European Union (Notification of Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

9B: Clause 1, page 1, line 3, at end insert—
“( ) Within three months of exercising the power under section 1(1), Ministers of the Crown must bring forward proposals to ensure that citizens of another European Union or European Economic Area country and their family members, who are legally resident in the United Kingdom on the day on which this Act is passed, continue to be treated in the same way with regards to their EU derived-rights and, in the case of residency, their potential to acquire such rights in the future.”

[Baroness Hayter of Kentish Town (Lab)]

My Lords, it is a particular pleasure for me on St David’s Day to be opening this session on the Bill. I move Amendment 9B on behalf of the noble Lords, Lord Hannay and Lord Bowness, and the noble Baroness, Lady Ludford, but also on behalf of perhaps 3 million people, who quite literally feel that they are being used as mere bargaining chips in order to secure the rights of another 2 million or so UK nationals who live, study or work elsewhere in the EU. It is legitimate for them to think that they are being used as negotiating capital because that is exactly what the Home Office told them. All of these 3 million, and indeed the four of us whose names are on this amendment, also share a real concern for those UK expats who, thanks to our EU membership, have settled in one of the other 27 countries. We have all heard of the serious worries of Britons living abroad with their homes, children, jobs and lives settled there. [Interruption.] We are in Committee, so I am sure the noble Lord will have plenty of time to come in.

As I was saying, we have all heard representations of the serious worries of Britons who have settled abroad. They have homes, children, lives and jobs there and now fear for their rights, and their access to medical treatment and other services and wonder what the future holds for them. It is not acceptable to place such people under that pressure. But these two groups of people should not be traded against each other. There are twin objectives, both to look after the EU and the UK nationals who live in each other’s countries.

I reckon that the Minister knows a thing or two about twins because his own, being a boy and a girl, are not identical. But neither are these two groups of people identical. Indeed, the big difference is that for EU nationals here, it is in the gift of our Government—the UK Government, answerable to this Parliament—to decide how to treat people resident in our country. So, contrary to the letter that was sent yesterday by Amber Rudd, we do not accept that this is a matter for our negotiations with the EU. This is a matter for the UK.

Amendment 9B would ensure that the rights that EU citizens here would have if we remained in the EU should stay the same on exit day. These people need to know now, not in two years’ time or even 12 months’ time. They simply cannot put their lives on hold. Some are planning schools for their children or moving jobs, renting or buying homes or acting as carers. Some are receiving healthcare. Many more are working in our health service. All should have their uncertainty removed, particularly as the reality is that many would have other rights to remain under the European Convention on Human Rights. Do we really want to clog up our courts and cause these people dismay by forcing them to court in order to assert those rights?

We should be clear that this view, decoupling their future from that of UK residents abroad, is supported by organisations representing British citizens in the EU which support the guarantee of such rights before the start of Brexit negotiations. Their statement on 20 February called on the Prime Minister unilaterally to guarantee rights of EU nationals in Britain. They say that it is,

“damaging to the UK’s reputation for UK citizens living in Europe and EU citizens in the UK to be treated as negotiating currency”.

They go on:

“Like UK citizens living in Europe, EU citizens in the UK have come and settled in another EU country in good faith on the basis of their EU citizenship rights … rights that cannot be withdrawn retrospectively and the guarantee of their rights should be given before the Brexit negotiations”.


The main, short-term request from UK nationals abroad that I know of, as Fiona Benson in Italy wrote to me, is that they want a helpline through our consulates for getting their documents sorted out.

In addition to the moral obligation that we have to all these workers, students and families established here and who want some certainty, we also need to think of the industries that depend on them—science and academia, large parts of the public sector, especially the NHS and social care, as my noble friend Lord Clark will outline. There is little wonder that the Conservative chair of the Commons Health Committee has called on the Government to guarantee the rights of EU nationals to stay, without delay. Consumers will suffer if the food and drink industry suddenly loses its workforce, which includes over 100,000 EU nationals at all skill levels. Unsurprisingly, the Food and Drink Federation survey indicated that 10% of them were already thinking of leaving Britain. And this in a sector already facing a large skills gap, due to demographic change. Indeed, the FDF estimates that it will need 130,000 new skilled workers by 2024. The Food and Drink Federation joins the 3 million-plus group and the British Chambers of Commerce in seeking urgent reassurance from the Government on the status of those already here and employed in the UK. I do not think that the Home Secretary’s letter is going to satisfy them—nor, indeed, the public. A post-referendum poll found that the vast majority wanted EU migrants living here and working in the UK to be allowed to stay. Just 5% demurred.

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These are questions that each of us should bear in mind as we decide how to vote on the amendment—an amendment that would touch the lives of over 3 million Europeans here and 900,000 of our own citizens across Europe. The sooner we pass this simple Bill, the more quickly we can seek that agreement: a fair agreement—fair to EU citizens and fair to UK nationals. So, while I would not for a moment question the motives of those who have tabled the amendments, I would ask every one of your Lordships to think of the consequences if this course of action were to be followed, and I ask the noble Baroness to withdraw her amendment.

[Baroness Hayter of Kentish Town]

My Lords, it has been one of the highlights of one’s life in the House to hear this debate. I always like debates in which the words “moral” and “principle” are at the top of our agenda. I shall be brief, because I only want to say three things. First, the idea that, because we are asking for action on EU citizens here, we do not have equal concern for the others is completely wrong. Apart from anything else, my great-niece and my great-nephew live in Belgium and France respectively, so I am frequently reminded of this situation.

The morals, the principles and the decency of the case have been stressed, and I think this is the issue. There are insecurity and uncertainty now, and we have already heard that some people are leaving. It is all going to take time. We are all getting lots of messages, even while we are here: they are coming hot every moment to me. Nicholas Tilson from France says:

“You are quite right when you say that we … are not bargaining chips … The best way to protect us is to take a firm moral position and protect those EU nationals living in the UK”.


That is only one: there are another million, and I appreciate that. Do not think that we have done this without thinking and talking to people who live abroad.

The problem with using this issue in the negotiations is, first, that that would be wrong. Secondly, there are countries—such as Slovenia, Estonia and Croatia—that have only about 500 UK nationals in them. Unlike my noble friend Lady Symons, I have not negotiated. But I do know, from stories that I have heard, that sometimes one country holds up something irrelevant to them because they are trying to get something else. I understand that is why the European Parliament still meets in Strasbourg. When John Major was in Edinburgh, France wanted something, we wanted something else—maybe it was JET at the time; I do not know—and we ended up with the Parliament staying in Strasbourg. That is what happens with negotiations. At the point of negotiation there could be one country, with a very small number of UK citizens living there, which for some unrelated reason held up the agreement. We will finally have an agreement, but the uncertainty would be too long, and we should not make people wait.

It has been said that an assurance is enough. But your Lordships will understand—I do not think that my noble friend Lord Dubs is here.

[Noble Lords]

Yes he is.

[Baroness Hayter of Kentish Town]

I think my noble friend would probably testify that assurances are not enough. We want this on the face of the Bill. It would not delay the Bill or the negotiations; it simply asks the Government within three months to come up with proposals about what they are going to do with EU nationals. I would like to hear what the Committee has to say about that.

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[Lord Stern of Brentford (CB)]

My Lords, we have heard very clear and convincing arguments about the future of Euratom. They are clear and strong. But it is more than that. Science depends on collaboration, mechanisms of collaboration, funding and movement of people. Many of us would see the attitude to Euratom as symbolic of this bigger issue. The noble Lord, Lord Winston, made the point that our academics worry about the mechanisms of collaboration, the funding and the movement of people.

I am a fellow of the Royal Society but I am an economist, so I will give an example from my department. We could replicate them in physics departments and all the others. Half of our professors at the LSE, which has one of the best economics departments in the world and is where I am a professor, are EU non-UK. They come to us because we are outstanding and we are outstanding because they come to us. This could be said about every physics department of the highest quality in this country. Scientists—and I, as president of the British Academy for the humanities and social sciences—will be looking at this kind of example to see whether our collaborations, our funding and the movement of people are secure—or at least as secure as they could possibly be. Through the response on Euratom and more broadly, we would welcome clear statements about the priority of collaboration, the mechanisms of collaboration and the funding.

In putting the question in this way, I salute the Government for the support they have given to research. We are on the way up in terms of funding for research. We have a long way to go, but still, the first derivative is positive. May it keep moving in that direction. But it is not just the funding but the people, the collaborations and the mechanisms. This is why, as well as the arguments in their own right, which are very powerful as we have heard, Euratom is so important.

[Baroness Hayter of Kentish Town]

My Lords, I do not think I need to declare a particular interest. I happen to be married to a physicist, but he is a low-temperature physicist, whatever that is—he knows. Although his colleagues are at Culham, he is not involved there himself.

A new word entered our lexicon after June, which is Brexatom—the exit from Euratom. I am sure that those of us who campaigned in the referendum had no idea that this would be a result, or of the implication for the nuclear industry and research and technology. However, as we have heard from the noble Lord, Lord Oxburgh, in that lovely understatement, Euratom is “pretty important” for our nuclear industry. Part of its job is ensuring our compliance with the non-proliferation treaty, including inspection, reporting and accounting. As we have just heard, some 20% of our electricity depends on it, as well as 78,000 jobs, a number that is expected to grow.

We have heard some—I hope too alarmist—warnings that power stations could be forced to close if new measures are not in place by the time Britain has to leave Euratom, if we do. In fact, a senior nuclear energy lawyer told MPs yesterday that leaving could see trade in nuclear fuel grind to a halt, as my noble friend Lord Hutton and others said. It is not so much about our standards, but we have to demonstrate that our standards comply with international nuclear standards. That is part of the work that happens through Euratom.

Euratom manages and develops the nuclear co-operation agreements, which we have also heard about, with non-EU countries on behalf of its members. The expectation is we would need our own bilateral agreements with those countries, as my noble friend Lord Hutton and the noble Lords, Lord Fox and Lord Rees, mentioned. To go back to the negotiations, I understand that these would take rather longer than two years.

One of the benefits of Euratom has been to establish the UK’s credibility and, indeed, acceptability within the nuclear community. That enables us to have a number of co-operations that we otherwise would not have because they are predicated on us abiding by these standards.

The Nuclear Decommissioning Authority and the Office for Nuclear Regulation also rely on Euratom as it has responsibility for the overarching framework for standards. Unsurprisingly, the Nuclear Industry Association is keen that we remain in Euratom or, if it really proves impossible legally, that there should be some transitional arrangement; otherwise, as we heard from my noble friend Lord O’Neill, it is possible that trading not only in nuclear goods but in material and people, and, as we just heard, the new build at Hinkley, could if not grind to a halt be held up. I assume we would also need a whole lot of new staff to do the monitoring, or an intervention from the UN’s IAEA.

On JET, I understand that the funding that comes via Euratom is guaranteed only until 2018. The new work programme has not yet been agreed, but without that funding the whole future of JET is at risk. As we have just heard, that is a great threat to a great swathe of scientists, engineers and experts, not only those who are based here but those come through during the year to work there. I understand that there is also a risk also to our ongoing participation in ITER, which may be one of the places that our scientists move to if there is any question over the future of JET.

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[Lord Ashdown of Norton-sub-Hamdon (LD)]

My Lords, it is very late. We are tired. I do not know about the rest of your Lordships but I certainly am. I have sat here for four hours, a speech burning in my head, but listening to the speeches that have been made, I would not make any point that has not been made already, particularly in regard to the speeches of the noble Lord, Lord Deben, and the noble Viscount, Lord Hailsham, which were probably better than any I could ever have made. I am content to leave their words as mine on the record, in the hope that we may hear from the Minister fairly soon.

[Baroness Hayter of Kentish Town]

Noble Lords will be pleased to know that I, too, am not going to repeat the arguments put so succinctly by the noble Lord, Lord Pannick, nor the wise words of the noble and learned Lord, Lord Hope—although my noble friend Lord Lennie said at one point, “Oh dear, it sounds like a redrafting of Clause 4”. A certain group would understand that.

The agreement that the Government negotiate, or fail to negotiate, has enormous implications for this country. As has been said from the Dispatch Box many times, the referendum gave the UK a final say: that we should leave the European Union. That is the destination. However, it said nothing about the route or the pace of that change. As someone said to me, it is a bit like deciding to jump out of an aeroplane. You know exactly where you are going, but doing it before you have learned how to use the parachute could be troublesome. You could have a hard landing—that was the wrong phrase—if you do not know about the wind, the altitude and particularly the position of the ripcord.

The referendum gave no hints about any of the trade-offs that will come in what I hope will be a harmonious partnership that we will be able to negotiate with the EU 27. The Government will negotiate that, but Parliament must agree it. The agreement will have to go to the Council and the European Parliament; that is written in law in Article 50. It is therefore mandatory in law that the European Parliament will have to give its consent. But there is nothing in law that states that this Parliament must give its consent.

Although assurances have been given and the Prime Minister has said that there will be a vote in both Houses, it is not good enough. That is partly because it is a vote rather than legislation and partly because the same protection that the European Parliament has is not written in statute. That is all we are asking for. There must be equal legislative requirement on the exit deal for this Parliament to cover all eventualities. The debate has been on whether we have just the divorce, the withdrawal, or we have the withdrawal plus the framework, or the withdrawal and even a treaty—I doubt it will be within two years—or whether we get nowhere. Surely, as has been said by my noble friend Lady Kennedy, only this Parliament can decide on that. That is all that we are asking. The drafting can improve.

The most interesting questions were asked by the noble Lords, Lord Deben and Lord Higgins: why do the Government not want to do this? What is troubling them? They are going to have to do it at some time. They can either bring forward another piece of legislation later, which I think was the advice of the noble and learned Lord, Lord Hope, or they will be taken there by a court—but get there we will. That is another part of the destination; there will have to be legislation and this sort of amendment, tweaked if necessary, is one that this House will want to support.

[Lord Bridges of Headley]

My Lords, this has been an excellent and interesting debate, and I am slightly wary at this late hour to be inserting myself between the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick, who, as I said at Second Reading, is such a worthy adversary.

What everyone, myself included, clearly shares is the sentiment and perfectly legitimate intention to ensure that Parliament is able to hold the Government to account as we leave the European Union. But there is one fact of brutal simplicity that towers above this whole debate. Much though it may bore or irritate some noble Lords, I fear that it is one we cannot and must not ignore. It is simply this: the majority of people voted to leave the EU. I know that a number of your Lordships have argued with great passion that this was the wrong decision, but the decision has been made and we are going to withdraw from the EU.

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Moved by

[Baroness Hayter of Kentish Town]

21: After Clause 1, insert the following new Clause—
“Involvement of Scotland, Wales and Northern Ireland
(1) Within six months of exercising the power under section 1(1), the Prime Minister must publish a document setting out arrangements that have been agreed between the Prime Minister and the devolved administrations for the Secretary of State to—(a) consult the devolved administrations on the matters referred to in subsection (2), (b) specify how their views on those matters will be taken into account, and(c) seek to reach a consensus on those matters.(2) The matters are—(a) the terms proposed for withdrawal from the European Union (including the initial negotiating position), and(b) the framework for the United Kingdom’s future relationship with the European Union.(3) The arrangements referred to subsection (1) must make provision for statements to be published setting out the extent to which consensus has been reached.(4) The arrangements may make provision for functions to be exercised by Joint Ministerial Committees.(5) Before concluding an agreement under the process set out in Article 50 with any institution of the European Union, the Prime Minister must consult the devolved administrations on the terms of any proposed agreements, and specify how their views have been taken into account.(6) For the purposes of this section, the devolved administrations are—(a) the Scottish Ministers,(b) the Welsh Ministers, and(c) the Executive Committee of the Northern Ireland Assembly.”

[Baroness Hayter of Kentish Town]

My Lords, Amendment 21 would underpin the involvement of devolved Administrations in the Brexit process. It would both formalise and strengthen the arrangements that the Government have already put in place through the joint ministerial committee, whose terms of reference commit the Government to seek to reach consensus on their negotiating position with the devolved Administrations. The amendment does not ask for the Government to do anything more than they have already undertaken other than to report on what is going on to Parliament, but we need it in the Bill, not least because the undertakings given by the Government have already been honoured more in the breach than in the observance.

Neither the content of the Prime Minister’s Lancaster House speech nor the White Paper was discussed at the JMC; indeed, the devolved Administrations were given virtually no notice that either was imminent. This is particularly regrettable given that the Prime Minister convened a full JMC at heads of government level on 30 January, just three days before the White Paper. The gentle encouragement and legal requirement in the amendment are, therefore, needed.

Amendment 21 also requires Ministers to consult the devolved Administrations on any agreement, both on our exit from and on our future relationships with the EU, and to report on such discussions. That is the least that this House would expect before we form our own view of those agreements. As the Supreme Court recognised in the Miller case, leaving the European Union has profound implications for the devolved Administrations, because they have direct responsibility for some of the areas—such as agriculture, fisheries, the environment and economic development—that are most regulated or influenced by the EU.

This has been explored helpfully in relation to the environment by our Select Committee on the EU in its thoughtful report Brexit: Environment and Climate Change, which devoted a whole chapter to devolution. While acknowledging Andrea Leadsom’s admission that, in relation to the great repeal Bill, perhaps a third of the environmental regulations will not be easy to transpose, our committee considered that, in the absence of an overarching EU framework, the four parts of the UK could see considerable divergences in their environmental law. As we know, rivers flow, winds blow and the sea covers many shores, so it will be essential that the Government’s negotiations in this area are completely harmonised with the thinking in the devolved Administrations.

Furthermore, changes relating to non-devolved policies will have huge significance for devolved Administrations, particularly if the Government whisks the UK out of the customs union. Needless to say, any such decision could threaten the open border in Ireland, as we discussed on Monday. With the UK Government free to develop their own trade policy, that could undermine key policies of the devolved Administrations. As the Welsh Cabinet Secretary for Environment and Rural Affairs pointed out, a free trade agreement with New Zealand that permitted tariff-free imports of lamb could completely undermine Welsh hill farming and, with it, the environmental well-being of the Welsh uplands. I just realised that I lost my daffodil, today of all days.

This modest amendment, asking the Government to commit to consult the devolved Administrations and report on that, is wholly in the spirit of the Sewel convention, which requires Parliament to consult those bodies on legislation that affects their competences. I understand from the somewhat weasel words of the White Paper that the Government believe that they should take powers currently exercised by the Commission to themselves over areas that are wholly devolved, such as agriculture and environment. Needless to say, that would be absolutely unacceptable to the Scottish and Welsh Governments, as well as inconsistent with devolution legislation, because that qualifies the devolved legislatures’ freedom to act only by requiring them to do nothing that conflicts with EU legislation. Clearly, that is going to be meaningless post our exit from the EU.

This was recognised by the Supreme Court, which said:

“The removal of the EU constraints on withdrawal … will alter the competences of the devolved institutions unless new legislative constraints are introduced. In the absence of such new restraints, withdrawal from the EU will enhance the devolved competence”.


Should the Government, however, wish to introduce such constraints, this could provoke—as it was kindly called in one of the meetings that I went to—a constitutional fracas, which we can ill afford just when Brexit provides the most significant political challenge in a generation.

The White Paper Securing Wales’ Future, issued jointly by the Labour-led Welsh Government, which includes the Liberal Democrat from my home seat of Brecon and Radnor, and Plaid Cymru, sets out an alternative, which would both preserve the devolution settlement and recognise legitimate concerns about potential market distortions if each part of the UK acts independently on things such as farm subsidies, emissions or pollution once they are no longer regulated by the EU. The Welsh White Paper argues for a new set of constitutional arrangements based on voluntary agreements in devolved areas between all four Governments, supported by independent arbitration. There would be similar structures for the non-devolved issues such as trade agreements and state aid, which have major implications for devolved polices.

We on this side have not had time to consider these matters in detail, but the Government should now turn their attention to them. Amendment 21 therefore suggests joint ministerial committees only as one vehicle. Another constitutional settlement looks to be necessary and there may be another way forward. I urge the Government both to prove that they are earnest in their commitment to working with the devolved Administrations on the many complex issues and to look forward to how in future they can all work together. I beg to move.

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[Lord Keen of Elie]

My Lords, I can absolutely assure the noble Lord that we are taking into consideration not only the White Paper from Wales but the submissions prepared by the Scottish Government. All these matters have been taken into consideration in the context of our negotiating position following the triggering of Article 50. All the proposals outlined in these papers will be the subject of keen scrutiny by the Government. What we are considering today is a Bill to implement the referendum result and respect the judgment of the Supreme Court. We are not engaged in considering a vehicle for determining the terms or shape of the broader negotiations that will follow the triggering of Article 50. As has been said on many occasions, that will be a hugely important milestone for the United Kingdom but it is only a milestone, not a cut-off point. It is not the end of the process—it is merely the beginning.

Since the referendum result there has been regular and ongoing political engagement. I noticed that the Prime Minister’s very first visit following the referendum result was to Edinburgh, quickly followed by Cardiff and Belfast. I remind the House that the principles which underpin relations between the United Kingdom Government and the devolved Administrations are set out in a memorandum of understanding. There is the joint ministerial committee which should operate—I say should—by consensus, because as the noble Lord, Lord Empey, and the noble Earl have observed, it is not always possible to achieve consensus, but these bodies have that aim.

At the plenary session of the joint ministerial committee in October last year, the four Governments agreed to create a Joint Ministerial Committee on EU Negotiations, chaired by the Secretary of State for Exiting the EU. Under that structure, Ministers and officials from the UK Government and the devolved Administrations have engaged closely in the process of considering our exit from the European Union. That committee has been meeting monthly and a wide range of matters has been discussed on each Government’s requirements for the future relationship with the EU, and the future relationship between the devolved Administrations and this Government.

Over the autumn, we also undertook important work with the devolved Administrations to fully appreciate their priorities and interests. In that context we have taken account of the publication that the noble Lord referred to—namely, the White Paper from the devolved Administration in Wales, and the Brexit papers published by the Scottish Government—which was submitted to us for consideration in the context of that process.

Outside the formal processes that I have described, we have also engaged extensively with stakeholders in England, Scotland, Wales and Northern Ireland to try to ensure that the interests of all these areas are reflected in our negotiations with the European Union. Ministers have regularly visited the devolved constituent nations of the United Kingdom on numerous occasions for the purposes of those discussions. They have met with a whole variety of stakeholders from SMEs to multinational companies. We have met with MSPs as well. We have tried to engage right across the areas of interest that will be touched upon by our departure from the EU.

A point that was alluded to by a number of noble Lords was how the devolved Administrations will be engaged in determining where repatriated powers should sit in the future. It is a matter of interest to all of us. We must work carefully to ensure that, as powers are repatriated from Brussels back to Britain, the right powers are returned to the United Kingdom Parliament, and the right powers are returned to the devolved Administrations—whether in Scotland, Wales or Northern Ireland.

This will be a matter for further discussion. The Prime Minister has been clear that no decisions currently taken by the devolved Administrations will be taken from them. That is not the end point, but the starting point for this form of negotiation, and we appreciate and understand the importance of addressing how we deal with the repatriation of the acquis in due course. It is important to have these debates, but it is equally important not to tie the Government’s hands as they approach the forthcoming negotiations. In these circumstances, I invite the noble Baroness to withdraw her amendment.

[Baroness Hayter of Kentish Town]

I thank the noble and learned Lord for his response. My only response is to the noble Earl, Lord Kinnoull, where I agree with the noble Baroness, Lady Ludford. The only agreement was about the way to talk and that wording is the JMC’s terms of reference at the moment. The Minister said the Government are trying to engage—I say let us try a little harder. The lack of pre-information, before the White Paper, caused a slight frisson, but maybe that is well behind us. I hope that we are marching forward on slightly firmer ground. On that basis, I beg leave to withdraw the amendment.

Amendment 21 withdrawn.