Power to modify retained direct EU legislation relating to social security co-ordination

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee am 9:25 am ar 16 Mehefin 2020.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control), Shadow SNP Spokesperson (Attorney General) 9:25, 16 Mehefin 2020

It is a pleasure to serve under your chairmanship again, Sir Edward.

I am grateful to the Minister and to the hon. Member for Stretford and Urmston for setting out the nature of these regulations in quite some detail, and also for explaining why they are hugely significant for a large number of people.

We acknowledge that there is a need for the appropriate authorities to have some powers in this area, but those powers should be focused on making technical fixes rather than providing carte blanche. The powers in the clause are hugely broad. In fact, they are basically without any limit, either in terms of scope or time, and it is worth reflecting on what exactly clause 5(1) says:

“An appropriate authority may by regulations modify the retained direct EU legislation mentioned in subsection (2).”

There is no constraining test at all.

As Adrian Berry argued when he gave evidence last Tuesday, all these clauses should at least have the test of being “appropriate”, if not being “necessary”, as a qualification. Opposition MPs have been championing the “necessary” test, but the Government have always preferred the test of appropriateness. However, even that is absent from the clause. On paper, therefore, we are creating powers to make inappropriate regulations, which seems quite an unusual concept. More than ever, we need reassurance on what exactly the intended use of these regulations is, and we will look carefully at what the Minister said about that this morning.

I also want to raise an issue on schedule 2, which the Minister also referred to. Schedule 2 sets out who can make use of the powers in clause 5, and I want to flag up an issue in relation to devolution that needs to be addressed. It was flagged up by the Scottish Parliament’s Delegated Powers and Law Reform Committee last year in relation to the predecessor Bill. The Committee reported on that Bill precisely because there are implications for some devolved competences around social security.

There are three routes by which the clause’s powers could be used in relation to devolved social security competence. First, Scottish Ministers could exercise these powers, sometimes with the requirement to consult UK Ministers, if that were required where a different route was used to achieve the same means. The Committee found those powers acceptable.

There is also a route for joint exercise of the powers, which would be considered where a change is so significant that it would be appropriate for joint exercise and scrutiny. Again, while the Committee sought some clarity on precisely when that route would be used, it supported the idea in principle.

Thirdly, however, there is the route of UK Ministers acting alone, by laying regulations in the UK Parliament that could still relate to devolved competence. The Committee’s report says:

“The Committee emphasises that as a matter of principle the Scottish Parliament should have the opportunity to scrutinise the exercise of legislative powers” by the Executive. However, it notes that the Scottish Parliament has no formal role in relation to the scrutiny of secondary legislation passed by UK Ministers acting alone.

The Committee went on to note that there was silence in relation to the circumstances in which it would be appropriate for UK Ministers to exercise powers in relation to devolved social security acting on their own. It noted that there was nothing on the face of the Bill requiring UK Ministers to seek the consent of Scottish Ministers prior to the exercise of the powers in that way by relevant UK Ministers or the Treasury. It repeated the view that it had provided in relation to the Bill that went on to become the European Union (Withdrawal) Act—that UK Ministers should be able to legislate in devolved areas only with the consent of the devolved Administration, also advocating for a role for the Scottish Parliament in that process.

As far as I can see, the issue raised this time last year has not been addressed in the Bill, which has simply been reintroduced as before. Will the Government comment on that and consider committing to amending the Bill so that there is at least a duty on UK Ministers to consult Scottish Ministers before choosing to exercise the clause 5 powers in relation to devolved social security competencies? I look forward to hearing what the Minister has to say in that regard.