Draft Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019

Kevin Hollinrake Excerpts

Monday 21st October 2019 General Committees

[Bill Esterson]

I absolutely agree. My hon. Friend is right to mention the lack of impact assessment or analysis of the proposed deal, which we are being asked to consider without being able to judge the line-by-line detail of what is in it. Somebody will have to remind me how many pages the new document is.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

Two hundred and eighty-odd.

[Bill Esterson]

I will accept the hon. Gentleman’s comment from a sedentary position; does anybody want to go higher? The reality is that we do not have the information we need in order to make judgments, whether on the new deal or the consequences of no deal, and on these regulations. In the explanatory memorandum, the Government use the phrase, “It is anticipated”. What they are saying is that they do not know what the impact will be, and I am afraid that is a real problem. These regulations were drawn to the attention of the Secondary Legislation Scrutiny Committee.

[Kevin Hollinrake]

The hon. Gentleman may be familiar with the document we were given access to, which was held in the Treasury since November 2018. That contained an impact assessment of all kinds of different scenarios, and said that in all of them, the economy is expected to continue to grow. Does that give the hon. Gentleman some confidence that there is life beyond the European Union?

[Bill Esterson]

That is a slightly different point to the one we are discussing. We need to look at the detail. I am not sure whether that intervention was part of the hon. Gentleman’s pitch to be Chair of the Treasury Committee—others must judge—but I will touch on his point. The Secondary Legislation Scrutiny Committee speaks of the removal of treaty rights, and the fact that this is a policy change. That goes to the heart of the concern about what is being proposed, because when the withdrawal Act was passed, the Government promised that they would not use the Henry VIII powers in section 8 of that Act as a vehicle for policy change. They also said that it “almost goes without saying” that no change should be made to rights through delegated legislation, yet that is exactly what is being proposed.

The disapplication of the rights of EU, EEA, Swiss and Turkish nationals is clearly at odds with what was promised regarding section 8 of the withdrawal Act. That Act was not intended to address how, whether, and how quickly we should meet our obligations under the WTO, which is the reason the Government are giving for putting these regulations through. The purpose of section 8 of the withdrawal Act was to fix deficiencies in retained EU law—an explanation that, to be fair to Ministers, they have used to justify previous regulations in Committees in which I have responded on behalf of the Opposition. Why is that not the case on this occasion? Why is this not being addressed through primary legislation? Why is it not being done through an immigration Bill, as my hon. Friend the Member for Cardiff South and Penarth asked, and why is that Bill stuck in Committee?

If free movement of people is to end via primary legislation, as the Home Secretary said on 5 September, why is the same principle not being applied to the freedom of establishment and free movement of services, and what are the consequences for those individuals who are self-employed, or who own or manage businesses in this country? A large cohort of the people delivering services or running businesses depend for their lawful residence qualification on being regarded as economically active. They have the right to that definition and to qualify. Their rights are derived under the 2016 immigration regulations, which the Minister mentioned, but that is because they are in accordance with article 49 of the treaty on the functioning of the European Union. These regulations disapply article 49, and therefore the 2016 immigration regulations.

It makes no sense to decide immigration rights for those who are self-employed or are running a business separately from determining the immigration rights of other people, but that is what these regulations do, despite the assurances that were given when the withdrawal Act was passed. If there is nothing to worry about, where is the legal analysis? Where were the Minister’s comments about the legal opinion that the Government have obtained? Where is the analysis that these regulations will not adversely affect the immigration rights of EU or EEA nationals? Thousands of self-employed, business-owning or business-managing providers of services need the assurance that they will not be disadvantaged and that their right to stay will not be questioned or removed. Where is the legal protection? It is not referred to in the explanatory notes, and the Minister did not refer to it.

I note from previous regulations passed in these Committees that on other occasions it has suited the Government to apply a principle of reciprocity. For example, I was responding for the Opposition on the matter of intellectual property regulations when the Government chose to allow EU and EEA firms the right to continue to have full access to our intellectual property regulations, and there was no guarantee that our firms would have those rights in return. Reciprocity was not a barrier on that occasion, but it seems that it is here, when the Government want to remove the rights of self-employed or business-owning or managing EU or EEA nationals.