Report on the Legislative Consent Memorandum on the Immigration and Social Security Co-Ordination (EU Withdrawal) Bill
Session: Session currently unavailable
Date: 08 July 2020
Reference: NIA 35/17-22
This report is the property of the Committee for Communities. Neither the report nor its contents should be disclosed to any person unless such disclosure is authorised by the Committee.
Ordered by the Committee for Communities to be printed 8 July 2020
Report: NIA 35/17-22 - Committee for Communities.
Mandate 2017 – 22 First Report
- Powers and Membership
- Part 2 of Bill: Social Security Co-ordination
- Committee consideration of the Bill and LCM
- Appendix 1: Explanatory Notes
- Appendix 2: List of amendments supported at 3rd Reading
- Appendix 3: Legislative Consent Memorandum
- Appendix: 4 Hansard Official Report
Powers and Membership
1. The Committee for Communities is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of Strand One of the Belfast Agreement and under Assembly Standing Order No 48. The Committee has a scrutiny, policy development and consultation role with respect to the Department for Communities and has a role in the initiation of legislation. The Committee has 9 members, including a Chairperson and Deputy Chairperson, and a quorum of 5.
2. The Committee has power to:
- consider and advise on Departmental budgets and Annual Plans in the context of the overall budget allocation;
- approve relevant secondary legislation and take the Committee Stage of relevant primary legislation;
- call for persons and papers;
- initiate enquiries and make reports; and
- consider and advise on matters brought to the Committee by the Minister of Communities.
3. The Committee has 9 members, including a Chairperson and Deputy Chairperson, and a quorum of five members. The membership of the Committee is as follows:
Paula Bradley MLA (Chairperson)
Kellie Armstrong MLA (Deputy Chairperson)
Andy Allen MBE MLA
Jonathan Buckley MLA
Mark Durkan MLA
Sinéad Ennis MLA
Fra McCann MLA
Robin Newton MBE MLA
Carál Ní Chuilín MLA
4. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill was originally introduced at Westminster in the 2017-2019 session but fell when Parliament was prorogued before the December 2019 General Election. It was subsequently re-introduced in the House of Commons on 5 March 2020 and the report stage and third reading of the Bill were held on Tuesday 30 June 2020. The amended Bill was introduced to the House of Lords on 1 July 2020.
5. There are three main measures in the Bill.
6. The primary purpose of the Bill is to end the EU’s rules on free end of the movement of persons in respect of the UK at the end of the transition period (31 December 2020). These rules are currently retained in EU law by the EU (Withdrawal Act) 2018.
7. In practice this means that EU nationals who are not resident in the UK before the end of the Transition Period will be required to obtain permission for themselves and their family members to enter and remain in the UK under the UK immigration Act 1971.
8. On this specific issue it is important to emphasise that immigration and freedom of movement are excepted matters under Schedule 2 of the Northern Ireland Act 1998 and come under the remit of the Home Office.
9. The Bill will therefore repeal the main retained EU law which relates to free movement thereby bringing EEA nationals and their family members under UK immigration control.
10. Secondly, the Bill will protect the status of Irish citizens in UK immigration law once their EU free movement rights end.
11. Thirdly, the Bill will introduce powers to enable the Westminster Government and devolved authorities to amend retained EU law governing social security co-ordination thereby enabling policy changes to be delivered post EU exit.
Part 2 of Bill: Social security co-ordination
Clause 5: Power to modify retained direct EU legislation relating to social security co-ordination
12. While the Bill extends to all of the UK, immigration is not a devolved matter and therefore not within the devolved competence of the Assembly.
13. However, social security is a devolved matter and the NI Assembly therefore does have a role to amend aspects of the social security co- ordination regulations.
14. Clause 5 (and consequently Schedules 2 and 3) of the Bill is therefore the key clause for consideration. It states that:
An appropriate authority may by regulations modify the retained direct EU legislation mentioned in subsection (2).
The retained direct EU legislation is —
(a) Regulation (EC) No 883/2004 of the European Parliament and of the Council on the co-ordination of social security systems;
(b) Regulation (EC) No 987/2009 of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004;
(c) Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community;
(d) Regulation (EEC) No 574/72 fixing the procedure for implementing Regulation (EEC) No 1408/71;
15. In short, the clause (as introduced in the Bill) allows the UK government and/or, where appropriate, a devolved authority to make regulations in relation to new policies on social security co-ordination.
16. Any new policies will be subject to the outcome of negotiations with the EU.
17. As noted in the Explanatory Notes which accompanied the Bill subsection (3) sets out that such regulations can make different provision for different categories of person and for different purposes, as well as making supplementary, incidental, consequential, transitional, transitory or saving provision.
18. Subsection (4) states that consequential provision includes modification to provisions made by or under primary legislation or to retained direct EU legislation not listed in subsection (2).
19. Subsection (5) ensures any directly effective rights that will have been saved by section 4 of the EU Withdrawal Act 2018 at the end of the transition period, cease to apply insofar as they are inconsistent with, or are otherwise capable of affecting, the interpretation or application of provision made by regulations under clause 5.
20. Subsection (8) indicates further provision about the power of devolved authorities to make regulations under this clause is set out in Schedule 2. This refers, for example, to regulations being made within the competence of the devolved authority; the requirement of consent by the NI Secretary of State where, for example, a NI department acts alone in regulations under clause 5; where the consent of a Minister of the Crown is required.
Amendments to the Bill
21. The Home Secretary, Priti Patel, proposed 31 amendments to the Bill all of which were carried in the House of Commons on 30 June (Appendix 2).
22. The amendments stem from the decision of the Scottish Government not to proceed with an LCM. Therefore, the reference in the Bill to ‘Scottish Ministers’ acting jointly with Ministers of the Crown has been removed.
23. The relevant amendments are:
Clause 5, page 4, line 31, leave out “devolved authority” and insert “Northern Ireland department”
This amendment and amendment 2 remove the power conferred on Scottish Ministers (acting alone or acting jointly with a Minister of the Crown) to make regulations under clause 5.
Amendments 3, 4 and 6 to 31 are related consequential amendments.
Clause 5, page 4, line 32, leave out “devolved authority” and insert “Northern Ireland department”
Clause 5, page 4, line 33, leave out “of devolved authorities”
24. This means that under the amended Bill, Scottish Ministers will have no power to amend EU retained legislation relating to social security co- ordination either acting alone or jointly with a Minister of the Crown (amendments 1 and 2).
25. In the amended Bill, introduced to the House of Lords on 1 July, a Northern Ireland Department retains the power to amend EU retained law relating to social security legislation.
Committee Consideration of the Bill and Legislative Consent Motion
26. The Committee was briefed on the Bill and Legislative Consent Memorandum on 11 June 2020 (Appendix 3).
27. The Committee was advised that the UK Ministers for Future Borders and Immigration and Disabled People Health and Work, asked Minister Hargey to agree that the Northern Ireland social security provisions remain in the Bill and to bring forward the necessary legislative consent motion.
28. The Committee was also advised that the Executive had agreed to proceed with a Legislative Consent Motion on this issue.
29. It is therefore the third aspect of the Bill referred to above which has specific relevance to the Legislative Consent Motion i.e. regulation in respect of social security co-ordination.
30. The Committee was advised that the Bill makes provision for retained EU regulations, which relate to the current social security co-ordination scheme, to be amended by the Westminster Government and/or a devolved authority.
31. These regulations are noted in paragraph 14, above.
32. The Committee was advised that this provision in the Bill will allow any policy changes to be delivered at the end of the Transition Period depending on the outcome of negotiations with the EU on the future relationship.
34. The Committee recognised that the retained regulations are a complex mix of excepted and devolved matters and that the joint approach to amending these regulations i.e. between a Minister of the Crown and the NI Assembly, offers the potential to amend the law in a coherent way.
35. However, members were also concerned about the degree to which the future development of legislation would be a joint endeavour between UK ministers and the NI Assembly.
36. Members were advised that devolved competence would be respected and require the approval of the Assembly before they were made.
37. Members also questioned officials on the implications for the Assembly to take forward its own Bill e.g. any associated costs.
38. Officials stated that they were working on the assumption that if an Assembly Bill made changes that resulted in additional costs for benefits, that did not apply to the rest of the UK, then the NI Executive would have to pay for those additional costs.
39. Members asked about the viability or advantage of taking forward an Assembly Bill on these matters. However, officials noted that what the LCM was actually doing was giving the Assembly the power to make regulations, as required, following a future agreement between the UK and EU and it was not making any changes to specific benefits.
40. Officials went on to note that the relevant and existing procedures, and therefore control, in respect of regulations would still be applicable. Therefore, any subsequent regulations would come before the Committee and/or the Assembly for consideration and approval.
41. Officials noted that in respect of regulations referred to in paragraph 14 above there are areas that fall under Schedule 2 of the NI Act 1998 (excepted matters) on which the Westminster government would not consult with the Assembly. However, they went on to say that they do work very closely with their counterparts on social security regulations and would continue to do so. In turn, the Committee would continue to play its role in the scrutiny of those regulations.
42. Members noted that the Assembly had deviated from GB on welfare reform and queried whether the Bill/LCM might somehow constrain similar mitigations in the future, and if perhaps an Assembly Bill would therefore be preferable. However, officials reiterated that whether it was this Bill or a bespoke Assembly Bill, both would simply seek to give powers to the Assembly to make regulations in respect of social security co-ordination.
43. Members also queried what the detrimental impact on people here would be if an Assembly Bill was the preferred option rather than supporting the LCM to allow Westminster to take forward the legislation. Officials noted that they could only speculate about this in the absence of an agreement between the EU and UK but again emphasised that the Bill was only giving the Assembly the power to make regulations on social security co-ordination.
44. Members recognised that the LCM did not deal with the specifics of social security benefits but rather gave the Assembly the powers to make regulations in respect of social security co-ordination. However, some members noted their general uneasiness with the use of an LCM rather than bespoke Assembly legislation.
45. The Committee noted a draft Legislative Consent Motion at its meeting of 1 July 2020 but recognised that as a result of the Bill being amended at 3rd reading, this motion would also change.
46. However, at its meeting of the 8th July the Committee agreed, in principle, to the extension to Northern Ireland of the provisions of the Immigration and Social Security Co-ordination Bill as contained in the amended clause 5 of, and Schedules 2 and 3 to, the Bill through an appropriate legislative consent motion.
47. The Committee agreed that it would give due consideration to any such motion brought by the Minister and that the department should continue to provide updates on any subsequent amendments to the Bill.