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

Lord Rosser Excerpts

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

[Baroness Hamwee (LD) [V]]

My Lords, we on these Benches—I am on them virtually—make no bones about how much we oppose the ending of free movement. That includes both welcoming EEA citizens—the collective term which includes the Swiss for this purpose—and their families to live and work in the UK, and the equal and opposite right for British citizens in the EU. For myself, it offends my politics, my emotions, my values, my logic and, you might say, my whole outlook on life. However, I will endeavour to keep my remarks within the scope of the Bill and not to seek to reopen what has irreversibly been decided—although “irreversible” may have gained a new definition overnight—nor do I want to make a Second Reading speech.

What is relevant is that the Bill does not set out what will be in place of the current arrangements. Like the noble Lord, Lord Adonis, I am with the noble Baroness, Lady Neville-Rolfe, regarding the importance of the integrity of the system. We might want different systems, but what we have should be robust.

The noble Baroness and the noble Lord spoke in terms of enforcement—a term used in the amendment. I prefer to talk in more inclusive rather than exclusive terms. She talked about so many of the issues that we are addressing now, or failing to address. One must use the opportunity to say that the best way to address them is to create safe and legal routes to the UK. I do not want to divert on to the wider question of those who seek sanctuary, but I have to disagree with her approach and some of the language that she used.

By no means all of the new, much-heralded immigration system which will apply to EU citizens is yet in the public domain. The noble Lord, Lord Adonis, referred to UK citizens in the EU; he may see that Amendment 23, which we will come to later, may give us more of an opportunity to discuss their position. When the system is in the public domain, however, we will not be able to rely on it in the same way as we can rely on primary legislation because of the flexibility—would that be a polite word?—provided by the Bill. So much of our system is contained in rules which Parliament cannot realistically amend, and indeed often it takes an awful lot of background knowledge and experience, application and concentration to understand those rules. It is no wonder that the Government had some years ago to require a particular level of expertise to advise on immigration. The rules are difficult for most of us—other noble Lords may say that they waltz through them with no difficulty; I do not—and they are often impenetrable to those directly affected. I have too often heard Ministers say, “It is on GOV.UK.” That is not everyone’s bedtime reading. Indeed, however detailed the rules and however much they flesh out the Bill, it remains a skeleton.

My noble friend Lady Ludford and I have three amendments in this group, all to Schedule 1. The noble Lord, Lord Pannick, referred to the coy but comatose draftsman—I may use that term on other occasions—and my noble friend Lord Beith asked an important question about what instructions had been given to the draftsmen and draftswomen. After all, the responsibility lies with Ministers.

Amendments 4 and 5 take out some of the most offensive words in Schedule 1, which I do not think I need to read into the record again, as others have referred to them. They are wide and imprecise; there are references to “application or operation of” provisions, and

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

If any of your Lordships on Opposition Benches were to produce amendments using that sort of terminology, we would quite rapidly be shot down, and rightly so, by the Government Front Bench.

A lot of functions are connected with immigration, and we will come on later to employment, renting property —the rest of the hostile environment. There are also all sorts of functions which I would accept are necessary but which I would not want brought within the repeal of

“rights, powers, liabilities, obligations, restrictions, remedies and procedures”,

to which Section 1 applies.

Amendment 6 in our names would add words to the schedule by not applying it to rights which do not arise under an EU directive. Directives which do not relate to immigration include, in our view: the protection for victims of trafficking in the anti-trafficking directive—there is an amendment specifically on that—the protection for asylum seekers in the reception conditions directive 2013/33, and the protection for victims of crime in the EU victims’ rights directive 2012/29. We do not suggest that we believe that these protections are at risk, but we do not know. If the Bill remains as it is when it becomes an Act, the only way to know for certain is to test the matter in the courts. The noble Baroness, Lady Neville-Rolfe, was critical in the context of removals from this country of applications to the courts. However, that is what they are there for, and they are applying law that has been made by Parliament, or by Ministers subject to the rather inadequate scrutiny that parliamentarians are able to give them.

On Amendment 6—this is something that has been identified by the Immigration Law Practitioners’ Association; the noble Lord, Lord Pannick, mentioned the comments on the Bill by its chair, Adrian Berry—the protections are potentially at risk as what the association describes as “collateral damage”. We hope that they do not fall within the scope of the Bill, but I think it is a matter for the Government to explain what the position is. This is all about the lack of clarity, the bad rule-making, to which other noble Lords have referred, all offensive to the rule of law.

To return to the first amendment in this group, I welcome reports to Parliament and parliamentary scrutiny. I am hesitant to criticise or comment on the wording of the clause, having learned from the noble Baroness that the clerks were involved in crafting it, but I am not sure that the provisions of Schedule 1 are correctly described as enforceable. A provision within six months would take us beyond the end of the year. However, I should not carp about that sort of detail because, whatever the language, I understand that the supporters of Amendment 1 are seeking to ensure that free movement ends and that Parliament is told how. We have made our views about the first part of that very clear.

Before I finish, I want to mention the amendment by the noble Baroness, Lady Prashar. I thought the points made by noble Lords were very telling regarding the reference to soft power. I was reminded of listening to the European Union Youth Orchestra a couple of years ago in Edinburgh. That was a very special experience and it rather goes to why we are so distressed by what we are having to go along with in the Bill.

I think I have said enough not to have to refer specifically to our opposition to Amendment 1.

[Lord Rosser (Lab)]

My Lords, this group of amendments seeks to address the issue of the lack of clarity in the Bill, not least in Schedule 1. I am sure we have reached the stage now where noble Lords want to hear the Government’s response. I wish to comment briefly on three of the amendments in this group, although all of them raise issues of significance, as my noble friend Lord Adonis has said. That has become clear from noble Lords’ contributions, even though noble Lords have not all been coming from the same direction.

Three days ago, we were sent a letter from the Government sharing illustrative drafts of regulations that they propose to make under the powers in Clause 4 of the Bill. One wonders why at least some of the terms of these draft regulations could not now be or already have been incorporated in the Bill and thus be open to proper parliamentary scrutiny.

Schedule 1 revokes Article 1 of the EU workers regulation, which provides freedom-of-movement rights. Paragraph 4(2) of that schedule provides that other parts of the workers regulation cease to apply so far as they are

“inconsistent with any provision made by or under the Immigration Acts”

or

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

This is a very broad drafting. Amendment 3, to which the noble Lord, Lord Pannick, spoke with his usual considerable authority, would remove paragraph 4(2), as it is so broad and lacks clarity. We share the concern that that amendment seeks to address.

No doubt the Minister, in giving the Government’s reply, will be giving a pretty comprehensive list of examples of how and why, in the Government’s view, other parts of the workers regulation might credibly become, first, inconsistent with provisions made by the Immigration Acts and, secondly, capable of affecting provisions made by or under the Immigration Acts.

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[Lord Rosser (Lab)]

Like the noble Lord, Lord Patel, and others, I congratulate my noble friend Lord Hunt of Kings Heath on his powerful speech opening this debate. I wish to speak in particular to Amendment 57 in this group, to which my name is attached, although I agree with the concerns that have been expressed by noble Lords who have spoken to other amendments in this group. I note that the noble Lord, Lord Hodgson of Astley Abbotts, advised the Minister to reject my amendment before I have even spoken to it, though I fear that my speech will probably only reinforce his view of his advice to his noble friend.

The amendment would make provision for the Secretary of State to provide a dedicated social care visa for EEA and Swiss nationals who had the right to free movement and have a job offer to work in the social care sector, and to their dependents. They would not be subject to the NHS surcharge or the immigration skills charge and the visa route would be available for three years from the end of the transition period, with the option to extend for further years if necessary.

The thinking behind the amendment is that the Government’s intention to suddenly shut the entry door at the end of the transition period in a few months’ time on the overwhelming majority of future overseas social care workers under the criteria laid down in the new points-based immigration system, and the exclusion of care workers from the qualifying list for the health and care visa, will have serious and immediate adverse consequences for our already stretched social care provision in the UK. The amendment would remove the suddenness associated with this policy change through the social care visa available for three years with an option to extend, and would give the social care sector a realistic chance of being able to adjust to the loss of a significant source of labour.

A Commons Home Office Minister said in July said that the reason why care workers had been excluded from the qualifying list for the health and care visa was that the Government had a “vision” for the social care sector that it should no longer

“carry on looking abroad to recruit at or near the minimum wage”,

and that the Government’s priority was that in future care sector jobs would be

“valued, rewarded and trained for, and that immigration should not be an alternative.”—[Official Report, Commons, 13/7/20; cols. 1249-50.]

If that means significantly better rates of pay and an associated increased degree of widely accepted and acknowledged professionalism in the underpaid and undervalued social care sector, that is to be welcomed—a widely accepted and acknowledged professionalism that does not leave care homes and care workers at the back of the queue when it comes to personal protective equipment and does not regard the care sector as so forgotten and unimportant as to send vulnerable people from hospital into care homes who have not been tested for Covid-19.

The fundamental change needed is far from the current position and cannot be achieved in the space of the next few months, when the transition period ends, without potentially serious adverse consequences for those who are vulnerable and dependent on care provision either at home or in a home. It requires a change of culture and attitude both towards and within the sector, a change that the Government have to accept is their responsibility to lead. That will take time, as the Government implicitly accepted when they said in July that with the vast majority of social care staff employed in the fragmented private sector, their

“ability to influence pay rates there”

is limited.

Some 17% to 20% of the social care workforce are migrant workers, with 115,000 EEA nationals and 134,000 non-EEA nationals. Vacancy rates in the care sector now stand at 6.5% in England and 5.5% in Scotland. Since there are already 100,000-plus vacancies in England’s care sector alone and the current flow of people from abroad to fill low-paid care sector jobs is about to dry up, the Government cannot possibly have been able to satisfy themselves that not only will UK-based workers immediately appear to fill that gap but they will be there in sufficient numbers—with the right training, aptitude and caring qualities for social care work—to lower the vacancy levels in the sector as well.

One assumes in making that statement that the Government do not believe that anyone can successfully do this kind of work and that anyone available should be recruited. We are told that the Government have an “oven-ready plan” to address the issue of funding the increasingly expensive social care sector. Unfortunately, the person claiming to have this plan for more than 12 months now has been unable to figure out how to turn the oven on.

If higher pay rates did suddenly materialise in the social care sector in a few months’ time, which would apparently solve the labour shortages—as the Government seem to assume will happen as a result of the points-based immigration system and the drying up of non-British labour—there will presumably be a potentially significant increase in the cost of providing social care. What do the Government think that increase in cost will be since it is only a few months ahead of us in a sector with a 30%-plus annual staff turnover rate, a high vacancy rate and a major source of labour about to end? Will it be the elderly, vulnerable care-home residents and people receiving care at home—the self-funders—who will have to find yet more money? Will it be the already cash-strapped local authorities? Will it be the providers of care provision or will it be the Government themselves financing the cost of a much better paid, more highly valued, more highly trained and increasingly professional social care workforce? I hope that the Government will provide an answer to this point in their reply.

The care sector was in crisis before Covid-19. Local authority spending on adult social care in England has fallen, I think, by some 7% per person in the past decade, thanks to austerity and cuts in grants from central government. Councils have had to tighten eligibility thresholds as cost, rather than need, has become the dominant factor in decision-making. One inevitable result is that some 1.5 million elderly and disabled people have unmet care needs and care workers are often expected to deliver home care within a 15-minute visit or less.

The work is usually low paid and seriously undervalued. However, high-quality care is not low skilled and the Government’s apparent policy that the rising unemployment on which they are banking will solve problems of staff shortages is misguided and potentially dangerous. What is needed is a better funded and resourced care sector with a new focus on training and continuing professional development. We need a cultural change in how we view social care and the value we place on those who work in the sector, including the way in which the immigration system regards social care workers—a change that recognises that there is direct competition from the NHS for many care staff, an NHS that offers higher pay levels and a career structure. With nearly one-fifth of the adult social care workforce being from overseas, in a sector with already high levels of vacancies and turnover rates it is unrealistic to believe that the effect of shutting the door to future care sector staff being recruited in any numbers from overseas can be overcome in rapid time by finding and training appropriate personnel with an aptitude for care sector work from within the ranks of British citizens, both already employed and unemployed.

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[Baroness Ludford (LD)]

My Lords, this group of amendments, led by my noble friend Lady Hamwee, is about ensuring that the Government cannot legislate by regulation, contrary to the withdrawal agreement. This is a prescient set of amendments, tabled when it might not have been thought that there was a particular danger of that happening. However, the pronouncements and press reports since last night—there is some backtracking going on, however, which we will debate in the Chamber tomorrow—raise serious fears about the Government’s reliability and integrity in respecting the withdrawal agreement, and, indeed, any other treaty commitments. It raises the question of whether they can be trusted.

We will be debating separately the question of the Government’s refusal to give settled status applicants a physical document, not just a digital code. I will raise a brief query here: whether a digital code alone would satisfy the requirement in Article 18 of the withdrawal agreement for

“a document evidencing such status which may be in a digital form.”

Those latter words were added at the UK’s insistence, as we understand it, but it still talks about a document evidencing status. I wonder whether a digital code is a document.

Not least as a feature of the settled status scheme which has been flagged up by the3million, which does excellent work and has provided some fantastic briefing—I shall use this occasion to thank that organisation along with the organisation, British in Europe—non EU-national family members get a physical document in the form of a biometric residence permit. Since Article 12 of the withdrawal agreement requires the Government not to discriminate on the grounds of nationality, it is odd that EU citizens do not get a physical document but those in the family who are not EU citizens have a biometric residence permit. That is rather strange.

In the context of group 1, I raised comprehensive sickness insurance. The Minister said that the Government would use their discretion in deciding whether the absence of CSI in the past would bar a person from getting UK citizenship. I know that this will come up again in a later group. However, it is important to note that the UK is regarded by the European Commission as being in breach of EU law by insisting on the term “comprehensive sickness insurance” as it is in the 2004 citizens’ rights and freedom of movement directive. The Commission insists, as indeed MEPs did at the time, that this means only that relevant persons should have access to whatever the health system is locally, so the Government’s insistence that they should pay for private health insurance is, as I understand it, the subject of ongoing infringement proceedings.

In 2017, Prime Minister Theresa May promised EU citizens that the CSI—I prefer to call it private health insurance because that is what we are talking about—for those who had been economically inactive would be dropped as a requirement for settled status under the new system. However, what is happening now is that those people applying for citizenship are at risk of having their applications refused because in the past they did not have private health insurance, even though they had been told that they did not need it for their settled status application. When they apply for citizenship, they are told that retroactively they will be barred if they did not have private health insurance in the past. This feels like moving the goalposts, playing cat and mouse and so on, and the Government will not make any friends by this. The Minister referred to a power of discretion, but I do not believe that any details have been made known about how that would be applied, so that leaves people in the dark and in a state of anxiety.

I should mention also that Article 10 of the withdrawal agreement states that those covered by the citizens’ rights provisions of the agreement include

“Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law”.


Union law—that is, EU law—means that the ability to use the NHS qualifies as “comprehensive sickness insurance”; that is the view of the European Commission, which as I say is following infringement proceedings. If the Government persist with this, I fear that they will come up against problems under the withdrawal agreement and there is a risk that they would be seen to be acting in bad faith. The amendments in this group therefore insist that the Government must abide by the withdrawal agreement in making regulations under both Clause 4 and Clause 5, and that should include doing away with the retrospective demand. I hope that the Minister will be able to give us some reassurance on that point.

A great deal of justified concern has also been expressed about children either in or leaving care. I do not have time to talk about this now because it will come up again at least in part in a later group, but it is a matter of great concern. Local authorities, even with the best will in the world, have found over the past six months with the challenge of Covid that they have not had or have not applied the resources to assist children who ought to be applying under the settlement scheme. They are finding it very difficult to get the evidence together, so I hope that the Government can give some reassurance about the assistance that they will be given. We will also talk later about the dangers of another Windrush.

[Lord Rosser (Lab)]

My Lords, Amendments 12 and 83 provide that regulations under Clauses 4 and 5 respectively cannot make a provision that is inconsistent with the withdrawal agreement. Amendments 18 and 19 alter the language of Clause 4 to bring it in line with the 2018 and 2020 withdrawal Acts. The wording of the Bill does not appear to preclude the concerns which these amendments seek to address. Indeed, Clause 4(1) states that

“The Secretary of State may by regulations made by statutory instrument make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision of this Part”,


namely Part 1 of the Bill.

Clause 5 deals with the power to modify retained direct EU legislation relating to social security co-ordination, and again appears not to provide for the limitations sought in Amendment 83. Presumably it is not the Government’s intention to nullify or weaken the terms or protections of the withdrawal agreement, or the terms or protections of the withdrawal Acts, by regulations that avoid the full and proper parliamentary scrutiny and challenge that is achieved only in respect of primary legislation. That should become clearer from the Government’s response, which will be interesting in the light of media reports today of their allegedly negative attitude to keeping to the terms of the withdrawal agreement. Whether there is any significance to the wording in Clause 4(4) being different from the terms of the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 will also become clear.

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, for speaking to this group of amendments, which concern the scope of the delegated regulation-making power under Clause 4 and, in the case of one of the amendments, Clause 5. As I have said, it is right that Parliament pays close attention to the provision of delegated powers, and to assist we have shared draft illustrative regulations to be made under Clauses 4 and 5, subject to Parliament’s approval of the Bill.

Amendments 12 and 83 prevent the Government from using the powers in Clauses 4 and 5 to make regulations which are inconsistent with the EU withdrawal agreement. We already have a legal obligation to comply with that agreement, which also has direct effect in domestic law in accordance with the European Union (Withdrawal Agreement) Act 2020. These amendments are unnecessary and would call into question why they are not included in every other item of legislation across the statue book.

I turn to Amendments 18 and 19. Clause 4(4) allows the regulation-making power to make provision for those who are not exercising free movement rights at the end of the transition period. This group may nevertheless be eligible for status under the EU settlement scheme and are therefore still affected by the repeal of free movement. Clause 4 does not allow changes to the statute book for migrants from the rest of the world, who are not affected by the repeal of free movement. The suggested amendments are unnecessary and would add confusion and hinder our ability to make appropriate provision for those affected by that repeal.

It is right that Parliament should set the scope of the power in Clause 4 in terms appropriate to the purposes of this Bill in ending free movement and protecting the rights of Irish citizens. It is also right that Parliament should retain the appropriate oversight over the exercise of that power. The Government’s intention here is simply to ensure absolute clarity of purpose.

The noble Baroness, Lady Ludford, mentioned some issues that I have already addressed, namely comprehensive sickness insurance and the form versus the digital form. Article 18(1) explicitly provides that a document evidencing status may be in digital form. She also talked about children and the EU settlement scheme, specifically children whose parents—or indeed institutions in which they live—may not have signed them up. We will provide for reasonable excuses; I believe that we will come to that later in the Bill.