EEA Nationals (Indefinite Leave to Remain) Bill [HL]

Lord Kerr of Kinlochard Excerpts

2nd reading (Hansard): House of Lords
Friday 19th July 2019 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, the only obvious defect in the Bill—it is a glaring defect and not the fault of the noble Lord, Lord Oates—is that it is so late. I am very glad that it is resuscitated, but as the noble Lord, Lord Cormack, says, the Bill does what we should have done three years ago. It was a glaring negotiating error not to have unilaterally and voluntarily done exactly this three years ago; a negotiating error almost as serious as that of not drafting and putting forward a framework for the future relationship before we triggered Article 50. We should have done this before we triggered Article 50. Had this been on the statute book, the whole atmosphere at the start of the negotiation would have been completely different. Because it was not, we made life uncertain and in some ways difficult for 6% of the population of these islands. It was an extraordinarily inhumane thing to have done. Because it is not on the statute book, we have acted dishonourably.

The noble Lord, Lord Oates, is quite right to recall the statement by Mr Johnson and Mr Gove of 1 June 2016, before the referendum, when they promised an automatic system with no question of application. By not having this on the statute book, we have gravely damaged the interest of 1.3 million British citizens who live in continental Europe. Their position is still uncertain. Their legitimate expectations were overturned by the results of a referendum in which most of them had no vote, because the Government had not fulfilled their manifesto commitment to change the eligibility for the franchise of citizens resident abroad. Their position is still in doubt despite Mr Costa’s admirable February amendment in the other place. It is now very difficult to get this dossier out of the withdrawal agreement. I suspect that the withdrawal agreement is dead, but this dossier is lurking in the middle of it. If and when—let us say if—we leave the European Union in a no-deal Brexit, the EU has made it clear that the three dossiers in the withdrawal agreement are where future negotiations will start, not with trade. That means that there will be an inhibition on member states acting unilaterally to respond reciprocally to what we should have done three years ago and could do now with the Bill. If we are interested in setting at rest the minds of 1.3 million of our fellow citizens living in the EEA, we should pass the Bill as quickly as possible.

I agree with the noble Lord, Lord Oates, about the defects in the system that the Home Office is now operating. The principal defect is that it is not automatic; it is an application system. We have the rigmarole of pre-settled status, settled status and indefinite right to remain, or the decision to go instead for British nationality. These are complicated questions being tackled by people some of whom are not necessarily internet savvy, some of whom do not necessarily have access to legal advice or the right linguistic skills. To take one example, in the event of a no-deal Brexit, if only 15% of the children from other EU member states who are now resident in this country fail to operate this system and regularise their position by the end of next year, 100,000 children living in this country will be in a Windrush situation. They will be here with irregular status and potentially—possibly actually—criminalised because they are here. They will be vulnerable to hostile environment policies and deportation if they go back. The noble Lord mentioned Windrush. It is an exact parallel, except there are an awful lot more people this time.

If you want to get rid of that risk, you need a legal backstop—to use a new word—underpinning the Home Office system. I am not saying that the Home Office system should be torn up, but the right to citizenship should be underlined, as is set out in this Bill. For those who cannot work the application system, there should be a safety net lurking round. We will need something like that at the end of next year if we fall out of the EU with no deal, because public opinion in this country will be just as shocked at the way we are treating some of these people as it was to discover how we had treated Windrush people.

In addition, as a more straightforward argument to advance, if we put this on the statute book, the likelihood that similarly generous reciprocal treatment will be handed out to the 1.3 million British citizens living in continental Europe will rise very steeply.

I agree with those such as the noble Lord, Lord Cormack, who say that now is Mr Johnson’s moment. He said what he said. He made a promise three years ago on 1 June 2016. Will he carry it out? Some foreign friends ask me to define Mr Johnson’s political philosophy; I find this quite difficult to do. It is quite easy to explain what Thatcherism meant. It is quite easy to explain what new Labour meant. It is very difficult to define “Johnsonism”.

I look forward with keen interest to seeing the evidence, but one streak in Johnsonism is probably completely genuine—I think he is libertarian on issues such as this, and naturally likely to want to do what he said he would do three years ago. I very much hope that, whatever the Government tell us today, in a very few weeks they will tell us that they strongly support this Bill and would like to see it on the statute book as soon as possible. I certainly support it.