Contents
- Attendance
- Decision on Taking Business in Private
- Budget Scrutiny 2019-20
- European Union (Withdrawal) Act 2018
- Subordinate Legislation
European Union (Withdrawal) Act 2018
Social Security Coordination (Council Regulation (EEC) No 1408/71 and Council Regulation (EC) No 859/2003) (Amendment etc) (EU Exit) Regulations 2018
Social Security Coordination (Council Regulation (EEC) No 574/72) (Amendment etc) (EU Exit) Regulations 2018
Social Security Coordination (Regulation (EC) No 883/2004) (Amendment etc) (EU Exit) Regulations 2018
Social Security Coordination (Regulation (EC) No 987/2009) (Amendment etc) (EU Exit) Regulations 2018
We move on to item 3. I refer members to paper 2, which is a note from the committee clerk.
On 21 December 2018, the committee received notification from the Scottish Government of its intention to consent to UK ministers making regulations on its behalf in relation to four statutory instruments. The cabinet secretary has stayed with us to provide further explanation and answer our questions, and she is joined by Stephen O’Neill, social security policy leader—thank you both. I invite the cabinet secretary to make brief opening remarks before we move to questions.
I will keep my remarks relatively brief. The statutory instruments that are described in the notification to the Parliament make a series of technical corrections to the European Union social security co-ordination regulations that are retained by the European Union (Withdrawal) Act 2018.
The corrections will allow the UK Government to continue to observe the existing co-ordination rules in the event of a no-deal Brexit. The effect is that European Economic Area nationals who are living and working in Scotland will have the legal right to continue to access social security on broadly the same basis as they do at present. Also, UK nationals who are living and working in the EEA will be allowed to maintain their right to export certain benefits from the UK system to their country of residence, and contributions in other EEA countries will continue to be counted towards a UK state pension and towards eligibility for contributory benefits.
As the notification makes clear, this would be a unilateral action of the UK Government. In a no-deal scenario, there would be no legal obligation on EEA member states to reciprocate.
The approach would likely be a temporary solution until a longer-term arrangement could be found. As with all aspects of the UK’s future relationship with the EU, what such an arrangement would look like is distinctly unclear. However, if the UK’s white paper on immigration is anything to go by, it seems likely that, in future, the rights of EEA nationals to live and work in the UK and to access benefits will be significantly restricted.
The Scottish Government has continually made it clear to the UK Government that on-going participation in social security co-ordination is essential for the protection of citizens’ rights. It is the firm view of Scottish ministers that a no-deal Brexit would inflict especially severe social and economic harm on Scotland. It is therefore essential that contingency plans are in place to protect the people of Scotland, whatever their nationality, from the worst impacts of that outcome, which, unfortunately, is still too real a prospect.
In that respect, the commitment of the UK Government to continue to observe those rules in the immediate aftermath of a no-deal scenario is welcome, even if it may do little to alleviate the longer-term concerns of people who have built their lives around the advantages afforded by freedom of movement.
The devolved aspect to these statutory instruments is relatively nuanced. They require devolved assistance to be provided in a manner consistent with the present co-ordination rules. In essence, that means treating EEA nationals residing in Scotland in broadly the same way as UK nationals. The effect is, therefore, one of continuing a constraint on the exercise of devolved powers that presently exists through the EU rules.
The Sls mean that Scottish ministers could still not, for example, propose eligibility rules that restrict access to social security for EEA nationals. Since the Scottish Government would have no intention of doing that and regards access to social security as a fundamental human right, we have no difficulty in consenting to that, especially given the severity of the alternative, which would be to dismantle the legal right of EEA and UK nationals to social security protection across the EEA.
While that no-deal approach is far from a perfect solution—that is an understatement—it is at least welcome that the UK’s default position on social security is to continue to observe the rules, come what may from the Brexit process. It is for that reason that I invite the committee to agree with the view of ministers that consent should be granted to these statutory instruments.
Thank you, cabinet secretary. That was very helpful in giving a context to what we are discussing this morning. Do members have any questions?
I have a couple. I understand the cabinet secretary’s point about how the instruments will restrict our freedom of choice, but only in respect of a choice that we would perhaps not choose to make. Nevertheless, it will restrict our freedom of choice and it seems appalling to me that we are being faced with that with only 70 days to go.
I have no substantive objection to the instruments, cabinet secretary, but can you confirm that the Scottish Government has seen them? Has this committee seen them? The briefing that we have uses the future tense, and says that they will be submitted
“to the Westminster Parliament Sifting Committees on 13 December”.
I am aware from my recent time in the Health and Sport Committee that not only was the Scottish Government’s designation of SIs as category A challenged by SPICe—correctly, in that case, I think, although I am not sure that it is true in this case—but the length of notice that we got was not sufficient, and that committee had to agree to SIs that neither it nor the Scottish Government had even seen. They had just been given an understanding of what would be in them. It would be useful to get some background as to what status the instruments have just now.
The Scottish Government has certainly seen the instruments. They are publicly available and we can ensure that the link is given to the committee, if that has not already been done. That is a UK Government aspect.
The instruments are exceptionally technical and run to more than 100 pages of technical amendments. For example, they take out any reference to member state, because that will no longer be the case. The amendments make that type of technical change around terminology that does not fit with a circumstance in which the UK is outside the EU.
It would be useful to hear from Mr O’Neill on this: presumably, the UK Government could have done that months ago. The time that we have been in recess over Christmas has counted towards the 28-day period, which I think is wrong, albeit it has been agreed between this Parliament, Westminster and the Government. It could have been done months ago, as far as I can tell. People are saying that there is not much time left to do it, but there is a reason for that. It is because the UK Government has not moved on it. Or am I wrong? Has something prevented it from being done before now?
It is hard to dispute what Mr Brown says about that. As I understand it, there is nothing that would have stopped the UK Government taking action on it sooner than it has.
I see that members have no more questions, but I think that it is worth putting a few things on record. Our clerking team is very good at identifying any challenges that have been made to proposed instruments and any issues that should be drawn to our attention. I can confirm that that is not the case in this respect, although I absolutely take Mr Brown’s point about the 28 days. I should also say that the link to the statutory instruments is available.
With that, I thank the cabinet secretary and Mr O’Neill for coming along.
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