Explanatory Notes

Clause 14: Non-discrimination, equal treatment and rights of workers etc.

201 The Agreements provide for the protection of rights to equal treatment and non-discrimination for the protected cohort and frontier workers (as defined in clause 8). The non-discrimination, equal treatment and rights of workers power allows for provision to be made to ensure that domestic legislation is not inconsistent with these rights under the Agreements.

202 This clause provides Ministers of the Crown and the devolved authorities with a power to implement the equal treatment provisions in the Agreements, including ensuring that domestic legislation is consistent with these provisions. Subsection (1) restricts the scope of this power to implementing Articles 12, 23, 24(1), 25(1), 24(3) and 25(3) of the Withdrawal Agreement. Subsection (2) provides that the power may be used to implement Articles 11, 22, 23(1), 24(1), 23(3) and 24(3) in the EEA EFTA Separation Agreement. Subsection (3) provides that the power may be used to implement Articles 7, 18, 19, 20(1) and 23(1) in the Swiss Citizens’ Rights Agreement.

203 This power may also be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement adopted by the Joint Committee falling within the scope of the matters provided for by this clause.

204 Subsection (4) provides that regulations made under subsections (1), (2) and (3) may be made so as to apply both to persons who are covered by the relevant Articles of the Agreements, as well as persons to whom the provision in question does not apply but who may be granted leave to remain under the residence scheme immigration rules, whether or not they have been granted such leave.

205 Regulations made under this clause may be used, for example, to provide that EU citizens, EEA EFTA nationals and Swiss nationals with pre-existing access to benefits and services maintain the same access to benefits and services as they were entitled to under EU law before the end of the implementation period.

206 Under current rules, access to publicly funded benefits and services for EU citizens and EEA EFTA nationals and their family members may be linked to their status under the EEA Regulations 2016. Those with permanent residence under these Regulations are entitled to benefits and services on the same terms as UK nationals, subject to meeting the relevant eligibility criteria.

207 Where an individual does not have permanent residence, entitlement to these benefits and services is subject to eligibility tests. Eligibility may be linked to holding another status under domestic law, for example being a ‘qualifying person’ under the EEA Regulations 2016 (for example, a worker in genuine and effective employment). This power will be used to save the operation of the EEA Regulations 2016 and related domestic law for the purpose of preserving access to benefits and services based on the same conditions as now.

208 Subsection (5) states that the power to make regulations may be used to modify any provision made under an enactment.

209 Subsection (6) defines ‘appropriate authority’ for the purposes of this clause. Subsection (7) references Schedule 1 which makes further provision concerning the powers of the devolved authorities in respect of citizens’ rights provisions.

 

Prepared 19th December 2019