European Union (Notification of Withdrawal) Bill

Lord Sentamu Excerpts

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

[Lord Hannay of Chiswick]

My Lords—

[The Archbishop of York]

My Lords—

[Baroness Goldie (Con)]

My Lords, we shall hear next from the most reverend Primate.

[The Archbishop of York]

My Lords, Uganda was referred to by the noble Viscount, Lord Hailsham. It was regrettable that Idi Amin kicked out two types of Asians—British citizens and Ugandan citizens. My opposition to him was over the Ugandan citizens, who were the largest number. He kicked them out and my coming here in 1974 was as a result of my opposition to such behaviour. So I know how minorities can feel in a place. I know that we need to reassure our European friends who are resident here and want to remain here.

However, I have one great difficulty. Your Lordships’ House can scrutinise and revise legislation, but this simple Bill is simply to confer power on the Prime Minister to notify under Article 50 of the Treaty on the Functioning of the European Union that there is an intention to withdraw. It is giving her the power which I believe only Parliament—not the royal prerogative —can give her. At the meeting of the Lords Spiritual before all this came about, I questioned her right to simply use prerogative power because of what had gone on way back in 1215 in Magna Carta. Clause 39 says:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land”—


and by “man” of course we now mean “woman” as well. Clause 40 says:

“To no one will we sell, to no one deny or delay right or justice”.


I think that is still enshrined in the rule of law in this country.

As far as I am concerned, until we have done the negotiation two years down the road, European citizens who are living here now will have every right to be here, like anyone else. People want to give assurance, but I think the assurance will be when the big Bill comes and we begin the debate. Remember, the European Union has free movement of people, free movement of goods and free movement of services. All that this little Bill is doing is starting a race: on your marks, get set, bang—and then they take off.

It will take two years to run this race. During the running of the race, we want to be sure that the concerns that are raised in this debate will come back. If, as I do, we want to see the Government take this decision on behalf of all of us—that EU citizens should be given a guarantee to remain—the best way to do it is to call the bluff of Angela Merkel by saying that we have now triggered Article 50, we will talk about it and unilaterally give the guarantee. It will be much quicker than the three months proposed in this amendment. I want it to be quicker than three months.

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[Baroness Jones of Moulsecoomb (GP)]

Does the most reverend Primate not understand the moral obligation on this Government? These people are not bargaining chips. If we say quite freely that they are free to stay, that gives the moral high ground to the Government in their negotiations. I would argue that all noble Lords, including the noble Lord, Lord Howard, should vote with their conscience and not with their party.

[The Archbishop of York]

I never want to see any human person used as a bargaining chip. They are made in God’s likeness and as far as I am concerned, they are people and must be treated according to the rule of law in this country. The Prime Minister tried to give a guarantee. Angela Merkel did not want it before Article 50 was triggered. My suggestion is to trigger it and go back to what you promised.

I may be a Primate, but thank God I am not in captivity. The other Primate is definitely in captivity, because he is unwell and his legs have just had an operation—but I am not. I suggest that the sooner this becomes law, the greater the challenge we can give the Prime Minister on what she attempted to do but was prevented from doing because Article 50 had not been triggered. As soon as it is triggered and the power is given, we shall shout as loudly as we can and campaign as much as we can for her to go back to what she originally suggested.

People such as me were shocked, after being here and having to travel round on a travel document and pay huge sums for visas to visit the rest of Europe, to suddenly discover that when naturalised—that is the word that is used—as a British citizen we could suddenly visit the whole of Europe without a visa. That was great stuff, and I applaud it—but, please, this is a very limited Bill and we should pass it as it is.

I have one more suggestion for our Minister: to set up a truth and listening commission in every one of our four nations, so that the divisions which we are seeing at the moment can be healed and to listen to the truth and to what the people of Britain and Northern Ireland are looking for, rather than simply locking it in the Government. For those reasons I will vote against any of the amendments, as I do not think they are revising or improving the legislation. They are simply adding on and adding on.

[Lord Hannay of Chiswick]

My Lords, I support Amendment 9B, which is in my name as well as those of the other three noble Lords. It is about the rights of EU citizens in this member state, of course, not those in other member states. I support the amendment without hesitation because I believe we have a commitment to honour here, to recognise not just the rights of these citizens—although that is important enough—but the contribution they have made, are still making and will, I hope, continue to make to our economy and our society. The amendment does not seek to dictate to the Government the details of how these rights should be secured. That will be for the Government to sort out in the proposals that are called for in the amendment, and for Parliament then to decide. I would say here to the most reverend Primate that nor does it entail any delay in the triggering of Article 50 beyond the Government’s deadline at the end of this month.

So far as I can see, there is in fact only one faintly respectable argument against the amendment, which is that to speak unilaterally now about how we will treat European citizens here is not the right way for the UK to help the position of its own citizens who are living in other European countries. But that argument simply does not hold water. Otherwise, why on earth would British citizens right across the European Union have today issued a statement making it quite clear that they support our taking the decision in the amendment and believe that it is the best way to secure their rights?

I do not think I could be accused of supporting the cause of those fellow citizens right across Europe in a half-hearted way. I moved an amendment in the House which would have given them the right to vote in the referendum—which, quite shockingly, they were deprived of by the majority who voted against that. My own view is that for us to move unilaterally to protect the rights of EU citizens here is in fact the best possible step towards safeguarding the rights of our own citizens elsewhere in the EU.

I say that as someone with a little experience of EU negotiation. I negotiated our accession to the treaty, in a very modest way, as well as the budget rebate, the establishment of the single market and the opt-out on the euro. Of course, I cannot be sure that I am right, but I do think that there is a reasonable chance that I am right—and I do not believe that the transactional approach, which is the way that the Government wish to go, is the right way to proceed or is likely to produce good results—or will produce them quickly. So I hope that your Lordships’ House will approve this amendment when we come to vote on it.

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[Lord Clark of Windermere]

I am very grateful for that intervention and I am sure that the Minister will be as well.

I have two points. The advantage of this amendment is that it is a win-win situation, because it is practically right for us to do so, and it is morally right to do so.

I was struck by the argument of the most reverend Primate. I understood it but does he not understand the pain, suffering and uncertainty of individuals working in our health service who feel hurt that they put in so much effort and give their time trying to help the people of Britain? They and their families feel very hurt and I think we owe them something in that respect.

[The Archbishop of York]

It would be quite invidious to suggest that those of us who are sticking to the rules in relation to Bills do not understand pain or suffering. As far as I am concerned, the Bill deals solely with the formal process of notifying the intention to withdraw. It does not relate to the substance of what withdrawal might look like. For the noble Lord to impute that I do not understand pain or suffering is not on. I said at the beginning that I feel the pain and anxiety, but as a legislator, my role is to look at what the Bill is about, not what the Bill ought to be about.

[Lord Clark of Windermere]

The point really is that we then move from the practical to the moral. Some of us take the belief that we have the high moral ground here and that is the ground which is occupied. I say this because we are in a win-win situation. As my noble friend Lady Kennedy said, we are going to have a much stronger negotiating position if we spell it out and show our European neighbours that we can be generous and that, even if we are not in the European Union, we want to remain part of the continent of Europe, working together with our neighbours. That is why I believe we are in a win-win situation with this amendment.

European Union (Notification of Withdrawal) Bill

Lord Sentamu Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Cormack]

I am just about to finish.

The House of Lords should be able to say, “We do not think you’ve got this right”. Of course, if the other place takes a different line we recognise the limitations on our power. But let us send a message to the other place tonight.

[The Archbishop of York]

My Lords, I hope you will permit me to think aloud; these are not yet crystallised thoughts. I heard the exchanges between the noble Lords, Lord Pannick, Lord Hannay and Lord Forsyth, and I still want to work out some of the complications. For me, Amendment 3 provides for the intrusion of Parliament into the negotiation processes—which I do not think should happen—in such a way that it could prevent any deal ever being reached, because we would be involving ourselves in the processes.

There is a question that has not been fully answered. The amendment mentions the approval of Parliament three times. It says,

“without the approval of both Houses of Parliament”,

once, and:

“The prior approval of both Houses of Parliament shall also be required”,


twice. The question that has to be answered is: what happens when this House does not agree with the other House? The amendment says that both must agree, but if we did not agree with the other place, that would give the unelected House almost a veto on the procedure for reaching an agreement with the EU, which in turn would thwart the decision made by the electorate in the 2016 referendum. So that question has to be answered.

I think that the commitment made by the Prime Minister in January 2017 as to the role of Parliament goes above and beyond what is in the Constitutional Reform and Governance Act 2010. I invite your Lordships to look at that Act, because I think she said more than it allows. I suggest that it is not in Parliament’s gift to make this a condition, as the European Union might well refuse to negotiate, or it might agree not to extend the negotiations. The Prime Minister’s official spokesman said yesterday that,

“we should not commit to any process that would incentivise the EU to offer us a bad deal”,

and that any deal that could be rejected by MPs would,

“give strength to other parties in the negotiation. We believe it should be a simple bill in relation to triggering article 50 and nothing else.”

For me, and I think that the noble Lord, Lord Hannay, was trying to say the same thing, triggering Article 50 is an irreversible act. Two years after triggering Article 50 the UK will leave the EU. It will do so with or without a deal, but either way it will leave. Article 50, paragraph (3) makes it clear that the treaties will cease to apply two years after notification has been made. It is possible that the 27 EU members might unanimously agree to extend the negotiating period beyond the two years, but this cannot be taken for granted, nor should it be assumed that anything but a brief extension would be offered. This amendment shows no awareness as to the realities presented by the Article 50 timeframe. It may sound like rubbish, but an answer has to be given to the questions raised by paragraph (3). The amendment also overlooks the fact that the European Union (Notification of Withdrawal) Bill is about the triggering of Article 50 and the formal divorce settlement. Neither the Bill nor Article 50 is about negotiating a new agreement with the EU.

Faith seeking understanding: fides quaerens intellectum. Could somebody explain? If I cannot get a clear answer to the questions I have posed, I may find myself voting no. But if I am helped to understand then I may vote yes.

[Lord Turner of Ecchinswell (CB)]

My Lords, like the noble Lord, Lord Faulks, I arrived this morning for the debate on Amendment 1 not sure which way I would vote, but very clear that I was going to be a strong supporter of this amendment. Also like the noble Lord, I thought there was a link between the two. However, my resolution is somewhat different, in that I did not vote for this morning’s amendment but I still strongly support this one.

One of the difficulties with these debates as to how we should think about the finality of the vote on 23 June last year is that I find myself disagreeing with arguments on either side. On the side of those who, like me, voted remain, it is often suggested that there was something about the vote that was less legitimate than other votes—perhaps because 16 to 18 year-olds did not have the vote or because the leave side lied. But I do not consider those to be reasonable arguments. You may or may not be in favour of 16 to 18 year-olds having the vote, but in our present system voting starts at 18 and that does not change the legitimacy of a general election or referendum result. As for the argument that the leave side exaggerated or, perhaps with the NHS claim, lied, I think there were some exaggerations on the other side as well. In every general election that I can remember, there have been exaggerations on either side, some of which have verged on the mendacious. But they have not invalidated the result of the general election. Democracy is scrappy and imperfect but it is the best system we have. So I accept the result of what happened last year as no more and no less legitimate than any general election. However, that means that as well as being no less legitimate, it is also no more.

It is the case that, on the day after a general election —the noble Lord, Lord Heseltine, has said this already—Members of the opposition party, be they Labour, Conservative or Liberal Democrat, devote themselves to arguing against what was just agreed by the majority of the population. They put down amendments in the Commons or the Lords, try to delay things in the Lords and work, day after day, to win the next general election. In some cases, they work very hard to bring it forward if they possibly can—there is a very fine play here in London now which records that happening in the Commons in the days of several people currently in this House.

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[Lord Eames]

My Lords, I feel that the question that the noble Lord has raised takes us far beyond the points I was trying to put over because we must not tie the hands of the team that is going to speak for us all in the negotiations. I say to the noble Lord, please keep an open mind on the possibilities, but it is not for us to concern ourselves with.

[The Archbishop of York]

My Lords, it is a real delight to follow the noble and right reverend Lord, Lord Eames. When he was Archbishop of Armagh he invited me endless times to visit Northern Ireland, even during the terrible Troubles. As a result we ended up spending a lot of holidays in that particular part of Ireland. It is a very beautiful, wonderful place. The noble Lords, Lord Hain and Lord Reid, spoke with insight. I would like to follow in their footsteps on this wonderful probing amendment that the noble Lord, Lord Hain, says he is not going to put to a vote.

I want to say three things. First, this amendment, as I understand it, touches on sensitivities that Brexit risks putting Northern Ireland’s peace process in jeopardy by not taking account of the fact that under the Belfast/Good Friday agreement citizens in Northern Ireland have a right to Irish citizenship and therefore EU citizenship. This makes Northern Ireland unique post Brexit as the only jurisdiction outside the EU where every person living there is legally entitled to be a citizen of the European Union, simply by applying for an Irish passport. While these considerations are high on the agenda in Dublin and Belfast, they are not receiving, as I understand it, the attention they deserve in London, Brussels or other EU capitals. The amendment seeks to reverse that situation, hence its probing nature.

Secondly, this issue and other matters relating to the impact of Brexit on UK-Irish relations were explored in a report published in December 2016 by the House of Lords European Union Committee. The committee concluded that the unique nature of UK-Irish relations needs a unique solution. It recommended that the best way to achieve this would be for the EU institutions and member states to invite the UK and Irish Governments to negotiate a draft bilateral agreement, involving and incorporating the views and interests of the Northern Ireland Executive, while keeping the EU itself fully informed. Such an agreement would then need to be agreed by the EU partners as a strand of the withdrawal agreement. I will be interested to know what the Minister will say about that.

Thirdly, this amendment does not go as far as the committee suggested but it holds that the right of the people of Northern Ireland to Irish and therefore EU citizenship should be upheld in any agreement negotiated following the triggering of Article 50. To me, that is important. The noble and right reverend Lord, Lord Eames, reminded us of the importance of the border. There is no wall there but it is a border. It seems to me that the rights of those people need to be upheld otherwise we are going to put in jeopardy this wonderful decision under the Belfast/Good Friday agreement that citizens in Northern Ireland have a right to Irish citizenship and therefore EU citizenship.

[Baroness Suttie (LD)]

My Lords, I pay tribute to the wonderful, heartfelt speech from the noble and right reverend Lord, Lord Eames. I think I speak for many in this Chamber by saying that his speaking with such emotion makes us realise how important this issue is. The right of Northern Irish people to claim Irish citizenship is, as other noble Lords have said, set out in the Belfast/Good Friday agreement, the Irish constitution and, as has also been said, the common travel agreement. It should be stressed that this right will remain and will not be changed by Brexit. It would be wrong to suggest otherwise.

However, there remain many unanswered questions and it will be useful, in debating this probing amendment from the noble Lord, Lord Hain, to push the Government for clarification on several issues. As has been said, Northern Ireland is unique in the United Kingdom in that citizens can choose to have Irish citizenship, British citizenship or both. Since the Maastricht treaty, citizens in both Ireland and the United Kingdom have also been entitled to European citizenship. However, following Brexit, in Northern Ireland there will be a situation in which, unlike in the rest of the UK, people will be able to remain EU citizens by virtue of their Irish citizenship. Will the Minister say how he believes UK citizens also being able to maintain EU citizenship will work in practice?

Last week, your Lordships’ House voted overwhelmingly to maintain EU citizens’ rights in the United Kingdom. If this is overturned by the House of Commons next week, can the Minister clarify whether he believes this will have any impact on the Northern Irish people who have opted to have Irish citizenship? If there is no change to the current situation, does the Minister believe that this would entail special status within the European Union? Finally, can the Minister confirm that resolving these issues will be a top priority for the Government, and does he agree that any continuing uncertainty or lack of clarity about future citizenship rights for Northern Irish people is clearly unacceptable?

European Union (Notification of Withdrawal) Bill

Lord Sentamu Excerpts

Ping Pong (Hansard): House of Lords
Monday 13th March 2017 Lords Chamber

[Lord Cromwell (CB)]

My Lords, there has been a great deal of weeping and gnashing of gums on these issues in recent weeks and months. I do not like the government policy on this either. It appears to be: if we cannot help everyone, we will not help anyone. Nevertheless, we have asked the other place to think again. They have thought again and have not taken our advice, and our role now, I believe, is not to insist.

[The Archbishop of York]

My Lords, I have been listening to what people have said and do not want to repeat anything. However, some of us objected to the amendments not because we lacked sympathy, understanding or compassion. We did it simply because we thought there was a confusion of process with substance. The second reason some of us objected, in particular myself, is point 6.2 of the government paper, which says:

“While we are a member of the EU, the rights of EU nationals living in the UK and UK nationals living in the EU remain unchanged. As provided for in both the EU Free Movement Directive (Article 16 of 2004/38/EC) and in UK law, those who have lived continuously and lawfully in a country for at least five years automatically have a permanent right to reside”.


If Brexit happens, and I am sure that it will, EU law will be incorporated into British law. It would be quite tough for the Government to then argue that those who have lived here for more than five years do not have a right to reside, and your Lordships’ House and the other place would have to argue the case again.

I approach this issue with deep compassion. I came here while running away from Amin’s torture. For almost 15 years, I was living and travelling on a UK travel document. As a student, I was prevented from working. I know the difficulties. But when I sit in your Lordships’ House and hear Members say that the other side is not the only one that thinks it is right, I think that we should all find a language that talks about people as people. They are being used as a bargaining chip, which is very hurtful to me and others. That cannot be right because it casts aspersions on those who argue the other way.

The time has come for us to decide. If we want a quick resolution for the EU citizens who live in this country, I will find it difficult to continue further delaying the triggering of the article. It should be done as quickly as possible.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I thank the Minister for his rather unfortunate task of having to bring us the regrettable decision of the Commons on the rights of EU nationals living here. Many of them, of course, are married to Brits and have British-born children but possibly will have no right to remain after Brexit day.

This House by a majority of 102 asked the Commons to do two very easy things. It asked for both pragmatic and ethical reasons. One thing was to make it clear that EU citizens, whether Brits abroad or Europeans here, should not be treated as bargaining chips to be traded against each other. The House felt strongly that these families, who had as a result of our forthcoming exit suddenly found their own lives on hold given the uncertainty over their future, should have their rights secured as soon as possible but without holding one group’s interests hostage to those of another group.

Secondly, we called on the Prime Minister to act unilaterally in the one area under her control and to say to EEA nationals, “We will ensure you continue to have the rights you expected when you arrived, even after we withdraw from the EU”. We did it because of the calls of those affected, and of their employers who fear the loss of valuable colleagues—some 25,000 workers in the health service alone are now thinking of leaving. The Government and the Commons have rejected our call. However, I absolve the Brexit committee, which unanimously felt that the Government should act unilaterally on this. The only reason for the rejection is that it is not a matter that needs to be dealt with in the Bill. Presumably the Government have no other rationale for saying to those here, “You must wait to know about your future until the 27 have agreed how they will treat UK nationals”. That could take months, if not years.

We hear from Brussels that although citizens’ rights will be high on the negotiators’ agenda, it could take years for the final deal, as I believe Liam Fox and David Davis confirmed yesterday, reflecting on the normal practice of “nothing is agreed until everything is agreed”. We regret this delay and lay the blame for this hiatus fairly and squarely at the door of No. 10. We will also campaign for an early resolution to the plight of those caught up in a legal Neverland not of their making. We will continue to press the Government to move on this and provide the certainty our amendment sought, albeit maybe by other—perhaps I should say imaginative—parliamentary routes, a number of which are already under consideration. The people concerned cannot wait until March 2019 to hear their fate.

I turn now to the Liberal Democrats’ Motion. We do not think this is a responsible move. It is not one we could support. This House’s view by a majority of 102 is clear. The Government should act unilaterally on the position of people already among us. As the mover of the original Motion, no one in this House will doubt my support for that. However, our view has been rejected in the elected House of Commons and it is clear that the Government are not for turning. On behalf of the Opposition I say to the people concerned, we are not giving up on you. We will pursue your interests in other ways.

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[Lord Pearson of Rannoch (UKIP)]

My Lords, I ask a question of noble Lords who may be thinking of voting against the Commons this evening and in favour of their previous amendments. How do they justify extolling the supremacy of Parliament—the House of Commons and your Lordships’ House—and wanting Parliament to have the last word on the terms of our leaving the EU, when for the past 43 years they have supported our EU membership and still do so?

I ask because perhaps the main achievement of the European Union is precisely that national Parliaments have been emasculated and that much of their former power has been transferred to the institutions of the European Union. Thus, the unelected bureaucrats in the Commission have the monopoly to propose EU laws in secret, which are then negotiated in secret by yet more bureaucrats in COREPER—the Committee of Permanent Representatives—and are then decided in the Council of Ministers from national Governments, not Parliaments, where our Government have about 14% of the vote. EU law, now a large proportion of our law, is then enforced by the Commission and the so-called Court of Justice in Luxembourg.

The point is that our national Parliament, which noble remainers have been praying in aid to keep us in this anti-democratic failure, is excluded from the whole process. We do indeed have EU Select Committees in both Houses of Parliament, which scrutinise very little of the legislation imposed on us by Brussels, but they cannot change any of it and never have—nor can the House of Commons or your Lordships’ House change any of it, nor have we ever. Yet it is this system which those who have tabled this new amendment in truth wish to perpetuate with their newfound faith in parliamentary democracy. The people, with whom ultimate sovereignty resides, voted to leave that system. The House of Commons has this evening again agreed with the Government that the Bill shall become law as originally drafted. I would, of course, be amused to hear the noble remainers’ answer, but I trust that this is the end of the matter.

[The Archbishop of York]

I shall not detain noble Lords long, but in response to the noble Lord, Lord Pannick, who always speaks with such clarity and grace, I must say that the problem with the amendment is with subsection (4). If the Prime Minister does not get an agreement, whatever she does she has to have the rule of Parliament. She will bring it to Parliament, but the problem is this, if I understand it right—that triggering Article 50 is an irreversible act. Two years after triggering Article 50, the UK will leave the EU; it will do so with or without a deal but, either way, it will leave, because paragraph 3 of Article 50 makes it clear that the:

“Treaties shall cease to apply … two years after the notification”.


Of course, it is possible that the EU 27 might unanimously agree to extend the negotiation period beyond two years, but that cannot be taken for granted, nor should it be assumed that they will offer anything but a brief extension.

The amendment shows no awareness of the realities represented by the Article 50 timescale. It overlooks the fact that the Bill is about to trigger Article 50 and the formal divorce agreement. Neither this Bill nor Article 50 are about negotiating a new agreement with the EU. So as far as I am concerned, once we trigger it, it is irreversible; leave we will, with an agreement or without. So why put in subsection (4) of the amendment? For that reason, I hope that we follow what the House of Commons has just done.

[Baroness Symons of Vernham Dean (Lab)]

My Lords, the notes to Article 50 of the Lisbon treaty say that,

“the Council needs to obtain the European Parliament’s consent … voting by a simple majority of the votes cast, before it can conclude the withdrawal agreement”.

That means that all Members of the European Parliament, including of course UK Members, have the legal right to vote on any final agreement, or lack of it, while Members of the British Parliament have no such legal right because the Government refuse to put such a right in the Bill. In that way I am trying to answer the point made by the noble Lord, Lord Pearson of Rannoch—that supporting the European Parliament having legal rights on the withdrawal agreement that our own elected Members of Parliament will not have seems completely inconsistent with why many people voted for Brexit. They voted for Brexit to have better control of our own laws and, by refusing to put this in the Bill, the Government are in effect making our legal rights less than those of the European Parliament. I think that that is a very strong argument on this point, which needs to be aired, and I hope that the noble Lord, Lord Pearson of Rannoch, accepts that that is indeed the legal position.