European Union (Withdrawal) Bill

Baroness Ludford Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[The Earl of Clancarty]

I am not sure that is the case at all. It is very likely that visas will be introduced.

[Baroness Ludford (LD)]

It may well be that we benefit from a visa waiver but it is also likely that we will have to apply for what is often called a “visa lite”, which similar to the United States’ ESTA. The EU is bringing in something called ETIAS and for most people it will not amount to a big difference: you have to go online, pay a fee and answer lots of questions about health, criminal background and so on. We may not require a visa but we will need a “visa lite”, so it will not be hassle-free.

[The Earl of Clancarty]

Absolutely. Whatever happens, we will be at a disadvantage to everyone else in Europe and that is really significant.

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[Baroness Ludford]

My Lords, I shall speak to Amendment 202, which is in the name of my noble friend Lady Smith of Newnham, who is unfortunately unable to attend because of illness. It is also in my name and that of my noble friend Lord Roberts of Llandudno and the noble Lord, Lord Judd. Before going on, I fully agree with what has been said in this debate about the need to retain EU citizenship for us all, and about the hypocrisy of some of those who supported and continue to support leave, but who have somehow managed to acquire a passport of an EU member state, such as Malta. That enables them to continue enjoying the benefits which they are quite happy to deprive the rest of us of.

Amendment 202 calls on the Government,

“to maintain, preserve and protect the rights of”,

EU citizens in the UK. I therefore very much agree with the remarks of the noble Lord, Lord Cormack, about the fact that that has not been done. We are seeking a guarantee that existing rights will remain unchanged. The Government have had the opportunity in the last 21 months to give a unilateral guarantee that existing rights would be retained. They were invited to do so by the EU Select Committee, in a report produced under the chairmanship of the noble Baroness, Lady Kennedy of The Shaws—I had the pleasure to serve on that sub-committee—but have not done so. They also had the opportunity to try to ring-fence the discussion about citizens’ rights from all the other matters being discussed within the withdrawal agreements but, unfortunately, they have not done that.

EU citizens resident in this country and British citizens resident in the EU 27 have indeed been used as bargaining chips. That has led to great distress for many of the 5 million affected citizens, who live in a state of anxiety and limbo that was not helped by the words of the Prime Minister in her speech to the Conservative Party in October 2016 about “citizens of nowhere”. She has now resiled from that kind of terminology, but unfortunately the damage has been done in that the tone is somehow one of, “You do not belong here if you have multiple allegiances. It is not good enough to be a contributing and responsible person in this country”. The Government still have a chance to offer unilateral guarantees and I invite the Minister to tell us today that he is going to ignore the mire into which all of this has become embroiled and just give a straightforward guarantee.

Many ambiguities and gaps still exist in the current state of play over the discussions about settled status. Some of the issues are being taken up in correspondence with Home Office Ministers on the part of the EU Select Committee. The problem is that settled status is not the retention of the same rights and protections that EU law currently confers on people; it is based on UK immigration law and has all the features of that law, including the hostile environment that is currently being created. People will have to apply for settled status. It will not just be a question of carryover or cut and paste—they will have to apply. Apparently, the Home Office expects the vast majority of cases to be granted, although that begs the question of which ones will not be granted to people who are currently resident here.

[Lord Green of Deddington]

Will the noble Baroness explain how we could possibly deal with several million people unless we invite them to apply?

[Baroness Ludford]

There could be a simple declaratory process. If any parliamentarians in this Chamber have ever had to deal with the Home Office on behalf of one of their constituents, as I did when I was an MEP, they will know what a happy—or otherwise—process that is. Something simple and declaratory such as going to the local town hall could be worked out. It should be light touch: a declaration of existing residence. That is quite different from having to apply to the Home Office.

The fear has been expressed on behalf of the group, the 3 million, that perhaps around 10% of people might fall through the cracks because their application is rejected or because they do not apply. Some people are not very aware of what is going on in the law or they do not have access to computers and so on. There is no legal presumption in favour of granting settled status to all residents who are legally living here before exit day, which begs another question. Perhaps the Minister could explain to us what exactly is going to happen to those people who arrive during the transition period. That, of course, is something the Prime Minister has conceded, in that they will have a status, but it is slightly unclear how it is going to work.

There has also been no clarification of the continuation of all the individual economic rights and recognition of qualifications that EU citizens currently enjoy and, as I have said, no guarantee that the registration will be simple and light touch. There is supposed to be a digital application system. Can the Minister tell us exactly where we are in the construction of that system? We all know that IT projects, in particular Home Office IT projects, have a habit of becoming problematic. Moreover, the backstop to all this is that the European Parliament will have to approve the withdrawal agreement, including the conditions for EU citizens. I note that Mr Verhofstadt tweeted yesterday,

“the European Parliament expects a cost free and burden free registration process”.

It wants to ensure that there is no discrimination between EU citizens and British citizens, which of course raises the question: are the Government planning to introduce ID cards by the back door in order to say that we are all being treated the same?

There are many holes and gaps that the Home Office is still unable to answer questions on. I do not have time to cover them all but I would like to ask about comprehensive sickness insurance—the requirement that people have private medical insurance—because very mixed messages are being given about it. The position of the European Commission has always been that if people are allowed to use the NHS, that amounts to comprehensive sickness insurance under the directive. It started legal action but that has apparently not progressed.

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[Lord Green of Deddington]

I am very puzzled as to how any of this is relevant to the Bill we are discussing. Does the noble Baroness not understand that this kind of stuff, which is being repeated time and again, is actually doing more harm than good? It is raising issues for people who do not face them. It is quite clear that the maximum is being done to help people qualify for residence in the UK. We could not do more than we have done. Frankly, this is just making trouble.

[Baroness Ludford]

It is highly relevant to whether people are being guaranteed their existing rights to legally reside in this country. I am quite surprised that the noble Lord thinks it is not relevant to an amendment that is about maintaining and guaranteeing the existing rights of EU citizens. The confusion is caused by the Home Office’s lack of clarity, not by me.

I end on that note. I would like some answers from the Minister to these detailed questions and many others.

[Lord Mackay of Clashfern (Con)]

My Lords, I want to make two short points. The first is that the precedent of giving rights in other countries when there is a separation is set up very well by the arrangements between ourselves and the Republic of Ireland in relation to Irish citizens and their rights in our country, which are guaranteed by statute in a number of cases.

Secondly, on the idea that we have to refer all these matters to the European court, anyone who reads the judgments of our courts from day to day will realise that the fairness they exhibit towards foreign citizens is of the highest possible standard. I know of no country in the world and no court in the world that succeeds in getting a higher standard; there are others that have an equally high standard, but I know of none that has a higher one. It would be a most retrograde step for this House to do anything that suggested to people in Europe that they could not get justice from the courts of this country.

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[Baroness McIntosh of Pickering]

My noble and learned friend is talking in the context of this being an international treaty that has to be transposed into UK law, but surely the amendment addresses the issue of the supremacy of European Union law, which citizens of the EU currently rely on when they live in this country. I thought that the purpose of the amendment was to make sure that those rights continued to exist and would be clarified. That is all that we asking in the Committee today.

[Baroness Ludford]

My Lords—

[Lord Keen of Elie]

With great respect to the noble Baroness, I think that I must respond to my noble friend Lady McIntosh.

Again, that argument rather misses the point, because what we have at the moment is a belief on the basis of the joint report that rights of EU citizens in the UK may be referred to the Court of Justice of the European Union after Brexit, but that is not finalised; it is not yet contained in an international treaty agreement.

[Baroness Ludford]

We have always understood that we cannot unilaterally guarantee in the context of what is now happening an agreement of two parties. What was said from the very beginning, immediately after the referendum, was, “Give a unilateral guarantee and then we can with almost 100% certainty expect full reciprocity”. That was always what was suggested.

[A noble Lord]

Ha!

[Baroness Ludford]

Yes, I would say to the sedentary noble Lord.

[Lord Keen of Elie]

With respect to the noble Baroness—who I think invited me to drop all the mire; I am not sure what I am supposed to do about that—the expectation of reciprocity is something that we hope to achieve during the negotiation, and that is ongoing.

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[Lord Keen of Elie]

My Lords, I, too, am grateful to the noble Lord, Lord Beecham, for making that point. I would add only that I spoke as a Minister of this Government in expressing that view, because I spoke from the Dispatch Box when I made it clear. I can refer the noble and learned Lord, Lord Goldsmith, to Hansard in regard to that point. Of course, the origins of the remark may not have had quite the impact that it could otherwise have had if coming from another source—I do not seek to elaborate on that point.

Sometimes it comes ill to counsel to listen rather than to speak, but this is an occasion when it is entirely appropriate for me and for the Government to listen to what has been said. I am extremely grateful for the contributions of all noble Lords and noble and learned Lords with regard to the formulation of Clause 6(2). I refer to the formulation of the clause because I believe we have a common desire to ensure that we give appropriate, effective and clear guidance, in so far as it is required, to the judiciary regarding what is a relatively complex issue. Of course the noble and learned Lord, Lord Hope, pointed out that in the normal way one might delete Clause 6(2) and allow the courts to deal with this as they deal with other matters of comparative law, but he went on to point out—quite correctly, I submit—that here we are dealing with a very particular situation where guidance may be needed. I am conscious of the way in which the various amendments have evolved.

The noble and learned Lord, Lord Neuberger, also referred to Clause 6(4) and the issue of whether and when the Supreme Court might decide whether to adhere to precedents in this context. I bow to the far greater experience of the noble and learned Lords, Lord Neuberger and Lord Hope, who sat in the UK Supreme Court. My limited experience is that, where I attempted to persuade them to adhere or not to adhere to a particular precedent, they had no difficulty in making their own minds up.

Be that as it may, I recognise the force of the points that have been made. They have come from beyond this House as well because, as noble Lords will be aware, the Constitution Committee also made some recommendations about this. Indeed, its early recommendation in March 2017 was,

“the Government may wish to consider whether the Bill should provide that, as a general rule, UK courts ‘may have regard to’ the case law of the Court of Justice (and we stress that it should be optional)”.

Indeed, we were having regard to that as we looked at Clause 6(2).

A point was made about the distinction between “may” and “must” in the amendment of the noble Lord, Lord Pannick. It occurs to me that, where he uses “must”, he goes on in his amendment at (2C) to qualify the context in which that word is used, and there may not be a vast gulf between “may” and “must” in the context of the two amendments that have been tabled. Of course, that which was recommended by the Law Society of Scotland has the merit of some simplicity and embraces the same point.

At this stage I would add only that the Bingham Centre looked at the current recommendations of the Constitution Committee that lie behind the amendment in the name of the noble Lord, Lord Pannick, and raised concerns about a number of aspects of the formulation put forward by the committee. However, I make it clear that we greatly appreciate the contributions that have been made to this part of the Committee’s debate. We will go away and consider the various formulations, and I believe it would be sensible for the Government to engage with various interested parties once we have come to a view about how we can properly express what we all understand is necessary policy guidance in the context of this exceptional step. Against that background, I invite noble Lords to consider not pressing their amendments at this stage.

[Baroness Ludford]

I know I will not be popular by holding things up, but the Minister was specifically asked if he could explain the reference to,

“another EU entity or the EU”,

in Clause 6(2). I do not know whether he feels he could do that. Does it have any reference to the European Commission? The Prime Minister said we would have a binding commitment to follow EU state aid and competition law, and I wondered if it had any relevance in that context.

[Lord Keen of Elie]

I am not going to elaborate at this stage because, as I say, the Government are going to go away and consider the proposals for an amendment to Clause 6(2).