Clearly, at this moment it is appropriate that I should beg leave to withdraw the amendment, so that is what I will do. However, I say to the noble Baroness—and it is no accusation—that I have not been assured. I beg leave to withdraw the amendment.