Draft Cessation of EU Law Relating to Prohibitions on Grounds of Nationality and Free Movement of Persons Regulations 2022

Stuart C McDonald Excerpts

Wednesday 16th November 2022 General Committees

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to see you in the Chair, Mr Bone. As the Minister knows from his previous roles, my party fully regrets the end of free movement for a variety of reasons, but we have had that debate—and will probably have it again another day. If we do, regrettably, bring it to an end, we should be careful in how we go about it.

The measure is framed as being technical, but it has significant implications for those impacted by it. Even the title of the regulations is slightly misleading. What the regulations will cease is not prohibitions on grounds of nationality, but the prohibition of discrimination on grounds of nationality. The regulations will entitle the Government to discriminate against EU nationals.

Furthermore, the Minister’s statement that equalities legislation is untouched by the regulations is questionable. Discrimination on the grounds of nationality is, of course, prohibited under the Equality Act 2010, section 9(1)(b) of which makes it clear that race includes nationality. Of course, there are exceptions relating to immigration status, but paragraph 17 of schedule 3 of that Act was amended by the Equality (Amendment and Revocation) (EU Exit) Regulations 2018, so that it now refers to

“anything which forms part of retained EU law by virtue of”

sections 2 to 4

“of the European Union (Withdrawal) Act 2018”.

Basically, all I am saying is that despite ministerial assertions to the contrary, equalities legislation is impacted by the regulations, so Ministers should be a little more careful about their assertions on that subject.

My second and probably slightly more important point is on what the regulations say nothing about: the position of people who are within scope of the withdrawal agreement. The Minister touched on that in his description of the regulations. Currently, people who are protected by that agreement are left to rely on it, and on international law. The question is, why do we not have an equivalent set of domestic protections for them, along the lines of the 2019 regulations to which I have just referred? Currently, those people are left to rely directly on just the international treaty. Imagine how difficult it is to walk into a social security office or anywhere else and say, “Never mind these regulations that your Government are producing at an incredible rate; here is an international treaty, and I have rights under it.” We need an equivalent domestic protection for those people, so they can say, “Here the Government set out that I have those rights, as someone protected by the withdrawal treaty.” That is what I would like to see in the draft regulations, but they are silent on that point. By endlessly passing such regulations, we make life more difficult for people who should be protected.

Finally, I will mention another set of regulations to illustrate my conclusion. A lot of exceptions were set out in a piece of legislation called the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020. In schedule 4 of those regulations, all sorts of exceptions are set out—rights that continue, notwithstanding other measures that brought free movement to an end. Again, the draft regulations are silent about that, and it is not absolutely clear to me how the sets of regulations relate to each other.

That brings me to my concluding point. It is becoming incredibly and hellishly difficult to work out where we are at. The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 was introduced a couple of years back; a lot of the provisions we are debating should have been in primary legislation, so that we could debate and scrutinise them properly, but instead we are trying to follow five, six, seven or eight pieces of delegated legislation at a time. It is becoming really hard to understand what is going on. On that note, I will listen carefully to what the Minister will say, but I am not attracted by the draft regulations.

--- Later in debate ---

[Stuart C. McDonald]

First, will we ever see something in domestic law that is designed to protect the rights of those who are protected by treaty? Secondly, on the list of exceptions in schedule 4 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020—quite a mouthful—a huge list of rights are retained under that SI. Are they affected by the draft regulations? Will the Minister answer that, now or later?

[Tom Pursglove]

I am grateful to the hon. Gentleman for his intervention. It reminds me of times gone by, when we regularly debated immigration-related matters in the House, and probably at times in this Committee Room. My clear understanding is that, given the protections in the withdrawal agreement, no rights are being taken away. However, I am happy to take away his substantive question, and to come back to him on it in writing. With that, I commend the regulations to the Committee.

Question put and agreed to.