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

Lord Wood of Anfield Excerpts

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

[Lord Wood of Anfield (Lab) [V]]

My Lords, I will leave to others the substantive policy consequences of the choices in the Bill and will leave aside my own views on the wisdom of the Brexit that prompted it—that is now a done deal. My points are focused on the ways in which the Bill will generate bad law, which is damaging in itself and as a precedent. I want briefly to mention two aspects of the Bill that seriously concern not just me but many legal experts.

First, picking up on the comments from many colleagues, especially those of my noble friend Lord Rosser, I will mention the provisions for delegated powers in Clause 4. The scope of secondary legislative power given to Ministers is absolutely astonishing. Clause 4(1) confers a power on the Secretary of State to make by statutory instrument such regulations as she

“considers appropriate in consequence of, or”—

in the famous phrase—

“in connection with, any provision of”

the part of the Bill concerned with ending free movement. This power may, among many other things, modify

“any provision made by or under primary legislation passed before, or in the same Session as, this Act.

Noble colleagues have heard how the House’s Delegated Powers Committee has made its views on this aspect of the Bill crystal clear. It was disturbed by the phrase “in connection with” Part 1 because, as it said:

“This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous”.


In short, this enables a Minister to decide whatever they want, as long as they can draw some vague connection.

This extraordinary problem is compounded further by a conspicuous lack of clarity in Clause 1 about which aspects of free movement law actually remain in place. With an extraordinary wide discretion to do something very vague, all this adds up to bad law, trouble down the line and a terrible precedent. This is no way to make immigration law, nor law in general. At the very least, Clause 4 delegation powers should be subject to a sunset clause for six months. Will the Minister consider that?

The second issue is the power to charge fees. Clause 4 provides that this charging power extends to making regulations in relation to

“fees or charges … made by or under”

any prior primary legislation. But there is no need for this power to amend fees or charges provisions, as statutory powers to make an order for an immigration health surcharge and related charges are found variously in Sections 38, 64 and 74 of the Immigration Act 2014. The provision should therefore just be removed.

Whether or not we support the removal of free movement, it is what was voted for and the Government are entitled to legislate for it. But that is no excuse for law that is open-ended, vague and inconsistent. Flexibility for Ministers is one thing, but sidestepping issues that should be the domain of primary legislation is quite another.