European Union (Withdrawal) (No. 5) Bill

Baroness Smith of Newnham Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I support my noble friend’s amendment for two reasons. First, this remains a wretched Bill, taking power away from the Government and their ability to use the royal prerogative. Therefore, I would support any restriction on that measure being put into the Bill. Secondly, I support the points made by my noble friend in respect of the financial impact of different variants of a delay in leaving the EU. The fact that the Bill was not treated as a money Bill in the other place is beyond my comprehension, as is the fact that my noble friend was unable to table an amendment explicitly calling for an impact assessment or something else—but the ways of the Public Bill Office are strange on occasion. I support my noble friend.

[Baroness Smith of Newnham (LD)]

My Lords, there may be some flaws in the Bill—hence the support from these Benches for some of the other amendments. However, we agree with the noble Lord, Lord Pannick, that this amendment is unnecessary and that it should be for the other place to set a date.

[Lord Forsyth of Drumlean (Con)]

My Lords, noble Lords are saying that it is for the other place to set a date. My understanding is that it will have one hour to consider our amendments and every aspect of the Bill. It is apparent from the speech made by my noble friend that there is an issue here. As I raised on Thursday, I do not understand why the Bill did not have a money resolution. It is perfectly possible that, in return for agreeing a date, the European Union could demand even more than the £39 billion already offered by the Prime Minister, and that the financial consequences could be considerable. This amendment seeks some kind of time limit on the process, which is sensible.

Brexit: Date of Exit

Baroness Smith of Newnham Excerpts

Monday 8th April 2019 Lords Chamber

[Lord Callanan]

My noble friend is right to point out that we have been making extensive preparations across government for no deal, and I think that is a situation we could manage. Nevertheless, we are where we are. The House of Commons has refused to pass the withdrawal agreement and, with its agreement, the Prime Minister has decided that we need to seek a further extension.

[Baroness Smith of Newnham (LD)]

The Minister has suggested that he is not here to answer questions on behalf of the ERG. I hope he can answer a question linked to the letter from the Prime Minister to Donald Tusk, in which she writes:

“The United Kingdom proposes that this period should end on 30 June 2019”.


In line with a question asked by the noble Lord, Lord Shinkwin, when did the United Kingdom decide on this date, given that the European Union has already rejected 30 June? I do not believe that this House or the other place voted for 30 June as a preferred date.

[Lord Callanan]

The Prime Minister and the Cabinet agreed that date. The Prime Minister made the proposal but, as the noble Baroness will understand, given her extensive experience of European law, this is a matter for negotiation with the European Union. The Council of 28 will decide that on Wednesday.

Brexit

Baroness Smith of Newnham Excerpts

Monday 25th March 2019 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, the noble Viscount, Lord Hailsham, suggested that now is not the time for clowns. But one thing I was musing about over the weekend was how both David Cameron and the current Prime Minister, Theresa May, seem to have had problems with timings. David Cameron thought that he had worked out the perfect timing for his referendum—May 2017—to give himself two years to negotiate the reforms that he wanted in order to have his 60:40 vote to remain in the European Union. But then he decided to bring the referendum forward, boxed himself into a corner, got a damp little squib of a deal, and the referendum, as we all know, went the wrong way for him.

Theresa May has spent the last two years telling us that exit day is 29 March 2019. I thought I would check the lyrics of the song that includes the words:

“Isn’t it rich?

Isn’t it queer?

Losing my timing this late in my career”.

It goes on to say:

“But where are the clowns?

There ought to be clowns

Well, maybe next year”.

We are in very difficult times. The Prime Minister has led us to a point where we now do not even know whether we will leave the European Union, with or without a deal, on 12 April. We spent 15 to 20 minutes earlier trying to work out whether international law trumps domestic law on the date of possibly leaving the European Union. Many of us believe that, unless we change our domestic law, the European Union (Withdrawal) Act 2018 still means we are due to leave on 29 March—this Friday. We are in a position that nobody sought to be in and to which I do not believe the Prime Minister intended to lead us.

Unlike my noble friend Lord Newby, I have not spoken in all 13 debates. This is the first time I have spoken in a Brexit debate since 5 December, on the very first day of the very first debate ahead of the first meaningful vote, which was pulled and did not happen. I have not felt the need to speak on the grounds that absolutely nothing changed between the Prime Minister proposing her withdrawal agreement in the autumn and last week. Even with the negotiations in Brussels last week, I might not have felt the need to speak this afternoon. I might have felt that the deal the Prime Minister had agreed in November was not adequate then and remains inadequate. It is a sign of how far the Prime Minister has managed to divide her own party, Parliament and the country that, whereas sh thinks that her deal is the will of the people, Parliament has defeated it comprehensively on every possible occasion.

I did not need to stand up and say that, but I wanted to stand up and speak after listening to the Prime Minister’s speech to the United Kingdom last Wednesday evening. It was a disgrace that she felt she should say to the people, “I’ve understood you. Take no notice of Parliament, I know what you all want. I am speaking for you, but those other politicians aren’t”. There is nobody in your Lordships’ House or the other place who is not trying to do their best for this country, whether we agree or disagree with her deal, and whether we are remainers, leavers, remoaners or born-again leavers. We are all trying to do our best and most of us are trying to work in the national interest. The idea that the Prime Minister should try to pit herself and the people against Parliament is not helpful to our democracy. It will not help us come together as a country. It will not lead to the sort of United Kingdom that we should all be seeking, whether or not we leave the European Union on Friday.

The noble Lord, Lord Kerr, pointed out earlier that a referendum is, in many ways, an alien device, which is not the norm in this country. Certainly, when we entered the Common Market, Edward Heath, the then Prime Minister, was very clear that a referendum was not appropriate. Both Clement Attlee and Margaret Thatcher used the idea that referendums were the devices of dictators and demagogues. That language of referendums as dangerous devices is often used in the literature. However, I am speaking from the Liberal Democrat Benches. My former leader, Mr Clegg, came out in favour of a referendum ahead of the Lisbon treaty, so my party has form in supporting referendums.

In the 1970s, Edward Heath was very clear that the people’s view should be listened to, and that it would be, through a parliamentary vote. That was how we entered the Common Market. However, times have changed. The 1975 referendum on whether to stay in the Common Market set a precedent, which caused opinion to change fundamentally. I should perhaps declare an interest in that I am editing a handbook on European referendums—possibly as some sort of sadomasochistic activity—in my spare time. At a workshop for the book which I hosted in Cambridge last year, John Curtice pointed out that referendums are now in the British DNA. The 1975 referendum was the first, but the referendum in 2016 will almost certainly not be the last.

I was very clear that I did not support a referendum but, speaking from the Liberal Democrat Front Bench at the time of the European Union Referendum Act 2015, it was pointed out to me that I had jolly well better get behind my party’s position to support it. We did; we all campaigned in the referendum. However, I was very clear throughout, on every platform that I spoke on, that if the vote was to leave, that was not an opportunity to simply keep rerunning referendums. I said that before 23 June 2016 and I have said it from these Benches since.

Referendums are dangerous devices, but there is one thing that is potentially more dangerous than having another referendum, and that is Parliament saying it will revoke Article 50 without any further reference to the citizens of the United Kingdom. More than 5 million people may have signed a petition and 1 million people may have demonstrated on Saturday, and I absolutely agree with the noble Lord, Lord Tugendhat, that there is a sense that the 2016 mandate is becoming dated. There may well be a case for asking the people, “Theresa May is sure her deal represents your will. Does it really?”. If the Prime Minister is so sure that she understands the will of the people then surely there is no difficulty in asking them again.

I did not march on Saturday because I had a pre-existing commitment to speak in a debate in Cambridge, which your Lordships might expect to be the metropolitan heart of remain. However, the debate was in fact full of leavers, who were saying, “Democracy is about us. We made our views very clear”. That even included former remainers who said they respected the result of the referendum. In a democracy, people have the right to change their mind. I fundamentally believe, as I always have, that Britain is better in the European Union. I ought to declare an interest that, in my capacity as reader in European Politics at Cambridge, I receive European funding. That might not come as a surprise to anyone who has read any of my writing. However, I am also a democrat and I fundamentally believe that if we change the outcome of the referendum and end up in a different place, it has to be because the citizens of the United Kingdom say that that is what they want.

We need this country to come together. At the moment, Parliament is deeply divided, which is a perfect reflection of the country. A general election will not get around that. Maybe, just maybe, another referendum would. However, the idea of taking part in European Parliament elections should not be used as a weapon to try to stifle debate. Whatever people think about the European Parliament, it is directly elected and a form of democracy, and it should not be used as a way to try to silence opposition to the Prime Minister.

Brexit: People’s Vote

Baroness Smith of Newnham Excerpts

Wednesday 12th December 2018 Lords Chamber

[Lord Callanan]

I understand the point that my noble friend is making and I realise that this view is widely shared. I must point out, however, that the referendum was agreed to, authorised and voted for by this Parliament. We agreed to ask the people what their verdict was on the European Union.

[Baroness Smith of Newnham (LD)]

My Lords, the Prime Minister was very clear that there would not be a general election in 2017. The Prime Minister and the members of her Cabinet who were dispatched last Friday and even on Monday morning were very clear that there was going to be a vote on the withdrawal agreement on Tuesday evening in the House of Commons. There was not such a vote. Therefore, how certain is the Minister that the Prime Minister will not change her mind and allow a people’s vote, assuming that she survives this evening?

[Lord Callanan]

Very certain, is the answer to the noble Baroness’s question. As she well knows, to hold a referendum—as with the previous referendum—the Government would need to introduce legislation, and we are not going to do that.

UK-EU Future Relationship: Young Voters

Baroness Smith of Newnham Excerpts

Monday 10th September 2018 Lords Chamber

[Lord Callanan]

None of the positions that the noble Lord takes strikes me as particularly more absurd than any of his other positions.

[Baroness Smith of Newnham (LD)]

My Lords, your Lordships’ House voted for 16 and 17 year-olds to be enfranchised in the 2016 referendum. The then Prime Minister was determined that they should not be enfranchised. As the noble Lord, Lord Foulkes, said, those people have now reached maturity. In a general election, one would expect to be able to vote to kick out the Government and, at the age of 16 or 17, be able to vote at the next general election. The same is not being said of the referendum. For how long is the 2016 referendum meant to be valid? If we stopped holding general elections, I might have stopped the clock in 2010 and we would have had Liberal Democrats in government in perpetuity.

[Lord Callanan]

I am not sure how popular that would have been. Of course, young people who are 16 or 17 will be able to vote in the next general election. No doubt they will have the option, if they are particularly crazy, of voting Liberal Democrats—who may well put the option of rejoining the European Union in their manifesto. We will see how many votes they get on that basis.

Brexit: Negotiations and No-deal Contingency Planning

Baroness Smith of Newnham Excerpts

Tuesday 4th September 2018 Lords Chamber

[Lord Callanan]

I can send the noble Lord a copy of our White Paper, where we have set out exactly how that can be provided through the facilitated customs arrangement and the alignment on goods. I am sure that, if he read it in full, he would see exactly how that could be delivered.

[Baroness Smith of Newnham (LD)]

My Lords, with reference to the question from the noble Lord, Lord Maude, is it not the case that the United Kingdom has to serve notice to leave the European Economic Area and that that is separate from leaving the European Union? Therefore, unless we technically serve notice and give a year’s notice of leaving the EEA, we will remain members of that organisation.

[Lord Callanan]

I do not think that the noble Baroness’s analysis is correct. The European Economic Area is an agreement between EFTA countries and EU member states, and our membership of it will lapse when we leave the European Union. In order to join the European Economic Area we would have to become a member of EFTA, we would require the agreement of the EFTA countries and we would then need the agreement of the European Union in order to continue in that membership. That presents a number of legal and practical difficulties—but I would be happy to write to the noble Baroness in more detail about how it might not work.

Brexit: Preparations and Negotiations

Baroness Smith of Newnham Excerpts

Monday 23rd July 2018 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, the noble Lord, Lord Hannay, pointed out that, speaking at number 20 or so in the order of speakers, he was a little surprised to have heard only one Member of your Lordships’ House actively supporting the White Paper. Speaking at number 26, I find myself at the disadvantage that the noble Lord said many of the things that I had written in my notes, starting with the very idea that this document is not, as the noble Baroness, Lady Nicholson, suggested, a welcome one. It is, rather, too little, too late. The time for a White Paper on the UK’s relations with the European Union was before the Prime Minister triggered Article 50. The time for the United Kingdom—for members of the public, Members of your Lordships’ House and the House of Commons, and members of the Conservative grass roots—to know what the Prime Minister thought that she wished to negotiate was not two weeks ago at Chequers but before she triggered Article 50.

For two years, the Prime Minister kept suggesting, “It doesn’t do to show our negotiating hand—it will weaken our position”. But the EU 27 told us their position almost on day one; before the negotiations began, we knew where they were positioning themselves.

Perhaps the Prime Minister did know what she wanted. Indeed, that appears to be the case—because, in the White Paper, in her opening words the Prime Minister already begins to suggest that the White Paper is not the starting point but already the product of some sort of compromise. She points out that we need “pragmatism and compromise”. The noble Lord, Lord Bridges, suggested that we need pragmatism and compromise for an effective negotiation, but I suspect that a former Conservative Prime Minister might be turning in her grave at the suggestion that the United Kingdom should be compromising. The only thing that might stop her turning in her grave is, I suspect, that she believes, in death as in life, that turning is not something that we should be doing.

This White Paper suggests that already Prime Minister May has begun to turn, that the document before us—many noble Lords have been focusing on it today—is a response to two years during which the EU 27, and Monsieur Barnier in particular, have been saying what the EU position is and making clear what the United Kingdom might be able to get.

Right at the start of the White Paper, the Prime Minister says that,

“we have evolved our proposals, while sticking to our principles”.

The noble Lord, Lord Callanan, in his opening speech this afternoon, said something very similar. How would we know what the principles are that are being stuck to? It is wholly unclear.

The idea that the document is non-negotiable is, as the noble Lord, Lord Hannay, and others suggested, rather mistaken. Already it has become clear that, if you are a Tory Brexiteer and one of the European Research Group and you threaten to rebel in the House of Commons, you will be rewarded with a government-sanctioned amendment. If you are a rather more loyal remainer threatening to put forward an amendment, you are told by the Prime Minister, as I understand it, “No, you mustn’t put forward an amendment—if you vote against the Government you will bring them down and that will be catastrophic”.

So what principles are these that underpin the White Paper? Are they really in the UK national interest? I am not persuaded that they are. What is clear in the White Paper is a whole set of contradictions. The Prime Minister tells us that the days of sending vast sums of money to the EU every year are over. Yet, as my noble friends Lord Newby and Lord Wallace pointed out, there are many cases—62, I believe—where the Government say that they want to go back into this agency or be part of that policy. How are we going to do that? We want to contribute financially. So this great Brexit dividend, the £20 billion going to the NHS that we have been promised, is a mirage. There is not going to be a £20 billion dividend from leaving. As far as we can see from the White Paper, the costs are wholly unclear. So I should be most grateful if the Minister, in winding up, could tell us whether the Government have done any costings of what opting back in to various agencies and policies will mean in practice. Can he tell us politically where we stand? We want to pay to be part of a whole set of agencies—and, obviously, as somebody who was a passionate remainer and still believes that we would be better off in the European Union than outside it, I can see that we might want to be part of 62 agencies and policies. But apart from the financial cost, what role will we play? As a member of the EU, we have a seat at the table; what this White Paper suggests is that we want to go almost grovelling to ask to participate. What say are we going to have?

The noble Lord, Lord Mandelson, suggested that this was taking us to a Norwegian model. I am a great fan of Norway, but I am afraid that I am not a great fan of the Norwegian model—and this is no Norwegian model. As the noble Lord, Lord Davies, pointed out so eloquently, this White Paper at best talks about goods. It ignores any meaningful deal on services, which comprise 80% of the UK economy. What do Her Majesty’s Government think that they are doing? Why are they going for a set of proposals that look like a watered-down version of Norway? Where do they see the United Kingdom in the long term? So far, they do not appear to be offering anything that offers great succour to erstwhile remainers, ongoing remainers or even the Brexiteers. So far this evening we have found that the Minister’s opening remarks merely served to unite the noble Lords, Lord Liddle, Lord Forsyth and Lord Hannay. That does not very often happen. The Minister and the Government might think that they are doing very well if they have found a way in which to unite such disparate voices—but they were all voices that were very sceptical about the White Paper.

Where are we going to end up? The Minister told us that there would be a set of technical documents. Finally, I will ask a specific question on that, because I believe that technical documents are intended to say to EU citizens resident here, “This is what you need to do”. The Minister told us, with regard to these technical documents, that planning for no deal has been going on for two years. Those EU citizens resident in the United Kingdom have been led to believe, since the end of 2017, that their rights would be secured. Is there any truth in that whatever, or should they look to find some secure future elsewhere? Are the Government letting them down as they are letting UK citizens down?

[Baroness Manzoor (Con)]

For the assistance of the House, I remind noble Lords that the advisory speaking time is six minutes. To get through the business today and allow everybody the opportunity to speak, I would be very grateful if we can keep as close to that as possible.

European Union (Withdrawal) Bill

Baroness Smith of Newnham Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Callanan]

I am afraid that the noble Lord is simply wrong: we do have agreement on an implementation period. It was announced at the March European Council, agreed by the Government and the European Union.

[Baroness Smith of Newnham (LD)]

My Lords, surely, in the event that there is no deal, we leave on 29 March 2019 and there is no implementation period.

[Lord Callanan]

Obviously if there is no deal, we do not have an implementation period—but we are working towards getting a deal. Each of the stages so far has been announced and agreed. We agreed the issues over the financial settlement and citizens’ rights before Christmas. We agreed the implementation period in March. I realise that that the noble Baroness and many of her colleagues do not want the process of Brexit to proceed, but we are acting as a responsible Government and endeavouring to agree these things in a timely and proportionate manner. We have agreed the details of an implementation period. Each time they declare their scepticism, but we are confident that we will reach a deal at the end of the day.

As I have set out, this is neither helpful nor necessary as the text of the amendment mirrors all of the issues that we are consulting on before introducing legislation that this House and other places will be able to scrutinise. I hope that noble Lords will acknowledge that voting for this amendment would prejudge a significant period of consultation that would go against the principles of good policy-making and be ultimately detrimental to the future protection of environmental law. I hope, therefore—without much optimism—that the noble Lord will see fit to withdraw the amendment.

European Union (Withdrawal) Bill

Baroness Smith of Newnham Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

Moved by

[Baroness Smith of Newnham]

65: After Clause 9, insert the following new Clause—
“Rights of EU citizens
(1) A Minister of the Crown must by regulations made by statutory instrument make provision to maintain, preserve and protect the rights of any citizen of an EU member State who was lawfully resident in the United Kingdom immediately before exit day, and in particular to continue their right to be lawfully resident in the United Kingdom.(2) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

[Baroness Smith of Newnham (LD)]

My Lords, the hour is late and many of our noble colleagues have already left. Your Lordships might therefore hope that I will finish quickly—but I am rather keen to raise certain issues and reiterate them yet again in your Lordships’ House for the sake of the millions of EU citizens resident in the United Kingdom whose rights and concerns over the past two years have not been met. They have not been reassured.

Immediately after the referendum, questions were raised in your Lordships’ House about the rights of EU citizens legally resident in the United Kingdom on the day of the referendum. Amendment 65, in my name and those of my noble friend Lady Ludford, the noble Lord, Lord Judd, and the noble Baroness, Lady D’Souza, raises again the rights of EU citizens.

When the matter was first raised there was cross-party agreement that the rights of EU citizens needed to be guaranteed. The only people who disagreed were, initially, the noble and learned Lord, Lord Keen, who was speaking on behalf of the Government, and the noble Baroness, Lady Stowell, then Leader of the Lords. The reasons they spoke against guaranteeing the rights of EU citizens immediately were associated with the fact that the then Home Secretary felt that the rights of EU citizens could not be immediately guaranteed. The then Home Secretary is now the Prime Minister, and it would appear that her views have not changed. The rights of EU citizens, then as now, are seen as bargaining chips in the wider negotiations.

Over the past two years we have heard again and again that there is not going to be a problem—that the rights of EU citizens will be assured. Once we have the withdrawal agreement, life will be fine. For many millions of people, however, that does not seem a likely scenario. As it is late, I will not quote at length from a book that I received last week, but it is worth reminding your Lordships of the sort of testimonies included the book, which is called In Limbo. In it, one German national says that she is one of the people inadvertently caught up in a problem. She came to the United Kingdom, married and had children. Then, however, she stayed at home as a homemaker—twice during the past decade. Nobody told her that a requirement for permanent residency was that she should have comprehensive sickness insurance—so she does not now know whether she will have a right to remain.

So far we have heard from Ministers in your Lordships’ House and the other place that the rights of citizens can be guaranteed. The assumption is that there will be a withdrawal agreement and that the rights will be guaranteed. As we have been told on so many occasions, however, the EU withdrawal Bill is meant to assume that we leave the European Union on 29 March 2019, and it will be fit for purpose whether or not there is an agreement—deal or no deal. The rights of EU citizens will, however, not be guaranteed in the absence of a deal. So far, the agreement that in December 2017 started to look at the rights of EU nationals is predicated on the idea that there will be a withdrawal deal.

I would be most grateful, therefore, if the Minister could further enlighten the House, the 3.6 million EU citizens resident in the United Kingdom, and their families: spouses, partners, children and parents. Altogether there are far more than 3.6 million EU citizens, all of whom are wondering what will happen in the event of no deal. Even if there is a deal, how will people demonstrate that they have the right to be here? What are Her Majesty’s Government doing to give security to those citizens? In particular, in the light of the Windrush debacle, what certainty can the Minister give to those EU citizens who have come to live and work here, thinking that they were wanted, just as those on the “Empire Windrush” thought that they were wanted? Unless we have an amendment like Amendment 65 on the face of the Bill, millions of people will continue to live in insecurity and uncertainty.

In summing up, I raise the question of the rights not just of EU citizens but of EEA nationals from Iceland, Norway and Liechtenstein. They also have rights of free movement that are essentially consequent on the rights of EU citizenship. What thinking have the Government done about the rights of those citizens? Further, what are the Government doing about the rights of Turkish nationals, who also have rights associated with the Ankara agreement, which of course we are linked to as a member state of the European Union? Once we leave, what rights will those citizens have?

Finally, it has been brought to my attention that a Bulgarian MEP will be coming to the UK next week. He is in the process of trying to help Bulgarian citizens, because Bulgarian and Romanian citizens resident in the UK are less likely than their fellow EU citizens from other member states to have met the five-year residency criterion by the time we leave the European Union. They have had free movement rights only since the start of 2014, so there is a lot more insecurity for Bulgarians and Romanians. This MEP has tried to put together a portal to explain to Bulgarian citizens what rights they have. I am hoping that that portal will be rather more effective than the Government’s software and that it might even be readable on an iPhone.

What sort of information are the Government giving alongside their reassurance to these citizens? If those assurances cannot be given, can we be assured that some sort of amendment can be made to the Bill so that citizens’ rights will be guaranteed in the event of a deal or no deal?

--- Later in debate ---

[Baroness Goldie]

My Lords, let me make clear that the rights of EU citizens living in the UK are extremely important. I will address my remarks to the context of the amendment. Some broader questions outwith the amendment were asked; I do not propose to deal with them.

The amendment would do little to protect the rights of EU citizens lawfully resident here in the United Kingdom, and is actually less than what we have already agreed with the European Union.

We are in negotiation, we want a deal and we are straining every sinew to work towards a deal. There is now manifestation of progress on that front, because, following the March European Council, the EU and the UK have agreed to protect a broad range of rights that EU citizens and their family members who are resident in the UK on exit day currently enjoy, but also to extend that protection to those who arrive until the end of the implementation period. This agreement, which was published in draft on 19 March, provides them with certainty about their future rights and allows them to carry on with their lives much as they do now.

The Government have already committed that the withdrawal agreement and implementation Bill will directly implement the withdrawal agreement—including the agreement on citizens’ rights—in UK law by primary legislation. To implement the citizens’ rights agreement, we are introducing a new settled status scheme in UK law for EU citizens and their family members covered by the agreement. We plan to open the application process on a voluntary basis in late 2018, so that people can get their new status at their earliest convenience. This does not require regulations to be made under this power, as the necessary provision can be made through Immigration Rules made under the Immigration Act 1971.

The UK settled status scheme will fulfil the part of our agreement with the EU under which member states can require people to apply to obtain a status conferring the rights of residence, as provided for by the withdrawal agreement, and be issued with a residence document conferring that right.

These individuals will have until June 2021 to make an application to obtain their new UK status. During this time, they will enjoy the rights to live and work freely in the UK as conferred by the withdrawal agreement. After that period, if no successful application has been made, no status will be held and they will not enjoy those rights. However, we have agreed with the EU that where there are reasonable grounds for missing the deadline, they will be allowed to submit an application within a reasonable further period. Any application that is made, but not decided, before the end of June 2021 will still be within scope of the withdrawal agreement protections.

As the House will be aware, we have now agreed with the EU a time-limited implementation period. The purpose of this is to avoid a cliff edge and give people, business and public services in the UK and across the EU the time they need to put in place the new arrangements that will be required to adjust to our future partnership.

It will take time to implement a new immigration framework, and the Government have been clear that there should be only one set of changes in the relationship between the UK and the EU, so it makes sense that the framework during this time-limited implementation period should be the existing structure of EU rules and regulations. During this implementation period, individuals will still be fully covered by the EU acquis. EU citizens and their family members will be able to come to the UK to live and work as they do now, but those who wish to stay here for longer than three months will be required to register. That registration will enable them to evidence their right to reside in the UK during the implementation period.

The noble Baroness, Lady Smith, specifically raised the point about Turkish citizens. I understand that DExEU is leading cross-government work to assess international agreements we have with Turkey, which may be affected by EU exit. I cannot be more specific about that at this point, but the matter is within consideration.

The proposed new clause, therefore, would do nothing to further or protect EU citizens’ interests. It would interfere with our ability to implement the withdrawal agreement and do nothing to improve on the Government’s policy that all EU citizens and their family members, resident in the UK before the end of the implementation period, will be protected under the terms of the citizens’ rights part of the withdrawal agreement.

I hope that I have been clear in setting out how this amendment would actually do little to protect the rights of EU citizens lawfully resident here in the United Kingdom. For that reason, I ask the noble Baroness to withdraw it. I have to say that the Government do not propose to reflect further on this issue between now and Third Reading, so if she wishes to test the opinion of the House it would be appropriate to do so now.

[Baroness Smith of Newnham]

I am grateful to the Minister for giving us a fairly thorough answer, but I find it a little difficult to accept some of what she has just said. As a Liberal Democrat, I am supposed to be somebody with an optimistic turn of mind, so I should possibly hope that there will be an agreement—there will be a deal and it will be so wonderful that we can all live with it. There will be an implementation period, which maybe we would call a transition period, the rights of EU citizens resident here and UK citizens elsewhere in Europe will all be guaranteed, and life will be wonderful. But I am afraid that I was brought up to be a little bit cynical, and I am slightly concerned that what the Minister has said does not quite ring true. She has talked about a whole set of rights being guaranteed through the withdrawal agreement, but we have no guarantee that there will be a withdrawal agreement.

On several occasions this evening we have talked about the possibility of there not being a deal. If there were no deal, the discussion being put forward in the draft withdrawal agreement would lapse. In that event, the rights of the 3.6 million citizens would appear to vanish. On previous days at Report and, in particular, in Committee, we were told repeatedly that the Bill was to ensure legal certainty on the day we leave the European Union—not after some implementation period. I remain deeply concerned about the rights of EU citizens.

If it were not seven minutes to midnight, I would test the opinion of the House but, in the absence of any trigger from the Labour Chief Whip or, to my left, my own Chief Whip, it would be prudent not to do so. I understand that I cannot bring the amendment back at Third Reading, but we might expect an immigration Bill at some point, and many of these issues will be brought back again in that legislation. I am not satisfied that what the Government suggest really will guarantee the rights of EU citizens. With that, I beg leave to withdraw the amendment.

Amendment 65 withdrawn.

European Union (Withdrawal) Bill

Baroness Smith of Newnham Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, I will speak briefly about Clause 8 but, like the noble Baroness, Lady McIntosh, I have signed Amendment 47. That amendment would become obsolete if Clause 8 disappears. Like my noble friend Lord Beith, I am perhaps a little suspicious to see an amendment in the names of the Minister and the noble Baroness, Lady Hayter. To see the Government and Opposition Front Benches agreeing makes one a little suspicious but anyway, as my noble friend suggests, perhaps the Government think that they do not need Clause 8.

One of the issues I want to raise briefly is a genuine question because I have read different things by academic colleagues on where we are in terms of the EEA from a legal perspective. Amendment 47 refers to remaining a member of the European Economic Area. Before the Minister shakes his head and says, “No, no, no, we’re leaving the EEA”, there is a question about our membership. We are a member of the EEA as a member of the European Union. All EU members are members of the European Economic Area. My understanding is that we are individually members, not just as part of the EU 28, so do we legally have to resign from the EEA? The assumption is that we are there automatically as a member of the EU. That was my genuine question. A slightly more facetious question would be: given how keen noble Lords who favour Brexit are on free trade, should we perhaps be thinking about going back to EFTA where we started off way back in the 1950s?

[Baroness Hayter of Kentish Town]

It is late at night and I cannot resist it. For the Liberal Democrats who were in coalition with the Conservatives for five years to be suspicious about my name on one amendment is a bit rich. On the whole I resist doing this, but I am afraid I was led into it. I thought the Minister would enjoy that.

There are two debates here. On Amendment 43, to which I also have my name, as does the noble Baroness, Lady Kramer—but I hope that does not give the noble Baroness, Lady Smith, too many worries—I associate myself with what was said by the no longer young but, I gather, still irresponsible noble Lord, Lord Kerr. I particularly look forward to the answers to the serious questions raised about Schedule 4, which is referred to in Amendment 104.

I very happily put my name to Amendment 47A. Were any of the things on the international agreement arising out of the withdrawal deal to come to pass, the clause could be in the withdrawal and implementation Bill, which is probably a much better place because it would be much more specific. I am not in favour of wide powers just in case. We have too many just-in-case powers in the Bill as it stands, so the deletion of Clause 8 is an improvement to the Bill.

Since Amendment 47 has been moved into this group, it is probably right that I should say a word about the Opposition’s position on it. Since the noble Baroness, Lady Smith, is an academic and much better read than I am, I am sure she is familiar with the House of Commons briefing on this. It is clear that the vast majority of legal advice, certainly that which I had when I was in Brussels and elsewhere, is that the EEA combines EFTA and the EU—there is an even more expert head nodding. So, it was a nice try, but it is a red herring, and one of the things that we do not want to do is to give people false hope that there is a way out of the mess that this Government got us into—sorry about that.

That is why I shall a word about rejoining EFTA. I worked for an EFTA organisation many years ago. It was a very nice, friendly body at the time, but it was larger than it is now. There is an idea that we could just rejoin and that it would accept us. The Prime Minister of the largest EFTA country has already said, “Ahem. Hang on a moment. This is going to be a little more difficult and complicated than you think”. There are fewer than 14 million people, I think, in the EFTA countries. That is more than in London but not bigger than London and Wales combined. There are serious questions about whether structures that suit their economies, size and way of working in marketing and in other things would suit our economy with 66 million people. I worry that people think there is a nice, easy option. On this side, we are not persuaded that it would be easy or necessarily correct for us.

--- Later in debate ---

[Lord Berkeley]

My Lords, I support my two noble friends who have spoken to this amendment. I declare an interest as chairman of the Rail Freight Group and a member of the board of the European Rail Freight Association. They are absolutely right in the worry that these agencies will not be able to accept us after Brexit. I know the European railway agency people very well, and they would love us to stay, obviously, and would love to work with us, but of course they are forbidden from doing so by the European Commission, because that is part of the regulations. But the consequences, as my noble friends have said, are actually very serious. The manufacturing issue is not just about how we are going to take the components back and forward—it is the standards to which they are created and built and the safety certification that has to go along with it, which cannot easily after Brexit cross between us and the rest of Europe.

The issue also occurs on the railways, partly with manufactured items and partly with the operation. We do not yet know whether the train drivers that go across in the tunnel—Eurostar or rail freight—will have to have separate licences. The one good thing that the European railway agency started off doing was to try to get a common standard for red tail-lights across Europe, because each member state had its own standard, and when you got to a frontier somebody had to walk to the back of the train and change the lights. Mercifully, that is a thing of the past—but, unless all these issues are sorted out and the necessary drivers and other staff get the proper training, there will be no trains through the tunnel, and there may not be any flights, if my noble friend’s comments on the air service are correct.

We really need to get on with this. Everybody is waiting for a decision and, if we do not, we can expect to have very little traffic on the railways when we leave the EU. I do not think that the same will apply to the ferries across the channel, but we do not know. How all that affects the transport between the north and south of Ireland and across the Irish Sea, we had better leave to another day—but I hope that the Minister will have some positive response to my noble friends’ questions.

[Baroness Smith of Newnham]

My Lords, we have been told frequently that this Bill is about providing legal certainty on the day that we leave the European Union. We have already heard from three noble Lords a whole range of issues that will be extremely difficult in the transport sector when we leave the EU. If we cannot stay in the European agencies, are the Government doing to do at least as much as proposed new subsection (2) suggests and establish,

“an effective equivalent within the United Kingdom”?

If we are to have legal certainly, it is not enough simply to enshrine EU law into United Kingdom law. We need to know what the standards will be on the day that we leave. This is not something that is just hypothetical; this is not about widgets—it is about how our transport system functions on the day we leave. So far, we have not had sufficient answers on this, so I hope that the Minister might be able to tell us something that goes beyond the idea that this is simply going to be about the negotiations.

[Lord Tunnicliffe (Lab)]

My Lords, I look at this amendment and note that it is about the continuity and safety of transport. I have fewer fears than my colleagues about the matter of safety, because the industries concerned were moving towards standardisation decades before the EU was formed. The area where I am very alarmed is the whole issue of traffic rights. I spent 22 years in aviation, 20 of them working for BOAC and British Airways and, towards the end, as the number 2 in British Airways’ marketing department. That was the world pre-open skies and pre-EU, and it was horrific. Literally every city pair had a different agreement about it. All of them had to be agreed. Those were the days when Hong Kong was a colony, which was a golden card in negotiations. The idea of having to start from scratch and do all 134 city-pair negotiations is very difficult to understand.

Similarly, we have the same problem on the roads. The professionals who talk about the port of Dover say that the slightest delays through the port will cause chaos to the point where we have to worry about fresh food getting to our plates. The noble Baroness, Lady Sugg, laid on for interested Peers a meeting with the Secretary of State. He gave a very smooth presentation, which I would précis as, “It’ll be alright on the night”. He justified this by saying that it would be in both parties’ economic interest to conclude sensible and rational agreements. I think he is a bit heroically naive; I have spent most of my professional career in negotiations, and I have always found rationality to come a rather poor third place after emotion and power. The reality of these negotiations is that they will be conducted by politicians and bureaucrats.

The great thing about the EU is that it is refreshingly transparent. Perhaps more people should read what it produces more frequently. From time to time, in this negotiation, it produces guidelines. The first sets of guidelines were more or less delivered as agreed by the Council, and the latest set was agreed on 23 March. A six-page document was published with those guidelines adopted by the European Council at the meeting on 23 March; one paragraph says that,

“the European Council has to take into account the repeatedly stated positions of the UK, which limit the depth of such a future partnership. Being outside the Customs Union and the Single Market will inevitably lead to frictions in trade. Divergence in external tariffs and internal rules as well as absence of common institutions and a shared legal system, necessitates checks and controls to uphold the integrity of the EU Single Market as well as of the UK market. This unfortunately will have negative economic consequences, in particular in the United Kingdom”.

They are very clear about just how firm their position is. One has to recognise that they are representing the EU 27. They are there to meet their demands, and every member has a veto on this agreement. We have left the club: they are not looking after us anymore; that is not their responsibility.

So where do we stand? We have an emotional battle to fight—emotional or political, call it what you like—and we also have a power battle to fight. Do we have any cards? One card that we have with the EU is money, but we more or less agreed that anyway, so that one goes away. The other thing that we used to fight on over the decades after World War II when establishing air rights was reciprocity. That means, “You can’t come to our airfield unless we can come to yours”. The problem with that is that we are a bit of everybody else’s aviation activity. For us, the world is where we need to be and the world, at the moment, is determined and available through the European Union. If we cannot have access to the world, then our industry will be seriously damaged.

I hope that my pessimism is not justified, but I think that getting a better deal than the status quo is, sadly, highly unlikely. I hope that the Minister will be able to assure us that the energy is there to try to achieve the status quo, because otherwise it will damage us and it will damage our EU friends, but it will damage them a great deal less than it will damage us.