Social Security (Amendment) (EU Exit) Regulations 2018

Lord Kirkwood of Kirkhope Excerpts

Tuesday 4th December 2018 Lords Chamber

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

My Lords, these regulations were laid before both Houses on 17 October 2018. They enable the Government to make minor and technical changes to domestic legislation to reflect the fact that the UK will no longer be an EU member state after exit day.

Let me provide some context and background to the regulations. British domestic legislation contains various references to EU law and to the UK as a member state of the European Union, which will no longer be the case once the UK withdraws from the EU. It also includes a provision that allows the Secretary of State to implement reciprocal agreements. The social security legislation applying in Northern Ireland broadly mirrors that in Great Britain; we are making regulations that make analogous amendments to the corresponding Northern Ireland legislation. The Department for Communities in Northern Ireland has agreed to the text of the regulations. This follows the recommended approach in the EU exit SIs policy handbook: to make separate NI statutory instruments that create a separate “transferable” body of NI legislation made at Westminster in the absence of a functioning Northern Ireland Assembly. This helps to keep a separate body of Northern Ireland law intact for when a functioning Executive and Assembly return.

These regulations are made using powers in the European Union (Withdrawal) Act 2018 to fix legal inoperability and other deficiencies that will arise on exit in retained EU law—so that the converted law continues to operate effectively post exit—and make consequential provision. The approach to these amendments is completely in line with both the policy and legal intent of the withdrawal Act. The use of secondary legislation to amend primary legislation—the so-called Henry VIII powers—was debated at length during the passage of the withdrawal Act.

The list of specific legislation that the regulations amend is lengthy. Broadly speaking, we are using the regulations to make two types of changes, the first being where the UK is referred to as a member state of the EU. In these instances, an amendment will be made to reflect the UK’s new status as a state independent of the EU. Secondly, we are extending the scope of Section 179 of the Social Security Administration Act 1992 to allow us to implement a social security agreement with a supranational organisation such as the EU. Of course, the ability to implement an international agreement with such organisations was not necessary as an EU member state. It is only logical that we make this consequential change to our legislation to reflect the UK’s position as independent of the EU and allow us to fully implement any agreement in domestic law.

The Northern Ireland regulations mirror the same amendments to Northern Ireland legislation. No formal consultation was carried out by the Department for Work and Pensions on the regulations as these changes make only minor and technical changes to existing DWP domestic legislation. Similarly, we expect the regulations to have no impact on business, charities, voluntary bodies or the public sector.

Noble Lords will know that the withdrawal Act is a crucial piece of legislation that will ensure, whatever the outcome of negotiations, that we have a functioning statute book on exit day, providing certainty to people and businesses across the UK. The Act enables this by providing a power for Ministers in the UK Government and devolved Administrations to deal with deficiencies in the law arising as a result of our exit from the EU. We are continuing to work closely with the devolved Administrations to ensure that all parties are involved in the process where their interests are concerned. I beg to move.

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I thank the Minister for that helpful introduction. I understand that these are minor and technical amendments. I have looked at them very carefully as a member of the statutory instruments scrutiny committee of your Lordships’ House. I am pretty familiar with their scope.

Could the Minister clear up two questions from my mind? First, is there any prejudice, potential or otherwise, to transfer payments and entitlements made from United Kingdom sources and systems to United Kingdom citizens and families living in the European Union? I think the answer is no, but an assurance would help, particularly relating to pension payments.

Secondly, I know that the Minister cannot do anything about this but I am getting more and more nervous about the Northern Ireland arrangements being handled indirectly by the department with no meaningful legislature in Northern Ireland to deal with some of their consequences, particularly since it has a free-standing social security system of its own. Colleagues know that it is a mirrored system, so changes are almost automatic. We have been living with that for some time. But in situations such as this, where changes are being made at one or two stages removed from the good people of Northern Ireland who are entitled to these benefits, there are particular concerns that those entitlements should be especially carefully considered in these amendment regulations. If the Minister can help me with these two items I would be very happy to see the regulations pass.

[Lord McKenzie of Luton (Lab)]

My Lords, I thank the Minister for introducing these regulations. It is fair to say that this is not the most exacting task she will have to undertake on matters Brexit. As we have heard, there are two sets of regulations, the territorial application of one set relating to Great Britain and of the other to Northern Ireland. The two sets cover parallel issues.

The Explanatory Memorandum reminds us that the Northern Ireland Executive are not in being, although the policy areas that are the subject of these regs are transferred matters and should be the responsibility of the Executive. That point was touched on by the noble Lord, Lord Kirkwood, with some expression of concern that we share. The memorandum states that the Government,

“will take through the necessary secondary legislation … in close consultation with the Northern Ireland departments”.

Perhaps the Minister will say what this involves. I think she might have answered that by saying that the Department for Communities was consulted.

The regs will operate with effect from exit day, but it goes without saying that many of us wish that that day will never arrive. Given that the powers of the European Union (Withdrawal) Act 2018 are engaged by these regulations, it is incumbent on Ministers to make certain statements. These encompass a requirement to state that the regs do no more than is appropriate to deal with deficiencies in retained EU law, but that there are good reasons for the provisions and that they leave intact equalities provisions. The Minister states that, given that the Equality Act does not extend to Northern Ireland, she has given due regard to the need to eliminate discrimination, harassment and victimisation. We do not seek to disagree with those conclusions.

As we have heard, these instruments fall into two groups. They amend various provisions in UK domestic legislation that contain references to the UK as a member state of the EU, or of the EEA. Further, they amend Section 179 of the Social Security Administration Act 1992 and its Northern Ireland equivalent to enable social security-related reciprocal agreements to be entered into with international organisations. The Explanatory Memorandum instances the EU, but can the Minister state what others might be in contemplation? What is the position with any existing agreements that the UK has entered into with the EU? Could the Minister please list these? Do they have to be reinstated on some basis or do they run on?

The insertions made to Section 179(4) list a range of EC or EEC regulations. Can the Minister differentiate between the two? Taking new subsection (4)(am) as an example, I presume that its inclusion is not intended to change the domestic law. Can the Minister outline for us the impact of Regulation (EEC) 1408/71 on the application of social security systems to employed persons, to self-employed persons and to members of their families moving within the Community?

The regulations extend to other amendments to existing secondary legislation to ensure accuracy of references when the UK is no longer part of the EU. These cover persons abroad, invalid care allowance regulations, SSP, SMP, overpayments and recoveries, AA, DLA, housing benefit, PIP and universal credit. Can the Minister confirm that in each case there is just a change of wording to reflect the changed situation of the UK and that it has no wider implications for the position of the continuing EU members?

We hope to see these regulations gather dust in some corner of Westminster and not be called into use. In so far as they are, we agree that they do the job.