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

Committee (1st Day)

Clause 1: Repeal of the main retained EU law relating to free movement etc.

Amendment 1

1: Clause 1, page 1, line 9, at end insert— “(2) Within six months of this section coming into force, the Secretary of State must lay a report before Parliament on how the provisions under Schedule 1 are to be enforced.”

My Lords, I rise to speak to Amendment 1 in my name and that of the noble Lord, Lord Green of Deddington. I start by thanking my noble friend the Minister and her team for the briefing sessions arranged since Second Reading and the substantial package of materials circulated last week, including some illustrative statutory instruments, which I always find helpful in understanding how Bills will work. We will come on to those in later groups.

I know from all the legislation that I have made as a civil servant and as a Minister, and complied with as a businesswoman and a citizen, that how a new law is enforced and the resources devoted to it are almost as important as the law itself. Our amendment, the first in this group, is a probing one designed to elicit detailed information on enforcement ahead of Report. I note that there is very little in the Bill, no doubt because the enforcement provisions, penalties, powers of entry and enforcement officers responsible sit in existing legislation, but we need a road map. We need to know as much as possible now and, failing that, we need a public report to Parliament within six months, as stated in my amendment—the way the excellent Bill clerks thought that we could ensure the provision of adequate information.

As discussed at Second Reading, my general approach is that government policy should align itself more closely with the majority of public opinion, which has consistently held over many decades that more rigorous controls are needed and that the rules should be enforced fairly and firmly. This was shown unequivocally in the Brexit referendum.

There are a number of troubling issues with enforcement implications. The number of migrants seeking ever more novel ways to get into the UK illegally is growing. Last week, it was reported that a record 416 migrants exploited fine weather to make the crossing from France to England in one day, arriving on beaches all along the south coast. Immigration law can be enforced by tightening border controls or by deporting those without a right to remain in our country, yet we see repeated reports of the failure of government steps to remove migrants who have already sought asylum elsewhere or have no right to remain for other reasons. Last week, a charter flight took off for Spain that was meant to carry 20 such migrants; in the event, only 11 boarded the plane, after late legal challenges. The week before, the Government abandoned a similar flight with 23 migrants on board, after last-minute legal action. Many thousands are attracted to dangerous ways of entering the UK, because the authorities are known to be useless at enforcing the law.

My Lords, in following the noble Baroness, Lady Neville-Rolfe, I agree with her that we need to tackle modern slavery and exploitation in the UK and that this is something the Government need to properly fund and prioritise, focusing on the exploiters, not the victims. I am, however, speaking in direct opposition to her statement as I am opposing Clause 1.

Today marks another step in the robbing of rights from millions of Britons that they were born with and the removal of rights for future generations. Clause 1 is a key step by which freedom of movement for Britons and to Britain ends. I believe we should not allow the destruction of rights and freedoms for Britons to pass unmarked, which is why I have put down my intention to oppose Clause 1 standing part of the Bill.

As I did that, I was thinking back a couple of years to a rally in the centre of Brussels, held in ankle-deep snow, where I heard from lots of Britons who had come from across the continent to talk about how freedom of movement had changed and improved their lives. In particular, I think of a woman who, when young, had upped sticks when her life in the UK had not worked out, moved to several European countries over the years, built a couple of different careers and made a full, interesting, varied life for herself. She came from a very poor area of England and from a family with few financial resources. But she had bought a cheap coach ticket, shifted across a continent and found opportunities, interesting experiences and a comfortable place for herself in the world.

The wealthy have always been able to do this and, no doubt, will always be able to. Many an aristocrat set out on the Grand Tour and, by choice, never came home. Many a black sheep from a wealthy family snuck off to the continent and rebuilt their life away from scandal. The arrival of freedom of movement meant the chance for everybody to exercise that freedom to seek the opportunities, the experiences, the enhancements of life that change can bring and the chance to meet new and different people, learn a new language and find a different culture, environment and way of life.

My Lords, that was indeed a passionate speech.

When I was a first-year law student at Hertford College, Oxford, we learned that apparently the Roman Emperor Caligula ordered that laws should be displayed in small letters as high up as possible to make it difficult for people to know their legal rights and obligations. Amendment 3 focuses attention on an extraordinary provision in this Bill—paragraph 4(2) of Schedule 1—which, if enacted, will make it impossible for people today to understand their legal rights and obligations.

Paragraph 4 is concerned with the EU regulation on free movement of workers. Paragraph 4(1) is a model of clarity; it says that Article 1 of the regulation “is omitted”. However, paragraph 4(2) displays the parliamentary draftsman at his or her most coy. It is so extraordinary that it must be read out:

“The other provisions of the Workers Regulation cease to apply so far as—

(a) they are inconsistent with any provision made by or under the Immigration Acts (including, and as amended by, this Act), or

(b) they are otherwise capable of affecting the interpretation, application or operation of any such provision.”

It is simply not acceptable that when people want to know whether a provision of an EU regulation continues to apply, they must ask themselves whether the provision is

“capable of affecting the interpretation, application or operation"

of a provision of the immigration Acts. This is drafting so opaque that it puts a brick wall between the individual and the law which applies to him or her. It is drafting so lazy that it is comatose. The same woeful drafting technique also appears in paragraph 6(1) of Schedule 1, a provision addressed in Amendments 4 and 5 in this group tabled by the noble Baroness, Lady Hamwee, which I support. If the Government want to ensure that provisions of a regulation cease to apply, they should say so with clarity.

My Lords, I support the amendment and the arguments advanced by the noble Lord, Lord Pannick. I apologise if the Committee starts its debate on another report from the Constitution Committee before this section is concluded.

In many respects this is a skeleton Bill, and in this area it changes significant amounts of primary legislation into secondary legislation, therefore making it open to less effective parliamentary scrutiny when powers are used. If something needs to be changed because of inconsistency, then the face of the Bill is the place to put it, but here we are with the concept of inconsistency so subjective and vague that it is difficult to imagine how a court would interpret it. Is

“otherwise capable of affecting the interpretation, application or operation of any such provision”

restricted to precluding the operation of the Act, or does it extend to casting doubt on provisions in this Act? What is it supposed to mean?

In our report on Brexit legislation, the Constitution Committee said that

“delegated powers should be sought only when their use can be clearly anticipated and defined”,

yet in this Bill we get terms such as “appropriate”, “in connection with” and the ones which I have just quoted. It is an unsatisfactory way of drafting, and I am bound to wonder what instructions were given to the parliamentary draftsmen when they worked on this section.

The Constitution Committee has had quite a bit of discussion over the last couple of years about the drafting of legislation and the circumstances in which parliamentary draftsmen should say, “No, this is not a way in which we write laws, this is not acceptable”, and if a dispute arises, then not only departmental Ministers but also law officers should be involved in defending the basic principles of law. Having looked at these provisions, which I hope the Government will find a way to remove, we concluded that

My Lords, the proposed new clause in Amendment 60, which has cross-party support and is sponsored by the noble Baronesses, Lady Fookes, Lady Garden of Frognal, and Lady Morris of Yardley, is largely self-explanatory. If accepted, it would continue allowing minors to travel from the European Union, other European Economic Area states and Switzerland to the UK on identity cards rather than passports beyond 31 December 2020.

Large numbers of junior nationals from these jurisdictions travel to the UK every year for school exchange visits, English language courses, adventure holidays and a range of sporting and cultural activities. Last year over 150,000 European Economic Area juniors travelled to the UK for English language courses alone, many of them travelling in groups for study programmes that lasted for less than two weeks. This is an invaluable cultural and educational exchange that builds friendships and fosters good will between the UK and other nations. Most of these students currently travel on identity cards. Many do not own passports but travel freely on identity cards throughout the EU and EEA states with no need for passports.

A survey last year by English UK, the trade association for English schools, showed that, in 2019, 90% of under-18 EU students who came to this country did so on an identity card to study at colleges accredited by the British Council, an organisation on which I served as a deputy chair for six years. The parents of these under-18s do not want to go through additional bureaucracy or incur the cost of getting a passport, having saved for the cost of the trip itself. Furthermore, if just one junior due to travel in a school exchange group was without a passport, the viability of the whole visit could be put in jeopardy. If this travel on identity cards ceases, the UK will lose out to other countries and its position as a popular destination could decline. This new clause would help to rectify the situation and sustain the UK’s position as a popular destination. I emphasise that the proposed extension of identity card-based entry for under-18s coming to the UK for a single stay of no longer than 30 days in any calendar year would mean that this concession would be available only to those presenting little or no border security issues or risk of abuse.

This is rather a mixed bag of amendments. I would like to return to Amendment 1, on enforcement; a very useful amendment proposed by the noble Baroness, Lady Neville-Rolfe. As she so clearly described, enforcement has long been one of the weakest points in our immigration system. Indeed, enforced returns have been in steady decline for years. They fell from 16,000 in 2010 to just under 7,000 in 2020—that is more than half—and that was the lowest level since records began. Voluntary returns have also fallen since 2015. Partly as a result of these failures, we now have 90,000 immigration offenders living in the community; that is somewhat more than the size of the British Army. Furthermore, more than half of them—about 55,000—no longer even bother to report to the Home Office as they are supposed to do: they have simply disappeared.

I shall make three brief suggestions about how this could be tackled. First, we should adopt a much tougher approach towards those countries that take an unreasonable attitude to taking back their own citizens—India, Pakistan and Iran come to mind, but there are a number of others. As noble Lords will know, illegal immigrants frequently destroy their documents, and these countries usually refuse to accept the biometric identity documents that the British Government produce for them. I think that our willingness to issue visas for the UK should take this attitude into account.

Secondly, we also need to retain—indeed, restore—the detained fast-track system for asylum claims that are obviously very weak. It was very effective for some years, but was quietly dropped by the Government quite recently after several years in a legal morass. Thirdly, we should be much more effective in enforcing the laws on illegal working. It is clear that this is a major pull factor for illegal immigration.

Finally, a particular difficulty facing the new immigration system is that of preventing EU visitors and other non-visa nationals working while in this country. A report to Parliament on enforcement, as proposed in this amendment, would be a valuable first step.

The noble Baroness, Lady Taylor of Bolton, has withdrawn from the debate, so I call the noble Baroness, Lady Ludford.

My Lords, I very much regret the end of free movement rights. This has often been presented as a one-way system, as if it applied only to nationals of other EEA countries inward to the UK, but it has of course been a two-way system, and something over 1 million UK citizens have taken advantage of their free movement rights to live, work and settle in other EU and EEA countries. When I was an MEP, I was proud to work on the 2004 citizens’ rights directive, which is often called the free movement directive. We did not get everything we wanted, as the European Parliament did not have quite the rights over legislation that it has today. However, it allowed lots of people who were not particularly well off to take advantage of EU rights to move, live and work abroad—it was democratised, if you like.

I fear that there could well be resentment in future, as divisions appear between those who retain a right to move around and those who do not. I also think that some British citizens who currently enjoy EU free movement rights may not fully have taken on board what is about to hit them. When I talk about divisions, for instance, there are those who will be able to get an Irish passport. I declare an interest here: apparently—I did not realise this until a few years ago—I am already an Irish citizen because my mother was born in Dublin. I have not yet got round to applying for the passport. I put it off partly in the hope that somehow Brexit would be averted, and also because I feel a little sheepish about my right to it. But I have not had to apply for Irish citizenship, as it has sort of fallen out of the sky, courtesy of my mother—or her mother, I should say.

There will also be people with means who will be able to move abroad. We know that it is possible to buy so-called golden passports in some EU countries. There are also investor visas. One way or another, it is not going to be the rich who will be affected by the grab of free movement rights.

My Lords, before I turn to Amendment 60 to which I have added my name, can I say, as a member of the Constitution Committee and a former chairman of the Delegated Powers Committee, I agree wholeheartedly with the searing criticism from the noble Lords, Lord Pannick and Lord Beith? I am appalled that we should start to have laws that are incomprehensible. It might be meat and drink for the satirist, but it should be no part of our arrangements.

By contrast, the amendment to which I have added my name, that of the noble Baroness, Lady Prashar, is clear, straightforward and simple to understand. The noble Baroness gave a very good account of it and its intentions so I will not repeat them now for lack of time, but I want to make a serious point. If young people—minors—are not able to come to this country without a full passport, it is unlikely, when things return to normal, that many of them will come at all. They are far more likely to go to some other English-speaking country—one thinks immediately of the Republic of Ireland or even Malta. One might even think of the Netherlands, where it seems to me that they sometimes speak English better than we do.

Be that as it may, this is a very real worry. It is bad enough that young people have suddenly stopped coming over to schools and organisations as a result of Covid-19. Such organisations are in dire straits and we do not want to put some ghastly obstacle in their way as things gradually return to normal. I hope that my noble friend the Minister will look carefully at this to see if we can simply have the identity cards, which are used at the present time and are simple and easy to use. They would be using only those that are properly instituted by the various countries of the EEA and Switzerland.

There is a further problem, looking forward. Many people first come to this country as a youngster on an exchange. Very often they will return, perhaps for higher or further education. We do not want to cut that off at the beginning. That would be extremely short-sighted.

My Lords, along with the noble Baroness, Lady Fookes, I support Amendment 60, which the noble Baroness, Lady Prashar, spoke to so ably. It is a good thing for young people to come over to learn English here or to have adventure holidays or to do an exchange. We can all remember it if we had that opportunity. Those who, like me, were teachers, knew the benefit for children, and the children and grandchildren of many of us have taken this opportunity.

I cannot think of one reason why we would want to make it more difficult for these things to continue. It is one of those things that we can all agree on—it is what we would want for young people, whether they are our own children or somebody else’s. It is not just meeting people and learning the language, there is something about it that, perhaps, you only realise as you get older. The seeds that you sow in those early years, culturally and in terms of understanding, stay with you for life. Even if you do not come back to university in the United Kingdom in a few years’ time, in your heart you remain friends with somewhere you have been as a young person. I had an opportunity to be an exchange student in America when I was doing my teacher training. It has had a huge effect on me throughout my life. There is an affection, a loyalty and an understanding that I have never lost. Why would we want to make it difficult in the future for more children to have an opportunity like that?

There is a problem with the Bill. I do not think it is intentional, but an unintended consequence of the rules and regulations. It is not just a few young people who would be affected; most young people in this group travel with identity cards rather than passports, and that certainly makes it easier for the group organisers. If a card is lost, it is easier to replace it when you are abroad than it is to replace a passport. Quite simply, it is an extra cost, and parents will have choices—there are English-speaking nations other than ours that their children could visit. Therefore, it will make a difference. Schools are already trying to recruit for next year and they will be put at a disadvantage because we are now putting a further barrier in the way.