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

Baroness Ludford Excerpts

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

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

My Lords, Amendments 77 and 78 contain an interesting and potentially very valuable idea. I pay tribute to the original thinking that the noble Lord, Lord Hodgson, brings to so many of his contributions to this House. I warmly endorse the arguments that he made, ably supported by the noble Lord, Lord Horam, and the noble Baroness, Lady Neville-Rolfe. I particularly welcome the wider perspective that these amendments bring to the issues surrounding immigration. The detail is always important, but so is the wider perspective, especially when very significant changes are being proposed.

As noble Lords may be aware, I have been closely involved in immigration policy matters for nearly 20 years. I think I am now on my 10th Home Secretary and my 16th Minister of Immigration. An office for immigration and demographic change, which the noble Lord proposes, would bring together the study of the key elements that cross the boundaries of so many Whitehall departments, most of which have departmental interests in higher immigration, rather than lower.

As the noble Lord mentioned, we already have the OBR, which provides a wider framework for economic policy. The Migration Advisory Committee is focused on immigration but, as has been remarked on a number of times in these debates, it comprises mainly economists and is largely focused on economics. It does not, nor is it asked to, take the longer view of the wider impacts that the noble Lord, Lord Hodgson, is advocating. The reality is that nobody in government is pulling together the demographic, economic, social and, perhaps, climatic elements that set the frame for the whole future development of our society.

Demography has its own uncertainties, of course. Death rates are fairly stable, but birth rates can change quite rapidly, especially for different groups in our society. But immigration has been, for some years, the key variable. Before the full impact of the Covid crisis became clear, immigration remained close to its highest level in our history. It is now the major factor in our demographic future. For the time being, the Covid crisis has distorted the impact of immigration but, if it were allowed to continue at recent levels, it would have huge consequences for education, health, housing and pensions. Nobody is considering that in an organised way. We need close and co-ordinated consideration of all these aspects, and where it is all leading to. We need to decide whether this is where we want to go and, whatever we decide, how best we can prepare for such a future.

So I commend the noble Lord’s valuable contribution to the immigration debate, and I support his amendments.

[Baroness Ludford (LD)]

My Lords, I concede that these amendments have a sincere purpose, but I am not sure that they really work. In Amendment 77, the noble Lord, Lord Hodgson, proposes that the Government issue a charter for EU immigration and demographic change, explaining the formulation of their policies on immigration. But the Government can already do this in other ways; indeed, they issued their White Paper on a points-based system a few months ago. The proposed charter would be laid before Parliament, but there is no description of what Parliament would then do. Would it approve, endorse or reject? I also query why the charter would set out demographic objectives only in relation to immigration when other factors are mentioned elsewhere in the two amendments. Of course, the other major factor in demographic change is the birth rate.

Amendment 78 aims to set up a new quango called the office of EU immigration and demographic change. Again, I am not sure why the Government cannot do this work, because it is the Government who issue the charter. It is proposed that the office should report on the impact of the Government’s demographic objectives for EU immigration, but it would be barred from considering the impact of any alternative policies. The noble Lord sought to explain, or justify, that constraint, but it seems to take away something—critiquing the Government’s policy and suggesting alternatives—which could be valuable. Again, no role is specified for Parliament as regards reports from this new office. I cannot in all honesty see the added value of such a body to the duo that we already have—the Migration Advisory Committee and, as the noble Lord, Lord Hodgson, mentioned, the Office for National Statistics, which already does population projections. I had a quick look and saw that it did one in October 2019; I do not know when the next one is due. And then there are surely academics on whose work either the MAC or the ONS could draw.

So I will not make the point that these amendments relate to immigration only from the EU, since such an objection would be disingenuous, given that I recognise the constraint imposed by the scope of the Bill. We have been a round that circuit several times in the last few days. I can do no more than say that these amendments, while interesting, do not really fly, for the reasons that I have given.

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Moved by

[Baroness Ludford (LD)]

84: Clause 5, page 4, line 3, after “(1)” insert “only”
Member’s explanatory statement
This amendment would restrict the Secretary of State’s power to make regulations to the powers listed in Clause 5(3).

[Baroness Ludford (LD)]

My Lords, in moving Amendment 84, I shall speak to other amendments in this group which attempt to rein in Clause 5 or delete it. Clearly, this group is also linked to the next group of amendments. I am pleased to see the noble Baroness, Lady Stedman-Scott, here; it is nice to have a change of landscape and scenery.

The Delegated Powers Committee in two reports has highlighted the problems of Clause 5, so this debate echoes the one that we had on Clause 4. Clause 5, in the words of the DPRRC, gives Ministers

“almost absolute power to rewrite the Co-ordination Regulations at any time of their choosing”—

that is, the social security co-ordination regulations. Parliament has no power to modify such SIs, only to approve or reject them. Not only did Clause 5(1) and 5(2) confer those very broad powers, but subsequent paragraphs on the purposes of modification place little restraint on Ministers; they give Henry VIII powers, among others.

The Delegated Powers Committee said that the Government’s delegated powers memorandum gave

“inadequate justification for a wholesale transfer from Parliament to the Government of power to legislate in a field that could … impact on large numbers of UK citizens resident in EEA members states, and EEA nationals resident in the UK”.

The committee said that the memorandum did not explain the need for Ministers to have the Clause 5 power now,

“how the Government might seek to use it … why it includes a power to amend … legislation … not listed in clause 5(2) … why it is not time limited”,

and why there is no duty to consult. It recalled its repeated view that for a skeleton Bill, a full explanation of delegated powers is necessary—and in fact, it says this clause is not even a skeleton; I do not know what is less than a skeleton, but it is a nice phrase. In any case, Clause 5 is unnecessary.

Since the UK left the EU on 31 January, the relevant EU regulations pertaining to social security, pensions and healthcare have been retained in UK law by Section 3 of the European Union (Withdrawal) Act 2018. That Act already contains a power in Section 8 to modify retained direct EU law. The Government have in fact already exercised that power and amended the co-ordinating regulations in 2019—I think there are four sets of regulations altogether, which are referred to as fixing regulations. The Government now want powers in this Bill, but if they do not fit within the 2018 Act then they must necessarily not relate to any ability for the law to operate effectively or to any deficiency in EU law. They are not tidying-up powers, and if they were then the Government could use the 2018 Act. It seems inappropriate to have Clause 5 in the Bill and for the Government to be able to legislate under its powers. It is much better for any changes to be brought to Parliament by primary legislation.

Of course the Bill and these powers are not about rights under the withdrawal Act or those protected by the withdrawal Act, who are often referred to as the cohort. Powers regarding the social security, healthcare and pension rights of those people covered by the withdrawal agreement are covered under Section 7A, which was inserted into the 2018 Act by the European Union (Withdrawal Agreement) Act 2020. That is also accompanied by Section 13 of the 2020 Act, which confers the power to make regulations in respect of social security co-ordination rights protected by the withdrawal agreement. We therefore have two sets of powers to regulate: one under the 2018 Act and another under the 2020 Act. Why does the Secretary of State now need a third set of powers to make regulations?

There is bound to be some duplication across these sets of powers, and it looks as if they are designed to bypass the need for primary legislation. In fact, I also recall that a memo attached to the letter from the noble Baroness, Lady Williams, on 4 September, about the illustrative SIs, said that the Government are also planning to implement a future relationship using the powers in Section 179 of the Social Security Administration Act 1992, the primary legislation governing reciprocal agreements for social security benefits between the UK and the rest of the world. That is a third set of delegated powers, so Clause 5 in this Bill would be a fourth set of powers. The Government are getting awfully greedy about powers for Ministers.

I put it to the Minister that if the Government think they need further legislation on social security it needs to go into primary legislation. Indeed, our Delegated Powers Committee suspected that Clause 5 was in the Bill to avoid having to prepare a detailed Bill subject to full parliamentary scrutiny once future arrangements with the EU were concluded. It said that Clause 5 is

“an inappropriate delegation of power.”

Hence, we have given notice that we would seek to delete Clause 5 altogether, whereas Amendment 84 would restrict the powers to those described in Section 5(3), while Amendment 85 would delete the power to distinguish between recipients on the basis of their nationality or where they reside.

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I have spoken at length, but there was a lot of ground to cover. I hope that noble Lords will not press their amendments.

[Baroness Ludford (LD)]

My Lords, the noble Baroness, Lady Stedman-Scott, has shared with us a great deal of dense information. I will make the usual disclaimer that I will need to read Hansard to be absolutely sure that I have understood what she said.

One thing about which I was a bit confused was when she said that Clause 5 would not be used to disbar the export of pension for certain nationalities. Then why have that ability in the Bill? She said it was a standard clause in social security co-ordination legislation, but I admit that I was a bit confused about that. It might be my problem: as we are nearing the end of Committee, my brain might be getting a little befuddled.

One cannot but be concerned about those covered by the withdrawal agreement. Until recent days, I would never have imagined that there could be any threat to the rights of people covered by the citizens’ rights part of the withdrawal agreement. That confidence has been shaken, I am afraid, and I am sure that the Minister will understand that point. She might protest that there is no intention from her department to do that, but the experience of the last week has been undermining of confidence. So we will need to look at all that very carefully.

The other thing—and I must admit that I saw a reference to it somewhere but have forgotten where—is that healthcare, because it is not covered by the DWP, is subject to separate regulations which I will need to try to track down somewhere. If the Minister can get her officials to draw those to my attention—to add another SI to the ones we are looking at—that would be very kind. The Minister is always very helpful, in various ways. It is a very complicated subject and I will look fully at her remarks.

I remain generally concerned about the scope of the delegation. As the noble Baroness, Lady Sherlock, said, it affects an awful lot of people. Will they be able to aggregate the periods of social security in different states? Can they be assured that their pensions will be not only received but uprated? Will they be able to get healthcare coverage? This is absolutely bread-and-butter basic security for people. It is why it is called “social security”. These matters remain of deep concern, but for now I beg leave to withdraw the amendment.

Amendment 84 withdrawn.