European Union (Notification of Withdrawal) Bill

Baroness Ludford Excerpts

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

[Viscount Hailsham (Con)]

My Lords, in supporting this group of new clauses and amendments, I shall vote for any one of them that is most likely to commend itself to your Lordships’ House.

Perhaps I may begin by acknowledging that the Government have indeed shown sensitivity about this issue. Their position is essentially pragmatic. Their case is that unilateral action will not address the needs of UK citizens now resident in Europe. In essence, the Government’s position is that in order to increase the leverage that they have with the EU as regards UK citizens residing in Europe, they wish to keep on the table, as a bargaining chip, the right of EU citizens resident in the United Kingdom.

While I understand that argument, I remain extremely uncomfortable with it. I cannot accept the assumptions and implications inherent in that policy. We need to remind ourselves of the central facts, which are these: there are millions of EU citizens—maybe over 3 million—who have come to this country in the legitimate expectation that they will be able to live and work here for as long as they choose. For many of them, that has been a career-changing, maybe even a life-changing, decision, which may be irrevocable.

Their decision was entirely reasonable and proper, based on their assumptions. It accorded with the law that then existed. It accords with the law that exists today. For the United Kingdom now to disturb that expectation would involve an act of retrospective legislation and policy that would offend natural justice and, I suspect, the principles of human rights legislation. Indeed, it is probable that if we seek to deny European Union citizens now resident in the UK the right to continue to stay here, we would be challenged in the courts, and that challenge might well succeed.

Moreover, as a matter of general principle, legislation and policies that are retrospective in their operation should be avoided. Individuals are entitled to regulate their affairs in accordance with the law that exists at the time they make their decisions. To depart from that principle exposes all of us to risk to our freedoms and our ability to make safe choices.

I suggest that we test this this way. Many of us have relatives who were born outside the United Kingdom. My paternal grandmother was born in Tennessee. She came here to marry her first husband, who alas died, then she married my grandfather while she was living here. Both my maternal grandparents were brought up in County Galway. They came here after the First World War to settle permanently. Had my grandparents’ right to reside in those circumstances been challenged, and had I been aware of it as an individual, I would have said that that was a profoundly unconscionable prospect and I could not have supported it.

I cite a more recent consideration. On Monday I was lunching in the Members’ Dining Room of the House of Commons, where I was meeting staff whom I have known for many years. One of the waitresses there whom I have known for years came up to me and said, “What is going to happen to me when Brexit takes place?” She was born in France, but she has worked in the United Kingdom and been in the House of Commons for many years. I gave her my personal opinion, which was that there would be no problem, but I was not able to give her the guarantee she was entitled to deserve.

In the end, this is a matter of principle. This House can make a unilateral decision and give a unilateral guarantee. That is what we should do. Let us all remember how shocked we were when Idi Amin expelled the Asians from Uganda—so shocked that we offered them refuge in this country. Indeed, for those who are historians, keep in mind how shocked Europe was when Louis XIV revoked the edict of Nantes, causing thousands of Huguenots to flee France—often to this country—to its great impoverishment.

I do not say that we are going to do this. I do not think it likely that we will. But we have not put it outside our power for it to happen. That is wrong. I ask your Lordships to take the moral high ground and give reassurance to the millions who have made their home here in the expectation that they can continue to live and work here. To the pragmatic among my noble friends who sit on the Front Bench, such as the noble Lord, Lord Bridges, I say this: the moral high ground is very often the best ground on which to fight a campaign.

[Baroness Ludford (LD)]

My Lords, in supporting Amendment 9B I shall speak also to Amendments 25 and 41. It is a pleasure to follow the powerful speech of the noble Viscount, Lord Hailsham, and to agree with the noble Baroness, Lady Hayter. I assure the House that the colour co-ordination between us is a complete coincidence.

The Government’s case is that these matters will be dealt with in negotiations. They claim that, but for the obduracy of our EU partners, they would have had a negotiation before the notification of Article 50. It was never realistic to expect ad hoc negotiations on one particular very important issue in advance of notification. There has to be an expectation of structured negotiations.

If the UK Government give a unilateral guarantee now to the millions of EU citizens who are contributing in this country, not only will they be doing the right thing morally and economically but they will be supplying a crucial catalyst for a quick reciprocal deal. It was reported in the newspapers on Monday that the Prime Minister expected to reach a quick deal on the issue, so that it could be removed from the rest of the Brexit negotiations as soon as possible—an expectation which I think would generally be supported—but the truth is that the Government are holding EU citizens here not as hostages and bargaining chips for British citizens in the EU but for other goals. It is disingenuous to inflame the fears of British people settled elsewhere in Europe that their case would be undermined by a unilateral move by the British Government. I think that those groups have appreciated that their case would not be so undermined.

The noble Baroness, Lady Hayter, mentioned some of the figures about the contribution of EU nationals to our economy. It is worth remembering that 10% of doctors here are from other EU countries. Sadly, there are reports of many of them wishing to leave or of others being deterred from coming here because of the uncertain environment that they face. Nine per cent of the workforce in construction are continental Europeans —my noble friend Lord Stunell emphasised that—with all the infrastructure ambitions that we have in this country. Similar figures, of 10% and 14%, can be cited for other sectors.

There were rather conflicting press reports earlier in the week about the Government’s intentions regarding a cut-off date. On Monday, it was reported that it was intended to set a cut-off date of 15 March—one’s instant reaction was, “beware the ides of March”—because it was said that government lawyers had advised that using the date of the referendum would be illegal. There was considerable comment that using any date short of our departure from the EU could also be illegal, because while we are in the EU free movement rights continue. There was then a rowing-back from No.10.

The Home Secretary, Amber Rudd, has stated that after Britain leaves the EU,

“we will be ending free movement as we know it”.

Not only must that apply to arrangements for the future but it must have some significance for people already here. While we are in the EU surely EU law on free movement, as on other matters, applies. Indeed, the letter from the Home Secretary states that,

“nothing will change for any EU citizen, whether already resident in the UK or moving from the EU, without Parliament’s approval”.

If that can be said, I think the Government can be in a position to make the unilateral guarantee that I hope this Committee will back today.

I want briefly to mention the problems that EU citizens, and particularly their families, are having in applying for permanent residence at the moment. Last July, the then Immigration Minister, James Brokenshire, gave assurances that nobody needed any documentation to demonstrate that they had a right permanently to reside if they had acquired five years’ permanent residence. I bobbed up and down occasionally to say, “But surely they will need some of kind documentation”. That has proved to be true. It has proved to be an 85-page document. One witness to the Brexit Select Committee in the other place displayed 34 kilograms of documentation, and she was only halfway through the collection. She had been here for 30 years, but she had to show the Home Office evidence of every time that she had entered and left the UK. Has anyone kept documentation for 30 years?

The goalposts have been moved retrospectively. People are being asked to document every move in their lives and they are being required to prove that they have private medical insurance. Although they were previously entitled and allowed to use the NHS, they are now told—having never been warned throughout possibly decades of residence—that they are not entitled to use the NHS. This is a matter of legal dispute, and I believe that the European Commission is making a statement on that subject to the European Parliament this afternoon. We might be enlightened about possible future infringement proceedings.

The upshot is that people are living in a state of anxiety, uncertainty, real dismay and turbulence. This is surely not a state of affairs that a Government whose Prime Minister has talked about the need for a kind and fair society can tolerate. The Government ought to accept that the weight of opinion is in favour of that unilateral guarantee, which will then trigger similar rights for Britons abroad.

--- Later in debate ---

[Lord Empey]

I am not disputing that. We have had agricultural powers in Northern Ireland for even longer, but they are confined within a broad policy set by the CAP. Yes there is micro stuff, and I am 100% for that; I am simply saying that there is a big gap. However, we are talking about putting these amendments into the Bill, and that is a different matter entirely. This is a perfectly sensible discussion to have, and I totally support the idea that there has to be real and meaningful engagement between the Government and the devolved Administrations. I have sat on the JMC, and there are all the players on it that we need—provided that they are prepared to work with each other. Sadly, the evidence is that they have not done so.

I hope that the Prime Minister persists, and however she has to do it—through informal mechanisms, or whatever—I would be 100% in favour of that. However, I come back to the point that we are talking about a Bill to trigger Article 50. The idea of handing things over to devolved Administrations that are hostile to the very concept and expecting them to go along with it is totally unrealistic. I therefore oppose the amendments.

[Baroness Ludford]

My Lords, I want to add the support of my Front Bench for the amendment and the words written by my noble friend Lady Randerson. Not only do I personally not come from Scotland, Wales or Northern Ireland, but I am a Londoner, and I want to make it clear that it is not just the people represented by the devolved Administrations who care about diversity and plurality in this nation. Frankly, none of us, even Londoners, can be at ease if the union does not work properly.

In discussions on the Bill I have heard a lot of people say that they agree with the substance of what is being proposed, but that it must not appear in the Bill. I think it is about time to put some things in the Bill. The noble Earl, Lord Kinnoull, said something on this subject. Amendment 21 is only about arrangements for consultation and how views are to be taken into account; it is about mechanics. So some of his criticism was not quite justified.

[The Earl of Kinnoull]

I was referring to subsection (1) of the proposed new clause, where it says that the arrangements “have been agreed”. The word “agreement” surely means agreement.

[Baroness Ludford]

It is agreeing on arrangements. It does not mean that you agree on the outcome. It is agreeing arrangements for consultation and how views will be taken into account. It does not specify that everyone will agree on the final outcome. All I wanted to do was put down a marker. You do not have to be from a devolved region or nation to support this amendment. Even a dastardly Londoner can do so.