Immigration and Social Security Co-ordination (EU Withdrawal) Bill — House of Lords, 2020-09-07
Topic: Immigration
Sarah Ludford (Liberal Democrats, Centre to centre-left): I also very much look forward to hearing from the noble Lord, Lord Blencathra, as his committee has provided us with two excellent reports which have been of great assistance, particularly with regard to Clause 4 My noble friend Lady Hamwee pinched one of my quotes, but I will use the other one from the Delegated Powers Committee report, which stated that "we are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous", and by negative procedure regulations, unless it amended primary legislation. I think we can take from that that they do not think very much of Clause 4 and the schedule Even if there is some value in the fact that the first regulations are by "made affirmative" rather than negative procedure, those rights could be abolished by new regulations under Clause 4, when the negative procedure would apply. Therefore, any value there is in "made affirmative" over negative procedure could be removed by some deft sequencing of regulations. Everything points to the justification of having a test of necessity Paragraph 6 of Schedule 1 is also problematic. It potentially disapplies any retained EU law in the context of immigration. This could lead to the repeal of legal protections far beyond the realms of free movement. It could dent the EU law retained by Section 4 of the European Union (Withdrawal) Act 2018 because, even though provisions might have been partially saved by the Act, those provisions would not apply to the extent that "they are inconsistent with or otherwise capable of affecting the interpretation, application or operation of any provision made by or under the Immigration Acts or otherwise capable of affecting the exercise of functions in connection with immigration" That is amazingly broad. We had some fun over the Brexit draft legislation with delegated powers, Henry VIII clauses and so on, but I have not seen anything quite to match this. The phrase "functions in connection with immigration" can relate to almost any aspect of immigration control within the UK. This is broadened even further when it is linked to the test of "capable of affecting". It lacks any objective parameters by which to be able to ascertain the intended targets. Immigration practitioners trying to advise clients will be totally at sea. It undermines the rule of law if people do not know what the law is or could be in this area. They are going to be unable to make their behaviour fit the law. A number of measures could be cited. Trafficking victims have already been discussed on an earlier group of amendments. Asylum seekers were protected under the reception conditions directive, which the UK opted into although it did not opt into all the asylum legislation. During the debate on an earlier group of amendments, my noble friend Lady Hamwee mentioned the protection of victims of crime and the victims’ rights directive. These protections are potentially at risk as collateral damage from the ending of free movement. Even if the Government do not intend at this moment to repeal these provisions, they must explain why they could fall within the Bill and how they are going to introduce some rigour into the drafting of the Bill, such that this collateral damage does not happen With my support, my noble friend Lady Hamwee has put forward one solution in Amendment 11. All the amendments in this group are intended to provide the tightening up that is so sadly lacking from the drafting of the Bill as presented to us.