European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I have the greatest respect for the noble Lord, Lord Wigley, but my head says that this will not work and that the noble Lord, Lord Adonis, is absolutely right. Citizenship is defined in the treaty as being a citizen of a member state. When we cease to be a member state, we all lose our citizenship, unless we are lucky enough to live in Northern Ireland or to be born in Northern Ireland. I do not think the Greenland precedent works, on the grounds of chronology. It was not actually Greenland seeking independence, and it preceded the concept of citizenship emerging in the European Union in the Maastricht treaty.

[Lord Wigley]

Does the noble Lord not accept that although it happened chronologically before the treaty of 1992, the rights continue afterwards and therefore are respected?

[Lord Kerr of Kinlochard]

I am afraid it does not apply to 60 million of us. It did apply to 40,000 Greenlanders a long time ago. My concern is that we should be careful in what we ask the Government to do. The noble Lord, Lord Wigley, said that this is purely a matter of political will, and that the Government could fix this if they chose to. I am afraid that this is not the case.

I would like to ask the Government if they could construe for us the missing paragraph 32 from the draft withdrawal agreement of 28 February. The Minister will remember the Leader of the Opposition’s question on the Statement on Monday. Paragraph 32 was in the draft of the withdrawal agreement of 28 February. It read:

“In respect of United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another member state”.


It seems to me that the Government should exercise political will here and carry on negotiating. I was encouraged to see that the paragraph had dropped out, because it limited the rights of UK citizens living in continental Europe after we leave, if we leave, to the particular country in which they live. It seemed to me that these rights ideally should be portable, so that somebody living in France could live in Italy or Spain and retain these rights. I have always thought it a little harsh of the European Union side in this negotiation to take the opposite view. I was encouraged to see that prohibition on the rights extending to residence in another member state had dropped out of the text that was looked at in the European Council.

I hope this means that the Government have either succeeded in killing that prohibition or, perhaps more likely, are themselves continuing the fight to try to get rid of that prohibition. It would be very useful to know. I think that leaving the European Union will be a disaster for all of us. I resent the fact that I will no longer have any rights as a citizen. But it seems to me that it is particularly awkward for those people whose legitimate expectations when they chose to live in France, Italy, Spain or wherever will be reduced. They will still be able to exercise their rights when they live in the country to which they chose to move, but they will not be able to choose to move to another country and retain these rights. I would be glad if the Minister could elucidate the answer to the Leader of the Opposition’s question on the Statement on Monday.

[Baroness McIntosh of Pickering (Con)]

My Lords, it might be helpful if I, as a half-Dane, set out the position of Greenland. The noble Lord, Lord Wigley, raised the interesting point of what the status of UK citizens will be when we leave the European Union but continue to benefit in some places from it. Greenland is an autonomous Danish dependent territory, with only limited self-government and its own Parliament. It withdrew from the European Union but nevertheless is now associated with it under the Overseas Associated Decision and is eligible to benefit from funding from the EU’s general budget through the EU-Greenland partnership. That begs the question of whether the Government are minded to apply for such associated status so that citizens from parts of the UK can benefit in the future.

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I hope this amendment is helpful to the Government, because it draws attention to something that will need to be fixed in the light of the withdrawal agreement taking place. In those circumstances, I look forward to hearing what the Minister has to say and beg to move.

[Lord Kerr of Kinlochard]

My name is to this amendment, but I have little to say because the case for the amendment has been brilliantly put forward by a lawyer, and I am no lawyer. It seems to be a common-sense amendment. If, as I think will be the case, the European Union side in the negotiation continues to insist that, if we want a standstill period in which we act as if we were members of the customs unions and the single market until January 2020, the jurisdiction of the Court of Justice as the umpire of the single market must continue. It seems to me we have to accept that if, as I expect, the European Union insists on taking the position it is now taking. In that case, as explained by the noble and learned, Lord Goldsmith, Clause 6 would have to be struck out. Clause 6 is in flat contradiction to what is going to be agreed on the standstill agreement. Therefore, it seems sensible to avoid having to repeal part of the law that we would have passed for us instead to introduce this small amendment that simply says that Clause 6 does not come into effect until the end of the transition period.

The concept of a standstill transition is extremely unsatisfactory. It is necessary but it is insufficient to deal with the huge problems that British industry and business will face. It is inconceivable that by January 2020 we will have negotiated a full agreement with the European Union covering the full gamut of our future relationship, including trade. That is just not feasible. Even if we had done that—if we had achieved the impossible—we would have a mixed agreement which would require national ratification in all capitals. All the standstill agreement does is give us the position for 21 months that we will accept and operate under laws that we have not written, on which we have had no votes; with no judge in the court but the court having jurisdiction; with no Members in the European Parliament but the European Parliament writing our laws, with the Council; and with no one in the Commission. I find that ignominious and insufficient because all it has done is move the cliff edge out to 1 January 2021. We will not have the long-term, permanent successor relationship defined in treaty form in a ratified treaty at the end of this period.

Moreover, it is my judgment that for legal reasons it will not be possible to extend the period. It seems to me that one cannot use Article 50, which is about withdrawal, to produce an extended period of future relationship. There are other articles in the treaty which define association agreements and relationships with third countries. I do not think the lawyers will allow us to use the withdrawal agreement as a treaty base for an extended period of new relationship. Therefore, although it is absolutely necessary to have a standstill because otherwise the cliff edge is very close, it does not solve the problem of the cliff edge but merely postpones it for a bit. But the amendment moved by the noble and learned Lord, Lord Goldsmith, must surely be right. It does not make sense to have a lengthy Clause 6 explaining a relationship which will not actually be the relationship we follow during the standstill period.

[Lord Davies of Stamford]

My Lords, I am mystified as to why there is any controversy at all on this matter and why the Government have come forward with a Bill that includes Clause 6 in its present form. After all, it is us who have asked for some withdrawal or transitional arrangement, and very necessarily so—I quite agree with the noble Lord, Lord Kerr; the whole matter is extremely unsatisfactory from many points of view.

Although our position will change constitutionally in March next year if we go ahead with Brexit, and we will not have been involved in the legislative process and so forth, the whole purpose of the transitional arrangement as I and I think everybody has understood it—that is the way the European Union has understood it, because after all, it is our request—is that the regime affecting all economic agents, traders and so forth, will be completely unchanged. They will carry on after March next year until January 2021 in exactly the same way. The rules they operate under will be the same. Their contracts will be interpreted in the same way as before. Their obligations to the state and so forth will be interpreted in the same way and therefore they will know exactly where they stand. They will not need to have any new regime introduced during that period. If that is the case, surely the legal regime must not be subject to any change—quite obviously so —because if it is going to continue as it presently is, the judgments of the courts which oversee that must be the same as they otherwise would have been.

Therefore, I am completely mystified as to why the Government have proposed that Clause 6 should come into effect on Brexit rather than at the end of the transitional period. I just hope that we will have a satisfactory and credible explanation from the Government. They might even admit that they have made a slight slip on this occasion and accept the amendment which is now before them.

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[The Duke of Montrose (Con)]

I had a son who worked in the European court. As far as I understand it, if an issue comes up which is relevant to the United Kingdom, it is unlikely that a United Kingdom judge would be part of the panel asked to rule on it.

[Lord Kerr of Kinlochard]

There will be no United Kingdom judge: when we are not members of the European Union, we will not be entitled to have a judge at the European Court of Justice. The noble and learned Lord, Lord Hope, is absolutely right, I am afraid.

[Lord Vinson (Con)]

My Lords, the ECJ works at a snail’s pace. There will be a massive amount of undigested legislation one way or the other at the end of the transition period—how does this affect the issue?

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[Lord Keen of Elie]

We have been clear that the withdrawal agreement and implementation Bill will legislate for the withdrawal agreement. That may involve us amending the terms of the present Bill, but we should remember that the present Bill is intended to accommodate the situations where there is a withdrawal agreement and where there is no withdrawal agreement and therefore no implementation period. It is to bring certainty to the statute book in that context. Clearly, there may be a situation in which we have to bring forward amendments to the present Bill in the second withdrawal agreement Bill. I recognise that.

[Lord Kerr of Kinlochard]

The Minister has just been paying tribute to the delicacy of the drafting of the noble and learned Lord, Lord Goldsmith, whose language in this amendment copes with both eventualities. It sets out the contingency that there is a transitional agreement. I do not see the difficulty.

[Lord Keen of Elie]

It is not a question of difficulty; it is a question of how we have decided to approach dealing with this in a legislative manner. The intention is that the present Bill will legislate for legal certainty whether there is or is not a withdrawal agreement. In the event of a withdrawal agreement, we will legislate to ensure that in the withdrawal agreement and implementation Bill the terms of the present Bill will be brought into line with the terms of the withdrawal agreement in order that we can discharge our international legal obligations. We have consistently pointed out that that is the approach being taken to legislation in this context. It is really quite inconceivable to suppose that the Government are going to enter into a withdrawal agreement and then not implement that international legal obligation in our domestic law. That is the intention. It is simply a question of the order in which these things are being done, and it has always been maintained, and will be maintained, that it is not for this Bill to deal with the eventuality or the prospect of the implementation period.