Brexit: Acquired Rights (EUC Report)

Baroness Smith of Newnham Excerpts

Tuesday 4th July 2017 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, I welcome the report by the European Union Justice Sub-Committee. I did not serve on the committee and so I can say that it is a splendid report. It would be easy simply to say that the noble Baroness, Lady Kennedy of The Shaws, has said everything that needs to be said and sit down, but, needless to say, I have a few questions that I would like to raise with the Minister.

It is often suggested that debates are timely, as was said at the start of the previous debate on the Middle East; it is always said that the debate is timely, but this is beyond timely. For the past year, Members of your Lordships’ House, Members of the other place and ordinary citizens in the United Kingdom and elsewhere in the European Union have been crying out for answers to questions about the rights of EU nationals resident in this country and UK nationals resident elsewhere in the European Union. It has been apparent to almost everyone that some of these questions could be dealt with unilaterally and could have been dealt with last summer. However, Her Majesty’s Government chose not to do that.

After a year, some proposals were published last week. The noble Baroness, Lady Kennedy, said that the Government have not formally replied to the committee’s report, but we now have the government paper on safeguarding the rights of citizens. It has been six months since the committee produced its report, during which time men, women, husbands, wives, children, extended families have been unclear about what the future holds. One of the biggest difficulties since June 2016 has been the mantra that we kept hearing that, “Nothing changes until the day we leave”. However, everything changed on 24 June 2016 for people who were living in one country but with family in other countries. All sorts of questions have been raised again and again, and we still do not have many answers. The paper brought forward last week on safeguarding the rights of citizens does not go very far in dealing with the uncertainty that has been raised. It goes a little way—I give it a cautious welcome—but not very far.

Last year the noble Lord, Lord Lucas, introduced a debate from the government Back Benches on the rights of EU nationals. He asked: what is the problem? Surely there is a way of dealing with the rights of EU citizens resident in the United Kingdom. There appeared to be only one problem at that stage. I thought, and it was muttered at the time, that perhaps it was the former Home Secretary, who then became the Prime Minister, who was the one person who might have had the ability to say that we would secure the rights of EU nationals. Recently, the former Chancellor of the Exchequer, who has been reincarnated as a journalist and editor of the Evening Standard, has suggested that Her Majesty’s Government wanted to secure unilateral rights for EU nationals and that the one person who refused to do that was Theresa May.

It is therefore with reluctance and perhaps schadenfreude that we listened to the Prime Minister’s words last week when, on introducing the paper on Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU, she stressed, “we want certainty”. So does everyone else; the difference is that we have all been saying it for a year. She went on to say:

“I have always been clear that I want to protect their rights”.—[Official Report, Commons, 26/6/17; col. 302.]

So do we all; the difference is that none of us individually was able to change government policy. The one person who could have been clear and made decisions a year ago was the Prime Minister.

It is good to see the safeguarding paper, but it is rather little and rather late. The proposals are an improvement on the uncertainty that has dogged people for a year, but it is far from the generous offer that was being heralded. At best, it gets down to the “fair and serious” that has been suggested more recently, but it still relies on reciprocity. Certainly over the last months and the last year, as the noble Baroness, Lady Kennedy, pointed out, many people will have received letters, emails and pleas from UK nationals resident in other EU countries saying, “What about us? You keep talking about the rights of EU nationals in the UK. Don’t you care about us?”. Of course we do, but reciprocity raises certain issues.

The only way there will be a reciprocal deal is if there is a negotiated solution for withdrawal. At the moment, the European Union expects that the rights of its citizens should be dealt with by the Court of Justice of the European Union. In its paper, the British Government seem to suggest that cannot be the case and that any decisions would be taken by UK courts. How are we going to get to a solution that allows reciprocity and justiciability that will not leave UK citizens and EU citizens uncertain and insecure?

There are some welcome elements of the paper, particularly that EU citizens will no longer have to prove that they have had comprehensive sickness insurance. That is one of the slight peculiarities at present about proving they have the right to be here and have been here for five years. But the tests of residency remain rather unclear. Will the Minister explain to us what the streamlined processes and light-touch approach the Prime Minster has talked about mean in practice? How will continuous residency be shown? Can we be assured there will be no more 84-page documents?

What will the cost be? Getting British citizenship is prohibitively expensive. One of my cousins is married to a German national. She has not taken British citizenship because it is simply too expensive. Many people are in that position. It is often suggested by those who have perhaps not thought about the cost, “Why don’t people just take British citizenship?”. It is because it is time-consuming and expensive, and people have assumed they have not needed to. For those EU citizens legally resident here for five years, who we understand from the Government’s document will be given the right to remain—so indefinite leave to remain or settled status—will it be possible for them to do that free of charge, or at a minimal cost, perhaps akin to getting a British passport, rather than going through the costs we have seen for residency rights or taking citizenship?

Will the Minister tell us what is meant in the safeguarding paper by,

“these rights will apply to all EU citizens equally and we will not treat citizens of one member state differently to those of another”?

I ask that because three nationalities are currently treated differently: citizens of the Republic of Ireland, citizens of Malta and citizens of Cyprus, the latter two being Commonwealth citizens. At present, if you are a citizen of Malta or Cyprus, you can vote in local elections and European elections but also British general elections; if you are an EU national other than from Malta, Cyprus or Ireland, you do not have the right to vote in general elections. If they are all being treated the same, are we proposing to take away voting rights from Irish, Maltese and Cypriot nationals? Are we proposing to give voting rights to the nationals of other EU countries? Or is that something the Government simply have not thought about?

All this presumes there will be a satisfactory outcome to the negotiations. After all, the Government’s offer is predicated absolutely on reciprocity, and that presumes a deal. What happens if there is no deal? We have heard a lot about no deal being better than a bad deal. For EU nationals resident in the United Kingdom, who have suddenly been given a glimmer of hope by the Government’s paper on safeguarding their rights, no deal would surely be worse than a bad deal. Yet, if the UK is so reluctant to countenance a role for the Court of Justice of the European Union in enforcing the rights of EU citizens, do Her Majesty’s Government really expect to get a deal?

There are many questions. Some of the questions raised in the European Union Committee’s report had been partially answered by the Government’s safeguarding paper, but only partially. If the Minister can give us some answers this evening that, would be most welcome.