Immigration and Social Security Co-ordination (EU Withdrawal) Bill — House of Lords, 2020-09-16
Topic: Mixed Topics
Sarah Ludford (Liberal Democrats, Centre to centre-left): My Lords, in moving Amendment 84, I shall speak to other amendments in this group which attempt to rein in Clause 5 or delete it. Clearly, this group is also linked to the next group of amendments. I am pleased to see the noble Baroness, Lady Stedman-Scott, here; it is nice to have a change of landscape and scenery The Delegated Powers Committee in two reports has highlighted the problems of Clause 5, so this debate echoes the one that we had on Clause 4. Clause 5, in the words of the DPRRC, gives Ministers "almost absolute power to rewrite the Co-ordination Regulations at any time of their choosing"— that is, the social security co-ordination regulations. Parliament has no power to modify such SIs, only to approve or reject them. Not only did Clause 5(1) and 5(2) confer those very broad powers, but subsequent paragraphs on the purposes of modification place little restraint on Ministers; they give Henry VIII powers, among others The Delegated Powers Committee said that the Government’s delegated powers memorandum gave "inadequate justification for a wholesale transfer from Parliament to the Government of power to legislate in a field that could … impact on large numbers of UK citizens resident in EEA members states, and EEA nationals resident in the UK" The committee said that the memorandum did not explain the need for Ministers to have the Clause 5 power now, "how the Government might seek to use it … why it includes a power to amend … legislation … not listed in clause 5(2) … why it is not time limited", and why there is no duty to consult. It recalled its repeated view that for a skeleton Bill, a full explanation of delegated powers is necessary—and in fact, it says this clause is not even a skeleton; I do not know what is less than a skeleton, but it is a nice phrase. In any case, Clause 5 is unnecessary Since the UK left the EU on 31 January, 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. That Act already contains a power in Section 8 to modify retained direct EU law. The Government have in fact already exercised that power and amended the co-ordinating regulations in 2019—I think there are four sets of regulations altogether, which are referred to as fixing regulations. The Government now want powers in this Bill, but if they do not fit within the 2018 Act then they must necessarily not relate to any ability for the law to operate effectively or to any deficiency in EU law. They are not tidying-up powers, and if they were then the Government could use the 2018 Act. It seems inappropriate to have Clause 5 in the Bill and for the Government to be able to legislate under its powers. It is much better for any changes to be brought to Parliament by primary legislation Of course the Bill and these powers are not about rights under the withdrawal Act or those protected by the withdrawal Act, who are often referred to as the cohort. Powers regarding the social security, healthcare and pension rights of those people covered by the withdrawal agreement are covered under Section 7A, which was inserted into the 2018 Act by the European Union (Withdrawal Agreement) Act 2020. That is also accompanied by Section 13 of the 2020 Act, which confers the power to make regulations in respect of social security co-ordination rights protected by the withdrawal agreement. We therefore have two sets of powers to regulate: one under the 2018 Act and another under the 2020 Act. Why does the Secretary of State now need a third set of powers to make regulations There is bound to be some duplication across these sets of powers, and it looks as if they are designed to bypass the need for primary legislation. In fact, I also recall that a memo attached to the letter from the noble Baroness, Lady Williams, on 4 September, about the illustrative SIs, said that the Government are also planning to implement a future relationship using the powers in Section 179 of the Social Security Administration Act 1992, the primary legislation governing reciprocal agreements for social security benefits between the UK and the rest of the world. That is a third set of delegated powers, so Clause 5 in this Bill would be a fourth set of powers. The Government are getting awfully greedy about powers for Ministers I put it to the Minister that if the Government think they need further legislation on social security it needs to go into primary legislation. Indeed, our Delegated Powers Committee suspected that Clause 5 was in the Bill to avoid having to prepare a detailed Bill subject to full parliamentary scrutiny once future arrangements with the EU were concluded. It said that Clause 5 is "an inappropriate delegation of power." Hence, we have given notice that we would seek to delete Clause 5 altogether, whereas Amendment 84 would restrict the powers to those described in Section 5(3), while Amendment 85 would delete the power to distinguish between recipients on the basis of their nationality or where they reside.