Brexit: Acquired Rights (EUC Report)

Baroness Kennedy of Shaws Excerpts

Tuesday 4th July 2017 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

To move that this House takes note of the Report from the European Union Committee Brexit: acquired rights (10th Report, Session 2016–17, HL Paper 82).

[Baroness Kennedy of The Shaws (Lab)]

My Lords, in the immediate aftermath of the referendum, the European Union Justice Sub-Committee, which I chair, embarked on an inquiry into one of the most pressing issues to arise: what happens to the rights of European Union citizens who live in the UK, and what happens to the rights of UK citizens living in other parts of Europe? Being part of the European Union means that people can live, work, study and set up businesses in a member state of their choosing. Millions have chosen to do that. While the report we published did not deal with commercial rights, many of the legal principles applied as much to companies as to individuals.

Before the referendum, there was a lot of speculation and claims that people would be protected by the doctrine of acquired rights in international law, so that they could just carry on as before. This turned out to be what nowadays is called “fake news”. The evidence we heard was clear that this was a red herring and it distracted from the very real problems posed for people by our withdrawal. International law provides no meaningful protection. The committee received anguished letters from families, and it is family issues that will be most testing for the Government. This is about people and their lives. When we talk about trading, at the end of the day its purpose is to enhance lives. In the end, it is always about human beings.

We recommended that the UK Government should take unilateral action. We felt that that was the moral thing to do and that it should have been done before we ever entered into negotiations. We urged that upon the Government, but it was not accepted. The Government’s response was that this might leave at risk our citizens living in other parts of the European Union. Unfortunately, the response seemed to be, “If we can’t help everybody, we’ll just help nobody”, so it was left until now, and it is still looking very difficult to resolve.

We accepted that the much-vilified European Convention on Human Rights might provide some protection, particularly against deportation. It would also protect against loss of possessions, physical or intangible, such as commercial rights, which are currently protected by European Union law. Similarly, bilateral investment treaties might provide limited safeguards for investors from losing European Union rights, but only when to do so does not clash with European Union law.

However, it become very clear to us that the thousands of rights that derive from European Union law are simply not replicated in other instruments, and there would be a real deficit of rights without an agreement to protect. Professor Sionaidh Douglas-Scott and other very distinguished legal experts gave evidence before us that certain European Union rights could be protected only within the withdrawal agreement itself. That was the inescapable consequence of the evidence we had. The Government, it seems, are coming to agree. Any agreement on citizens’ rights will end up being binding under international law. Many of our British folk living in other parts of the European Union believe that the offer being put on the table by the European Union 27 is a more comprehensive offer, and we should listen to what they are telling us.

We recommend that the rights safeguarded in any withdrawal agreement should be frozen at the date of Brexit. We emphasised that the majority of such rights would be reciprocal, with parallel European Union rights, and it was therefore necessary that they be applied consistently with European Union rights. In other words, there would have to be a level playing field. That means that as the parallel European Union rights evolve over time, so it is likely that UK law will have to evolve with them.

The 27 are urging that the ultimate overseer should be the European Court of Justice. That is the question that we have to keep asking: who has the last word? We will come up against that question time and time again in the course of these negotiations over all manner of rights. When you have cross-border relationships—whether they are trading relationships, relationships through marriage or relationships on consumer rights—you will end up having to ask that question. Who has the last word? Who will be the ultimate arbiter?

I am not alone, nor were my colleagues on the committee, in being concerned about this matter, which seemed to be neglected by having a line drawn through any possibility of our having anything to do with a supranational court. We made it clear that a mechanism could be developed to ensure that UK law takes account of developments in EU law in the jurisprudence of the European Court of Justice, and that EU law takes account of relevant developments in UK law in the same way, so that it is reciprocal. That is what happens in the EEA under EFTA. Some sort of court has to exist. The EU 27 have made their offer, and the Government have now made a corresponding offer, but questions remain to be settled. There are serious and important questions.

I remind this House of something that has come from the Bar Council. Lawyers who have been looking at this emphasise:

“Rights are not worth much if they cannot be enforced”.


So the issue is very much about enforcement. They state:

“Clear and useable enforcement mechanisms are essential to the rule of law. Certainty is currently provided by the interpretive role of the”,


European Court of Justice,

“and to reject this would deprive EU citizens in the UK of that safeguard”.

They point out that you have to deal with the problem that can arise when someone says, “The courts in Britain are not protecting my rights as a European”, and that there may have to be resolution somewhere else. In the same way, a British person living in Spain may feel that the Spanish courts are not doing the right thing by them with regard to their rights and will want to go to a court beyond Spain—perhaps to the European Court or some such court, depending on what we arrange. The Government have to be mindful of that.

A number of questions still arise and I ask the Minister to respond to them. Is settled status for life? That is a question being asked by Europeans in Britain and our citizens living in other parts of Europe. Will European Union nationals lose their right to vote? If they are given settled status surely they should be allowed to vote, not only in local and European elections but also in our general elections if they live here and pay taxes. Will they be able to bring in spouses without meeting the UK’s minimum income threshold requirement? Will European Union citizens have the same rights as UK citizens, where families, including parents, dependants, adults and children, can move from one country to another? As my mother could come down from Scotland and live with me, or children I may have had before who lived in Scotland or in Ireland could come and join us, can a settled French family bring over their granny to join them? Could a woman who has remarried in Britain and has been living here for 15 years bring over her 17 year-old son she had previously when she was living in Germany with her German first husband to join her here at this stage? If he was shared between the two of them over the years and spent his summer vacations here, could he come to university here? What are the family reunification rights?

The same question will be raised by British people who live in other parts of Europe. Will they have reunification rights with regard to family? What happens to EU nationals married to Britons who are not exercising EU treaty rights, such as housewives who are not working, not setting up companies, but doing important work in rearing children? Will they get settled status too or will they have to apply under UK immigration rules, requiring therefore another five years’ spouse status before qualifying for indefinite leave to remain? Will rights to pensions, healthcare, work, rights of establishment and mutual recognition of qualifications all be safeguarded?

Can we ring-fence a definitive agreement soon in advance of other parts of our negotiations? We keep hearing that it is not over until it is over but some people want it to be over and want to know now what the position will be because uncertainty is so painful. These are deeply serious matters because, in the end, it is about human lives.

The issues of contention will be resolved initially by immigration departments—we know this—but will end up being dealt with by poorly trained officials making significant decisions against tight deadlines, and the risk of endless litigation is high. More than 3 million people in Britain alone will be making applications for this special status. What will we do about administering those applications in a fair and just way? Our relations with the rest of Europe and our neighbours abroad will be deeply damaged if we get this wrong. Getting it right from the outset is vital and it should be done in a spirit of generosity, not pettifogging strictures to keep people out. I urge the Government to be welcoming and to make any system simple and clear, and to give people certainty soon.

I hope the Government will welcome our report. We have received no response from them and I am looking forward to what the Minister will say tonight.

--- Later in debate ---

[Baroness Williams of Trafford]

I will.

[Baroness Kennedy of The Shaws]

I want to ask the noble Baroness a similar question. I raised an issue that arose from a letter that the committee received. It involves a family where an Englishman is married to an Italian wife, his wife is an only child and her parents are elderly and in Italy. It is expected that, when one of her parents—the in-laws—dies, the lone in-law is allowed to come here, but it may not be within the next two years. What happens in that situation? Will it be possible for an in-law left alone in another country in Europe to be able to join their daughter or son to live here?

[Lord Kennedy of Southwark]

Can I possibly ask a question and then we can get it all out in one go? The noble Baroness just said that families can apply for settled status. Is applying for settled status a formality, or could it be refused?

--- Later in debate ---

[Baroness Williams of Trafford]

I will write to the noble Lord on the absolute detail about whether it could be refused. I am sure there will be circumstances under which it could be refused, and I can imagine the sort of circumstances that we might be talking about. As I have said, we intend settled status to be a very simple process, literally perhaps proving, perhaps with a gas bill or a rental agreement, that you are actually here in the UK. I will write to the noble Lord on the circumstances under which it might be refused.

I was about to come on to the noble Baroness’s question about the ability of those currently resident in the UK to bring in family members after we leave the EU, such as the elderly member of that family. It is important to note that they will have the opportunity to do so either by applying under post-exit immigration arrangements for EU citizens who arrive after the specified date or by applying under the same rules as those joining British citizens. I hope that answers the question.

[Baroness Kennedy of The Shaws]

I am sorry, but I have just one more point. It is another letter from someone who came here as a European and bought a property here but because of his work is now working abroad. Is that continuing tie of owning a property in Britain enough to establish his entitlement to apply for settled status?

[Baroness Williams of Trafford]

Can I write to the noble Baroness on that as well as I do not want to give her duff information either?

The noble Baroness, Lady Ludford, asked about the income threshold to qualify for settled status. EU nationals will not have to meet the income threshold. Further details on the eligibility criteria will be set out in due course, but the policy document sets out what the essential conditions will be—an applicant who arrived before the cut-off date and has been resident for five years and has had an assessment of conduct and criminality. That goes to my point, which I will clarify with the noble Lord, about refusal of settled status.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

I thank everyone who has participated in this important debate. It has emphasised that this is not an easy matter and that reaching an agreement is vital because people want certainty—people from other parts of Europe who are living in this country, contributing hugely to our society and enriching our lives, and our citizens living in other parts of Europe who are enjoying and taking delight in having lives there. We owe it to all those people to resolve this matter generously and speedily, and in a way that will not be expensive but recognises that rights need courts. There is no denigration of our judges in saying that at the end of the day people will ask, “Where is there a court beyond?”, if they feel that our nation or the nation that someone is living in in Europe is not meeting their rights. I am afraid that the Government will have to give careful thought to how to resolve that very difficult issue.

I thank everyone, including the Minister, who has kindly responded to this debate.

Motion agreed.