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

Debate between Robert Goodwill and Kate Green

Committee stage & Committee Debate: 5th sitting: House of Commons
Tuesday 16th June 2020 Public Bill Committees

[Kate Green (Stretford and Urmston) (Lab)]

Good morning, Sir Edward. It is a pleasure once again to serve under your chairmanship. Social security arrangements set out in EU regulation 883 of 2004 and elsewhere are currently directly applicable in the UK. They cover the co-ordination of social security, healthcare and pension provision for people who are publicly insured who move from one EU state to another.

The regulations ensure that individuals who move to another EEA are covered by the social security legislation of only one country at a time and are, therefore, liable only to make contributions in one country; that a person has the rights and obligations of the member state where they are covered; that periods of insurance, employment or residence in other member states can be taken into account when determining a person’s eligibility for benefits; and that a person can receive benefits that they are entitled to from one member state, even if they are resident in another.

The co-ordination regulations cover only those social security benefits that provide cover against certain categories of social risk, such as sickness, maternity, paternity, unemployment and old age. Some non-contributory benefits fall within the regulations but cannot be exported, and benefits that are social and medical assistance are not covered at all. Universal credit, for example, is excluded.

As we heard from Jeremy Morgan of British in Europe in his oral evidence to the Committee last week, most UK nationals resident in the EU are of working age. It is important to note that the number of people claiming the working-age benefits that are covered by the regulations—jobseeker’s allowance or employment and support allowance—has declined sharply since the introduction of universal credit. We might therefore expect social security co-ordination arrangements to apply to a declining number of working-age adults. The regulations will, however, still be of importance for a sizeable number of individuals, and not least for pensioners.

The co-ordination regulations also confer a right on those with a European health insurance card to access medically necessary state-provided healthcare during a temporary state in another EEA state. The home member state is normally required to reimburse the host country for the cost of the treatment. Under the European Union (Withdrawal Agreement) Act 2020, protection of healthcare entitlements is linked to entitlement to cash benefits.

Clause 5(1) provides an appropriate authority with the power to modify the co-ordination regulations by secondary legislation. The power is very broad, placing no limits on the modifications that appropriate authorities are able to make to the co-ordination regulations. By virtue of subsection (3), the power explicitly

“includes power—

(a) to make different provision for different categories of person to whom they apply…

(b) otherwise to make different provision for different purposes;

(c) to make supplementary…consequential, transitional, transitory or saving provision;

(d) to provide for a person to exercise a discretion in dealing with any matter.”

The power is further enhanced by subsection (4), which provides for the ability to amend or repeal

“primary legislation passed before, or in the same Session as, this Act”

and other retained direct EU legislation.

Since the UK left the EU at the end of January this year, the relevant EU regulations pertaining to social security, pensions and healthcare have been retained in UK law by section 3 of the European Union (Withdrawal) Act 2018. I accept that the Government need to be able to amend co-ordination regulations to remedy deficiencies in them resulting from the UK’s exit from the EU, but the 2018 Act already contains a power in section 8 to modify direct retained EU law. Indeed, the Government have already exercised this power for four of the co-ordination regulations. Any changes that do not fall within the scope of the power in section 8 of the 2018 Act must necessarily, therefore, not relate to any ability for the law to operate efficiently or to remedy defects, but be intended to achieve wider policy objectives. I think the Minister acknowledged as much in his opening comments.

I was, however, surprised that the Minister said that only the European Union (Withdrawal) Act 2018 provided such powers. My reading of the legislation is that the Secretary of State has further powers as regards social security, healthcare and pension rights for those who are protected by the withdrawal agreement under the European Union (Withdrawal Agreement) Act 2020. Section 5 of that Act inserts new section 7A into the 2018 Act so as to secure withdrawal agreement rights in domestic law, and that protection is buttressed by section 13 of the 2020 Act, which confers a power to make regulations in respect of social security co-ordination rights protected by the withdrawal agreement. Given the powers that already exist under the European Union (Withdrawal) Act and the European Union (Withdrawal Agreement) Act, as well as the fact that those powers have already been used by the Government, why does the Minister feel they are inadequate?

Paragraph 30 of the delegated powers memorandum is instructive. It states that the Government want to use the power in clause 5 to

“respond flexibly to the outcome of negotiations on the future framework and make changes to the retained social security co-ordination rules.”

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

Does the hon. Lady agree that, given the proliferation of judicial reviews and the test cases that often come forward, it is better to adopt a belt-and-braces approach so that we underline the Government’s intention in both the Bill and the withdrawal Act?

[Kate Green]

The issue is the mission creep and scope creep involved in using secondary legislation to amend primary legislation and retained EU rights, particularly a mission creep that now encompasses the ability to make significant policy changes.

As we heard in oral evidence from our witnesses last week, it is important to recognise the considerable importance of policy and legislation in relation to social security co-ordination. It is vital to labour mobility, and to protect the rights of EEA nationals who come to live in the UK and UK nationals who go to live in EEA member states. Policy in this area has the potential to impact the lives of millions, affecting their right to receive benefits to which they are entitled through national insurance contributions over periods of residency, and which they have a legitimate expectation that they will receive. Changes to policy in these important areas should, I submit, be given effect in primary legislation.

In response to the evidence that the Committee took from British in Europe last week, the Minister said that the Secretary of State could not make regulations that would breach an international treaty, and he offered some reassurances this morning to those who fall within the scope of the withdrawal agreement. However, as British in Europe pointed out last week, the powers in clause 5 mean that Parliament will not be able to properly scrutinise regulations that might breach our international treaty obligations—if not deliberately, then inadvertently.

The Minister also referred to the need to be able to reflect the ongoing negotiations with the European Union, and we heard from Adrian Berry of the Immigration Law Practitioners Association last week about the UK’s draft social security treaty, which is an annex to the Government’s proposed future trade agreement. Mr Berry highlighted the Government’s intention to continue the protection of the European health insurance card scheme for short-term travel and the uprating of old-age pensions, but noted that disability pensions and healthcare attached to pension rights are missing from the draft treaty. He also highlighted the limitations of the new EHIC, which would require those with long-term health needs to get prior authorisation from the UK Government, and that there would be no S2 cover, which enables people to obtain healthcare in the EU that they cannot get on the NHS in the UK. Will the Minister put on the record whether such changes could be introduced using clause 5, and can he confirm which classes of person they can be applied to?

The Government have argued that the use of the powers in clause 5 will be subject to parliamentary scrutiny, through the use of the affirmative procedure. Will the Social Security Advisory Committee have a role in scrutinising regulations introduced under this measure? Does he not in fact accept that changes in this important area require full debate and scrutiny in Parliament, and that the principles of any future policy should be set out in primary legislation?

Finally, clause 5(5) states that EU-derived rights cease to apply if they are “inconsistent” with any regulation made under the section, but the Government are under no obligation to specify where and when such inconsistencies arise. This creates considerable uncertainty for individuals who are affected, for their advisers, and indeed for politicians and the wider public. As we discussed last week on clause 4, such an approach is inimical to good lawmaking. The Government should spell out which parts of retained EU law might be affected by these provisions, and I hope that the Minister will do so in his response.

--- Later in debate ---

[Mr Goodwill]

I very much sympathise with what the hon. Member for Halifax has just said. There is real concern that EEA nationals who have been working here, contributing not least to our health service, may find themselves missing the deadline. However, I do not agree that the way to address that is through new clause 10, as I made clear to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. Some like myself would always wait until the deadline before submitting an essay or article. By extending the period by six months, we might well just encourage people to put off the chore—as they see it—of applying.

I ask the Minister to reassure us that, as we approach the deadline, the Government will engage in a communications exercise and advertising campaign, particularly in some of the main EU languages, so that people are aware of the deadline and can submit their applications in good time for them to be processed.

[Kate Green]

That is an important point, in particular in relation to those communities, such as the Roma community, that have been hard to reach with information about the scheme. The Government have made some funding available for community organisations to reach such communities, but it would be extremely welcome to follow the suggestion that a particular push be made to communicate with those more remote communities as the deadline approaches

[Mr Goodwill]

The hon. Lady is absolutely right. Indeed, while many EU migrants have made a real effort to integrate and to speak English in their homes, encouraging their children to speak English, others have not assimilated as well and are still speaking their native language, as is their right. It is important that we communicate in those languages.

Perhaps we should also look at how we communicate through schools, because the children of some families who have come from the EU speak very good English, although their parents struggle with it. The children’s secondary schools may be another good way to get through to such families. I hope that the Minister will pick up that point and reassure us that the Government will be making the effort to communicate with the general population, to ensure that we can help our work mates and so on.

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

Debate between Robert Goodwill and Kate Green

Committee stage & Committee Debate: 1st sitting: House of Commons
Tuesday 9th June 2020 Public Bill Committees

[Kate Green]

Thank you.

[Mr Goodwill]

Q My question is for Richard Burge in particular and concerns international companies in London that might well have existing employees based in Japan, Singapore or the United States who wish to come to London to work as part of their company’s operation. There are also companies that might be based in the European Union whose employees have habitually come to work in London but, under the new regime, will be in the same category as those first workers. My question to Mr Burge is, under the new regime, how will that system function? Will it be an equivalent situation, something that companies can work with easily, or will there be problems for international workers coming to the UK within a company that might even be based in London, but certainly an international one?

Richard Burge: The answer is that I don’t really know. A lot of companies that are already established in places such as Japan will find it easier; for the ones that have operations elsewhere in Europe, this will be a new world. This also comes down to the Home Office being flexible and agile in terms of making sure that we assume positive intent on the part of companies—that they are not getting people into Britain secretly to do full-time work, but that they are in fact part of the transferable market within their company.

We need to address that. It will be complicated, but there are precedents in companies outside the EU, so I think we will use that as an example. It will be more difficult for smaller companies. Increasingly, we find that international companies in London are actually quite small; they are not huge operations. You can find yourself to be an international company in London by dint of the first order put on your website, whereas in the old days you would have spent 20 years developing a domestic market and then you would move internationally. Smaller companies might find themselves potentially hostage to this without realising it. So yes, complex.

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

Debate between Robert Goodwill and Kate Green

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 9th June 2020 Public Bill Committees

[Kate Green]

Q Professor Ryan, in relation to British-born children of Irish nationals, are there any particular concerns that we ought to be aware of in relation to this legislation?

Professor Bernard Ryan: Thank you very much for bringing that up. One of the issues at present is that not only is there a lack of clarity about immigration status, but also it feeds into the lack of clarity as regards acquisition of nationality in two scenarios. One is British-born children—children born to Irish parents, and also Irish citizens wishing to naturalise. Because it is very often not clear on what basis Irish citizens are here, to the extent that it is not clear the question arises, “Are they without time limits and have they ever been in breach of immigration laws?” It is necessary also, from the perspective of the smooth working of British citizenship law, to absolutely tie down and clarify that Irish citizens are here, and on what basis. And yes, it will remove any possible question as regards children of Irish parents being British citizens and as regards access to naturalisation by Irish citizens who want it.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

Q The Dublin regulations deal with a situation where, for example, an economic migrant or an asylum seeker who present themselves in the UK can be repatriated to the country where they first claimed asylum, and indeed deal with family reunion. Professor Ryan, will this Bill have any implications for the operation of the Dublin arrangements? Could the Bill be improved to enshrine some of its obligations on that statute book, or is that completely unnecessary?

Professor Bernard Ryan: I think you are bringing us into the question of the common travel area as such and its operation. That would be my interpretation of your question. One of the things I would expect to see in the future would be, if the United Kingdom does not stay within the Dublin system with the EU, that there will be an arrangement with the Irish Republic as regards asylum seekers, because of the open border. It would be logical to do that. I personally would prefer it if the common travel area, conceived as immigration control and co-operation between the two states, were on a more transparent, and maybe more statutory, footing—but that is a much bigger question. That is to some extent a different one from the status of Irish citizens, which is what the clause deals with. So, yes, in the end I would like to see the common travel area framed more transparently than it is at present.