European Union (Notification of Withdrawal) Bill

Lord Oates Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I do not regard myself as bound by remarks made by Dr Liam Fox anywhere. I have been given the responsibility, so far, of being a Member of this House and of attempting to explain to your Lordships, as fully and briefly as I can, what I believe to be the moral high ground: to treat all people from the European Union who are in countries other than their countries of origin according to the rights secured by the European Union treaty. The time for a fair negotiation of the whole matter is when that treaty is departed from, in accordance with the rules set out in Article 50. That would come very quickly because, as I have already said—I am repeating myself now but I will not do it again—I have heard no argument from Europe against this, except that the negotiations have not been triggered in accordance with the provisions of the treaty itself.

[Lord Oates (LD)]

My Lords, I will speak to Amendments 16A and 38 and I also support Amendment 9B. Whether or not one favours a unilateral guarantee to EU citizens in this country, as I do, there are key questions about the Government’s approach which can and need to be answered now. Amendment 16A is a probing amendment which seeks to draw out the answers to these questions. I hope that the Minister will respond to them fully when he winds up. First, what rights do the Government intend to provide for EU citizens and their families in the UK and to seek for British citizens and their families in the EU? The Government should tell us now. If they did so, they would provide much-needed clarity for EU citizens here and British citizens in the EU. Those citizens need to know that they and their families will not just have a right to residence and to work, but also have access to public services—in particular, health—without which, for many, the right to residency is meaningless.

Thirdly, what procedure do the Government envisage by which EU citizens in the UK will gain rights of residency under British law? As the report of the EU Justice Sub-Committee on acquired rights makes clear, the current indefinite leave to remain procedure would not be suitable. It would not be able to cope with the applications which would have to be processed and it requires documentation which, in many cases, EU citizens simply will not have because they have never needed it, or had any expectation of needing it.

Fourthly, what do the Government intend to be the qualifying date for the rights that they grant to EU citizens? Will it be the date of withdrawal—as it was in the case of Greenland’s exit from the European Union, which is the only precedent we have—or do the Government intend some other date? Again, people need to know the Government’s intentions so that they can get on with planning their lives.

Next, there is the question of comprehensive sickness insurance cover, or CSIC. As my noble friend Lady Ludford said—many noble Lords will be aware of this—there is a dispute between the UK and the EU on whether the National Health Service qualifies as comprehensive sickness cover. The EU maintains it does, but the UK maintains it does not. Whatever the merits of the dispute between the EU Commission and the UK Government on this matter, three facts are clear. First, many EU citizens had no idea this requirement existed. Secondly, those who did thought they were covered by their right to use the NHS—a reasonable assumption, given that that is the position of the EU Commission. The third and final stark fact is this: if the Government adhere to their current position on CSIC, thousands of people, many of whom have been resident in this country for decades, will find themselves without the right to remain in the country that they have made their home—that cannot be right. This issue is causing huge anxiety to millions of people and it is in the power of the Government to resolve it by stating that evidence of CSIC will not be a requirement for EU citizens to gain permanent residence. They should do so now.

Amendment 38 simply makes explicit the unilateral guarantee to EU citizens resident in the UK and provides that no agreement under Article 50 can be entered into which does not protect the rights of UK citizens and their families in other EU countries.

It is not my intention to put either amendment to a vote this afternoon, but I hope that the Minister will address the questions raised by both of them. I will support the cross-party amendment because it offers the best opportunity to send a clear signal to the elected House. But I will want to come back to the issue of British citizens in the EU, addressed in Amendment 38, because their rights are also of crucial concern to my noble friends, myself and many noble Lords across all parties in the House.

Many British citizens living in the EU have contacted me and many other noble Lords to say how abandoned they felt by the elected House and how heartened they were that this House was addressing their concerns. We must not abandon them again. Through no fault of their own, as the result of a referendum from which the majority of them were excluded, millions of British and other EU citizens suddenly find their future at the mercy of the whims of politicians. They fear that they may be excluded from the countries that they have made their home. In some cases, they fear being split up from their husbands or wives or partners. These are not spurious fears; they are not the result of scaremongering; they are the result of the Government’s failure to provide either moral leadership or administrative clarity. Take the example of an elderly couple—

[Viscount Waverley (CB)]

My Lords—

[Lord Spicer (Con)]

My Lords, even if you are a Liberal Democrat you cannot have it both ways. You either give priority to people living here—those you think should have priority—or you do not. This amendment, which the noble Lord has spoken in favour of, does precisely that—it gives priority to EU citizens living here, rather than British citizens living elsewhere. He cannot have it both ways.

[Lord Oates]

Perhaps the noble Lord will forgive me but if he listens to my argument he will understand the answer to his question. Let us take, for example, an elderly couple, resident in Germany, who wrote to me recently—one a British citizen, the other a German citizen. They wrote to say that they are terrified that, if the final agreement does not provide for continuing access to healthcare, they will not be able to continue to live in the same country, and the same fears have been expressed by EU citizens in the UK. These are not abstract issues; this is about the lives of millions of people, it is about the anxiety and fear that has been inflicted on them since Brexit, and it is about the uncertainty that means that their lives have been put on hold. The Home Secretary claims in her letter to us that—

[Viscount Ridley (Con)]

The noble Lord talks about fear and anxiety but does he agree that what we have heard this afternoon—the inflaming of the fears of these people—has come from only one side, including spurious mentions of the edict of Nantes and Idi Amin?

[Lord Oates]

My Lords, no, I do not agree with the noble Viscount for one moment. These are fears expressed to me and to noble Lords across the whole House. They are not manufactured; they are real and present, and the Government need to address them.

The Home Secretary claims in her letter to us that a unilateral guarantee to EU citizens resident in the UK would cause uncertainty for British citizens in the EU. As the noble Lord, Lord Hannay, pointed out, that is not the view of the many groups representing British citizens in the EU that have written to me and have published a statement today. Not only do they accept the need for a unilateral guarantee but they have strongly urged it on me and, I am sure, on other noble Lords. Far from causing uncertainty, they believe that it would provide them with reassurance.

During the debate on this Bill, there has been a lot of discussion about who said what in the referendum campaign, but no one disputes that the leave campaign claimed that the rights of EU and British citizens resident in other countries would not be affected. That is what they said; they also said that to state anything else would be scaremongering.

Since the vote to leave, politicians from across the political spectrum have been clear that we should unilaterally state that we will protect the rights of EU citizens here. A prominent leave campaigner, the noble Lord, Lord Howard, spoke earlier. In evidence to the Justice Sub-Committee, he made it clear that that should be the case, at least as far as residence and rights to work and study were concerned. He said that he did not think we should,

“wait for any question of reciprocity”.

The noble Lord, Lord Cormack, rightly advised the Government—some months ago, I think—that they should lead by example. He has taken a clear, principled stance on this issue throughout, as have many noble Lords in this House, including the noble Lords, Lord Bowness and Lord Hannay, my noble friend Lady Ludford and the noble Baroness, Lady Hayter, who moved the amendment—noble Lords of all parties and none, remainers and leavers alike, because this is not a partisan issue; it is a question of principle.

Doubtless the Minister will tell us that this Bill is not the place to concern ourselves with such principles, but it is the only place. It is our one opportunity to send a clear signal back to the elected House that we regard the principle of protecting the rights of EU citizens resident here and British citizens resident in the EU as a matter of honour for our country, and, in doing so, to show that we have heard the distress and anxiety of millions of British and other EU citizens, and that we have been prepared not just to offer warm words but to act.

[Lord Tebbit (Con)]

My Lords—

--- Later in debate ---

[Lord Howard of Lympne]

Well, for all the reasons that I have given. I do not want to repeat my speech to the noble Lord. The effect of the proposed new clause, the effect of giving Parliament the ability to say, “You cannot bring the negotiations to an end”—not just once, but twice or three times, or four times or any number of times; that is all in the proposed new clause—is to intrude Parliament into the negotiating process. It is wrong, it is improper and it should not be in the Bill.

[Lord Oates]

My Lords, I support Amendment 17. Given the late hour and the clarity of the points made by the noble Lord, Lord Pannick, in moving the amendment, I will not detain your Lordships for too long, although I must say that the noble Lord, Lord Howard, has shown very little faith in the sense of Parliament, which slightly surprises me, from the side of the argument that has stressed parliamentary sovereignty so much.

At Second Reading I expressed my concern that the Bill, unless amended, would provide a blank cheque to the Prime Minister to negotiate an exit deal on any terms whatever or, indeed, to return with no deal at all. The Government intend that at that point—when the PM returns with a deal or no deal at all—both Houses of Parliament will be given a vote. The Prime Minister made that pledge in her Lancaster House speech. Effectively, Parliament would be given a choice of the deal or not the deal. But I think that noble Lords do not have faith in the Government, given some of the undertakings that they have made in the past, not least, as was mentioned in an earlier debate, in relation to the noble Lord, Lord Dubs.

We want something more secure in the Bill. The purpose of the amendment, as the noble Lord, Lord Pannick, has pointed out, is to ensure that both Houses of Parliament are able to have a meaningful say once the final draft of the proposed arrangements for withdrawal from the European Union is produced and that this must be before the proposed arrangements are agreed with the European Council. As we have heard, it would also prevent the Government from terminating negotiations for withdrawal from the European Union without the express consent of both Houses of Parliament. In short, the amendment will ensure that with regard to the most—

[Lord De Mauley]

If what the noble Lord, Lord Kerr, said earlier is correct, and I think it is, how does subsection (4) work?

[Lord Oates]

I am not quite clear to which point made by the noble Lord, Lord Kerr, the noble Lord is referring.

[Lord De Mauley]

If at the end of the two-year period we are out anyway, what is the impact of the Minister’s decision on termination?

[Lord Oates]

The point of subsection (4) is that,

“No Minister … may agree to the termination”,


prior to that point. Clearly, that is the point of it.

[Lord Pannick]

The answer to the noble Lord’s question is that surely Parliament should decide, not the Government. Parliament should decide whether we leave the EU with no agreement or whether we leave the EU with whatever agreement is being offered to us by the EU that the Government think is unacceptable. That will be the choice and Parliament should make that choice.

[Lord Oates]

I thank the noble Lord, Lord Pannick, for his clarity on that matter. In short, the amendment will ensure that Parliament will have a proper and meaningful oversight of the most important decision that the United Kingdom Government will have made in my lifetime.

[Lord Faulks (Con)]

The noble Lord will probably remember that at Second Reading the noble Lord, Lord Kerr of Kinlochard, indicated that he thought that the Europeans negotiating would give us an extension of the two-year period and, furthermore, that they would probably allow us to withdraw the Article 50 notice altogether. If that is so, would he agree that subsection (4) together with the extension would result in our negotiators being locked for ever in a room labelled Article 50 until we give up?

[Lord Oates]

No, I would not agree with that. Fascinating as it is for me to comment on what the noble Lord, Lord Kerr, said at Second Reading or otherwise, I will leave it to him to comment, but I do not agree that that would be the case.

Those who argued that the purpose of Brexit was to take back control and restore parliamentary sovereignty should have no problem with this at all. I would say with respect to the noble Lord, Lord Spicer, that the real irony is that people who talk so much about parliamentary sovereignty want to surrender it so easily to the Executive.

As the House will be aware, while the Liberal Democrats fully support this amendment and its objective of giving Parliament a real and meaningful say, we believe that, once Parliament has spoken, the people should have the final word in a national referendum. Noble Lords have different views on this subject but, whatever one’s view on the referendum, this amendment will ensure that we make real the promise to take back control and that our Parliament has real and meaningful oversight of the outcome of negotiations. I am very pleased to support the amendment.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I can make my position clear. I think that we have four different attempts to find a solution to a problem that we are all looking for. For me, it would be neater if I made my points on Amendment 17, before others introduce their solutions. I am very much in sympathy with most of what appears in Amendment 17, but I share quite a lot of the difficulties that the noble Lord, Lord Howard, expressed, although perhaps not exactly for the same reasons. I will explain myself a little more.

At Second Reading, I made the point that there was a respectable argument that only Parliament has the constitutional authority to authorise the act of concluding an agreement with the EU or the act of withdrawal, if that is what the Government seek to do. For that reason, I respectfully suggest that it is in the Government’s best interests, for their own protection, to look for a form of words that will provide them with the answer to any possible challenge that might be made along lines that would impede progress towards a final agreement. It was with that view that I was searching for some kind of solution to the problem. I said at Second Reading that I would not seek to put forward an amendment myself and that it was more for the Government to try to find a way of doing it, which it is perhaps still open to them to do.

I will explain my views on proposed new subsections (1) to (3). As the noble Lord, Lord Pannick, has explained, the Government have given an undertaking. David Jones said in the House of Commons:

“First of all, we intend that the vote will cover not only the withdrawal arrangements but also the future relationship with the European Union. Furthermore, I can confirm that the Government will bring forward a motion on the final agreement, to be approved by both Houses of Parliament before it is concluded”.—[Official Report, Commons, 7/2/17; col. 264.]


There are three elements in that undertaking, all of which find their place in subsections (1) to (3) in the proposed new clause. However, I have to say that I have a quarrel with the wording. Clause 1 of the Bill, as I mentioned at Second Reading, is beautifully crafted in the simplest possible language. I am troubled by the fact that, if you cast the undertaking in the framework that you find in Clause 1, you can produce that undertaking in four lines instead of 16. Just from the point of view of the aesthetics of drafting, I would have thought that it would be proper to try to use the undertaking as a basis for an amendment. The amendment would be very simple: another four- line amendment, which would fit neatly into the character of the Bill. It would provide the Government with the protection that I suggest they need and would produce the answer to the point made by the noble Lord, Lord Pannick, with which I entirely agree, about the sovereignty of Parliament. I believe that the sovereignty of Parliament is absolutely paramount in reaching an agreement.

I do not want to elaborate on this point because I agree with everything that the noble Lord, Lord Pannick, said, apart from the wording, which I suggest might be more attractively put. As he might recognise, I am adopting a tactic that advocates adopt in court: if you are addressing a judge, trying to find a way of formulating your proposition, and the judge comes out with some form of words that is not exactly in accordance with it but is in accordance with what you are driving at, it is quite a good tactic to pick up his words, as it is more likely that he will accept your answer. I am just adopting that tactic, as we have this there on a plate before us. You draw together the two things: the language of the undertaking and the interest that the Government have in getting the thing in the Bill for their own purposes. The undertaking that the Minister gave in the House of Commons was not given lightly. We can all understand that it would have been carefully worded and approved by somebody a good deal higher up the line of government than the Minister who was giving it. It really is a gift to adopt those words and get it into the Bill in that language.

I respectfully suggest that it would be wiser to detach subsection (4) from subsections (1) to (3), because we can grapple with subsections (1) to (3) for the reasons that I have given, but subsection (4) raises problems. I do not want to go over all the ground but, through a simple reading of the wording, you can see immediately the difficulty that it runs into. First, it tries to combine two different situations, in that it talks about “the termination” or termination “unilaterally”. I presume that when it talks about termination the first time, this is where both sides are unable to reach an agreement and there is a complete breakdown between both sides. If that is the situation, I, for the moment, cannot understand what can be done. There is no point in coming to the Government and asking for it to be approved, because you cannot get back to the negotiation table. It is a Humpty-Dumpty situation: Humpty-Dumpty has fallen off the wall and you cannot put the bits together again. So I cannot understand that part of the amendment.

The second part talks about terminating unilaterally. Although I can understand what that situation might be, the problem is that subsection (4) requires the Government to come to both Houses for prior approval before they can do that. You can imagine a situation where the Houses say, “We are not satisfied, go back and have another go”, and then we have the neverendum situation that has been referred to—going round and round in a circle with no way out.