All 3 Baroness Sherlock contributions to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020

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Wed 22nd Jul 2020
Immigration and Social Security Co-ordination (EU Withdrawal) Bill
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Immigration and Social Security Co-ordination (EU Withdrawal) Bill
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Committee stage:Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
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Immigration and Social Security Co-ordination (EU Withdrawal) Bill Debate

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Department: Home Office

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

Baroness Sherlock Excerpts
2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd July 2020

(3 years, 8 months ago)

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Read Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 30 June 2020 - (30 Jun 2020)
Baroness Sherlock Portrait Baroness Sherlock (Lab) [V]
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My Lords, I will concentrate on those parts of the Bill that make provision for social security co-ordination, particularly Clause 5 and Schedules 2 and 3.

We are currently part of the EU system, which is based on four principles: the single state principle that, at any one time, EU citizens are covered by the social security system of just one country and have to pay contributions in only one country; equal treatment, whereby if they are in another member state, they have the same rights as their nationals; aggregation, meaning that periods of insurance, employment or residence in other member states count when determining eligibility for benefits; and exportability, meaning that they can receive benefits from one member state even when they live in another. There is a well-established system of administrative co-operation behind this and these provisions will still apply after the transition period for those within the scope of the withdrawal agreement. The UK has also done a deal with Ireland that broadly replicates the current provisions.

However, the position of other people moving between the UK and the EU after the transition period will depend on whether a future relationship agreement covering social security co-ordination is secured. The augurs are not positive. Last month, a Commons Library brief noted:

“The EU’s Draft Protocol on Social Security Coordination and the UK’s Draft Social Security Coordination Agreement differ significantly in terms of both the matters covered and the persons covered.”


Oh dear.

There is some common ground on state pensions, where both sides want aggregation and for pensions to be able to be exported and uprated annually, but not on disability benefits or healthcare for pensioners living abroad. And there are no co-ordination provisions for benefits other than pensions.

Can the Minister tell us whether there is an agreement in the offing? If not, am I right that this could mean that, without an agreement, workers moving to or posted to an EU country could have to pay national insurance contributions in both countries; people moving between the UK and the EU could find that their contributions paid overseas are ignored if, say, they later fall sick and need to claim benefits; and that there will be no clear rules about which country is responsible for paying someone’s benefits and no mechanism for resolving disputes?

There is deep uncertainty about the future position, but the right response is not a Bill containing Henry VIII powers so broad that they will allow Ministers pretty much to rewrite the social security co-ordination rules at will. Social security co-ordination is an essential prerequisite for labour mobility. But it is also about fairness. These issues affect a lot of people and Parliament deserves more clarity, control and accountability than this Bill currently affords.

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

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Department: Home Office

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

Baroness Sherlock Excerpts
Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 16th September 2020

(3 years, 6 months ago)

Lords Chamber
Read Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 121-IV(Rev) Revised fourth marshalled list for Committee - (14 Sep 2020)
Baroness Janke Portrait Baroness Janke (LD) [V]
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My Lords, I will speak in support of Amendments 84 and 85 and of Clause 5 being deleted from the Bill. As other noble Lords have said, the amendments in this group seek to restrain the Government in their objective of transferring wide-scale powers to Ministers to take action that could have a major impact on the lives of UK citizens living in EEA countries and on EEA citizens living in the UK.

Amendment 84 would restrict the Secretary of State’s power to make regulations to the powers listed in Clause 5(3). These powers enable the social security co-ordination regulations to be amended and policy to be changed. The social security regulations co-ordinate access to social security for people moving between EEA countries and they are widely accepted and understood across those countries. They ensure clarity about where payments and contributions are made. These payments are essential income to UK citizens living in the EEA and EEA citizens living in the UK. As other noble Lords have said, it is important for all citizens to have confidence in the continuation of these complex regulations and in the withdrawal agreement itself. The Government’s explanation is that the clause allows them to make regulations to implement any new policies regarding co-ordination of social security. The clause is intended to be used to implement new policies, subject to the outcome of future negotiations with the EU. As the Delegated Powers and Regulatory Reform Committee has warned, there has been no adequate justification for the transfer of these powers to Ministers. The Constitution Committee also recommends that Clause 5 be deleted from the Bill and says:

“Any further modification of the Social Security Co-ordination Regulations that might be required could be achieved using the power in section 8 of the European Union (Withdrawal) Act 2018.”


Amendment 85 seeks to preclude the power of the Secretary of State to distinguish between recipients of pensions and other benefits on the basis of their nationality or residence in a particular state. This takes no account of other circumstances and would lead to arbitrary and unjust decisions that would have a huge impact on the lives of the people they relate to.

Further, I wish to oppose that Clause 5 stand part of the Bill. If successful, this would see Clause 5 as an inappropriate delegation of power, as recommended by the DPRR Committee in its 46th report. How can it be right or proper that the regulations governing the crucial payment of social security, such as disability benefit and unemployment benefit, to large numbers of people can be radically changed, even to their extreme disadvantage, without consultation, without proper scrutiny and with little accountability? This is a licence to penalise large numbers of citizens arbitrarily without proper justification or democratic safeguards. If this clause goes through, public consideration of changes to the regulations will be so limited that the people affected will have no opportunity to question or make representations as to their impact.

I support these amendments and strongly oppose Clause 5 standing part of the Bill. As the Delegated Powers and Regulatory Reform Committee said:

“We remain of the view, expressed in our earlier Report, that the Government have provided an inadequate justification for a wholesale transfer to Ministers of power to legislate in a field that could have a major impact on large numbers of UK citizens resident in EEA countries, and EEA citizens resident in the UK, who currently rely upon reciprocal arrangements.”


I support my noble friend Lady Ludford in saying that such changes should be the subject of primary legislation and not as is suggested in Clause 5.

Baroness Sherlock Portrait Baroness Sherlock (Lab) [V]
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My Lords, it is good to have a chance to explore the social security part of this Bill at last. I will speak to the Clause 5 stand part amendment, to which I have attached my name, and to my Amendment 91, to which my noble friend Lord Rosser has added his name and which would sunset the powers in Clause 5(1).

There are two minimum steps that Ministers need to take if they want to keep Clause 5 as it stands. First, they must address all the issues raised by the Delegated Powers Committee. Secondly, they must be clear with Parliament about the state of social security co-ordination after transition. The DPRRC’s 22nd report highlights matters that Ministers have failed to explain, such as how the Clause 5 powers fits with provisions in the 2018 and 2020 Acts;

“how the Government might seek to use the power; why it includes a power to amend primary legislation and retained direct EU legislation other than the SSC Regulations; why the power is not time limited; why Ministers will have no duty to consult before making regulations.”

We have received some very helpful briefings so that we can explore these issues, but we need to get some answers on the record. My understanding of what we have heard is that the Clause 5 power enables government to make policy changes, whereas the power under the withdrawal Act is used to fix deficiencies, and the delegated power in the 2020 Act relates only to ensuring that the provisions of the withdrawal agreement can work. Can the Minister tell the Committee whether that understanding is right? Can she confirm that the Clause 5 power cannot be used to make changes for those people who fall within the scope of the withdrawal agreement?

On the breadth of the powers, I think that the Government’s defence is that the powers in Clause 5(1) can be used only to modify retained direct EU legislation as specified in Clause 5(2), and that Clause 5(3) says that the powers in Clause 5(1) can be used for various purposes—but, again, only in relation to the retained EU law specified in Clause 5(2). In any case, they say that the illustrative draft regulations under Clause 5 repeal all the instruments specified in Clause 5(2), so there is nothing for this power to apply to. Is the Minister telling the Committee that it is the Government’s intention to repeal all the instruments specified in Clause 5(2)? Are there any circumstances in which those regulations would not be repealed?

In terms of how the Government will use it, my understanding is that the Clause 5 power will be used to repeal provisions not covered by any deal; that is what is suggested by the illustrative draft regulations. We have been told that the power may therefore be used only once. In that case, what is the problem with time-limiting the power, as Amendment 91 proposes? Again, it has been suggested that you need to hold on to it—for example, in case a new state joins the EU, but this seems highly disproportionate. If that were the only issue, I am sure that Ministers could find a much more targeted way to deal with it—and they will have plenty of time to work it out because new states do not just join the EU overnight. So, is there any other reason why the Government need to retain the Clause 5 powers beyond 12 months other than to deal with a new state joining the EU? If it is just that, what other mechanisms did they look at for dealing with that?

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Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
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My Lords, I shall speak also to Amendments 87, 88, 89, 90 and 92. These amendments are parallel to amendments debated on day one in Committee, on Clause 4, and some, of course, are exactly the same. As we heard in the last debate, both the Constitution Committee and the Delegated Powers and Regulatory Reform Committee of your Lordships’ House have reported. The chair of the DPRRC, the noble Lord, Lord Blencathra, said that he was “not emollient” whenever it was that we debated Clause 4, and he was right not to be so when dealing with what he called “fundamentally excessive delegated powers”. What I regarded, and regard, as too- wide powers, the Minister then called “clear constraints”. She relied particularly on what the Government have published already: whether it is in its draft, illustrative or final form is irrelevant.

The noble Baroness, Lady Stedman-Scott, also relied on the fact that “we”—the Government—would do and not do certain things, but “we” will not always be the “we” that the noble Baroness is referring to, and others whom we actually know. I am sure that, were she on the other side of the House, she would be pointing out that Governments change and individuals change, and it is in no way impugning her integrity to say that there should be protection against future changes without the proper involvement of Parliament.

Yet again it has just been suggested that a debate, without Parliament having a power to amend something, is adequate: “adequate parliamentary power”. It is not. I must say that I for one got a bit lost on some of the arguments in the last debate. In particular, I did not follow why Amendment 85 was unnecessary. I wonder whether we might have a written explanation of the opposition to it. I could not quite follow whether it was because of what is meant by the term “modify”.

The powers will remain and the Government will have them until the Act is amended or repealed. The latter would cause a lot of confusion. It is not only about the here and now; it is about the short, medium and long-term future.

I refer particularly to Clause 5(3)(d), which is the subject of Amendment 89. That says that the regulation-making power includes power

“to provide for a person to exercise a discretion in dealing with any matter.”

I do not think that is in Clause 4, so I wonder about the significance of the addition and what the discretion could be about. Would it be a discretion to apply a restriction or criteria less robustly? I do not think it could mean to apply it more robustly, but I might be wrong in that. I do not think the latter would be lawful. If the Minister is able to clarify that, it would help.

I had intended to quote from the DPRRC report and to comment on the Constitution Committee report a little. It strongly agreed with the DPRRC’s conclusions, but we have heard a lot from the report, so I do not think I need to do so. However, I follow my noble friend Lady Ludford, who talked about the uncertainty that recent events have caused people who will be affected by the changes being made and the big changes to their lives. I think she said that these things could happen quickly, and they certainly can, which reinforces my point about the importance of not just relying on what certain Ministers say today because it might not be the case tomorrow.

This morning, I had an email from a British citizen living in Spain. She said:

“With the withdrawal agreement, both EU citizens in the UK and UK citizens residing in the EU at last felt we had secured a relatively good, guaranteed level of protection, even if not completely perfect (and certainly not as good as we had with the UK a member of the EU!). However, if the government can tear up the rule book in this way clearly anything can be changed on a whim and nothing is guaranteed, and I fear that our hard-fought rights could be just as easily removed.”


I beg to move.

Baroness Sherlock Portrait Baroness Sherlock (Lab) [V]
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My Lords, I thank the noble Baroness, Lady Hamwee, for raising these issues. I specified my concerns on delegated powers in relation to social security in my speech on the previous group, so I will not repeat them. However, I asked a number of specific questions in that speech, not all of which the Minister managed to answer. Will she commit to respond to each of them in writing before we get to Report?

The Minister has been generous in allowing us access to her officials, who have provided some excellent briefing, but it has taken me two weeks of work to get my head around the interaction of all these sets of powers and the Government’s arguments on the use of delegated powers in relation to the Bill. The Minister will realise that the Committee remains pretty unhappy about this matter, so I encourage her to respond as fully as she can, in writing, both to my points and to those raised by the noble Baroness, Lady Hamwee, and others before we reach Report, so that we can have the best possible debate at that point. I look forward to hearing her reply.

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Baroness Sherlock Portrait Baroness Sherlock (Lab) [V]
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My Lords, I am grateful to noble Lords for raising this important issue. The review highlighted how many of the Windrush generation suffered so much, starting with stress and anxiety and leading too often to loss of livelihood and even separation from home and family. It therefore seems a fitting way to end the Committee stage, because it is a reminder to all of us of the consequences of getting immigration policy wrong.

When the review was first published, the current Home Secretary said she was “shocked” to discover the extent of the insensitive treatment that the Windrush generation and their families suffered. However, it is not good enough to be shocked after the event. We should all have known what was going on, taken responsibility for policy-making and been responsive to the people who were telling us that something was wrong. I think, along with my noble friend Lady Lister, that the decision to spend 10 years prioritising hostility in immigration policy should weigh heavily indeed.

As the noble Lord, Lord Paddick, said, Wendy Williams called the desperate results of the scandal “foreseeable and avoidable”. That is a reminder, as the Government push this Bill through, that people will have to live in the world this legislation will help to frame. We should keep that in mind.

I add my voice to the questions asked by my noble friend Lady Lister and others. The Home Secretary accepted all the recommendations of the review, including changing the culture of the Home Office, and gave an early update before the summer. Has the comprehensive improvement plan promised for September been published? Can the Minister give us an update on how many people have now applied to the compensation scheme, and how many have received and accepted a compensation offer? When will we get another update on progress made so far? We all need to learn the lessons of the Windrush review.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I thank all noble Lords who have spoken to this amendment. I concur with the noble Baroness, Lady Sherlock, that this is a fitting end to Committee, although some of our views on how to prevent another Windrush scandal differ—for example, on the declaratory scheme versus the constitutive scheme for settled status.

Noble Lords have acknowledged that the Home Secretary has made it clear that we accept the review’s findings. She updated the other House last month on progress towards implementing its recommendations. In response to the noble Baroness, Lady Sherlock, we will publish a comprehensive improvement plan in September—so, this month. I look forward to updating the House.

As part of our response, we are reviewing every aspect of how the Home Office operates: its leadership, culture, policies and practices, and the way it views and treats all parts of the community it serves. It must be said that while urgent and extensive work is taking place across the Home Office on all the recommendations, fundamental change takes time to deliver. Culture shift is like turning an oil tanker round; I think noble Lords accept that point. To rush for the sake of making a headline would be the wrong approach. If noble Lords could stand in my shoes, they would see how much the Home Office and the Home Secretary talk about Wendy Williams and the lessons learned. The culture is already starting to change but it is not a quick change. Wendy Williams made that very point: we should not rush, first, to respond to the review or, secondly, implement some of the changes suggested in it.

Delaying the end of free movement until the changes are implemented would prevent us moving to a new skills-based immigration system. That new system means people will be treated equally and fairly, and delaying it would undermine the Government’s clear position on ending free movement. Noble Lords will not be surprised to know I cannot accept the amendment.

The noble Baroness, Lady Lister, asked about the evaluation, the terms of reference and whether we had engaged any external experts. The team is actively engaging with internal and external organisations, as well as with staff at all levels. We are engaging with the unions, with support networks and with the department’s race board to determine the best way to implement the findings of the review.

Of course, it is fair to say in conclusion that the findings of Wendy Williams’ Windrush Lessons Learned Review affect all migrants in the UK, not just EEA citizens. The tenet—to use the word used by the noble Baroness, Lady Lister—of her review was a fairness and a humanity within the way that the Home Office operates, and I can totally concur with that.

The noble Baroness, Lady Sherlock, asked me for an update on the compensation scheme. I do not have the facts and figures—another deficiency in facts and figures this afternoon—but I will certainly write to noble Lords on where we are up to. The noble Lord, Lord Roberts of Llandudno, questioned the high number of appeals that are upheld. This is all down to when appeals are lodged, and that can have an impact on appeals granted. With that, I ask the noble Baroness to withdraw the amendment.

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

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Department: Home Office

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

Baroness Sherlock Excerpts
Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020

(3 years, 5 months ago)

Lords Chamber
Read Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 121-R-II Second marshalled list for Report - (30 Sep 2020)
Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, on the first day of Report, on an equivalent amendment to Clause 4, the Minister gave an assurance that the Government have absolutely no intention of acting incompatibly with the citizens’ rights provisions in the withdrawal agreement. However, as the noble Lord, Lord Flight, has said, that is not the point. He set out very carefully the social security provisions which are the issue here. The concern is that the use of regulations, or secondary legislation, to modify the primary legislation that is the basis of the various benefits could wittingly or unwittingly modify them—“modify” is a polite legislative word for “cause a lot of people a lot of problems”. If this amendment were part of the Bill, it would protect against this.

Last week, the noble Lord referred to the establishment under the 2020 Act of the Independent Monitoring Authority, and I was grateful for that. I share a rather wry smile with noble Lords because provided for in the authority’s powers is that it may make applications for judicial review—we all know the Government’s expressed position on activists and lawyers using applications for judicial review and generally not liking frequent resort being made to them. There is of course a review of the use of judicial review going on at the moment. So I thank the noble Lord for that moment of amusement in this complicated area. I support the amendment.

Baroness Sherlock Portrait Baroness Sherlock (Lab) [V]
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My Lords, as we heard from the noble Lord, Lord Flight, this amendment would prevent regulations made under Clause 5 including any provisions that could be inconsistent with the withdrawal agreement. I presume that the aim is to avoid any action that might serve to undermine the rights of UK citizens in the EU and EU citizens here that were guaranteed under the withdrawal agreement.

As the noble Baroness, Lady Hamwee, said, we have had this debate at earlier stages and on Clause 4. On the basis of those past debates, I think there is a decent chance that the Minister will say that this amendment is unnecessary. But as the noble Lord, Lord Flight, pointed out: what is the downside? Given the uncertainty caused by statements elsewhere about the nature of the withdrawal agreement and the extent to which the UK is committed to it, the Minister will understand why some noble Lords are nervous and want the kind of assurances that one would hope she should be able to give without difficulty.

The noble Lord, Lord Flight, explained the terribly important issues that are covered by Clause 5. This will be our only engagement on Report with the subtle joys of this clause. I raised many of the issues about social security co-ordination at Second Reading and in Committee, and felt that I did not get satisfactory answers in Committee. However, I have now received a letter from the Minister, the noble Baroness, Lady Stedman- Scott, which has provided more information. In the light of that, I do not intend to move Amendment 29 in my name in the next group.

I remain very concerned about the implications for too many people of the loss of reciprocal arrangements for social security co-ordination, but I recognise that we will not get anything more at this stage of the Bill. I hope that the letter I mentioned will be placed in both Libraries. Because it contains information about new developments which were not reflected in the draft regulations shared with us in Committee, it would be helpful if the letter were displayed as soon as possible in the relevant place under the “will write” section of Bills before Parliament, so that its contents are readily accessible to those who are interested.

These are very important issues. I look forward to hearing what the Minister has to say.

Baroness Stedman-Scott Portrait The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Stedman-Scott) (Con)
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My Lords, I am grateful to the noble Lord, Lord Flight, and the noble Baroness, Lady Hamwee, for speaking to this amendment. The Government have given written assurances in every Bill document throughout the passage of the Bill on this point; I have reiterated those assurances in Committee, and I will do so again here.

I can assure the House that Clause 5 does not enable the Government to alter the rights guaranteed to those in scope of the withdrawal agreement. The entitlements of this cohort are guaranteed by Sections 7A and 7B of the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020. The power at Clause 5 will not and cannot affect those provisions. Rather, it allows for EU law retained by Section 3 of the European Union (Withdrawal) Act 2018 to be modified. The rights under the withdrawal agreement are therefore provided by a distinct and separate legal mechanism in relation to that of retained EU law, and this power will not affect the rights of those within the scope of the agreement. This includes those examples given by the noble Lord, Lord Flight, such as state pension uprating, the S1 scheme and the aggregation of contributions. It is therefore the Government’s view that Amendment 28 is unnecessary, on the grounds I have set out.

I note the request of the noble Baroness, Lady Sherlock, for my letter to her to be placed under the “will write” section—I am so pleased that that makes sense—of Bills before Parliament.

I reiterate that it is the Government’s view that Amendment 28 is unnecessary, on the grounds I have set out. I hope that with this explanation, the noble Lord, Lord Flight, will withdraw his amendment.