Social Security Committee

Meeting date: Thursday, March 21, 2019

Official Report 622KB pdf

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

Welcome back. Under agenda item 3, the committee will take evidence on a legislative consent memorandum on the UK Parliament’s Immigration and Social Security Co-ordination (EU Withdrawal) Bill from Shirley-Anne Somerville, the Cabinet Secretary for Social Security and Older People, and, from the Scottish Government, Colin Brown, solicitor; Stephen O’Neill, social security policy team leader; and Kieran Watson, migration and free movement of people team leader. I thank all four of you for being with us this morning.

Does the cabinet secretary have an opening statement?

Yes. Thank you, convener.

The UK Government’s Immigration and Social Security Co-ordination (EU Withdrawal) Bill aims to achieve three things. First, it aims to end freedom of movement and to bring European Economic Area nationals and their family members under UK immigration control. Secondly, it aims to protect the status of Irish citizens in UK immigration law once their European Union free movement rights end. Thirdly, it aims to create powers for UK ministers, Scottish ministers and the devolved Administration in Northern Ireland to amend, by regulation, retained EU law that governs social security co-ordination. It is the proposed conferral of that power to Scottish ministers that triggers the convention that UK ministers should seek the consent of the Scottish Parliament.

The social security co-ordination provisions can be viewed as a logical extension of the statutory instruments that were considered by the committee in January. The committee will recall that those instruments made the necessary technical fixes to allow retained EU co-ordination rules to operate effectively in a domestic setting. That means that people who are entitled to benefits by virtue of those rules will be protected in a no-deal scenario. However, the instruments were made under a single-use power, which means that the rules are frozen, with no mechanism to allow for revisions or updates. The powers that are proposed in the bill address that, and would allow the retained rules to be adjusted for future policy development and to keep pace with any reforms of co-ordination at the EU level.

The bill proposes that, in addition to UK ministers, Scottish ministers and the devolved Administration in Northern Ireland get such a power for matters within devolved competence. Although having such a power might be a useful tool, we have no plans to exercise it. The UK Government’s approach to co-ordination has been broadly positive—to the extent that it has committed to honouring the rules even in a no-deal scenario. The political declaration on the future relationship also makes reference to the desirability of on-going co-ordination in the future.

Therefore, in normal circumstances, the Scottish Government might have been minded to propose a consent motion. However, we do not live in normal circumstances, and fundamental constitutional issues are at stake here. The UK Government’s decision to ignore the will of the Scottish Parliament and proceed with the European Union (Withdrawal) Bill has undermined trust in the Sewel convention. As the 2018-19 programme for government makes clear, until such time as the convention can be strengthened in a way that restores trust, the Scottish Government will bring consent motions only in the most exceptional circumstances.

As the memorandum explains, the powers that are proposed in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill might well be useful at some undetermined point in the future, but the bill is not in any way essential to the delivery of the devolved social security programme. Therefore, the bill cannot be considered to present exceptional circumstances.

I close by saying a few words about the provisions that seek to end free movement. The memorandum acknowledges that the provisions fall within reserved competence, so they are not strictly relevant to the question of legislative consent. However, the evidence is unequivocal: ending free movement will profoundly harm Scotland’s economy, its communities and its global reputation as a welcoming and progressive nation. Just one example of that harm is the already significant fall in the number of EU students at our universities.

It is also objectionable that the ending of free movement is presented in an EU withdrawal bill as though it is a necessary consequence of EU exit. As the alternatives that have been proposed by the Scottish Government make clear, that is simply not the case. The referendum result is being used as political cover for misguided and deeply damaging policy choices. This Government would therefore be failing in its duty to the people of Scotland, particularly those who are EEA nationals, if it allowed the provisions to pass without comment.

I am happy to answer questions.

Thank you for stating the Scottish Government’s position on the matter, cabinet secretary. Do members have any questions?

I understand the Government’s reasoning for not seeking to lodge a legislative consent motion. This is probably for a broader debate elsewhere, but are there any practical implications of not lodging an LCM?

We cannot see any practical implications. At first reading, the power might appear quite wide but, in reality, we do not view it in that way. I gave an example. There is a great degree of overlap between immigration policy and social security and, obviously, the Scottish Government would not be able to make unilateral changes to social security without having due regard to what is happening at the UK level on immigration, which would have significant implications. Therefore, although the power seems quite wide, we should consider how the Scottish Government would use it practically and its overlap with immigration in particular. I do not see any practical difficulties in the decision that we have taken.

I thought that it was important to get that in the Official Report.

I absolutely agree about not lodging an LCM given the damage that will be done, cabinet secretary. You touched on the fact that the co-ordination provisions are included in a bill that is principally concerned with immigration, which suggests a link between the two policy areas. Is there something that the committee should be more aware of in that regard?

To be frank, it is difficult to say, because the Scottish Government was given very late notice that the social security aspects would be attached to the bill. What has happened has not been a great example of the due process that would normally happen for a Westminster bill that contained devolved social security aspects, and that is a matter of regret. My officials have been in close contact with UK officials since we were advised of the policy, which has devolved implications. Attaching those aspects to the bill is unfortunate, because it pins them to deeply concerning immigration laws that the UK Government wishes to put through.

Were you given any reason for the delay?

No.

I concur with your statement about the importance of freedom of movement to Scotland. Let us not rehearse all the arguments, but you talked about the UK Government restoring trust. Was that a wider reference to the whole Brexit debate or to something else?

It is very important that trust in the Sewel procedure be restored. That is a wider issue for the Scottish Parliament. I think that Michael Russell has written to the UK Government twice about that; in particular, he has made suggestions about how trust in the Sewel convention could be maintained and enhanced. That is a very important aspect that the Parliament will need to look at. There is an issue because of Brexit, but even if there is a resolution to the Brexit mess at some point, we will still need to look seriously at how we can have trust in the Sewel convention, as we used to have in the past.

I want to check something for my understanding—this is a straight question that follows on from Mark Griffin’s question. Does not having an LCM in place mean that, when we leave the EU, you will have to agree something subsequently, or are you saying that the co-ordination and co-operation are such that nothing will happen subsequently, but that you will have the power anyway?

The Scottish statutory instruments that the committee looked at in January dealt with the no-deal scenario and what would happen in that scenario. The UK Government has had an open dialogue with the Scottish Government and the EU on ensuring that people will still have access to benefits in a no-deal scenario.

You ask about what will happen as a result of our not lodging a legislative consent motion. It is up to the UK Government to carry on with the bill as it sees fit. In other circumstances, the UK Government has not taken powers for Scottish ministers out of legislation. However, it is up to the UK Government to decide whether to take the same approach in this bill. I go back to my earlier point that I do not see any practical reasons why we should be concerned either way.

If I am hearing you right, you are saying that if we do not lodge an LCM, the UK Government could choose to not embed powers for Scottish ministers in the bill, and that, if there were an LCM, those powers would be embedded in the bill.

It makes no difference, because of the way that the Sewel convention is being interpreted. The UK Government can carry on with the bill as drafted whether we lodge an LCM or not.

So you think that an LCM is just an irrelevant piece of paperwork.

If these had been normal circumstances, I might have suggested that we lodge an LCM that the Scottish Government would support, but we are not in normal circumstances, which is why we are here today.

Presumably, if we lodged an LCM, it would be unthinkable that the UK Government would ignore it.

The entire reason for the action that the Scottish Government has taken is that the Scottish Parliament voted by 93 votes to 32 to refuse consent for the European Union (Withdrawal) Bill, yet the UK Government went ahead. It is because we had that LCM and the UK Government took the decision that it did that there has been a breakdown of trust in the Sewel convention.

In effect, you think that LCMs are irrelevant now.

That is not a position—

If we thought that they were relevant, we would still do them. Are you saying that we are not going to do them any more, because you do not think that we will be listened to?

Legislative consent motions have been a very important aspect of the Scottish Parliament, which is why it is deeply concerning that the UK Government has written roughshod over the Sewel convention, and why it is important that, as a Parliament, we come together to ensure that trust can be restored.

I have a couple of questions, the first of which is an observation. By its very nature, a convention is not a constitutional right or guarantee that this Parliament has. I think that that is pretty important.

As Mr Griffin ascertained, you can see no unintended consequences of not lodging an LCM. Although there are some reasonable aspects to the bill, do you feel that if the Scottish Government did lodge an LCM, it would be complicit in the aspects that will restrict freedom of movement and rights of European citizens in some areas?

To lodge an LCM on something that, in effect, takes away the rights of our valued EU citizens would put the Scottish Government in an exceptionally difficult position. That is hypothetical, however, because of the situation that we are in. Once again, we are also concerned about the link between social security and immigration that has been made through this bill, which is highly unfortunate.

That said, my understanding is that the bill guarantees certain rights in relation to social security. The powers that would, in theory, be conferred on the Scottish ministers if an LCM were agreed to might lead to a variation in some of the technical aspects of those rights if the bill is passed. Would that be a correct understanding of what we are discussing today? We have all spoken in very general terms, and no one is looking at the detail of what an LCM would or would not do. Is that a reasonable, although very simplistic, perspective on the underlying legislation?

10:45  

Basically, the statutory instruments that the committee looked at dealt with what would happen in a no-deal scenario. They allow the reciprocal arrangements to carry on. That is very important, which is why I and the Scottish Government were supportive of those instruments. This legislative consent memorandum details a power that could be used in the future, if we wanted to make changes to the reciprocal arrangements. As I said, the link to immigration means that we would use them in only a very small number of cases.

It might be worth adding another point to that. The scope of the Scottish Government’s ability to exercise a power of the nature that is in the bill is also restricted by the reciprocal nature of how the rules work, if that makes sense. The exportability of benefits, for example, relies on all the EU states agreeing on that. Although, as the Delegated Powers and Law Reform Committee has pointed out, the power looks very broad, it focuses on immigration provisions, and there are restrictions based on how the rules work administratively. For example, if the Scottish Government wanted to bolt a new provision on to the rules that was not reciprocated across the EU, that would be a very difficult thing to do indeed. The Scottish Government would have to have in place bilateral agreements with all 27 EU member states, along with the rest of the social security jurisdictions in the UK.

The power could be used in a circumstance whereby the UK Government had decided to withdraw or restrict how it planned to execute the rules. I will again use the exportability of benefits example. In a world where the UK Government decided—there is no suggestion at all that this has happened—that it was not going to export a benefit and the Scottish ministers still wanted to do that, the power would theoretically allow the Scottish ministers to continue to export that benefit. However, as the cabinet secretary pointed out, the UK Government appears to know the value of co-ordination of social security, and I do not think that the Scottish ministers have any objection to how the UK Government is planning to approach that.

I take on board what the cabinet secretary and Mr O’Neill have said, but given that the DPLR Committee has raised concerns about the wide scope of the power, if this Parliament—not the UK Parliament—was to consider returning to the legislation, would it be worthy of a bit more consideration than it has been given? The UK bill was introduced only in December last year. Does it perhaps all feel a little bit rushed?

The timing is exceptionally unfortunate. As I have said, the usual time that we—and, indeed, the Parliament—would have had to examine the legislation in detail has been greatly curtailed.

We might come back to it, but it is important to stress that, on this issue, the UK Government’s approach to reciprocal arrangements has, overall, been positive. That needs to be recognised, because that negates the fact that we would take a different approach from the UK Government on this.

I understand the Scottish Government’s reasons for not lodging the LCM, given the implications that you have described for constitutional questions and freedom of movement. Has the UK Government given any indication that it understands those concerns? Has it commented in detail on them? Other members have mentioned the importance of getting to the bottom of the problem and finding whether faith can be introduced back into the Sewel convention process. Has the UK Government offered any commentary on your concerns?

Michael Russell wrote to the UK Government on 6 December 2018—he also wrote to it on 12 September—detailing suggestions and proposals on how trust could be brought back to the Sewel convention. The letter dealt with one of the aspects that the convener mentioned: that the Sewel convention is just a convention. Michael Russell suggested strengthening the statutory protection in the Scotland Act 2016, for example. Those suggestions have been made to the UK Government and my understanding is that, as yet, there has been no reply to Mr Russell’s letter.

As the convener said, it is always useful to look at the detail, and it is our obligation to do so. However, if we pan out for a second, we can see that two sad things are happening. One is the diminution of the rights of EU citizens, which the bill directly impacts. That should not pass without comment. The other is about the LCM, and I am interested in the cabinet secretary’s view on this.

In 2010, if members remember, we were told that there was a respect agenda. After the 2014 referendum, we were told that the Scottish Parliament would be very powerful and its rights would be enshrined in law. Shortly afterwards, Lord Keen said in the Supreme Court that the convention was merely a “self-denying ordinance” on the part of the UK Government. Given what you said about the way in which the LCM is now viewed by the two respective Governments, is it a dead letter or is it retrievable? Do you see any signs that the UK Government will change its attitude towards LCMs and the rights of this Parliament?

It is absolutely possible for the Scottish and UK Governments to get to a position of trust on this again. It takes both parties to redefine that trust, and it will take movement from the UK Government, as Mr Russell said in his letter, to ensure that it is embedded in law and is much more than just a convention.

It is an area to which all our committees in the Parliament—and the wider setting—will undoubtedly return, because, up until the European Union (Withdrawal) Bill, it was a very important aspect of how relations worked between the Scottish and UK Governments. We need to get back to that. There is certainly a will to do so in the Scottish Government, as shown by the letters that Mr Russell has written and the concrete proposals that we have come up with for how that could happen. It will take the UK Government to respond for trust to be built up. It is obviously an aspect that involves both parties.

I fully understand and endorse the Government’s view that it cannot recommend that Parliament consents to the provisions of the bill. It is incredibly sad—I have great regrets about the removal of the freedom of movement and the potential damage that it could do to our communities and services.

It is a serious matter. It might be said that the Sewel convention is simply a convention, but it is sometimes the softer things that build relationships and trust. Something should not be discarded simply because it can be and because people think that there are no consequences. That is far from being the case—there are consequences to this.

There has been a wider discussion on the LCM protocol. Will the cabinet secretary correspond further with her counterparts in the UK Government on this particular issue?

I had a conversation about the bill the day before it was introduced in Westminster, when I was informed through a phone call that there would be social security aspects to it. Officials had had contact about it previously, and since then they have been in contact with their counterparts a great deal to stress the Scottish Government’s position, its approach to legislative consent motions in general and that it would be unlikely that the Scottish Government would consent, which was the point that I made on the phone call.

Once the process has gone through the committee, we will put that in writing and raise our concerns about why we have got to this point. I do not do this light-heartedly and I am not unaware of the consequences. There is a wider aspect of LCMs in general that we must look at before any cabinet secretary can take a different position.

I have two brief questions. In principle, forgetting all the stuff about consent, do you have no problem with and welcome the power that the bill could give to the Scottish Parliament?

We are not here because I am not recommending, objecting to or refusing consent to the power. We are here because of the wider constitutional aspects.

If the bill is passed and the provisions on the regulations that we are discussing are unamended, which is a decision for the Westminster Parliament, that power will come to the Scottish Government. Is that correct?

Yes. It is up to UK ministers to decide whether that power stays in the bill.

Presumably, it is up to the Westminster Parliament.

Yes, indeed.

Whether the bill becomes an act would be a decision for the UK Parliament to make.

You are quite right. It would be a decision for the UK Parliament. I am sure that the UK ministers will have a view, but it will be up to the UK Parliament.

It is up to the sovereignty of Parliament.

Yes.

We have had a good airing of the issues. As there are no further questions, that concludes our consideration of the matter. I thank the cabinet secretary and her officials for coming to the committee.

We move to agenda item 4, which we previously agreed to take in private.

10:55 Meeting continued in private until 11:35.