Brexit: European Union-derived Rights

Debate between Lord Oates and Viscount Hailsham

Tuesday 4th April 2017 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I rise in support of both Motions. I very much hope that they will prove acceptable to my noble friend on the Front Bench and if he is able to accept them, or at least not oppose them, I will be very grateful to him.

I want to make two brief points as to the first Motion. First, as drafted, the Motion before your Lordships’ House does not address the position of UK citizens in European Union countries. That clearly needs to be addressed—I am sure that it will be—and the Government need to be overt about that. Secondly, the obligation to report does not extend beyond the end of this Session. While I am not in possession of any privy information, I suspect that will come quite soon. I therefore hope that with regard to the first Motion, the Government will treat it as an obligation to report as regards UK citizens abroad as well as EU citizens here and that the obligation will extend on a continuing basis beyond the end of the Session.

I now turn to the second Motion. I agree with what the noble Baroness said, but perhaps the House will forgive me if I remind it of what I said about the referendum because it is relevant to this Motion. I never believed that the referendum was an authority to leave the EU, whatever the terms, whatever the outcome, whatever the prejudice. I think it was an instruction to the Government to negotiate the best terms that could be secured for withdrawal and then to come back. The question that then arises is: who makes the decision about the desirability of the outcome, whether there is an agreement or no agreement? In a representative democracy, the answer to that question has to be Parliament and nowhere else—not the Government, but Parliament. This matter was debated very fully in Committee and on Report. The noble Lord, Lord Pannick, made a very distinguished contribution to the debate. In that debate, very proper questions were highlighted, most notably regarding the relationship between the two Houses and, perhaps more importantly, how the primacy of the House of Commons could be entrenched. A proper Joint Committee of the kind proposed by the noble Baroness is precisely the way to address these kinds of questions.

I shall identify just two questions for further reflection. What would happen if, in the opinion of Parliament, remaining in the European Union was preferable to leaving, whether because of an inadequate agreement or because of no agreement? That question has to be addressed because it may happen, and we need to ask ourselves what will happen if Parliament is of that view. The second question overlaps, but it is different. What happens if Parliament senses that there is a real shift in public opinion in favour of remaining within the European Union? That is also a possibility. I very much hope that the Select Committee will address it because if there has been a serious shift in public opinion in favour of remaining in the European Union, we must have a second referendum. That needs to be addressed by the Committee.

I support these two Motions. I very much hope that your Lordships accept them and that my noble friend does not oppose them, and I hope that the Joint Committee may consider addressing some of the questions which I have taken the liberty of identifying.

[Lord Oates (LD)]

My Lords, I support the Motions tabled by the noble Baronesses, Lady Hayter and Lady Smith, because I support any attempt to raise the critical issues that they highlight. I would have preferred to insist on the amendments on these matters during the passage of the Brexit Bill because that would have underlined how seriously we took them—but we are where we are and I am pleased that at least we have another opportunity to highlight these two crucial issues.

The first is the nature of the vote that will happen at the end of the negotiating process. As Liberal Democrats, we believe that the final terms should be subject to the agreement of the public—not least because so many of the commitments made during the referendum campaign have been broken. I agree with the noble Viscount, Lord Hailsham, that if Parliament were to decide that we could not leave on the terms offered, there would have to be some way of consulting the public. To that extent I am sorry that the Motion of the noble Baroness, Lady Smith of Basildon, refers only to votes in Parliament—but I understand why, given the position of the Labour Party. I therefore support the Motion in the terms set out because a Joint Committee could play a very useful role in casting light on how to go forward on this matter.

I also strongly support the Motion moved by the noble Baroness, Lady Hayter of Kentish Town, on the rights of EU and EEA citizens. Again I echo the noble Viscount, Lord Hailsham, in hoping that it can be taken to include UK citizens in the EU, because they are a critical part of our concerns. Nine months after the referendum campaign in which a categorical commitment was given by the official Vote Leave campaign that the rights of EU citizens in the UK would be guaranteed, millions of them are still living in anxiety and fear. It is a shame that noble Lords of the Brexit persuasion who often sit on the Privy Council Bench are not in their place, because it is important to remember just how categorical the statement was. The campaign stated:

“There will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present”.


That was the guarantee given by the official Leave campaign. The failure of the Government and, in particular, the Brexit Ministers who supported Vote Leave, to honour an undertaking that they made should be a matter of the deepest shame to each and every one of them. It is therefore important that the Government tell us what they are doing in this respect. This betrayal is causing misery to millions of EU citizens in our country. Not only that, the failure of the Government to take the moral lead suggested by the noble Lord, Lord Cormack, months ago is compounding the anxiety of UK citizens in the EU, who had fervently urged the Government to make a unilateral guarantee as the most effective means to protect their rights. Instead, the lives of all these people are about to become enmeshed in the negotiating process, which could go on for who knows how long. These are the circumstances that the House of Commons Exiting the European Union Committee described as “unconscionable”—and it seems that they are rapidly coming to pass.

Notwithstanding the opposition of the Government to the cross-party amendment passed in this House, I hoped that they might have used the triggering of Article 50 as an opportunity to take a moral lead and announce a unilateral guarantee to EU citizens in accordance with the unanimous recommendations of your Lordships’ EU Justice Sub-Committee and the House of Commons Exiting the European Union Committee. I admit that it was a slim hope, but it has been dashed.

In the absence of that sort of announcement, I hope that the Minister can answer a number of key questions either today or when he reports back under the terms of the Motion. First, even if the Government refuse to grant rights unilaterally to EU citizens, as I and many people in all parties and on both the remain and the leave sides of the argument believe they should, why will they not set out the rights that they intend to grant if such rights are reciprocated? That would go a long way to reassure people—both EU citizens here and British citizens in the EU—about their intentions.

Secondly, do the Government intend to establish a fast-track process to ensure that the granting of such rights can be effectively and efficiently administered? As Committees of this House and elsewhere have pointed out, the indefinite leave to remain system simply could not do it. Finally, will the Minister take this opportunity to state from the Dispatch Box that no EU or EEA citizen resident in the UK will be denied the right to remain in the UK on the basis of a requirement to produce evidence of comprehensive sickness insurance—something many EU citizens were unaware was required or, if they knew it was required, understood, as does the EU Commission, that the requirement was met by their right to access treatment under the NHS?

I hope that the Minister will address those issues today, in contrast to the Government’s failure to do so during the Brexit Bill. If he did so, he would allay the fear of many of us that the Government in fact have no plan at all, and that the couple of derisory paragraphs included in the White Paper on the issue of citizens’ rights were less a calculated insult to the millions of people whose lives are being thrown into turmoil by the Brexit vote than an admission that the Government have no real idea of what they intend.

I support both resolutions today. While the resolutions in themselves cannot produce results—that is for the Government—they are important because they again give a voice to these issues. We can only hope that at some point the Government will listen and, on the issue of EU citizens, do the right thing.