Brexit: Acquired Rights (EUC Report)

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 4th July 2017 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I too congratulate the committee and its staff on producing this excellent report, and the noble Baroness, Lady Kennedy, on her illuminating opening of this debate. There is comparatively little I want to say about the substantive rights of EU citizens and their families to be enshrined in the withdrawal agreement. Mostly, I will focus on the enforcement of that agreement.

As to substantive rights, to my mind it is unsurprising that once we leave the EU, so that EU nationals no longer enjoy EU citizenship rights as such, we shall wish to put those who come to acquire settled status here on the same, rather than better, terms than British nationals, not least with regard to bringing in family members from overseas.

I would also entirely understand it if the UK were to reject what I understand to be proposed as a term of the rights to be protected—this is in paragraph 21(b)(ii) of the annex to the European Commission’s negotiating directives of 3 May—namely, certain social security rights, set out in two particular EU regulations,

“including future amendments of both Regulations”.

Surely, after withdrawal, acquired rights must be as fixed at that date—

“frozen as at the date of Brexit”—

as is suggested in paragraph 136 of the committee’s report.

As to the questions asked by the noble Baroness, Lady Kennedy, on how long into the distant future such rights will remain, I suppose that they will last as long as the person remains settled, with the consequent right in future to apply for UK citizenship. Perhaps the Minister will tell me whether my supposition is correct.

It is suggested that the EU 27 are disappointed by our proposals for EU nationals living here. What precisely, besides the question of enforcement, are the particular matters which concern them, and what do our own nationals living in other EU members states think about these proposals? Do they feel sold short by the UK? Let us remember that they will enjoy reciprocal rights under the agreement.

I turn to the enforcement of the withdrawal agreement, which is addressed by the committee in its report at paragraphs 136 to 138. In her Statement on the European Council on Monday 26 June, the Prime Minister said with regard to the offer on citizens’ rights:

“Our obligations in the withdrawal treaty with the EU will be binding on the UK as a matter of international law. We will incorporate commitments into UK law guaranteeing that we will stand firmly by our part of the deal”.—[Official Report, 26/6/17; Commons, col. 303.]


In the Government’s published proposals of the same date, Command Paper 9464, at paragraph 58 and under the heading “Legal status and enforceability”, appears this:

“The arrangements set out above will be enshrined in UK law and enforceable through the UK judicial system, up to and including the Supreme Court. We are also ready to make commitments in the Withdrawal Agreement which will have the status of international law. The Court of Justice of the European Union (CJEU)”—


which, I interpolate, is still generally referred to as the ECJ, which was its earlier incarnation—

“will not have jurisdiction in the UK”.

It is all very well for the UK Government to say that our obligations will be binding as a matter of international law, but, for my part, I could understand why that rather bland assertion might be greeted by the other 27 with some scepticism. In the Government’s original February 2017 White Paper on exiting the EU, in chapter 2 under the heading,

“Taking control of our own laws … Ending the jurisdiction of the Court of Justice of the European Union in the UK”,

paragraph 2.3—I shall not quote it all; it is all easily available—ends thus:

“We will bring an end to the jurisdiction of the CJEU in the UK. We will of course continue to honour our international commitments and follow international law”.


This red line in the Government’s position is plainly among the most damaging obstacles to the prospects of successful Brexit negotiations, as the noble Baroness, Lady Kennedy, said, on several fronts. Let me focus on that last sentence:

“We will of course continue to honour our international commitments and follow international law”,


which, of course, is what the Government now say in the present context of safeguarding citizen’s rights, but how confident of this can the other 27 states be? We have an international law commitment under the European Convention on Human Rights to give effect to Strasbourg court judgments, but we are in flagrant breach of that commitment on prisoner voting, for example. That may have been a dubious ruling, and it is highly likely that many in this country and all too probably several in Parliament muddle up Strasbourg judgments, which are those of the human rights court, and Luxembourg judgments, which are those of the EU court, and wrongly blame the ECJ for the prisoner voting decision and for other contentious decisions such as those which have periodically inhibited our ability to deport foreign terrorists.

Although this may go some way towards explaining our misconceived hostility to the European Court of Justice—its absurd and unfair demonisation, as I described it in last week’s Brexit debate—and the Government’s wish simply to acknowledge an international law commitment to abide by the terms of the withdrawal agreement, I am unsurprised that the EU 27 demand more; in short, that EU citizens’ acquired rights here should be put beyond the reach merely of the UK’s parliamentary sovereignty.

How then should this requirement best be met? The EU Committee recommends a reciprocal mechanism be established to ensure that UK and EU law each takes account of the relevant developments in the other’s law. To this end, the committee suggests an arrangement akin to that provided for under the 2006 extradition agreement between the EU, Norway and Iceland—see particularly Articles 36 and 37 of that agreement, as set out at paragraph 134 of the report.

For my part, however, I would regard this as a needlessly cumbersome and ultimately less effective route to finding a satisfactory, supranational tribunal to which a disappointed party could turn for a final definitive interpretation and application of an agreed provision—why not the ECJ itself? To anyone who questions that on the basis that, after Brexit, the ECJ will not be an independent supranational court but rather will be akin to the supreme court of one of the parties to the withdrawal agreement—namely, the other 27 EU states—I would respond, first, that this is an unreal objection given that, whatever the court were to rule on a reference would apply no less to UK nationals now settled in other member states. Indeed, those expatriate UK nationals will have no less, and sometimes perhaps rather more, of a need for a supranational tribunal to which to appeal from another member state’s supreme court. Secondly, I would suggest that, even though there may no longer be a UK judge on the ECJ after Brexit, one could be specifically nominated as a member of the court for the purpose of any UK reference. A close analogy here would be with the ECHR, where, on any application against a member state whose own judge may in the circumstances for any reason be unable to sit—they may be conflicted, unwell or whatever—that state can nominate another judge. Indeed, I twice sat on that basis as an ad hoc judge in the Strasbourg court.

If there is to be any hope of a successful Brexit negotiation on a number of issues, including that now before us, the Government will have to modify their puzzling ideological resistance to any future acceptance of the ECJ’s jurisdiction. Surely this would be a good place to start.