Registration of Marriages Regulations 2021

Baroness Sherlock Excerpts

Tuesday 23rd March 2021 Lords Chamber

[Baroness Sherlock (Lab) [V]]

My Lords, I declare an interest as a priest in the Church of England, one of a small number of Lords temporal who conduct marriages, and so directly affected by these regulations. I hope that this is one of those times when an inside view will add something different.

These regulations make two significant changes to the way in which marriages are registered in England and Wales. I am not opposing them, but I have had representations from clergy worried about the lack of notice. One said:

“We feel a bit stunned about the timing of these changes. We were told some time ago that they were planned and then everything went quiet, and it seems like a strange time to be introducing them now, with a very short lead-in time, with many churches just reopening and the Covid guidance on weddings (and other things) likely to change again soon.”


Another said that it was proving difficult, as he was

“trying to tell brides what their ceremonies will look like now as we have a bulge of weddings in this middle of the passage of this legislation. Not enough time for transitional arrangements.”

The registration process changed on 4 May and, a few weeks later, these regulations changed the processes for marrying people subject to immigration control. EEA citizens without settled or pre-settled status will no longer be able to be married after the calling of banns or the issuing of a common marriage licence, but will have to give notice at a register office and be issued with a superintendent registrar’s certificate. This has been the process for other foreign nationals since 2015, but these changes are likely to result in a significant increase in weddings where clergy have to use this new process because so many weddings of EEA nationals take place, as opposed to others. Can the Minister help me explain to clergy why, two years after the primary legislation went through, they are getting so little notice?

Secondly, where is all the guidance? I met a wedding couple just last Wednesday to discuss their wedding, and at that point there was no official guidance or training available. The training has since appeared, but it is just a series of slides with someone reading a script in the background, and only clergy may watch it, even though in many parishes, lay people are involved in taking wedding bookings; that is from the GRO. Can the Minister explain why?

It is good that mothers’ names can be recorded in the register. The training touches on this and helpfully says:

“In some cases questioning the parentage of a bride or groom may give rise to upset, and the aim of our guidance will be to ensure that any questioning on this aspect is done well before the marriage and not on the day itself.”


I am sufficiently well trained that I was not planning to question the parentage of a bride or groom on their wedding day, but if it is to be done well before the marriage, where is the guidance? We are assured that Guidance for the Clergy will be updated in advance of going live, but it was not on GOV.UK yesterday. Can the Minister tell the House when it will be issued?

Finally, when the marriage document or schedule is signed, the regulations say that the clergyman—sic—has a legal duty to get it to the local register office within 21 days. By the way, why can it not say “clergyperson”? Can the Minister confirm that the legal duty falls on the clergyperson who officiates at the marriage, not the vicar of the church in which it happens, although he or she will also need to keep a record of the marriage? These may not be the same people. A couple may want a particular priest from their childhood or even an ordained parent to take the wedding, who might live at the other end of the country, making it inconvenient to deliver a schedule or document to the local register office. Can the Minister clarify the penalty for not delivering it on time? The Explanatory Memorandum makes no mention of penalties but there is a reference deep in the regulations to a fine at level 3 on the standard scale, so I would be grateful for confirmation.

The training tells officiating clergy that it is their legal duty to get the document or schedule to the register office, but you may

“with the consent of the couple, ask someone else, such as a family member, to return it on your behalf.”

Does this mean that the couple must give their consent for someone other than the priest to deliver the certificate? If someone else does it, is the officiant still liable if it goes astray? Can it be posted if they are not local? Who is liable if it then does not arrive?

These may seem small details, but couples plan their weddings a long way ahead and in meticulous detail. At wedding meetings, we go over every single minute of the ceremony. I am sure the Church was consulted and has been flagging up to local dioceses that these changes would happen at some point, but I am pretty sure that the urgency did not come from the Church. Therefore, can the Minister understand how unhelpful it is for this to happen with so little notice and for us to be six weeks from D-day and still with no detailed guidance available? Why were the regulations not brought forward six months ago? If that was impossible, why can their implementation not be delayed, allowing for more preparation? I hope that the Minister can answer all my questions today, but if she needs to write on anything, can she commit to doing so quickly, preferably within a week? After all, we have only six weeks until this becomes law.

Domestic Abuse Bill

Baroness Sherlock Excerpts

Report stage & Lords Hansard
Monday 8th March 2021 Lords Chamber

All the amendments in this group are designed to relax or change some of the rules to enable greater independence from the perpetrator and make the possibility of escape, survival and a life free from fear for the victim and her family a greater reality. They are all well worth supporting but, I fear, not by this Government.

[Baroness Sherlock (Lab) [V]]

My Lords, I am grateful to my noble friend Lady Lister for her superb introduction and to all noble Lords who have spoken.

Amendment 10 relates to single payments of universal credit. The case has been made overwhelmingly clearly that the system of single payments facilitates financial abuse by allowing perpetrators to control the entire household income. Ministers only seem to have three arguments against acting on this: first, that claimants can ask for split payments, although, as my noble friend pointed out, that just puts survivors at risk; secondly, that most couples keep and manage their finances together, although, as Refuge points out, the finances of those experiencing economic abuse are not managed jointly but controlled by their abuser; and thirdly, that it would undermine the nature of universal credit and be a bit difficult. These are pretty weak arguments. All this amendment does is say that the commissioner will look into the matter further and report to Parliament. If the noble Baroness, Lady Sanderson, and the Government do not want the commissioner to look into it, can I suggest that they simply sort it out themselves? That would save our having to do so.

Amendment 69 would exempt domestic abuse survivors from repaying benefit advances made to mitigate the five-week wait. There is a real risk that survivors wanting to flee will be deterred because they know it is five weeks until they get paid—many are already in debt and do not want to take on more—and if they take an advance on, their monthly income falls below survival level, yet they have other debts to service. Does the Minister accept that this is a genuine barrier? I would be really interested to know the answer.

Amendment 72 would disapply the benefit cap for 12 months for survivors who fled and claimed universal credit. I am not going to repeat the devastating critique made by the noble Lord, Lord Best, but I do think Ministers owe it to this House and to survivors to engage with those arguments properly. Normally, Ministers argue that people can escape the cap by moving to cheaper housing or by getting a job, but those are not practical for someone fleeing abuse. There are already exemptions for those in refuges, so why not for those in any accommodation? There is already an exemption from the work requirement of universal credit for someone who has fled abuse in the previous six months, but what use is that exemption if survivors cannot afford to take advantage of it because they would still be hit by the benefit cap and so could not afford to pay their rent?

These issues are all examples of social security policy or practice which have a differential impact on survivors of domestic abuse. If Amendment 68 were accepted, government departments would have to assess the impact of any social security reforms on victims or potential victims of domestic abuse before making changes, rather than afterwards. It would stop us being here over and over again, trying to point out the problems of systems already changed, by trying to address them beforehand. Had that been done before creating universal credit or imposing the benefit cap or the bedroom tax, these problems could have been designed out at an earlier stage.

The survivor quoted by my noble friend Lady Lister was right: you need money to escape. Our social security system should enable survivors to flee abuse, but it does not. As my noble friend Lord Rooker said, this is a failure of joined-up government. The sad reality is that problems do join up, and at the level of the individual survivor, but the Government response fails to address that. There is no point in the Government legislating to support survivors of domestic abuse while steadfastly ignoring problems in their own systems, which risks exacerbating or even enabling abuse and making it hard or sometimes impossible for survivors to flee and rebuild their lives. I say to the Minister, whom I know cares about these issues, a lot of work has gone into researching, evidencing, and debating the issues, and the fact that the noble Baroness is a Home Office Minister is not a reason not to engage with them. The House, the country and survivors deserve to have these arguments taken seriously. I look forward to her reply.

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Baroness, Lady Lister, and the noble Lord, Lord Best, for explaining their amendments, which relate to the operation of the welfare system, including universal credit and the benefit cap, and their impact on victims of domestic abuse. The noble Baroness, Lady Sherlock, is absolutely right: just because I am a Home Officer Minister does not mean that I should not and do not engage on these matters.

Amendment 10 seeks to place a duty on the domestic abuse commissioner to investigate universal credit single household payments and lay a report before Parliament within a year of Royal Assent. As I indicated in Committee, and as my noble friend Lady Sanderson said, as an independent officeholder, it should be for the commissioner to set her own priorities as set out in her strategy plan, as provided for in Clause 13. I understand that the commissioner has no current plans to examine this issue in the next year. If this amendment were to be made it would necessarily mean that other issues which she might have regarded as more pressing would fall by the wayside. Moreover, the way the amendment is drafted arguably prejudices the conclusions of the commissioner’s report and makes it difficult or impossible for her to comply with the duty if those conclusions do not then come to pass. If the aim of this amendment is to secure a particular preordained outcome, I see no benefit in asking the independent commissioner to investigate the matter. She has already embarked on the mapping exercise in relation to community-based services, so there is no contradiction between government Amendment 17 and the concerns we have about Amendment 10.

DWP is committed to doing all it can to support victims of domestic and economic abuse, including giving split payments when requested, easements to benefit conditionality and referrals to local specialist support. However, by default, a core principle of universal credit is that it is a single household payment. Where a claimant is part of a couple and living in the same household, they will need to make a joint claim for universal credit. Many legacy benefits, including housing benefit, child benefit and child tax credit, already make payment to one member of the household, so the way universal credit is paid is not a new concept. Instead, we believe that this reflects the way that most couples can and want to manage their finances—jointly and without state intervention. We have therefore taken a proportionate response, ensuring that universal credit meets both the needs of the many and the most disadvantaged, including victims of domestic abuse.

Recognising that there are circumstances in which split payments are appropriate, we have made them available on request to anyone at risk of domestic abuse. As part of that, it is important that we allow the individual who is experiencing domestic abuse to decide whether they think that split payments will help their individual circumstances. Once that choice is made, the request for such payment can be made in whatever way works best for the claimant, including during a face-to-face meeting or a phone call. Once paid, the larger percentage of a split payment will be allocated to the person with primary caring responsibilities, such as childcare. This is to ensure the health and well-being of the majority of the household. We can also arrange for any rent to be paid directly to the landlord to protect the family tenancy. No information relating to why a split payment has been requested or granted will be notified to the claimant’s partner. In addition to the right to split payment on request, we have also taken measures to encourage payment to the main carer in the family. Evidence suggests that 60% of universal credit payments are made to women, who are usually the main carer. Given this, we have changed the claimant messaging on the service to encourage claimants in joint claims to nominate the bank account of the main carer to receive their universal credit payment.

I hope that noble Lords will see that, although universal credit’s single household payment mirrors the model of the legacy benefits it replaces, much has been done to offer alternative payment arrangements to victims of domestic abuse. However, universal credit cannot solve all the problems of domestic abuse and split payment is not a panacea. It is crucial to acknowledge that abusive partners may still take money from their victims, whether that is payment of universal credit or any other source of income, including through intimidation, coercion and physical force. Payment to the victim’s individual bank account is no guarantee, with such people capable of learning passwords and taking control of bank cards.

The Government therefore view calls for split payments to all couples claiming universal credit as disproportionate. This would be a fundamental change to the payment structure of universal credit, from a single household payment made to one individual of the benefit unit to payments split between joint claimants by default, rather than made available to those who need this method of payment. It would add very significant cost and complexity. For example, split payments are currently a manual process. To introduce them by default they would have to be automated, at considerable cost and disruption. This would also deflect limited resource from the improvements already prioritised for the universal credit system. Such fundamental change from a single to a multiple-payment model for all, regardless of need, may also put the stability of the system at risk for all 6 million current universal credit claimants, and at a time when numbers have grown significantly in response to the pandemic.

Lastly, the noble Baroness, Lady Meacher, advocated split payment by default, pointing to the Scottish Government’s wish to adopt this method of payment. For the reasons I have set out, that is not the Government’s position. It is also noticeable that the Scottish Government are yet to come forward with firm proposals. I say this not to criticise, but merely to illustrate to the House that this is a complex area in which to design a workable policy. Nevertheless, we will continue to work closely with the Scottish Government to establish the practicalities of delivering split payments in Scotland. Should they come up with a policy capable of being implemented, we will observe their implementation to further understand the impacts, any potential advantages and disadvantages. We would ask advocates of split payment by default to do the same, in a “test and learn” approach, so that future debate on this may be based on practical evidence.

Amendment 68 would require the DWP to assess the impact of welfare reform on victims, and potential victims, of domestic abuse. The DWP already does this, in accordance with the public sector equality duty. An equality impact assessment to support the introduction of universal credit was published in November 2011, and an impact assessment was published in December 2012. Equality impacts have been further considered in developing subsequent plans surrounding the implementation of universal credit. I appreciate the noble Baroness’s intention in proposing the amendment, but I do not think that the additional duty is required.

Finally, Amendment 69 seeks to make victims of domestic abuse exempt from repaying universal credit advances. It is important to note that there can be no such thing as an advance that is never intended to be recovered. Advances are simply an advance of a claimant’s benefit, paid early, resulting in the same amount of universal credit being spread across more payments. It is, therefore, more appropriate to say that this amendment would effectively create grants or additional entitlement to universal credit solely for victims of domestic abuse. While the Bill demonstrates the Government’s commitment to supporting victims of domestic abuse by introducing additional benefit entitlement, we would effectively be unfairly discriminating against all other vulnerable cohort groups who may be facing substantial challenges.

Domestic Abuse Bill

Baroness Sherlock Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 27th January 2021 Lords Chamber

[Baroness Burt of Solihull (LD)]

My Lords, first, I would like to add my thanks to the chorus of praise that is being heaped on the tremendously clear and cogent introduction by the noble Baroness, Lady Lister.

Many noble Lords and parties outside this place—charities, other groups, news media and so on—have expressed great concern that, at a time when victims are at their most vulnerable, they are being failed by our support systems, which were designed to come to their rescue. We need to know what effect government benefits and interventions are achieving.

I support all these amendments and would have added my name to all of them if there had been space. Amendment 34 calls for the commissioner to look at universal credit split payments. It is probably a deeper question than that, as some of the discussion we have had on this has already revealed. It is a knotty, complex problem, and it very much bears investigation by the domestic abuse commissioner to see what can be done to make the whole system fairer. I have been campaigning for split payments by default for some time. Perhaps we need more, but that would be a very good start.

Amendment 150 is a neat solution to a problem of the Government’s own making. Long delays in the payment of benefits when a victim could be destitute and in need of more financial support to replace belongings they have left behind, find somewhere to stay, et cetera, can lead to extra expense just to survive, so to claw back payments made in advance when they would not have been necessary in the first place if they had been paid promptly is surely adding insult to injury. In the grand scale of moneys paid out by the Government recently to help people disadvantaged by circumstances, it is a drop in the proverbial ocean.

Amendment 152, which would disapply the benefit cap for 12 months after a new claim following a new universal credit claim for a victim of domestic abuse makes a lot of sense. It would enable a victim, desperate for accommodation and some security, to not have to worry if there is one bedroom too many for 12 months while they find their feet. I was shocked to learn from the noble Baroness, Lady Lister, that a panic room could constitute an additional bedroom, and I very much look forward to the Minster’s response on this because, if that is the case, it really needs sorting out. Is this too much to ask? Perhaps the Minister will tell us what she believes about this cap.

Finally, Amendment 153 would require the Government to assess the impact of any social security reforms on victims or potential victims of abuse. The Government need to know the effect of government policies. If we do not measure the effectiveness of what we are spending, how can we spend taxpayers’ money most effectively to help our offer to these people, the most vulnerable and in need of help in our society? They are not huge measures in terms of cost, but they will give big relief for those who are already suffering.

[Baroness Sherlock (Lab) [V]]

My Lords, I am grateful to all noble Lords who have spoken, including my noble friend Lady Lister for a superb introduction, and for all the great speeches. I am grateful too to those who supplied briefings and to DWP Ministers for meeting us.

The amendments in this group cover four distinct issues, and I shall touch on each. The first is universal credit payments. As we have heard, single household payments actually facilitate financial abuse, because they allow perpetrators to control the entire household income. Claimants can ask for payments to be split but, as my noble friend Lady Lister said, simply asking puts them at risk. Refuge front-line staff say, “It is rarely, if ever, safe for a survivor to request splitting UC payments”. That may explain why it is so rare.

As we have heard, there have been widespread demands from various organisations and committees for Ministers to find a way to separate payments by default. I know that Ministers do not like the idea, partly for operational reasons and partly for the reason mentioned by the noble Baroness, Lady Chisholm, that the vast majority of couples keep and manage their finances together. But, as Refuge, points out, for those experiencing economic abuse, their finances are not managed jointly but controlled by their abuser. And this is not a tiny minority. We have heard today that research from Refuge and the Co-op Bank found that 16% of adults had experienced economic abuse from a partner. That research also found that 39% had experienced abusive behaviours, such as not being allowed access to a joint bank account, or being scared into allowing debt in their name. Given the high numbers flowing on to universal credit in the pandemic, this is urgent.

Amendment 34, to which I have added my name, would simply place a duty on the commissioner to investigate the payment of universal credit separately to members of a couple and lay a report before Parliament. The noble Baroness, Lady Chisholm, expressed concern that that would be putting an imposition on the commissioner, but I am sure she has noticed that the briefing sent to noble Lords from the office of the commissioner designate actually indicated support for this proposal from my noble friend Lady Lister. So I hope that, on that basis, the Minister will be able to accept it.

Amendment 150 would exempt domestic abuse survivors from having to repay a benefit advance that is made to mitigate the five-week waiting period for universal credit. As we have heard from many noble Lords, those who flee often take little money and few possessions with them. They normally have to make a fresh claim for universal credit, triggering the five-week wait all over again. My noble friend Lady Primarolo explained compellingly why that is such a problem. We have heard evidence that, on average, the survivors of economic abuse are over £3,000 in debt. In addition, a quarter have had their credit rating suffer as a result. There must be a real risk that survivors who want to flee could be deterred because they know it will be five weeks until the first UC payment. They may already be in debt and worried about getting into any more, and if they take an advance, not only does their monthly income fall below the survival limit, they will have other debts to service out of that. If Ministers do not want to accept this amendment, what do they propose to do to support survivors and enable them to flee abuse with enough money to do so?

Domestic Abuse Bill

Baroness Sherlock Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 5th January 2021 Lords Chamber

[Baroness Sherlock (Lab) [V]]

My Lords, I want to highlight some of the problems with our social security system that exacerbate the risk of domestic abuse or make it harder for survivors to flee and rebuild their lives.

A key problem lies with universal credit. I was contacted recently by a friend who claimed UC and was surprised to find that his partner could see every message that he exchanged with his work coach on his UC journal and vice versa. He was concerned for the effect on those in abusive relationships. I tabled a Written Question on this, and the Minister’s reply said that claimants should not share sensitive information on the journal. However, all kinds of information can be sensitive in the context of domestic abuse. To inquire about a job in a certain sector or another geographical area, or to ask about certain kinds of support—any of that could be risky.

The Minister also said that all UC staff receive training in identifying and supporting victims of abuse, but I am sorry to say that charities suggest that the training is rather thin and the support for staff very patchy. This needs looking at again.

The very structure of universal credit causes problems in relation to financial abuse. We have long raised concerns about the implications of combining all support into a single household payment because it limits women’s financial independence and can be used by perpetrators to control the entire household income. Survivors can request that the payment is split but of course that just puts them at risk of further abuse. Refuge’s front-line staff say that it is

“rarely, if ever, safe for a survivor to request splitting UC payments”.

That might explain why it is done so rarely.

Then there is the five-week wait. Survivors often have to flee with very little by way of money or possessions and they usually have to make a fresh claim for universal credit, which of course triggers the five-week wait all over again. The advance on offer is not the answer because the repayments reduce monthly income below survival level. Refuge research found that most survivors of economic abuse are already in debt because of the abuse, so they hardly want more debt. This needs addressing.

The benefit cap and two-child limit can also hit survivors, who cannot shop around for cheaper rent at the point of crisis. The numbers affected by the cap have risen during the pandemic and will rise further as more people come to the end of the grace period, which gives nine months’ exemption from the cap to those who earned over a certain threshold the previous year. Children born as a result of non-consensual conception or within an abusive relationship are meant to be exempt from the two-child limit but, as the Minister will know if she has read the report published last year by the Church of England and CPAG, the exemption is not working. Indeed, I cannot believe that the Minister is at all comfortable with this policy.

Let me quote two survivors from the report. One said:

“I never thought I’d be in the position [of claiming benefits] when I had a third child. The two-child limit feels like it is punishment for leaving an abusive marriage.”


Another said:

“I had my children during an abusive relationship. I personally didn’t want to have so many children but now they are here I love and care for them. I’ve since departed from my ex-partner. But financially I’m struggling and have been moved away from my support network and placed on universal credit.”


Surely our social security system must ensure that anyone preparing to flee an abusive partner can do so knowing that they can afford to house, feed and clothe themselves and their children, but that would require reform of our social security system. As my noble friend Lord Rosser said, in future a change to our social security system needs to be assessed in advance for its impact on domestic abuse survivors. This is the least that we, as a civilised society, owe them. I look forward to the Minister’s reply.

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

Baroness Sherlock Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, on the first day of Report, on an equivalent amendment to Clause 4, the Minister gave an assurance that the Government have absolutely no intention of acting incompatibly with the citizens’ rights provisions in the withdrawal agreement. However, as the noble Lord, Lord Flight, has said, that is not the point. He set out very carefully the social security provisions which are the issue here. The concern is that the use of regulations, or secondary legislation, to modify the primary legislation that is the basis of the various benefits could wittingly or unwittingly modify them—“modify” is a polite legislative word for “cause a lot of people a lot of problems”. If this amendment were part of the Bill, it would protect against this.

Last week, the noble Lord referred to the establishment under the 2020 Act of the Independent Monitoring Authority, and I was grateful for that. I share a rather wry smile with noble Lords because provided for in the authority’s powers is that it may make applications for judicial review—we all know the Government’s expressed position on activists and lawyers using applications for judicial review and generally not liking frequent resort being made to them. There is of course a review of the use of judicial review going on at the moment. So I thank the noble Lord for that moment of amusement in this complicated area. I support the amendment.

[Baroness Sherlock (Lab) [V]]

My Lords, as we heard from the noble Lord, Lord Flight, this amendment would prevent regulations made under Clause 5 including any provisions that could be inconsistent with the withdrawal agreement. I presume that the aim is to avoid any action that might serve to undermine the rights of UK citizens in the EU and EU citizens here that were guaranteed under the withdrawal agreement.

As the noble Baroness, Lady Hamwee, said, we have had this debate at earlier stages and on Clause 4. On the basis of those past debates, I think there is a decent chance that the Minister will say that this amendment is unnecessary. But as the noble Lord, Lord Flight, pointed out: what is the downside? Given the uncertainty caused by statements elsewhere about the nature of the withdrawal agreement and the extent to which the UK is committed to it, the Minister will understand why some noble Lords are nervous and want the kind of assurances that one would hope she should be able to give without difficulty.

The noble Lord, Lord Flight, explained the terribly important issues that are covered by Clause 5. This will be our only engagement on Report with the subtle joys of this clause. I raised many of the issues about social security co-ordination at Second Reading and in Committee, and felt that I did not get satisfactory answers in Committee. However, I have now received a letter from the Minister, the noble Baroness, Lady Stedman- Scott, which has provided more information. In the light of that, I do not intend to move Amendment 29 in my name in the next group.

I remain very concerned about the implications for too many people of the loss of reciprocal arrangements for social security co-ordination, but I recognise that we will not get anything more at this stage of the Bill. I hope that the letter I mentioned will be placed in both Libraries. Because it contains information about new developments which were not reflected in the draft regulations shared with us in Committee, it would be helpful if the letter were displayed as soon as possible in the relevant place under the “will write” section of Bills before Parliament, so that its contents are readily accessible to those who are interested.

These are very important issues. I look forward to hearing what the Minister has to say.

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Stedman-Scott) (Con)]

My Lords, I am grateful to the noble Lord, Lord Flight, and the noble Baroness, Lady Hamwee, for speaking to this amendment. The Government have given written assurances in every Bill document throughout the passage of the Bill on this point; I have reiterated those assurances in Committee, and I will do so again here.

I can assure the House that Clause 5 does not enable the Government to alter the rights guaranteed to those in scope of the withdrawal agreement. The entitlements of this cohort are guaranteed by Sections 7A and 7B of the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020. The power at Clause 5 will not and cannot affect those provisions. Rather, it allows for EU law retained by Section 3 of the European Union (Withdrawal) Act 2018 to be modified. The rights under the withdrawal agreement are therefore provided by a distinct and separate legal mechanism in relation to that of retained EU law, and this power will not affect the rights of those within the scope of the agreement. This includes those examples given by the noble Lord, Lord Flight, such as state pension uprating, the S1 scheme and the aggregation of contributions. It is therefore the Government’s view that Amendment 28 is unnecessary, on the grounds I have set out.

I note the request of the noble Baroness, Lady Sherlock, for my letter to her to be placed under the “will write” section—I am so pleased that that makes sense—of Bills before Parliament.

I reiterate that it is the Government’s view that Amendment 28 is unnecessary, on the grounds I have set out. I hope that with this explanation, the noble Lord, Lord Flight, will withdraw his amendment.

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

Baroness Sherlock Excerpts

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

[Baroness Janke (LD) [V]]

My Lords, I will speak in support of Amendments 84 and 85 and of Clause 5 being deleted from the Bill. As other noble Lords have said, the amendments in this group seek to restrain the Government in their objective of transferring wide-scale powers to Ministers to take action that could have a major impact on the lives of UK citizens living in EEA countries and on EEA citizens living in the UK.

Amendment 84 would restrict the Secretary of State’s power to make regulations to the powers listed in Clause 5(3). These powers enable the social security co-ordination regulations to be amended and policy to be changed. The social security regulations co-ordinate access to social security for people moving between EEA countries and they are widely accepted and understood across those countries. They ensure clarity about where payments and contributions are made. These payments are essential income to UK citizens living in the EEA and EEA citizens living in the UK. As other noble Lords have said, it is important for all citizens to have confidence in the continuation of these complex regulations and in the withdrawal agreement itself. The Government’s explanation is that the clause allows them to make regulations to implement any new policies regarding co-ordination of social security. The clause is intended to be used to implement new policies, subject to the outcome of future negotiations with the EU. As the Delegated Powers and Regulatory Reform Committee has warned, there has been no adequate justification for the transfer of these powers to Ministers. The Constitution Committee also recommends that Clause 5 be deleted from the Bill and says:

“Any further modification of the Social Security Co-ordination Regulations that might be required could be achieved using the power in section 8 of the European Union (Withdrawal) Act 2018.”


Amendment 85 seeks to preclude the power of the Secretary of State to distinguish between recipients of pensions and other benefits on the basis of their nationality or residence in a particular state. This takes no account of other circumstances and would lead to arbitrary and unjust decisions that would have a huge impact on the lives of the people they relate to.

Further, I wish to oppose that Clause 5 stand part of the Bill. If successful, this would see Clause 5 as an inappropriate delegation of power, as recommended by the DPRR Committee in its 46th report. How can it be right or proper that the regulations governing the crucial payment of social security, such as disability benefit and unemployment benefit, to large numbers of people can be radically changed, even to their extreme disadvantage, without consultation, without proper scrutiny and with little accountability? This is a licence to penalise large numbers of citizens arbitrarily without proper justification or democratic safeguards. If this clause goes through, public consideration of changes to the regulations will be so limited that the people affected will have no opportunity to question or make representations as to their impact.

I support these amendments and strongly oppose Clause 5 standing part of the Bill. As the Delegated Powers and Regulatory Reform Committee said:

“We remain of the view, expressed in our earlier Report, that the Government have provided an inadequate justification for a wholesale transfer to Ministers of power to legislate in a field that could have a major impact on large numbers of UK citizens resident in EEA countries, and EEA citizens resident in the UK, who currently rely upon reciprocal arrangements.”


I support my noble friend Lady Ludford in saying that such changes should be the subject of primary legislation and not as is suggested in Clause 5.

[Baroness Sherlock (Lab) [V]]

My Lords, it is good to have a chance to explore the social security part of this Bill at last. I will speak to the Clause 5 stand part amendment, to which I have attached my name, and to my Amendment 91, to which my noble friend Lord Rosser has added his name and which would sunset the powers in Clause 5(1).

There are two minimum steps that Ministers need to take if they want to keep Clause 5 as it stands. First, they must address all the issues raised by the Delegated Powers Committee. Secondly, they must be clear with Parliament about the state of social security co-ordination after transition. The DPRRC’s 22nd report highlights matters that Ministers have failed to explain, such as how the Clause 5 powers fits with provisions in the 2018 and 2020 Acts;

“how the Government might seek to use the power; why it includes a power to amend primary legislation and retained direct EU legislation other than the SSC Regulations; why the power is not time limited; why Ministers will have no duty to consult before making regulations.”

We have received some very helpful briefings so that we can explore these issues, but we need to get some answers on the record. My understanding of what we have heard is that the Clause 5 power enables government to make policy changes, whereas the power under the withdrawal Act is used to fix deficiencies, and the delegated power in the 2020 Act relates only to ensuring that the provisions of the withdrawal agreement can work. Can the Minister tell the Committee whether that understanding is right? Can she confirm that the Clause 5 power cannot be used to make changes for those people who fall within the scope of the withdrawal agreement?

On the breadth of the powers, I think that the Government’s defence is that the powers in Clause 5(1) can be used only to modify retained direct EU legislation as specified in Clause 5(2), and that Clause 5(3) says that the powers in Clause 5(1) can be used for various purposes—but, again, only in relation to the retained EU law specified in Clause 5(2). In any case, they say that the illustrative draft regulations under Clause 5 repeal all the instruments specified in Clause 5(2), so there is nothing for this power to apply to. Is the Minister telling the Committee that it is the Government’s intention to repeal all the instruments specified in Clause 5(2)? Are there any circumstances in which those regulations would not be repealed?

In terms of how the Government will use it, my understanding is that the Clause 5 power will be used to repeal provisions not covered by any deal; that is what is suggested by the illustrative draft regulations. We have been told that the power may therefore be used only once. In that case, what is the problem with time-limiting the power, as Amendment 91 proposes? Again, it has been suggested that you need to hold on to it—for example, in case a new state joins the EU, but this seems highly disproportionate. If that were the only issue, I am sure that Ministers could find a much more targeted way to deal with it—and they will have plenty of time to work it out because new states do not just join the EU overnight. So, is there any other reason why the Government need to retain the Clause 5 powers beyond 12 months other than to deal with a new state joining the EU? If it is just that, what other mechanisms did they look at for dealing with that?

--- Later in debate ---

[Baroness Hamwee (LD) [V]]

My Lords, I shall speak also to Amendments 87, 88, 89, 90 and 92. These amendments are parallel to amendments debated on day one in Committee, on Clause 4, and some, of course, are exactly the same. As we heard in the last debate, both the Constitution Committee and the Delegated Powers and Regulatory Reform Committee of your Lordships’ House have reported. The chair of the DPRRC, the noble Lord, Lord Blencathra, said that he was “not emollient” whenever it was that we debated Clause 4, and he was right not to be so when dealing with what he called “fundamentally excessive delegated powers”. What I regarded, and regard, as too- wide powers, the Minister then called “clear constraints”. She relied particularly on what the Government have published already: whether it is in its draft, illustrative or final form is irrelevant.

The noble Baroness, Lady Stedman-Scott, also relied on the fact that “we”—the Government—would do and not do certain things, but “we” will not always be the “we” that the noble Baroness is referring to, and others whom we actually know. I am sure that, were she on the other side of the House, she would be pointing out that Governments change and individuals change, and it is in no way impugning her integrity to say that there should be protection against future changes without the proper involvement of Parliament.

Yet again it has just been suggested that a debate, without Parliament having a power to amend something, is adequate: “adequate parliamentary power”. It is not. I must say that I for one got a bit lost on some of the arguments in the last debate. In particular, I did not follow why Amendment 85 was unnecessary. I wonder whether we might have a written explanation of the opposition to it. I could not quite follow whether it was because of what is meant by the term “modify”.

The powers will remain and the Government will have them until the Act is amended or repealed. The latter would cause a lot of confusion. It is not only about the here and now; it is about the short, medium and long-term future.

I refer particularly to Clause 5(3)(d), which is the subject of Amendment 89. That says that the regulation-making power includes power

“to provide for a person to exercise a discretion in dealing with any matter.”

I do not think that is in Clause 4, so I wonder about the significance of the addition and what the discretion could be about. Would it be a discretion to apply a restriction or criteria less robustly? I do not think it could mean to apply it more robustly, but I might be wrong in that. I do not think the latter would be lawful. If the Minister is able to clarify that, it would help.

I had intended to quote from the DPRRC report and to comment on the Constitution Committee report a little. It strongly agreed with the DPRRC’s conclusions, but we have heard a lot from the report, so I do not think I need to do so. However, I follow my noble friend Lady Ludford, who talked about the uncertainty that recent events have caused people who will be affected by the changes being made and the big changes to their lives. I think she said that these things could happen quickly, and they certainly can, which reinforces my point about the importance of not just relying on what certain Ministers say today because it might not be the case tomorrow.

This morning, I had an email from a British citizen living in Spain. She said:

“With the withdrawal agreement, both EU citizens in the UK and UK citizens residing in the EU at last felt we had secured a relatively good, guaranteed level of protection, even if not completely perfect (and certainly not as good as we had with the UK a member of the EU!). However, if the government can tear up the rule book in this way clearly anything can be changed on a whim and nothing is guaranteed, and I fear that our hard-fought rights could be just as easily removed.”


I beg to move.

[Baroness Sherlock (Lab) [V]]

My Lords, I thank the noble Baroness, Lady Hamwee, for raising these issues. I specified my concerns on delegated powers in relation to social security in my speech on the previous group, so I will not repeat them. However, I asked a number of specific questions in that speech, not all of which the Minister managed to answer. Will she commit to respond to each of them in writing before we get to Report?

The Minister has been generous in allowing us access to her officials, who have provided some excellent briefing, but it has taken me two weeks of work to get my head around the interaction of all these sets of powers and the Government’s arguments on the use of delegated powers in relation to the Bill. The Minister will realise that the Committee remains pretty unhappy about this matter, so I encourage her to respond as fully as she can, in writing, both to my points and to those raised by the noble Baroness, Lady Hamwee, and others before we reach Report, so that we can have the best possible debate at that point. I look forward to hearing her reply.

--- Later in debate ---

[Baroness Sherlock (Lab) [V]]

My Lords, I am grateful to noble Lords for raising this important issue. The review highlighted how many of the Windrush generation suffered so much, starting with stress and anxiety and leading too often to loss of livelihood and even separation from home and family. It therefore seems a fitting way to end the Committee stage, because it is a reminder to all of us of the consequences of getting immigration policy wrong.

When the review was first published, the current Home Secretary said she was “shocked” to discover the extent of the insensitive treatment that the Windrush generation and their families suffered. However, it is not good enough to be shocked after the event. We should all have known what was going on, taken responsibility for policy-making and been responsive to the people who were telling us that something was wrong. I think, along with my noble friend Lady Lister, that the decision to spend 10 years prioritising hostility in immigration policy should weigh heavily indeed.

As the noble Lord, Lord Paddick, said, Wendy Williams called the desperate results of the scandal “foreseeable and avoidable”. That is a reminder, as the Government push this Bill through, that people will have to live in the world this legislation will help to frame. We should keep that in mind.

I add my voice to the questions asked by my noble friend Lady Lister and others. The Home Secretary accepted all the recommendations of the review, including changing the culture of the Home Office, and gave an early update before the summer. Has the comprehensive improvement plan promised for September been published? Can the Minister give us an update on how many people have now applied to the compensation scheme, and how many have received and accepted a compensation offer? When will we get another update on progress made so far? We all need to learn the lessons of the Windrush review.

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken to this amendment. I concur with the noble Baroness, Lady Sherlock, that this is a fitting end to Committee, although some of our views on how to prevent another Windrush scandal differ—for example, on the declaratory scheme versus the constitutive scheme for settled status.

Noble Lords have acknowledged that the Home Secretary has made it clear that we accept the review’s findings. She updated the other House last month on progress towards implementing its recommendations. In response to the noble Baroness, Lady Sherlock, we will publish a comprehensive improvement plan in September—so, this month. I look forward to updating the House.

As part of our response, we are reviewing every aspect of how the Home Office operates: its leadership, culture, policies and practices, and the way it views and treats all parts of the community it serves. It must be said that while urgent and extensive work is taking place across the Home Office on all the recommendations, fundamental change takes time to deliver. Culture shift is like turning an oil tanker round; I think noble Lords accept that point. To rush for the sake of making a headline would be the wrong approach. If noble Lords could stand in my shoes, they would see how much the Home Office and the Home Secretary talk about Wendy Williams and the lessons learned. The culture is already starting to change but it is not a quick change. Wendy Williams made that very point: we should not rush, first, to respond to the review or, secondly, implement some of the changes suggested in it.

Delaying the end of free movement until the changes are implemented would prevent us moving to a new skills-based immigration system. That new system means people will be treated equally and fairly, and delaying it would undermine the Government’s clear position on ending free movement. Noble Lords will not be surprised to know I cannot accept the amendment.

The noble Baroness, Lady Lister, asked about the evaluation, the terms of reference and whether we had engaged any external experts. The team is actively engaging with internal and external organisations, as well as with staff at all levels. We are engaging with the unions, with support networks and with the department’s race board to determine the best way to implement the findings of the review.

Of course, it is fair to say in conclusion that the findings of Wendy Williams’ Windrush Lessons Learned Review affect all migrants in the UK, not just EEA citizens. The tenet—to use the word used by the noble Baroness, Lady Lister—of her review was a fairness and a humanity within the way that the Home Office operates, and I can totally concur with that.

The noble Baroness, Lady Sherlock, asked me for an update on the compensation scheme. I do not have the facts and figures—another deficiency in facts and figures this afternoon—but I will certainly write to noble Lords on where we are up to. The noble Lord, Lord Roberts of Llandudno, questioned the high number of appeals that are upheld. This is all down to when appeals are lodged, and that can have an impact on appeals granted. With that, I ask the noble Baroness to withdraw the amendment.

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

Baroness Sherlock Excerpts

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

[Baroness Sherlock (Lab) [V]]

My Lords, I will concentrate on those parts of the Bill that make provision for social security co-ordination, particularly Clause 5 and Schedules 2 and 3.

We are currently part of the EU system, which is based on four principles: the single state principle that, at any one time, EU citizens are covered by the social security system of just one country and have to pay contributions in only one country; equal treatment, whereby if they are in another member state, they have the same rights as their nationals; aggregation, meaning that periods of insurance, employment or residence in other member states count when determining eligibility for benefits; and exportability, meaning that they can receive benefits from one member state even when they live in another. There is a well-established system of administrative co-operation behind this and these provisions will still apply after the transition period for those within the scope of the withdrawal agreement. The UK has also done a deal with Ireland that broadly replicates the current provisions.

However, the position of other people moving between the UK and the EU after the transition period will depend on whether a future relationship agreement covering social security co-ordination is secured. The augurs are not positive. Last month, a Commons Library brief noted:

“The EU’s Draft Protocol on Social Security Coordination and the UK’s Draft Social Security Coordination Agreement differ significantly in terms of both the matters covered and the persons covered.”


Oh dear.

There is some common ground on state pensions, where both sides want aggregation and for pensions to be able to be exported and uprated annually, but not on disability benefits or healthcare for pensioners living abroad. And there are no co-ordination provisions for benefits other than pensions.

Can the Minister tell us whether there is an agreement in the offing? If not, am I right that this could mean that, without an agreement, workers moving to or posted to an EU country could have to pay national insurance contributions in both countries; people moving between the UK and the EU could find that their contributions paid overseas are ignored if, say, they later fall sick and need to claim benefits; and that there will be no clear rules about which country is responsible for paying someone’s benefits and no mechanism for resolving disputes?

There is deep uncertainty about the future position, but the right response is not a Bill containing Henry VIII powers so broad that they will allow Ministers pretty much to rewrite the social security co-ordination rules at will. Social security co-ordination is an essential prerequisite for labour mobility. But it is also about fairness. These issues affect a lot of people and Parliament deserves more clarity, control and accountability than this Bill currently affords.