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.