Social Security (Amendment) (EU Exit) Regulations 2018

Lord McKenzie of Luton Excerpts

Tuesday 4th December 2018 Lords Chamber

[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.

[Baroness Buscombe]

I thank noble Lords who have taken part in this debate. Perhaps we have now gleaned rather more from the Benches opposite as to which way the noble Lord’s party may vote in the coming days; hitherto, we have been entirely unclear, as have all honourable friends in another place.

These are minor and technical amendments. I want to make it clear that there is no impact on policy. There is of course frustration—if I may put it that way—that the people of Northern Ireland are not fully represented. The noble Lord, Lord Kirkwood, is quite right that there is sadly nothing that I can do about that. The UK Government remain committed to restoring devolution in Northern Ireland—that also concerned the noble Lord, Lord McKenzie. This is particularly important in the context of EU exit, where we want devolved Ministers to take the necessary actions to prepare Northern Ireland for exit. That includes making the necessary legislative corrections to ensure that the Northern Ireland statute book is ready for exit day, consistent with the action taken at Westminster and in the other devolved legislatures. However, with exit day only a few months away and in the continued absence of a Northern Ireland Executive, the window to prepare the Northern Ireland statute book for exit is narrowing. UK Ministers therefore decided that it would be in the interest of legal certainty in Northern Ireland for the UK Government to take through the necessary secondary legislation at Westminster. That decision was made in close consultation with the Northern Ireland Civil Service. We are in constant touch with the Department for Communities in Northern Ireland. I can reassure noble Lords that we are doing all we can to make sure that we work well with it. We hope that the current situation will change for the better in the near future.

I make it absolutely clear that the regulations make consequential amendments to domestic legislation; they do not make any changes to entitlement to benefit or payment—it is crucial to say that in response to both noble Lords’ questions and concerns. A multitude of references to the EU are made as we are currently members of it, but for only a few months longer. I do not have a list today of all the legislation that this references, but I am very happy to write to noble Lords to make very clear exactly which pieces of legislation this impacts upon.

The Government are committed to ensuring that the social security system works for everyone post exit day and these regulations will help to do this by fixing minor and technical changes to existing DWP and corresponding Northern Ireland domestic legislation. They are part of a package of legislation. We have already dealt with some legislation in reference to the payment of pensions. On that basis and with the proviso that I will write to the noble Lord, Lord McKenzie, with specific reference to those aspects of the legislation, I hope that noble Lords will support these statutory instruments.