European Union (Withdrawal Agreement) Bill

Baroness Hamwee Excerpts

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Viscount Waverley (CB)]

My Lords, I hope I may be permitted to elaborate on a point made by the noble Lord, Lord Hamilton. I do so as a long-term resident of Portugal, where there is a sense from officialdom on the continent that the rights of UK citizens in Portugal, and indeed elsewhere, are actually in a good place. The key word in all this is reciprocity. The Portuguese have made certain protections for UK citizens in their country, but there is this key word in Article 19 of the appropriate legislation that specifically— I will not translate it directly from the Portuguese—relates to reciprocity. The conditions are broadly the same; if you go and register, your rights are protected. In reality, that is what everyone should be doing anyway. If there is a single message that the Minister and others in this country might want to give, it is to encourage UK citizens to do the very easy and simple thing—go and register, and your rights are protected.

[Baroness Hamwee (LD)]

My Lords, important points have been made about UK citizens in other European countries, and my noble friend Lady Miller and I have an amendment on one aspect of that which I think will be taken on Thursday.

The noble Lord, Lord Warner, referred to permanent residence status. I understand that while the numbers of people applying for permanent residence have dropped a bit, as one would expect given the rollout of the settled status scheme, they are still significantly higher than they were before 2016. One can only speculate about the reasons for that—I do not think we can know what they are—but permanent residence provided documentary evidence, and the physical evidence available through that route may well have been a reason for the high number of applications.

Points have also been made this afternoon about immigration rules. I cannot let the occasion go by without saying how much I would welcome rules that are simpler and cannot be changed without going through full scrutiny and parliamentary process.

I will make a couple of points on these amendments, which I wholeheartedly support. One is the importance of ensuring that people who have some sort of status are not impeded in travelling. I have come across this in connection with independent leave to remain obtained by a refugee, only the latest of a number of examples I have heard of people who have had problems with travel documents. There is something about not fitting the boxes that officials are given and need to tick. We must make sure that those with settled status can properly exercise their rights and come in and out of this country freely.

My other point was mentioned by the noble and learned Lord, Lord Keen, last night in summing up the debate. He said that there will be an “automatic reminder” to those with pre-settled status to apply for settled status. I urge the Government to work with the embassies and the groups that have been so involved in this process and made such helpful interventions and comments to ensure that whatever very necessary arrangements they put in place to remind people both that they will have to apply for settled status and that pre-settled status is different will work as well and efficiently as possible—taking account of human frailty, if you like.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I support both these amendments. I will begin with the words of the noble and learned Lord, Lord Keen, from the end of our very long day yesterday:

“EU citizens in the United Kingdom are our neighbours, colleagues and workplace friends, and of course we value the contribution they make to the United Kingdom and wish them to remain here.”—[Official Report, 13/1/20; col. 552.]


I contrast that with a report from 10 October, when the Security Minister, Brandon Lewis, was quoted as saying that EU citizens who do not apply for settled status face deportation.

I ask your Lordships to put yourselves in the shoes of an affected citizen here in the UK, who may have come here quite recently or have been here for many decades, and think about which set of words you will have heard more clearly, which set of words will be affecting your sentiment and understanding of your place in the United Kingdom. I think everyone knows that what people will be hearing, worrying about and fearing are the words “threatened with deportation”. We are talking about up to 4 million people being affected. The latest figure I have seen is that 2.5 million people have applied for settled status. However, as the noble Viscount, Lord Waverley, said, there are also the 1.4 million UK citizens across Europe, for whom reciprocity means that they will be affected by how we treat their fellows here in the UK.

My arguments for these amendments fit into two groups. First, there are the practical arguments. As many noble Lords have said, to have a physical document will be immensely useful in dealing with landlords and immigration—just knowing that it is in your wallet or purse. There is also the fact that to have a declaratory scheme is far easier and far less daunting. That is a practical benefit. Those are the practical advantages. But there is also the question of sentiment—sending a message of welcome to our EU and other friends who are part of our communities. I urge noble Lords to back these two amendments, to back the message which the noble and learned Lord, Lord Keen, delivered last night and which the Government say they want to send to these citizens.

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[Baroness Williams of Trafford]

My Lords, I have spoken to my noble friends beside me and I have not had any feedback on resentment. I have had feedback on the fact that we have made the scheme free, which was a noble thing for the previous Home Secretary and Prime Minister to do. The fact that so many people now have a status they can prove can be only a good thing.

We are processing 20,000 applications every day. We are working with communities—sometimes on a one-to-one basis because some people find the filling-in of any application process difficult.

[Baroness Hamwee]

I am not sure whether I am hearing this right, but I think the Minister is responding to the amendments as if the proposal was to replace digital with documentary evidence. In fact, it is proposed that the documentary evidence would be supplemental to the digital provision.

[Baroness Williams of Trafford]

My Lords, I would not agree with two systems because that really would confuse people. If I could get to the end of my comments, I would be grateful.

The scheme already allows EU citizens protected by the agreements to obtain UK immigration status to enable them to remain here permanently after exit. Both EU citizens with pre-settled status and those with settled status will be able to continue to live, work and access benefits and services in the UK after the end of the implementation period on the same basis as now. If individuals with pre-settled status go on to acquire settled status, they will then be able to access benefits and services on the same terms as comparable UK nationals. This is consistent with the approach taken under EU law, and we will assess individuals at the point they apply for benefits or when accessing services such as the NHS.

The proposed new clauses would interrupt the flow of a system which is already working well and achieving precisely what it was designed and implemented to do, providing certainty to those people who have made their lives here.

Under the future immigration system, EU citizens who are in the UK before the end of the implementation period will have different rights compared to those who arrive afterwards. It is essential, therefore, that EU citizens have the evidence they need to demonstrate their rights in the UK. This is also why many other member states are planning to take exactly the same approach and establish a constitutive system for UK nationals living in the EU. I shall come on to UK nationals in the EU shortly.

The EU settlement scheme means that those who have built their lives here do not find themselves struggling to evidence their rights in the UK or having to carry around multiple bits of paper and documents to evidence their previous UK residence. As I pointed out to the noble Lord, Lord Warner, we are legally required to issue all successful applicants under the scheme with formal correspondence setting out their immigration status, and this status can also be viewed online and shared with others. We do not want to go back to issuing physical documents when our vision for the future is a digital status and service for all migrants.

I should perhaps make a point about data protection, on which some noble Lords are very keen—certainly on the Liberal Democrat Benches. Under the digital system, employers, immigration control or whoever it might be will have access to the information on a need-to-know basis: not everything will be written down on a piece of paper, which is an important consideration. A continued declaratory system in the form suggested by noble Lords in Amendments 2 and 3 would force banks and other service providers either to wade through various documents, which they perhaps have no right to see, to establish for themselves whether the person is protected by the agreements or has been granted rights while they complete the registration process as envisaged in Amendment 2.

Additionally, Amendment 3 would grant EU citizens automatically conferred rights under the agreements, creating two groups of EU citizens: those with a registration document and those with no evidence at all of their status. There is therefore a high risk of inadvertent discrimination, particularly for those with no evidence at all in years to come.

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[Baroness Hamwee]

My Lords, I have put my name to Amendment 10. As the noble Viscount said, judicial review—the right to apply to the courts to review the decision of a public body—is hugely important. I do not share the view that the courts have acted inappropriately and entered the political arena when they should not have, but, as he says, that is not the point.

[Viscount Hailsham]

I was not trying to suggest that, for example, striking down the Prime Minister was in any way wrongful. I would have done so if I had been in the Supreme Court. What I am suggesting is that quite often courts do intervene on executive matters. I certainly do not include in that the decisions made by the Supreme Court at the back end of last year, which I profoundly supported.

[Baroness Hamwee]

I was not seeking to have a go at the noble Viscount. If judicial review has grown inappropriately, that is a separate matter. It is dangerous if the Executive are seeking through this provision to protect themselves from proper oversight by the courts.

In the Commons, a Member said on rights of redress for EU citizens that

“appeal rights and judicial review are enshrined”.—[Official Report, Commons, 7/1/20; col. 330.]

The Minister endorsed that, at col. 336. But Clause 11(3) seems to “deshrine”—if that is a word—judicial review. I too am concerned that at the least we understand what we are doing, but, if it is as I understand it, that we do not do it.

[Lord Greaves]

My Lords, I added my name to the amendments in the name of the noble Lord, Lord McNicol of West Kilbride, on behalf of the Liberal Democrat group. I have one or two other amendments in this group. One is on the judicial review point, and I am perfectly happy to leave the lawyers to argue the case on that, which they know far more about than I do.

Amendment 6 relates to Clause 11(1), on appeals against citizens’ rights immigration decisions, which says:

“A Minister of the Crown may”—


I would prefer “must” but I accept that “may” means it is probably going to happen—

“by regulations make provision for, or in connection with, appeals against citizens’ rights immigration decisions of a kind described in the regulations.”

Clause 11(2) defines a “citizens’ rights immigration decision” for the purposes of the Bill and it talks about various kinds of entry clearance, decisions in connection with leave to enter or remain, a deportation order, and

“any other decision made in connection with restricting the right of a relevant person to enter the United Kingdom”.

That all seems fairly comprehensive. What I do not understand, which is why I tabled Amendment 6 to probe this, is what is meant by

“of a kind described in the regulations.”

Does it mean that some of the things listed will not be covered by the regulations and the right to appeal? If so, what is the Government’s thinking about which ones they may be, or do they intend that they will all be covered, in which case why does the kind have to be described in the regulations since it is set out here in the Bill?

On the question raised by the noble Lord, Lord McNicol of West Kilbride, and other noble Lords, it is fairly clear that many people who have been given pre-settled status because they have not been living in the United Kingdom for five years or, in some cases, cannot prove that they have been doing so. There is also a significant number of people—I have no idea how many—who have been living here for five years but whose applications have been found difficult, for some reason or other. Rather than refusing them, the scheme is giving them pre-settled status because establishing the true facts would take a lot of time, energy and workload and, as the Minister said, millions of people are applying. It would be helpful to know what proportion of the people who have got pre-settled status have been, or say they have been, living here for more than five years—in some cases, they have been here pretty well all their lives—and have been given that status to give them something without prolonging the argument. In those cases, does the provision that they will automatically get settled status once they have been here for five years still apply?

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[Viscount Hailsham]

My Lords, I very gratefully support the points made by the noble Baroness, Lady Hayter. I entirely agree with her; I think it is necessary to have a sunset clause, and if it is not necessary it behoves the Minister to tell us why. One of the central problems arising all the time is whether secondary legislation, whether affirmative or negative—I acknowledge that in this case it is very largely affirmative; I am aware of that—is unamendable. Statutory instruments are often published very close to the time when they are to be considered by both Houses, with the consequence that you do not get proper consideration by members of the public or people who have an interest in what is proposed. I hope that the Government will give serious consideration to a sunset clause. If we are told that two years is too short a time, let us have an argument about that. I am sure we could come to a date that would be acceptable to all parties. Could we please have a reason why a sunset clause is unacceptable in principle to the Government?

[Baroness Hamwee]

My Lords, my name is also put to the amendment. In the Commons, the Minister said that the clause enables the Government to

“maintain our statute book in accordance with the social security co-ordination provisions”.—[Official Report, Commons, 7/1/20; col. 323.]

That puzzled me, because they do not need this to do that. Both noble Lords who have spoken pointed out the potential problems. The noble Viscount, Lord Hailsham, reminded me that, so often when the House is asked to look at secondary legislation—or is given the opportunity to do so, having had to take positive steps to raise the issue—people who are affected and organisations that know about it make really valid and useful points. It does no good to the reputation of the House to be able to do no more than say, “Well, I’ll raise that in debate”, because we know that we cannot make any changes. I support what is proposed here; it is entirely sensible and in no way wrecking.

[Lord Howarth of Newport (Lab)]

My Lords, Clause 13(5) contains a Henry VIII power; it is admittedly constrained by the specific subject matter and context of the Bill, but is none the less within those constraints a wide-ranging power:

“The power to make regulations … may … be exercised by modifying any provision made by or under an enactment.”


Henry VIII clauses are in principle objectionable, and in principle the Government ought always to explain to us why they think they are justified.

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[Lord Bethell]

All the arrangements within this part of the Bill are heavily constrained to Title III of Part Two of the withdrawal agreement. There is therefore no need to escalate to questions of policy; if there are questions of policy, they will be brought to the House but in a completely different way. The purpose of this clause is to make sure that there are no conflicts or inconsistencies in domestic law that refer to the current commitments within the withdrawal agreement, which could give unfair treatment and uncertainty about the rights and benefits of the 5 million in the group of people who benefit from these arrangements. It allows Ministers to protect the entitlements—

[Baroness Hamwee]

Can the Minister point us to where in the clause we can find reassurance that, if there is a change in policy, it will not be dealt with through regulations?

[Lord Bethell]

That reassurance is not in the clause; it just does not provide the necessary powers, and without those powers, the ability to change policy does not exist. I hope that noble Lords will agree that the way in which it is written is tightly refined around the specific arrangements of implementing the detailed clauses in the withdrawal agreement. That is its confined and determined nature. What it does, in a focused way, is to allow Ministers to protect the entitlements of those in the scope of the agreements, and only that. It includes both EU citizens living in the UK, as the noble Baroness, Lady Hayter, explained, and UK nationals who have chosen to work in or retire to EU member states before the end of the implementation period. Many of those people will have lifetime rights within that agreement which may last many decades, and the effect of the changes of EU regulations will continue to need to be tweaked during those decades.

This power is therefore essential to give the Government the flexibility that we need to provide legal certainty to individuals subject to these rules as the EU social security co-ordination regulations evolve over time. We have an important duty to protect the social security co-ordination rights of those in this scope, to give them that confidence, and for the lifetime of these agreements. This power enables us to protect those rights, and without prejudice to any future system that would apply to those not covered by these agreements.