Brexit: Acquired Rights (EUC Report)

Lord Kennedy of Southwark Excerpts

Tuesday 4th July 2017 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, first, as have other noble Lords, I congratulate my noble friend Lady Kennedy of The Shaws and the other members of the European committee on their excellent report. I should make it clear that I wanted the United Kingdom to remain a member of the European Union. That, for me, was the best place for us to increase our prosperity, protect jobs and living standards and maximise our influence in the world, where we increasingly see spheres of influence on a global rather than national basis.

It is disappointing that the Government have not responded to the report. It is not the first time that House reports have been either not responded to before debates or responses have arrived just a day or two before the debate. It is disrespectful to the House, and the Government need to sharpen up their act in this respect.

Having said that, I fully respect that the decision of the UK was to leave the European Union, although I sometimes feel that some of the outrageous claims made by the leave campaign need referencing again. We forget “£350 million a week for the NHS if we leave Europe”, when Boris Johnson, Michael Gove and others stood in front of that poster during the leave campaign. Of course, they were given the opportunity to vote for that in the Commons, but they voted against it. We need to keep reminding people what went on in that campaign; some of it was quite outrageous.

We need a Brexit that protects British citizens, jobs and investment. For all the Government’s claims, it has not been going too well so far. Their position can be characterised as to talk big and tough in the UK, threaten walkouts and demand that a trade deal be the first thing on the table, but, when we get to the detail, there is a climb-down and a negotiation set out on the timescale determined by our 27 European partners. The noble Baroness, Lady Bloomfield of Hinton Waldrist, referred to the Government’s offer to the European Union. It is a start, that is for sure, but I suspect that it is far from where we will need to get to for an agreement acceptable to both UK and the European Union.

The Government’s approach so far has been far from sensible in the preparation for and the process of negotiating our exit from the European Union, as the noble Viscount, Lord Waverley, mentioned. He is right to say that we need an equitable agreement to separate, but that this could get out of hand and the Government could be accused of playing poker with people’s lives.

My noble friend’s report considers one of the most important aspects that has arisen from Brexit: what happens to the rights on which so many of us rely when the UK leaves the European Union. The report focuses specifically on the rights of those European Union citizens who have chosen to live here in the UK and those UK citizens who have chosen to live elsewhere in the European Union. In both cases, they are choosing to exercise their right to live and work anywhere in the European Union. The report looks at the issue of acquired rights and whether people will be able to rely on this protection under international law. There is great concern for those European Union citizens living here and British nationals living elsewhere in the European Union that this protection will not be enough, and to ensure proper protection it must be enshrined in the Brexit agreement.

Since the referendum we could have struck a very different note, of course, and straightaway made it clear that the rights of European Union citizens would be protected in full in the UK, as long as a similar guarantee was given to British citizens living elsewhere in the European Union, as the noble Baroness, Lady Smith of Newnham, said. That is not giving away a card or a negotiating point; it would have been a sensible move, acting in good faith with your friends, allies and partners, whom we want to remain our friends, allies and partners after we leave the European Union.

The concept of being a citizen of the European Union was first introduced into EU law by the Maastricht treaty in 1992; the citizens directive codified many of these rights, and it applies to the EEA states as well. All these rights are directly enforceable; they do not need to be granted by a member state. The rights of non-EU nationals in the UK are considerably more restrictive than the rights of EU nationals in the UK, meaning that the loss of EU citizenship would create a major loss of rights. After Brexit, the UK will become a third country for the purpose of EU law. UK nationals in other EU member states will become subject to common EU immigration rules for third-country nationals. I accept that all this depends on the agreement finally reached, which is why we should be on the front foot and positive.

Third-country nationals would have considerably fewer rights and have more restrictions when it comes to living, working and studying in the EU. British citizens may have to satisfy integration rules and apply for EU long-term residency status if resident in a member state for five years. There are concerns from citizens of other member states living here in the UK. This was brought home to me the day after the referendum result. There is a cafe that I often call into for a coffee and a croissant on my way into the Lords, which is run by two French people. They asked me the following morning whether they would be made to go back to France. These are people who have built up a business here; they employ local people and provide a great service to the local community. They play by the rules and make a positive contribution to the economy. They will be fine; they have lived here for many years, but they are one example of people living in uncertainty every day. My noble friend Lord Judd made a similar observation from the village where he lives in Cumbria.

There are thousands of EU nationals in the same uncertain position, and with uncertainty comes loss of confidence and loss of opportunity, and we all lose. My noble friend Lord Judd correctly identified how much uncertainty has been caused for families. I just do not understand how the Government think that that attitude will benefit the UK and its reputation and standing in the world.

The largest group of EU nationals living here include Polish, Romanian and French nationals. We have seen a rise in hate crimes and xenophobic abuse, which is shameful. The UK has a proud reputation as a safe, tolerant country which welcomes people and is a safe haven for people in peril, and on a number of fronts that reputation in recent times has been tarnished. UN statistics estimate that there are 1.2 million UK nationals living elsewhere in the European Union. Concerns have been expressed by UK citizens resident abroad to consular officials through FCO channels, including worries such as whether they will be able to continue living abroad or have to apply for residency. Will their qualifications be recognised? Will they require work permits? These concerns of UK nationals living elsewhere bear a striking similarity to those of EU nationals living in the UK. The noble Duke, the Duke of Somerset, made reference to this; there are huge concerns about the effect that it is having on people’s lives, and I agree very much with the remarks that he made today.

Those are the two groups of people most affected individually by Brexit, and neither is supportive of how the British Government have handled the negotiations so far. I agree very much with the committee when it says the Government have a moral obligation to provide certainty to UK nationals living, studying and working in the European Union. I agree that the most certain way to protect acquired rights is to put them into the agreement. The noble Baroness, Lady Williams of Trafford, could tell the House whether she agrees with that when she responds to this debate, because the protection of these rights by any other means seems fraught with difficulty. Article 70 of the Vienna convention protects acquired rights, but refers to states rather than individuals or companies. The principle of acquired rights in international law relates primarily to property rights. Public or civic rights to vote or reside in a particular state are not enforced under this agreement.

It could be said that the protection of acquired rights can be sought and enforced under the European Convention on Human Rights, as my noble friend Lady Kennedy of The Shaws referred to when moving the Motion. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, was entirely correct when he referred to the “unfair demonisation” of the convention by various individuals and organisations. He is right that the Government are going to have to modify their ideological opposition to the convention. Thankfully, we have not pulled out of the convention—we are still a signatory—and I hope we never do. However, it all gets very messy, complicated and difficult; not effective, not good for individuals, not good for the UK. While any rights safeguarded in the withdrawal agreement should be enforceable, the agreement should freeze the legal situation at the moment of exit, so that all rights are at that point until repealed or altered by Parliament. My noble friend Lady Kennedy of The Shaws referred to that and her point about who is the final arbiter needs answering.

There is still time for the Government to make a more positive offer to our partners in Europe. Whether we are in or out of Europe, in whatever form, Europe will remain our major trading partner in all respects. It is the place our citizens will interact with first, be drawn to and enjoy. For Europe’s citizens, the same is true of this wonderful country, with our culture, history, love of sport, aptitude for business and the generosity of the British people. The country deserves better from the Government as we bring into effect probably the most important decision we have made since the Second World War.

This excellent report, so ably introduced by my noble friend Lady Kennedy of The Shaws, shows the Government what they need to do in respect of acquired rights. They should follows its recommendations; it will go a long way to getting the good deal that we all want as we leave the European Union.

--- Later in debate ---

[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?