Brexit: European Union-derived Rights

Lord Campbell-Savours Excerpts

Tuesday 4th April 2017 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I support both Motions. On the first Motion from the noble Baroness, Lady Hayter, I can be very brief. I will start with a quote:

“I think it is absolutely right to issue the strongest possible reassurance to EU nationals in this country, not just for moral or humanitarian reasons, but for very, very sound economic reasons as well. They are welcome, they are necessary, they are a vital part of our society, and I will passionately support this motion tonight”.—[Official Report, Commons, 6/7/16; col. 939.]


That was said by Boris Johnson. The Motion he was passionately supporting asked the Government to,

“commit today that EU nationals living in the UK shall have the right to remain”.

He was right, for once. I worry that by letting this question get tied up in the negotiation we risk to years of uncertainty for both sets of people—their nationals here and our nationals there.

The European Council’s draft guidelines say:

“Negotiations under Article 50 … will be conducted as a single package. In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately”.


That is ominous. Yes, President Tusk and Monsieur Barnier have picked out citizens’ rights as a priority first-phase issue, and, yes, the Prime Minister suggested aiming to strike an early agreement. But it could still be held up behind other first-phase issues such as the money issue—settling the bills—on which negotiations will inevitably be protracted and unpleasant. It is a serious sequencing error to let a win/win common-interest negotiation be held up by a win/lose, zero-sum negotiation —but it could happen.

It could also still be averted—even now—if, before 29 April, before the European Council approves these guidelines, the Government were to do the decent, moral and economically sensible thing, as recommended by the Foreign Secretary on 6 July last year. The Government should be announcing now that those non-UK EU citizens living here will retain the right to do so, and that we expect our partners to follow suit. My answer to the noble Viscount, Lord Hailsham, is that they would. It is a win/win, and our partners see that, too. We should take the issue off the table right now.

On the second Motion, from the noble Baroness, Lady Smith, my particular concern about the amendment that we passed by such a large majority, and which the Commons rejected, was the risk that there would be no deal. My concern was that the Government have as yet given absolutely no commitment, oral or written, that in the event of no deal there would be a meaningful vote in the House of Commons. Indeed, the last time we addressed this question, last week, the noble Lord, Lord Bridges, appeared to be saying that there would be no vote because there would be no deal to vote on. A situation in which there was no deal would be the situation in which we would most need to have a vote.

In the last week, I think the risk of no deal has grown slightly. I had put it at about 30% and it is probably now a little higher than that—not because of Gibraltar and silly interventions from here; not because of the reference to Gibraltar in the European Council draft guidelines, which was absolutely predictable; not because of the absence of any reference to it in the Prime Minister’s letter, since any reference would not have made the slightest difference, so that criticism of her letter is invalid; nor even because of the unfortunate perception that her letter contained a threat to withdraw co-operation against crime and terrorism if we failed to get a good deal on trade. Any such threat would have been seriously counterproductive and would have suggested a dangerously transactional approach to questions of security—but I believe our partners accept that the drafting infelicity was unintentional.

The reason for my concern is a bigger one: the mismatch between the Prime Minister’s bland assertion in her Statement last Wednesday that there would be a phased process of implementation and her insistence that in two years’ time:

“We will take control of our own laws and bring an end to the jurisdiction of the European Court of Justice in Britain”.—[Official Report, Commons, 29/3/17; col. 252.]


Unsurprisingly, the draft European Council guidelines state:

“Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory and enforcement instruments and structures to apply”.


I do not find anything surprising in that; it is what I would have expected the European Council to be advised to agree, and what it will agree. But it means that, in the transition or implementation phase, the ECJ’s writ will still run in this country—and, presumably, that the European Union’s resistance to our cherry-picking of the acquis would apply to an interim phase just as much as to a permanent position. So, despite the great repeal Bill and despite losing our votes in the Council and the Parliament, we would still be applying all EU laws during the transitional phase. That is not exactly what Mr Davis told the other place and is quite a climbdown from Mrs May. Therefore, the risk of the Government walking out has grown.

That is why it really is troubling that the Government are giving no commitment to a meaningful vote in the Commons in the event that the Government decide to throw in the towel and walk out with no deal or no transition deal. With all due respect to the Prime Minister, “No deal is better than a bad deal” is plain wrong, and Mr Johnson was wrong to say that to leave with no deal would be “perfectly okay”. The Commons Brexit committee’s report, the CBI and the IoD are all correct in saying that no deal would be a disaster. If the Government were to head for the cliff edge, Parliament must be given the chance to require them to think again—to seek an extension of the negotiations or to consult the country. That is the principal reason why I strongly support the Motion from the noble Baroness, Lady Smith. Parliament needs to work out how best to ensure that it gets its say on the emerging outcome of the negotiations, particularly if it does not match Mrs May’s aspirations, and particularly if the outcome is no deal—and Parliament needs to work out how to do so in good time, before the die is cast.

[Lord Campbell-Savours (Lab)]

My Lords, I shall be brief. I have a simple question for the Minister: what happens if there is a blockage in the negotiations on these matters in the wider European Union? In principle, is it possible for the UK to enter into bilateral agreements with 27 individual nation states offering rights to national residency in the UK in return for reciprocal rights for UK citizens living in the Union? The advantage of bilaterals if we hit a stalemate would be that any state opposing such concessions at the time of final settlement of these matters could find their own citizens’ rights in the UK in jeopardy and subject to review. It would have the effect of moving the debate to the capitals of obstructive states in the circumstances of a blockage in the negotiations. I wonder if the Minister might be able to help us with that very simple question.

[Lord Cormack (Con)]

My Lords, like the proverbial Irishman, I would not have started from here. We have to be careful that we do not continually refight the same battles, but that does not mean that we cannot repeatedly restate the same principles.

I remain of the same view that I did the day after the referendum, 24 June last year. I deeply regret the result, and I thought that the first and most positive thing that we could and should do would be to guarantee the rights of EU nationals in this country—I was a week ahead of Boris Johnson. We would have taken the moral high ground; we would have lost nothing; we would have made an extremely important gesture, which I believe would have been reciprocated. My noble friend Lord Bridges, who will be replying to this debate, knows very well that that has been my view throughout, and I have repeated it in this Chamber on a number of occasions.

However, as someone said a few moments ago, we are where we are. What is now crucial—my noble friend Lord Hailsham made this point—is to ensure that we guarantee as soon as possible the right of EU nationals. I am confident that there would be reciprocation. We do not want to let this drag on for two years.

Uncertainty was referred to by the noble Baroness, Lady Hayter, in her admirable opening speech. We all know from our personal lives that nothing is more mentally debilitating than uncertainty. Whether it is concern over a loved one with illness or over a job, if we have uncertainty, we cannot plan ahead, look forward with confidence or aspire. Every human being has the human right to all those things. I very much hope that, when my noble friend comes to wind up, he will be able not only to state his personal agreement but to say that the Government will indeed report back to Parliament and that he will do all in his power—I am sure that he has great negotiating skills—to bring this uncertainty for 3 million human beings in our country to an early and a hopeful end.

I also find myself in agreement with the Motion spoken to persuasively by the noble Baroness, Lady Hayter. We have said these things before in innumerable debates, but the cry from those who did not think that they would win, but did, was, “We want to take back control”. Control where? In a parliamentary democracy, control can lie in only one place, and that is Parliament—particularly in the House which has supreme power, the elected House, but, to a degree, in your Lordships’ House, too.

We must never forget that the single, cardinal principle of our democracy is that government is accountable to Parliament, and Parliament is accountable to the electorate. It is crucial that we have not only discursive debates—which, in a sense, is what we are having tonight—but debates with real purpose and real votes at the end of them. That is not because I want in any way to circumscribe the freedom of those who will be negotiating on our behalf, but because I want them to be answerable to us and, particularly, to the other place.