Brexit: European Union-derived Rights

Debate between Lord Hope of Craighead and Viscount Waverley

Tuesday 4th April 2017 Lords Chamber

[Viscount Waverley (CB)]

My Lords, I believe that the noble Baroness, Lady Hayter, has touched a raw nerve. I refer to a concern and, in doing so, declare that I fall into that bracket. I originally referred to this matter in the form of a Written Question on 4 July last, asking what steps the Government had taken,

“to bring UK law into line with the European Court of Justice ruling C-127/08 on the implementation of Directive 2004/38/EC and the rights of non-EU spouses of EU citizens to move freely in the EU”.

The case concerned the ability of a Colombian lady to enter the United Kingdom with no visa impediment.

A response came through from government, in effect saying that United Kingdom law relating to the rights of EU nationals and their family members—this is the key point—to enter and reside in the UK is fully compliant with the decision of the ECJ, to which I referred earlier. I refer to this again as, while in no way doubting the Government, I am not actually sure that this is working in practice. Will the Minister, at his convenience, look at this and confirm that non-EU spouses and family are able to enter the UK without any condition?

[Lord Hope of Craighead (CB)]

My Lords, I should like to say just a few words in support of the Motion in the name of the noble Baroness, Lady Smith of Basildon, to which the noble Baroness, Lady Hayter of Kentish Town, spoke.

I want to stress one word that comes towards the end of the Motion, and that is the word “before”. It is used in a phrase that sets out that among the matters to be looked at by the Joint Committee will be the taking of votes before any agreement is considered by the European Parliament. The timing is very important. The point is made in answer to points made on several occasions in our debates on the notification of withdrawal Bill, with reference to the curiously worded enactment already on our statute book, the Constitutional Reform and Governance Act.

At the end of the whole process, assuming that an agreement is reached and approved by the European Parliament, there will have been created by that agreement a treaty which we in Parliament will be required to ratify. It was suggested that that was enough to satisfy the constitutional requirements of approval by Parliament. The point that the noble Baronesses are making, which is absolutely right, is that the time for Parliament to express its wishes is before the agreement is reached to be put before the European Parliament. It is too late once we are presented with a completed agreement in the form of a treaty that we are being asked simply to approve. So this Motion is very carefully worded and, in my respectful submission, very correctly worded to address that point. The issues must be considered before the agreement is handed over to the European Parliament.

The same point arises in regard to a point that is not mentioned in the Motion but which was very properly raised by the noble Baroness, Lady Hayter: the need for legal certainty. I touched on this at Second Reading and do not wish to repeat all that I said then. However, the point I made is that there is a need for parliamentary authority for the making of the agreement itself by the Prime Minister, because it is the Prime Minister who will eventually conclude the agreement on our behalf that is to be handed over to the European Parliament.

The guidance as to how one achieves legal certainty is to be found in the decision of the UK Supreme Court in the case of Miller. It does not need to be repeated, but that decision looked for legislative underpinning for the authority to enter into that agreement. Again, the timing is critical. That is required before the agreement is entered into and before it is handed over to the European Parliament. I stress the word “before” because it identifies a critical point in what will become, at the end of the process, a very important issue of timing, as one event follows another.

Perhaps it is a reason also to stress a point made by the noble Baroness, Lady Hayter, that the sooner legal certainty is achieved, the better. I suggest that the worst thing of all would be to leave the search for legal certainty until near the end of the process, when things will become more and more urgent. The sooner it is sorted out, and sorted out in the correct way, the better. Therefore, I support both Motions—but in particular the second because of its careful wording.