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

Lord Pannick Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 7th September 2020 Lords Chamber

[Lord Pannick (CB) [V]]

My Lords, that was indeed a passionate speech.

When I was a first-year law student at Hertford College, Oxford, we learned that apparently the Roman Emperor Caligula ordered that laws should be displayed in small letters as high up as possible to make it difficult for people to know their legal rights and obligations. Amendment 3 focuses attention on an extraordinary provision in this Bill—paragraph 4(2) of Schedule 1—which, if enacted, will make it impossible for people today to understand their legal rights and obligations.

Paragraph 4 is concerned with the EU regulation on free movement of workers. Paragraph 4(1) is a model of clarity; it says that Article 1 of the regulation “is omitted”. However, paragraph 4(2) displays the parliamentary draftsman at his or her most coy. It is so extraordinary that it must be read out:

“The other provisions of the Workers Regulation cease to apply so far as—


(a) they are inconsistent with any provision made by or under the Immigration Acts (including, and as amended by, this Act), or


(b) they are otherwise capable of affecting the interpretation, application or operation of any such provision.”


It is simply not acceptable that when people want to know whether a provision of an EU regulation continues to apply, they must ask themselves whether the provision is

“capable of affecting the interpretation, application or operation"

of a provision of the immigration Acts. This is drafting so opaque that it puts a brick wall between the individual and the law which applies to him or her. It is drafting so lazy that it is comatose. The same woeful drafting technique also appears in paragraph 6(1) of Schedule 1, a provision addressed in Amendments 4 and 5 in this group tabled by the noble Baroness, Lady Hamwee, which I support. If the Government want to ensure that provisions of a regulation cease to apply, they should say so with clarity.

Amendment 3 is in my name, and in the names of two other members of your Lordships’ Constitution Committee, the noble Baroness, Lady Taylor of Bolton, our chair, and the noble Lord, Lord Beith. The Constitution Committee’s report, published last week, drew attention to paragraph 4(2) of Schedule 1 as unacceptably vague and inevitably productive of legal uncertainty. We quoted the evidence given to the Commons Public Bill Committee by Adrian Berry, the barrister chair of the Immigration Law Practitioners’ Association. He said of this provision:

“You need to make better laws. Make it certain and put on the face of the Bill those things that you think are going to be disapplied because they are inconsistent with immigration provisions.”—[Official Report, Commons, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 9/6/20; col. 52.]


I agree. Basic standards of legislative drafting need to be upheld. Paragraph 4(2) of Schedule 1 is way below what is acceptable. I can think of no precedent for such a provision.

I hope that the Minister says that she understands the objection to this provision and that she will bring forward a suitable amendment on Report. I give due warning that if the Government do not address this concern, and if other noble Lords share my concern, I will return to this topic on Report.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, we did vote to leave the EU, and I do not think anyone can be in any doubt about some of the reasons. People voted for a variety of reasons, but the noble Baroness will totally understand that I am not going to get into a debate about why people did or did not want to leave the EU. I will leave it there.

[Lord Pannick (CB) [V]]

My Lords, I am grateful to the Minister for her careful response to Amendment 3. It was very thoughtful—not a response off the top of her head. I am also grateful for the offer of a meeting, which I will happily take up.

The Minister gave an example of a provision in the regulations that she said was inconsistent with the immigration Acts. I accept that there may well be many such provisions. My point is very simple: spell them out in Schedule 1. Do not use this vague language of drafting which means that people cannot identify what their rights and obligations are. My amendment is not designed to keep or remove any particular right; it is simply designed to require the Government to instruct the parliamentary draftsman to produce a provision that implies basic standards of legal certainty. I hope the Minister has noted the substantial concern around the House at this lack of certainty in the drafting of Schedule 1. It is simply not good enough and it needs to be addressed. I look forward to discussing this with the Minister prior to Report.

[Baroness Williams of Trafford (Con)]

I totally understand the point that the noble Lord makes about certainty. In addressing this, I should like to meet him, because I totally get what he is saying. He is not being difficult; he is just asking that we lay out the law and provide certainty.

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

Lord Pannick Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 30th September 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I moved Amendments 4 and 5 in Committee; they are amendments to what the Public Law Project called the “breathtakingly wide” powers proposed to be given to the Secretary of State. It is ironic that when elsewhere negotiations are going on—or maybe not going on—regarding the sovereignty of the UK Parliament, we are being faced with exercising our sovereignty in order to pass it back to the Executive.

Amendment 4 would substitute in Clause 4, which is about regulation-making powers, the word “necessary” for “appropriate”. Amendment 5 would take out the ability for the Secretary of State to make regulations “in connection with” anything in Part 1. Taken together, these terms give the Executive huge latitude. I am glad that the names of the noble Lords, Lord Rosser, Lord Pannick and Lord Alton, have been added to my amendments. The clause would read, “such provision as the Secretary of State considers necessary in consequence of any provision” of Part 1.

The amendments follow the report of the Delegated Powers and Regulatory Reform Committee, a member of which, the noble Baroness, Lady Meacher, made a very balanced speech at the last stage of the Bill. She acknowledged, as I do, that consequential amendments through means of secondary legislation are generally needed—although, as she said, when they can be they are to be put in the Bill, with regulations then used for tidying up. But as the breadth and number of amendments in Committee showed—that is, amendments to the Bill —a huge number of topics can fairly be said to be connected with Part 1. Those topics were all approved by the clerks to the House as being within scope of the Bill.

The noble Lord, Lord Blencathra, chair of the DPRR Committee, said that he spoke in sorrow, rather than being vicious, about its reported criticisms or concerns about the clause. I think we are entitled to expect more of the Government—and this is not vicious, but many degrees up from sorrowful—than the defence that:

“There are clear constraints on the use of the power in Clause 4. It can be used only to make regulations that amend primary or secondary legislation ‘in consequence of, or in connection with’ Part 1”.


That is exactly what we object to. I had forgotten to comment on the offensive—and I say that deliberately—power to amend primary legislation through regulations. The Government’s reply to the committee’s report included the Minister again asking your Lordships to consider the illustrative draft of the regulations which, shortly before the last stage, had been circulated, and to

“take comfort that this power is specifically to deliver the end of free movement”.—[Official Report, 7/9/20; col. 641.]

That is also relied on in the long letter from the Home Office, which I received at lunchtime today—and I dare say that the timing was similar for other noble Lords. I have to confess that I have not been able to get my head around quite all of it.

The draft regulations referred to are, frankly, fiendishly complicated, and are causing a lot of anxiety both as to the extent they are understood—especially as to any omissions—and to the extent they are not understood. But whatever they are like, we have nothing that we can look to as an assurance that there will not be more regulations. The “lawyers”, I am told, are engaged in an exhaustive process of analysing this draft. It may bore others as much as it does me to say it, but whatever the intentions of this Government and this Minister today, that would not matter one jot tomorrow in terms of curbing the power in Clause 4. I beg to move.

[Lord Pannick (CB) [V]]

My Lords, I agree, as I usually do, with the noble Baroness, Lady Hamwee. She mentioned the report of the Delegated Powers and Regulatory Reform Committee. There was also a report on this subject by your Lordships’ Constitution Committee, of which I am a member. We issued a report on 2 September, our 11th report of the session. At paragraph 22, we said:

“We agree with the conclusions of the Delegated Powers and Regulatory Reform Committee about the powers in clause 4. A Henry VIII clause that is subject to such a permissive test as ‘appropriateness’, and which may be used to do anything ‘in connection with’ in relation to so broad and important an issue as free movement, is constitutionally unacceptable. Such vague and subjective language undermine fundamental elements of the rule of law.”


That is the view of your Lordships’ Constitution Committee, in a unanimous report from Members from around the House. I am very disappointed that the Government have been so far unwilling to engage with that advice—and certainly to accept it.

The Delegated Powers and Regulatory Reform Committee noted, in paragraphs 18 to 19 of its excellent report, the exceptional breadth of Clause 4(1). What it does is empower the Secretary of State not merely to make regulations “in consequence of” this legislation but “in connection with” this legislation. As the committee explained, that would confer on Ministers the power to make whatever regulations they think appropriate, provided they have some connection with the legislation, “however tenuous”. Given the exceptional breadth of the delegated powers in Clause 4, I also support Amendment 9 in the name of the noble Lord, Lord Rosser, which would impose a sunset clause on these powers.

I have one further point. This Bill is far from unique in seeking to confer excessively broad powers on Ministers. The Constitution Committee has repeatedly drawn attention to the need for effective limits on delegated legislation, to ensure ministerial accountability to Parliament. I am pleased that Members of the House of Commons, in the last few days, have begun to recognise the dangers of such legislation, not least because, when regulations are brought forward, they are unamendable. Your Lordships’ Constitution Committee has regularly made this point in reports over the last few years. The unacceptable breadth of provisions such as Clause 4 in the Bill is, I regret to say, typical of a Government who, too often, see Parliament as an inconvenience rather than the constitutional authority to which the Government are accountable.

[Lord Alton of Liverpool (CB)]

My Lords, first of all, I would like to apologise to the noble Baroness, Lady Hamwee, for missing, in these rather disrupted circumstances, the very beginning of her speech today. But I am very pleased to be able to support her amendment and the others that are grouped with it.

In Committee, we had a discussion about some of the powers contained in this Bill, and I am pleased to be a signatory to Amendment 4. But I would also like to support Amendment 5 and, for the reasons my noble friend Lord Pannick has just advanced, Amendment 9 in the name of the noble Lord, Lord Rosser, which is about a sunset clause. Amendment 5 seeks to narrow the powers of the Secretary of State, and in a way that is at the heart also of Amendment 4, which is what I want to address this afternoon.

All these amendments seek to rein in some of the powers which Ministers are taking. It is a particular pleasure to be able to follow the noble Baroness, Lady Hamwee, and my noble friend Lord Pannick. He referred to the Constitution Committee and its work, and I entirely agree that the substitution of the word “necessary” for “appropriate” places a higher threshold into the Bill—but you might wonder why on earth we would be spending so much time on just two words. Why does that really matter?

Yesterday in Grand Committee, in the context of the Trade Bill, I questioned, yet again, the Government’s overuse of secondary legislation and their unconvincing assertion that this amounts to effective parliamentary scrutiny and accountability. I recall that the last time the House of Commons failed to pass an affirmative action Motion was in 1978, the year before I was elected to the House of Commons. The chairman of the 1922 Committee, Sir Graham Brady, has rightly warned of the dangers of the Government taking a whole range of powers that effectively neuter due parliamentary process, and I agree with him.

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

Lord Pannick Excerpts

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

Moved by

[Lord Pannick]

32: Schedule 1, page 7, line 26, leave out sub-paragraph (2)

[Lord Pannick (CB) [V]]

My Lords, last but I hope not least, Amendment 32 is in my name and in the names of the noble Lords, Lord Rosser and Lord Beith, and the noble Baroness, Lady Hamwee.

Amendment 32 addresses a very odd provision in paragraph 4(2) of Schedule 1. As currently worded, it states that provisions of the EU regulation on free movement for workers cease to apply if

“they are inconsistent with … the Immigration Acts”

or

“capable of affecting the interpretation, application or operation of any such provision.”

I suggested in Committee, with widespread support from all sides of the Committee, that the parliamentary draftsmen could and should do better than that. Paragraph 4(2) as currently drafted defies the need for legal certainty. The Bill should set out which provisions of the workers regulation will cease to apply.

The Minister promised to look at this matter, and she indicated that she would discuss it with me. Faithful to her word, as she always is, she has discussed the matter with me—for which I am very grateful—and has now tabled Amendment 32A, which satisfactorily addresses the point. I am very grateful to her. Amendment 33 addresses a similar problem, but sadly it has not received a favourable response from the Minister.

Paragraph 6(1) of Schedule 1 tells us that

“EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law”

in two circumstances—that is if

“they are inconsistent with, or … capable of affecting the interpretation, application or operation of,”

a provision of the Immigration Acts, or if

“they are otherwise capable of affecting the exercise of functions in connection with immigration.”

I simply do not understand how advisers on immigration law, far less those individuals who are the subject of immigration law, are supposed to work out what their legal rights and obligations are. Legal certainty requires, in my view, that the schedule should set out those EU-derived rights et cetera which are disapplied, or those which are retained. Your Lordships’ Constitution Committee, of which I am a member, criticised the legal uncertainty in our 11th report of this Session published on 2 September.

I think the only answer the Minister could possibly give to the concern I have identified about legal certainty is that Ministers and parliamentary draftsmen do not now know which provisions of EU law survive and which do not. That rather makes my point, I think. However, I do not intend to divide the House on this matter, troubling though it is. I beg to move.

[Lord Beith (LD)]

My Lords, my name is attached to the noble Lord’s Amendments 32 and 33 because they address two long-standing concerns of the Constitution Committee. The first is the broad and unjustified use of Henry VIII powers. The second is the confusing and counterproductive complexity of immigration law, which we believe needs to be clear and consolidated. That is why I support these amendments. I welcome the fact that the Government have addressed the first of these issues by tabling Amendment 32A, which makes more specific the scope of the power, confining it, as the noble Lord, Lord Pannick, has said, to Articles 2 to 10 of the workers regulations.

I would have welcomed a similar willingness to move on the issues that the Constitution Committee has raised in relation to paragraph 6 of Schedule 1, which nullifies EU-derived rights and remedies. The noble Lord, Lord Pannick, has quoted some parts of paragraph 6 and they are really extraordinary: rights should disappear because

“they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts”

and, even stranger, because they are

“otherwise capable of affecting the exercise of functions in connection with immigration.”

I can think of all sorts of functions that people might consider were “in connection” with immigration, but we really need laws that are clearer than that.

Adrian Berry, chair of the Immigration Law Practitioners’ Association, said when he gave evidence to us:

“How is the ordinary person, never mind the legislator, to know whether the law is good or not in a particular area if you draft like that?”


I know that parliamentary draftsmen have had a pretty heavy diet of work lately, not least with Covid-19 orders, but it is possible to do better than that, unless the instructions given to them were so unspecific as to leave things so wide open that they had to draft the legislation in that extraordinary way.

Paragraph 69 of the Explanatory Notes tries to explain why this is necessary, but fails to do so—at least I find it completely unpersuasive. I did learn a little more about Chen carers than I knew previously, which was almost nothing. I am sure that my noble friend Lady Hamwee thinks of little else at some stages of the Bill than the quite obscure provision that resulted from the Chen case before the European Court of Justice. However, I certainly found the argument unpersuasive.

The committee says:

“The statute book requires clarity rather than obscurity and provisions such as these threaten to frustrate essential ingredients of the rule of law.”


An essential ingredient of the rule of law is that it is on record and visible and capable of being understood, particularly by those who practice it professionally, but preferably by a wider range of people as well, including those who may face either a penalty or, in this case, the inability to have a right to which they believe they are entitled as a consequence of wording as vague as this.

There is still time to improve this: the Minister could come back at Third Reading with an amendment that makes clear the purpose of this paragraph, and I am only sorry that she has not done so thus far.

--- Later in debate ---

I understand the intent of the noble Lord, Lord Pannick, and the objective that lies behind his amendments, but I hope that Amendment 32A has gone some way to clarifying the effect of paragraph 4. I urge the noble Lord to withdraw his amendment.

[Lord Pannick (CB) [V]]

I thank the Minister, certainly for government Amendment 32A, which deals with the concern that we have expressed in Amendment 32. However, the Minister’s attempt to defend paragraph 6(1) of the schedule is, I am afraid, wholly unconvincing. Her observations do not provide me with any useful clarification as to how the paragraph is going to apply. As the Minister has said, there are too many provisions and the position is too uncertain, and therefore the legislation cannot list the provisions. What she is suggesting, as I said in my opening remarks, is that the position is too uncertain for clarification, but the inevitable consequence is that the position is too uncertain for those who are advising immigrants and for immigrants themselves. They cannot possibly know with certainty how this provision will apply. I should respectfully warn the Minister that, if and when paragraph 6(1) is the subject of litigation in individual cases, the Government may well find that the courts will adopt a very unsympathetic approach to it and will give it the narrowest possible interpretation because it is so lacking in certainty. That is the real risk that the Government are running.

I have never seen a provision like paragraph 6(1) before in legislation—that is, a provision that depends on whether something is capable of affecting the exercise of functions—and I hope never to see such a provision in legislation again. I shall regard it as one of the increasing number of undesirable consequences of the decision to leave the EU and as setting no precedent for any other legislative content. I beg leave to withdraw the amendment.

Amendment 32 withdrawn.