My Lords, I thank all noble Lords who have taken part in this excellent debate and for the searching questions, if I may say so. I am particularly grateful to the noble Baroness, Lady Sherlock, for giving me early notice of some of the very technical questions. I have to say, I am certainly not an expert in Brexit and I am not quite sure who is. We all hope very much that we will have a deal and we wish it was already in place. Let me do my best to respond to noble Lords’ questions.
As regards an impact assessment, I shall be absolutely straight. An impact assessment has not been prepared for these instruments as they make only technical changes to retained EU law and, as such, do not give rise to any new costs or financial or economic impact beyond the status quo. There is no, or no significant, impact on businesses, charities or voluntary bodies as a result of the instruments and there is no, or no significant, impact on the public sector. That said, as I referenced in my opening remarks on the statutory instruments, we take the role of the Social Security Advisory Committee very seriously. In response to the question of the noble Lord, Lord McKenzie, on consultation, the SSAC provides impartial advice on social security and related matters. It scrutinises most of the complex secondary legislation that underpins the social security system. The committee had the opportunity to review these regulations and a meeting was held on 7 March last year for it to share and discuss the initial drafts. The committee was content with the approach being taken.
Noble Lords asked a number of questions about future policy for social security and how these SIs fit with the immigration and social security Bill currently going through Parliament. These statutory instruments provide for a functioning statute book immediately after exit day, and the immigration and social security Bill ensures that there is the legislative framework required to deliver future policy at the appropriate time. Future policy changes will be set out in regulations made under that Bill and will be subject to the affirmative procedure.
The noble Baroness, Lady Janke, and the noble Lord, Lord McKenzie, referred to healthcare entitlement. I assure noble Lords that these statutory instruments do not make changes to healthcare policy. Any such changes will be brought forward by the Department of Health and Social Care via the Healthcare (International Arrangements) Bill and its statutory instruments. The Department of Health and Social Care is bringing forward the healthcare Bill to enable the UK to implement any future relationship with the EU on reciprocal healthcare as necessary and to ensure that the UK is prepared for any outcome if there is a no-deal exit. The healthcare Bill contains a power to amend, repeal or revoke retained EU law, so we do not anticipate the Department of Health and Social Care using this power.
The noble Lord, Lord McKenzie, asked how the regulations vary from the status quo. The amendments retain the status quo for UK obligations to individuals. They include provision to allow information to be provided by the claimant where we now receive it from the member state. The noble Lord, Lord McKenzie, also asked why provisional payments have been removed. The current provisional payment system operates where there is a dispute between member states of the European Union, disputes being an issue raised by all noble Lords. These disputes are resolved following a decision made by a mediation body, the administrative commission of the European Union. In a no-deal scenario, the UK will no longer be a member state or part of this body. That is why this provision has been removed. We will continue to use the same rules as now to determine whether the UK is competent. Any challenges will instead be resolved through domestic routes.
The noble Baroness, Lady Lister, asked about the terminology “as far as possible”. Perhaps it is the lawyer in me, but the reality from a legal standpoint is that it is sensible to use the terminology “as far as possible” rather than providing guarantees and raising an expectation, when something could happen where we would then fail to deliver. We are extremely keen to avoid that, particularly on such an important issue as social security. The noble Baroness, Lady Lister, also asked why this legislation only maintains the status quo and whether it is the Government’s plan not to change anything relating to social security. This legislation is about maintaining a functioning statute book. Of course, future policy is a matter for negotiations and, as such, cannot be discussed or raised today. I cannot say more than that today, but we are considering future policy with care. The Government are planning an ambitious deal with the EU in many areas, and this legislation is not about future policy but technical amendments to retained EU law.
The Government are confident that a deal will be reached. However, as a responsible Government, we are planning for all eventualities, including a no-deal scenario. Announcements relating to social security will therefore be made when it is appropriate to do so.
The noble Baroness, Lady Lister, also asked about social security co-ordination and how these statutory instruments fit with the immigration Bill. As I have said, this will be set out in regulations under that Bill.
There was a question about the ESIC referring to changes to retained EU regulations ensuring that any bilateral agreements between the UK and an EU country take precedence over the retained regulations and what impact this will have. Changes made through these fixing SIs are intended to deliver a functioning statute book on day one of exit to ensure a smooth and orderly exit. However, the UK will operate these retained regulations on a unilateral basis. As the Government negotiate future agreements with EU countries that provide for reciprocal social security co-ordination or agree to revive an existing reciprocal arrangement, retained EU law that delivers a unilateral system will no longer be appropriate.
Noble Lords may be interested to know that we have 17 reciprocal social security arrangements within the EU—with Austria, Belgium, Croatia, Cyprus, Denmark, Finland, France, Germany, Ireland, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain and Sweden. We have reciprocal arrangements with two EEA countries, Iceland and Norway, and with Switzerland. However, there are apparently no reciprocal agreements with Bulgaria, the Czech Republic, Estonia, Greece, Hungary, Latvia, Liechtenstein, Lithuania, Poland, Romania and Slovakia.
There was question about people being affected by double contributions. The latest published figures from the EU show that in 2017 around 50,000 UK workers went to work in the EU and around 60,000 EU workers went to work in the UK under the co-ordinated regulations, which work to avoid duplication.
The noble Baroness, Lady Janke, referenced data sharing. We will continue to work closely with the EU 27 so that the first port of call for all contribution queries will be the appropriate administration in a
member state. We would expect the claimant to provide wage slips or proof of contributions made. The Government will provide support to claimants where any additional information is required from them. The instruments include provisions to ensure that the UK can continue to share data with the EU member states when they are applying the co-ordinated regulations.
The noble Baroness, Lady Janke, asked what evidence an individual will have to produce to confirm contributions in the EU. The UK will consider evidence on a case-by-case basis. We would expect the claimant to provide wage slips or proof of contributions made. The Government will provide support to claimants where any additional information is required from them.
The noble Lord, Lord McKenzie, asked about healthcare. As I have said, the Department for Health and Social Care is bringing forward a healthcare Bill.
The noble Baroness, Lady Lister, asked what scenario is envisaged where rights would not be protected. We are not able to protect the rights of citizens to the extent that they are provided by member states. We have sought assurances, and will continue to do so, from member states that they will respect the rights of UK nationals.
The noble Baroness, Lady Sherlock, asked about bilateral agreements. In the event that the UK leaves without a withdrawal agreement, we will keep pre-existing reciprocal agreements with individual member states under review. Whether these come back into force will be subject to discussion and agreement between the UK and the relevant EU member state.
Will returnees have access to benefits? Returning UK nationals have the same rights to access benefits as other UK citizens or UK residents. For some benefits, in addition to meeting the entitlement conditions, certain residence criteria must be satisfied. For income-related means-tested benefits, such as universal credit and pension credit, claimants must be habitually resident in the UK. In general, this means that they will need to show that they have made the UK their home and plan to stay here. Those returning to the UK after a period spent abroad may be considered to be habitually resident on arrival if it can be established that they were previously habitually resident in the UK and are returning to resume their residence.
For some disability and carers’ benefits, such as personal independence payment and carer’s allowance, claimants must be habitually resident in the UK. They must also have been present in the UK for a specified period before the claim but this requirement may be satisfied if they have links with the UK—for example, if they have worked and paid national insurance contributions in the UK in the past.
The noble Baroness referred to the terminology “deficiencies”. The word “deficiencies”, from a legal standpoint, contains anything with no practical application to the UK rather than this being a political deficiency on the part of government. I want to make that clear.
I hope noble Lords will bear with me. The noble Baroness asked a number of technical questions, and I will do my best to answer them as efficiently and speedily as possible. First, it is correct that the UK has reciprocal social security agreements with 17 EU member
states, as I have already referenced. These arrangements are generally superseded by EU social security regulations in the UK but are still in use by the Crown dependencies, where EU social security regulations do not apply.
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The noble Baroness questioned bilateral arrangements between the UK and some EU states that predate their or our entry into the EU. In the event that the UK leaves without a withdrawal agreement, the UK will keep under review the role of pre-existing reciprocal arrangements with individual member states. Whether these come back into force will be subject to discussion and agreement between the UK and the relevant EU member state. The agreements will not automatically revive on exit. The UK is seeking discussions with member states on reciprocal social security co-ordination arrangements in a no-deal scenario.
An agreement has already been reached with Ireland. The UK Government have announced an agreement on social security with Ireland that guarantees continued access to state pensions and benefits for UK and Irish citizens and their qualifying family members when in the other state. I also say in response to the question from the noble Baroness on citizens’ rights that individuals who return to the UK post exit who were in receipt of a UK benefit while they were living in the EU will continue to receive it as long as they continue to meet the relevant entitlement conditions that I have referenced in relation to residency. In that case, returning UK nationals will have the same rights to access benefits as other UK citizens and residents.
The noble Baroness asked about aggregation. The EU withdrawal Act under which these SIs are laid will convert EU social security co-ordination law as it stands at the moment of exit into UK domestic legislation. This includes the rules governing aggregation that are covered in article 6 of Regulation 883/2004. These SIs do not remove these rules. Their purpose is to ensure that the UK statute book continues to work after exit day. However, it has to be said that, without reciprocity, there are limits to what the Government alone can do. We cannot bind other member states to recognise contributions made in the UK. Therefore, obviously, we will continue to pursue this matter with EU member states.
The noble Baroness referred to the case of someone called Joe and asked whether the international centre would apply for his French pension for him, or whether he would have to do it himself in France and whether he will definitely be able to have his pension paid to him in the UK. Under no deal, the International Pension Centre in Newcastle will continue to accept all claims that would be accepted under the current system. We cannot make any guarantees on the rules that would apply in other member states under no deal. However, as I said, we will continue to press on the matter.
Will the International Pension Centre in Newcastle contact the French pension authority to get this evidence for Joe, or will he have to get it himself? We will continue to work closely with the EU 27 so that the first port of call for all contribution queries will be the appropriate administration in a member state. The instruments include provisions to ensure that the UK
can continue to share data with EU member states when they are applying co-ordinated regulations. If this is not possible, the UK Government will assist claimants in providing the appropriate evidence.
If the French do not oblige, what will Joe have to produce? Would payment of his French pension count as evidence? The UK Government will consider evidence on a case-by-case basis, but we would expect the claimant to provide wage slips or proof of contributions made, and we would accept payment of Joe’s French pension as sufficient evidence if there was adequate information on what the payment proves about his contributions and residence periods in France. I noted the noble Baroness’s question about what happens if one does not have 20 year-old wage slips lying around.
Will claimants have to pay to get documents translated and notarised? The Department for Work and Pensions currently receives documentation from all 27 EU member states and, where necessary, translates these documents. The claimant will not need to pay to translate or notarise documents.
We would expect claimants to provide what they can but the Government will provide support to them where additional information is required. We will keep evidence requirements under review as the documentation that will be provided by EU member states becomes clear. The purpose of these SIs is to ensure that current entitlements continue as best they can in a no-deal scenario. A claimant could appeal refusal of a claim through the usual appeal processes.
I am almost at the end but not quite. The current provisional payment system operates where there is a dispute between member states of the European Union. These disputes are resolved following a decision made by a mediation body of the administrative commission of the European Union. In a no-deal scenario, the UK will no longer be a member state or a part of this body, but we will continue to use the same rules as now to determine whether the UK is competent. Any challenges will be resolved through domestic routes—that is, through UK courts or tribunals.
I was asked whether we will compel UK nationals working in an EU member state to pay national insurance, even if they are also compelled to pay contributions in the state they are working in or even if they are posted workers. These instruments maintain the status quo with respect to paying national insurance in the UK. That means that workers posted to the EU will continue to pay UK national insurance so that they can maintain continuity of access to UK contributory benefits and the state pension. We are urging the EU and all its member states to protect the rights of UK nationals in the EU.
I think I have already dealt with the question of whether these SIs fix deficiencies in terms of the regulations being operational.
It has already been announced that state pensions for pensioners currently living in the EU will be uprated for 2019-20. We wish to continue uprating pensions beyond that point but will take decisions in the light of whether reciprocal arrangements with the EU are in place, as we hope and expect them to be.
With regard to whether UK nationals living in the EU will receive equal treatment with the nationals of the state administering the benefits of those UK nationals, the UK cannot protect the rights of UK nationals in the EU unilaterally, so, again, we are encouraging member states to do so. Clearly, we are not in a position to comment on the domestic law of member states but, in relation to benefits already in payment, member states will be bound by the European Convention on Human Rights, which might provide protection from benefits being removed.
Finally, these regulations have been drafted to apply only in a no-deal scenario to ensure that the UK statute book functions effectively with regard to social security co-ordination. In a deal scenario, we will consider what amendments to the retained social security co-ordination rules are appropriate.
That brings me to the close of this important debate. I thank all noble Lords for their contributions and for the constructive approach they have taken towards today’s debate. I hope that I have answered all the questions. The Government are committed to ensuring that the social security system works for everyone post exit day, and these regulations will help to do that by fixing minor and technical changes to existing DWP domestic legislation.