Immigration and Social Security Co-ordination (EU Withdrawal) Bill — House of Lords, 2020-09-09
Topic: Immigration
Richard Rosser (Labour, Centre-left): Amendment 25, to which my name is attached, would introduce a sunset clause limiting the use of delegated powers under Clause 4 to one year, beginning with the implementation period completion day at the end of the transition period Immigration involves fundamental rights on a regular basis: rights to liberty, respect for private family life, property rights, the right to non-discrimination, data protection rights and a prohibition on inhumane or inhuman and degrading treatment. Changes that could or would affect fundamental rights should be made by Parliament through primary legislation, not by Ministers through secondary legislation where there is no ability to amend or alter what is proposed As we have discussed already, the Lords Constitution Committee and the Lords Delegated Powers and Regulatory Reform Committee have both said that the provisions in the Bill "include broad delegated powers, including Henry VIII powers, for which there is little policy detail as to their intended use; insufficient safeguards and scrutiny processes in relation to" how those powers are used. Other comments from one or both of these Lords committees are that "The Bill effectively changes significant areas of immigration law from primary into secondary legislation, weakening the parliamentary scrutiny that will be required for any future amendment or repeal", and that "A Henry VIII clause", such as Clause 4, "that is subject to such a permissive test as ‘appropriateness’, and which may be used to do anything ‘in connection with’ in relation to so broad and important an issue as free movement, is constitutionally unacceptable" and undermines "fundamental elements". The Government maintain that the Henry VIII powers in Clause 4 are only to address necessary technical legislative changes to primary legislation arising from the ending of free movement. The same powers in Clause 5, say the Government—those are the subject of a separate amendment later on—are there, first, to enable consequential amendments to be made to primary legislation and other retained EU law if areas of the retained EU social security co-ordination regulations, co-ordinating access to social security for individuals moving between EEA states, have to be repealed because they are not covered in a reciprocal agreement with the EU following the end of the transition period; and, secondly, if consequential technical amendments to legislation are needed arising from any new reciprocal agreement with the EU However, the trouble is that the actual terms of the Bill give the Government much greater powers than they say they need and are asking us to accept would be the situation. The Delegated Powers Committee said that Clause 4 presents "a very significant delegation of power from Parliament to the Executive", and on Clause 5, it said: "Parliament is being asked to scrutinise a clause so lacking in any substance whatsoever that it cannot even be described as a skeleton." If it the Government only want these very significant delegated powers, including Henry VIII powers, for the reasons they have previously given, they will surely recognise the potential constitutional dangers of leaving powers which represent such a significant delegation of power from Parliament to the Executive permanently on the statute book. Accordingly, if the Government want to use these powers only for the reasons they have mentioned, they should have no difficulty agreeing to the sunset clause provided for in this amendment, which I beg to move.