Social Security Co-ordination (Revocation of Retained Direct EU Legislation and Related Amendments) (EU Exit) Regulations 2020

Debate between Lord Duncan of Springbank and Baroness Ludford

Tuesday 8th December 2020 Grand Committee

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

We have been having some gremlins today, but we will try to return now to the noble Baroness, Lady Ludford.

[Baroness Ludford (LD) [V]]

Thank you. My sincere apologies: I am jinxed on the IT front today. I am on the phone.

I repeat the objections to the powers in Clause 5 of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which became Section 6 of the Act, which I and others expressed during the passage of the Bill. I cited then the reports of our Delegated Powers Committee, which were rightly damning about the extent of these powers, which include Henry VIII powers.

The committee said in its 49th report of January 2019 that this provision was

“an inappropriate delegation of power”

and that

“the clear impression is that the Government are seeking these powers in order to avoid … having to prepare a detailed bill implementing their policy once it is settled, and any future arrangements with the EU are concluded”.

In its 22nd report of August 2020, the committee said that it was a “significant open-ended power”.

This statutory instrument fully illustrates the problem. If these regulations were just tidying-up measures, they could have been done under Section 8 of the European Union (Withdrawal) Act. In fact, they make new policy, and that should be done by primary legislation.

This instrument brings forward the day on which amendments will be made to primary legislation: the Social Security Administration Act 1992 and its Northern Ireland counterpart. The Explanatory Memorandum says that these amendments are

“for the purpose of implementing, and giving effect to, reciprocal agreements with international organisations”.

Such organisations include the EU.

Can the Minister tell us what other international organisations it is envisaged signing reciprocal agreements on social security with? Can she also tell us what will fill the void as far as the EU is concerned? As I said in Committee on the Bill, and I apologise for quoting myself:

“There is a range of possibilities for a future arrangement on social security co-ordination, from ‘skinny’ coverage … to something much more similar to the present coverage. The draft agreement that the UK Government published in May 2020 was quite limited. They already said that they would stop the export of child benefit, and expect that arrangements regarding disability and unemployment benefits will change and are less likely to be comprehensive in future. They forecast that some benefits would be available for a time-limited period.


Altogether, these would be quite substantial changes. One other that pensioners fear is the possibility of no uprating in pensions for UK citizens resident in EEA countries in future. Certainly, the draft text of the agreement published by the Government in May did not cover cash benefits other than state pensions. It also did not cover healthcare costs for pensioners in EEA countries, where they now get a so-called S1 form, which enables them to get healthcare coverage.”—[Official Report, 16/9/20; col. 1363.]


I assume, as perhaps I did not understand at the time, that that issue is covered by regulations from the Department of Health.

Can the Minister now tell us what we can expect as content for a social security agreement with the EU? Can she also explain why these amendments to primary legislation will be made the day after this instrument is made, rather than on what the Government call IP completion day but the rest of us call the end of transition; namely, 31 December? By the way, if there is an implementation period for any deal that is reached this week, the Government will have a challenge as to what to call it.

The idea of the four fixing SIs was apparently to ensure that the retained EU social security co-ordination regulations were operable in the event of the UK leaving the EU without a deal. Unless the Minister knows something I do not, whether the UK is leaving with or without a deal is currently unresolved. If we leave with a deal, might we again need the fixing SIs, and indeed the five EU regulations to come back into UK law?

The Explanatory Memorandum recalls that EU law, including the five social security co-ordination regulations, will continue to apply to the EEA citizens covered by the withdrawal agreement, and that hence that law continues to form part of domestic law for those purposes. Thus, the Explanatory Memorandum says that this instrument has no impact on anyone covered by the withdrawal agreement.

However, can the Minister explain how revoking the EU SSC regulations in this instrument ensures that they are retained in domestic law for the purposes of the withdrawal agreement? I have not understood—that is probably my limitation—how those Chinese walls work legally and legislatively.

I would also be grateful if the Minister could explain a little more how the savings in Part 3 of this statutory instrument are to work. She referred to this in her opening speech, but I do not quite understand how we revoke the amendments for some purposes but we save them for others. It is a bit of a jigsaw, and I find myself in some difficulty in trying to understand it all.

Leaving those questions aside, the bigger issue is that what is created by the revocation of the five EU regulations which until now were retained law, along with revocation of the four fixing SIs of 2019, is a void. The Government propose to fill that void without any reference to Parliament whatever; they propose to use the amended power in the 1992 Act to implement by Order in Council any reciprocal social security agreements reached and to amend or modify retained EU legislation in order to give effect to them. So Parliament will have no role at all in assessing or agreeing such agreement, which is a perfect illustration of how the Brexit slogan of “take back control” meant only take back control for the Executive. This instrument, as foreseen by our Delegated Powers Committee, is a democratic travesty.

What proposals are there to consult the public and not just the Social Security Advisory Committee on the content and implementation of any new reciprocal agreement? Surely, the Government do not intend to shut out the public as well as Parliament. I thank noble Lords for tolerating my IT problems.

Extradition (Provisional Arrest) Bill [HL]

Debate between Lord Duncan of Springbank and Baroness Ludford

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 14th October 2020 Lords Chamber

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, the following Member in the Chamber has indicated their desire to speak, so I call the noble Baroness, Lady Ludford.

[Baroness Ludford (LD)]

My Lords, I add my regrets to those expressed by other noble Lords on the loss to this country of the European arrest warrant. I was in the European Parliament when it was born, nearly two decades ago, and my last initiative as an MEP was to write a report on reform of the European arrest warrant, in which the former Home Secretary, Theresa May, expressed great interest before making some unilateral UK amendments about its implementation. It is not a perfect instrument, but it is a lot better than the alternatives, particularly the 1957 extradition convention.

I am focusing on Amendments 4 and 4A. In Committee, the Minister told us:

“The Government have no intention of specifying countries likely to abuse the system to political ends.”—[Official Report, 5/3/20; col. GC 364.]


First, Governments can, and sometimes do, change. Secondly, intentions, however sincere when made, do not always survive unscathed. Presumably the Government intended to act in good faith in respecting the EU withdrawal agreement that they negotiated, signed and recommended to Parliament and the country, but now they want to give themselves the power to override a key part of it. They no doubt intended to keep their promise to uphold high standards of food safety and animal welfare. If they reach a trade agreement with the United States, imports from there will not comply with those standards and our own farmers will become uncompetitive, putting pressure for deregulation here.

As my noble friend Lady Hamwee mentioned, there is also apprehension about what pressure might be exerted by potential trade partners. Outside the EU, the UK is more vulnerable because it is only one country. As part of a bloc of 28, we could say: “Sorry, we’re bound by EU law, we can’t give you an individual concession, so there is nothing we can do, chaps.” We are much more exposed to that pressure if trying to reach a bilateral trade agreement with a single country.

Those are the reasons of principle why we need individual statutory instruments, country by country. There are also practical reasons. By insisting that this House takes an all-or-nothing approach, the risk is that the House feels compelled to vote down an SI that contains some perfectly respectable countries and one dodgy one—my noble friend gave some examples. This would waste more time than if the Government had the good sense to take them one by one. It is quite puzzling why they are being obstinate in refusing to see the good sense of that. It would be far more efficient, effective and respectful of human rights and the transparency of parliamentary scrutiny to allow Parliament to focus on one country at a time. That need not slow down the process at all; it could possibly streamline it.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

Are there any other Members present who would like to contribute at this point? If not, we can move on. The next speaker is the noble Lord, Lord Anderson of Ipswich.

European Union (Withdrawal) Bill

Debate between Lord Duncan of Springbank and Baroness Ludford

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Duncan of Springbank]

I hope I can put the noble Lord’s mind at rest.

It is important that we recognise how these functional rights are developed and ongoing. The day after Brexit, our rulebook will be safe. The rights which we have will be incorporated and we will build on them as a foundation. They are not a ceiling. It is right and proper that both this Chamber and the other place are instrumental in taking forward the enhancement of these rights. We have to recognise that over the past 30 years our understanding of what is a necessary family right has entirely evolved. As the vice-chair of the LGBTI group in the European Parliament, I recognised how far we could push things within the European Parliament, but I was very clear about how far we could not push them within the European Parliament because of the inability of certain member states to move forward with us. In that regard, in terms of equalities, on not one occasion have we ranked lower than third in the whole of the EU—indeed, in the whole of the continent of Europe. We have pushed forward those rights far faster, deeper and more surely than many of the other member states, so we should not lightly shake them off. We will remain what we have been, I hope, all the way through: a deliverer of these rights, not just on paper, because that is not a functional right, but in functioning and working in the workplace and elsewhere. It is absolutely right that we do so.

In response to a number of the questions raised, I am conscious that there is unease and a certain regard that the Government today will take the first opportunity to cast these rights aside, to scrape the barnacles off the boat to allow the ship to move faster. I assure the Committee that they are integral parts of the engine of the ship and we shall not be discarding them. That is how important they shall remain.

[Baroness Ludford (LD)]

If that is the case, and we are all very impressed by this unexpected and thorough assurance from the Minister on behalf of the Government, why can he not accept some amendments in this area and some others to put that in the Bill?

[Lord Duncan of Springbank]

The noble Baroness makes an interesting point as to why people have not been able to hear these points, but I am iterating what the Prime Minister, and a number of other Ministers in the Government, have said as regards this, and am pleased if I have been able to cut through some of the hubbub that has surrounded it. We are and remain a Government committed to ensuring that on day one after Brexit there is no diminution whatever in the rights which are and have been enjoyed through our membership of the EU. It is important to stress that. I hope I have been able to give noble Lords some reassurances this evening and some confidence that they will be able to set aside these amendments on this occasion.