European Union (Notification of Withdrawal) Bill

Viscount Hailsham Excerpts

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

I now want to say to the Government: you cannot do negotiations with people’s futures. They are too precious to be used as bargaining chips. I beg to move.

[Viscount Hailsham (Con)]

My Lords, in supporting this group of new clauses and amendments, I shall vote for any one of them that is most likely to commend itself to your Lordships’ House.

Perhaps I may begin by acknowledging that the Government have indeed shown sensitivity about this issue. Their position is essentially pragmatic. Their case is that unilateral action will not address the needs of UK citizens now resident in Europe. In essence, the Government’s position is that in order to increase the leverage that they have with the EU as regards UK citizens residing in Europe, they wish to keep on the table, as a bargaining chip, the right of EU citizens resident in the United Kingdom.

While I understand that argument, I remain extremely uncomfortable with it. I cannot accept the assumptions and implications inherent in that policy. We need to remind ourselves of the central facts, which are these: there are millions of EU citizens—maybe over 3 million—who have come to this country in the legitimate expectation that they will be able to live and work here for as long as they choose. For many of them, that has been a career-changing, maybe even a life-changing, decision, which may be irrevocable.

Their decision was entirely reasonable and proper, based on their assumptions. It accorded with the law that then existed. It accords with the law that exists today. For the United Kingdom now to disturb that expectation would involve an act of retrospective legislation and policy that would offend natural justice and, I suspect, the principles of human rights legislation. Indeed, it is probable that if we seek to deny European Union citizens now resident in the UK the right to continue to stay here, we would be challenged in the courts, and that challenge might well succeed.

Moreover, as a matter of general principle, legislation and policies that are retrospective in their operation should be avoided. Individuals are entitled to regulate their affairs in accordance with the law that exists at the time they make their decisions. To depart from that principle exposes all of us to risk to our freedoms and our ability to make safe choices.

I suggest that we test this this way. Many of us have relatives who were born outside the United Kingdom. My paternal grandmother was born in Tennessee. She came here to marry her first husband, who alas died, then she married my grandfather while she was living here. Both my maternal grandparents were brought up in County Galway. They came here after the First World War to settle permanently. Had my grandparents’ right to reside in those circumstances been challenged, and had I been aware of it as an individual, I would have said that that was a profoundly unconscionable prospect and I could not have supported it.

I cite a more recent consideration. On Monday I was lunching in the Members’ Dining Room of the House of Commons, where I was meeting staff whom I have known for many years. One of the waitresses there whom I have known for years came up to me and said, “What is going to happen to me when Brexit takes place?” She was born in France, but she has worked in the United Kingdom and been in the House of Commons for many years. I gave her my personal opinion, which was that there would be no problem, but I was not able to give her the guarantee she was entitled to deserve.

In the end, this is a matter of principle. This House can make a unilateral decision and give a unilateral guarantee. That is what we should do. Let us all remember how shocked we were when Idi Amin expelled the Asians from Uganda—so shocked that we offered them refuge in this country. Indeed, for those who are historians, keep in mind how shocked Europe was when Louis XIV revoked the edict of Nantes, causing thousands of Huguenots to flee France—often to this country—to its great impoverishment.

I do not say that we are going to do this. I do not think it likely that we will. But we have not put it outside our power for it to happen. That is wrong. I ask your Lordships to take the moral high ground and give reassurance to the millions who have made their home here in the expectation that they can continue to live and work here. To the pragmatic among my noble friends who sit on the Front Bench, such as the noble Lord, Lord Bridges, I say this: the moral high ground is very often the best ground on which to fight a campaign.

[Baroness Ludford (LD)]

My Lords, in supporting Amendment 9B I shall speak also to Amendments 25 and 41. It is a pleasure to follow the powerful speech of the noble Viscount, Lord Hailsham, and to agree with the noble Baroness, Lady Hayter. I assure the House that the colour co-ordination between us is a complete coincidence.

The Government’s case is that these matters will be dealt with in negotiations. They claim that, but for the obduracy of our EU partners, they would have had a negotiation before the notification of Article 50. It was never realistic to expect ad hoc negotiations on one particular very important issue in advance of notification. There has to be an expectation of structured negotiations.

If the UK Government give a unilateral guarantee now to the millions of EU citizens who are contributing in this country, not only will they be doing the right thing morally and economically but they will be supplying a crucial catalyst for a quick reciprocal deal. It was reported in the newspapers on Monday that the Prime Minister expected to reach a quick deal on the issue, so that it could be removed from the rest of the Brexit negotiations as soon as possible—an expectation which I think would generally be supported—but the truth is that the Government are holding EU citizens here not as hostages and bargaining chips for British citizens in the EU but for other goals. It is disingenuous to inflame the fears of British people settled elsewhere in Europe that their case would be undermined by a unilateral move by the British Government. I think that those groups have appreciated that their case would not be so undermined.

The noble Baroness, Lady Hayter, mentioned some of the figures about the contribution of EU nationals to our economy. It is worth remembering that 10% of doctors here are from other EU countries. Sadly, there are reports of many of them wishing to leave or of others being deterred from coming here because of the uncertain environment that they face. Nine per cent of the workforce in construction are continental Europeans —my noble friend Lord Stunell emphasised that—with all the infrastructure ambitions that we have in this country. Similar figures, of 10% and 14%, can be cited for other sectors.

There were rather conflicting press reports earlier in the week about the Government’s intentions regarding a cut-off date. On Monday, it was reported that it was intended to set a cut-off date of 15 March—one’s instant reaction was, “beware the ides of March”—because it was said that government lawyers had advised that using the date of the referendum would be illegal. There was considerable comment that using any date short of our departure from the EU could also be illegal, because while we are in the EU free movement rights continue. There was then a rowing-back from No.10.

The Home Secretary, Amber Rudd, has stated that after Britain leaves the EU,

“we will be ending free movement as we know it”.

Not only must that apply to arrangements for the future but it must have some significance for people already here. While we are in the EU surely EU law on free movement, as on other matters, applies. Indeed, the letter from the Home Secretary states that,

“nothing will change for any EU citizen, whether already resident in the UK or moving from the EU, without Parliament’s approval”.

If that can be said, I think the Government can be in a position to make the unilateral guarantee that I hope this Committee will back today.

I want briefly to mention the problems that EU citizens, and particularly their families, are having in applying for permanent residence at the moment. Last July, the then Immigration Minister, James Brokenshire, gave assurances that nobody needed any documentation to demonstrate that they had a right permanently to reside if they had acquired five years’ permanent residence. I bobbed up and down occasionally to say, “But surely they will need some of kind documentation”. That has proved to be true. It has proved to be an 85-page document. One witness to the Brexit Select Committee in the other place displayed 34 kilograms of documentation, and she was only halfway through the collection. She had been here for 30 years, but she had to show the Home Office evidence of every time that she had entered and left the UK. Has anyone kept documentation for 30 years?

The goalposts have been moved retrospectively. People are being asked to document every move in their lives and they are being required to prove that they have private medical insurance. Although they were previously entitled and allowed to use the NHS, they are now told—having never been warned throughout possibly decades of residence—that they are not entitled to use the NHS. This is a matter of legal dispute, and I believe that the European Commission is making a statement on that subject to the European Parliament this afternoon. We might be enlightened about possible future infringement proceedings.

The upshot is that people are living in a state of anxiety, uncertainty, real dismay and turbulence. This is surely not a state of affairs that a Government whose Prime Minister has talked about the need for a kind and fair society can tolerate. The Government ought to accept that the weight of opinion is in favour of that unilateral guarantee, which will then trigger similar rights for Britons abroad.

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[Lord Spicer]

Of course I trust the noble Lord, but what he is doing is slowing down a process that we should get on with as quickly as possible in order to increase the sovereignty of Parliament. That is the whole purpose. It is the main purpose for those of us—

[Viscount Hailsham]

The purpose of the new clause that we are discussing is simply to ensure proper parliamentary control at the end of the negotiations. That does not slow down the negotiations; it merely ensures that at the end of those negotiations, Parliament has a proper say as to the outcome.

[Lord Spicer]

I personally agree totally with anything that increases the sovereignty of Parliament. I only make the point that this is totally unnecessary, because if we got on with this Bill, we would end up having a much more sovereign Parliament than we would have without it. That is the whole purpose of what I am saying. Indeed, it is necessary that we should have greater sovereignty because the powers of Parliament have been eroded ever since the Maastricht treaty, with which I was associated. That has been something that has been going on for some time—ever since there was a single currency. The powers of Parliaments have been reduced because the single currency is irrevocable, and we have a system in this country whereby no Parliament can bind another Parliament. There is no doubt in my mind, at least, that had we not started the process of leaving the European Union, the European court, which the noble Lord will know a lot about, would have moved in on us for not joining the single currency at some point. There is no question in my mind about that.

--- Later in debate ---

[Lord Lisvane (CB)]

My Lords, I hope that the noble Viscount will be kind enough to allow me to interpose very briefly. I support the thrust of Amendment 17 and certainly the aim that it seeks to achieve, but I have a couple of questions about the mechanisms that it proposes to do that. It proposes proceeding by resolution of each House. There are two issues. First, what happens if a straightforward approval Motion is amended and the final result is a resolution that overall approves an outcome but contains some sort of rider or condition? Regulating parliamentary proceedings by statute, in my experience, generally ends in some sort of tears. A question of whether the outcome met the requirements of the legislation could be resolved only by the courts, and that might not be a welcome result.

Secondly, what happens if one House comes to the required resolution but the other does not? Perhaps the solution is one that would endorse the sage advice given earlier by my noble and learned friend Lord Hope of Craighead which is to employ primary legislation, because that contains very well-understood mechanisms for securing agreement between the two Houses.

[Viscount Hailsham]

My Lords, I know the hour is late so I will be very short; I will confine myself to making three points. The first is to adopt the language of my noble friend Lord Deben. This House must recognise that, ultimately, the decision has to be made by Parliament. Historically, there has always been tension between the Executive and Parliament and I happen to be a Roundhead on this matter. Let us not forget, as my noble friend pointed out, that we would not be debating this Bill had the courts not intervened. The truth is that Governments always seek to advance ministerial power at the expense of Parliament and we must push back. The historians among us will remember John Dunning saying that,

“the influence of the crown has increased, is increasing, and ought to be diminished”,

and, with suitable alteration, that is where I stand.

My second point refers to what the noble Baroness, Lady Kennedy, said a propos the risk of there being no agreement. The noble Lord, Lord Kerr, assessed that risk as being higher than 30% and I entirely share that view. We need to address that in statutory language. That is what I tried to achieve in the new clause that would be introduced by my Amendment 32.

My final point, turning to the noble Lord, Lord Pannick—I know it is the view of the noble Baroness as well—is that assurances are well and good and I do not at all doubt the good faith of the Ministers who give them. But I prefer to see assurances in statutory language. Prime Ministers can go, Ministers can be sacked, Parliaments can change and Governments can cease to exist. One needs to enshrine assurances that stand against those changes in circumstances. Therefore, whenever we come to divide on this group of amendments, whichever is chosen, I shall support it because I stand in favour of parliamentary government.

[Lord Ashdown of Norton-sub-Hamdon (LD)]

My Lords, it is very late. We are tired. I do not know about the rest of your Lordships but I certainly am. I have sat here for four hours, a speech burning in my head, but listening to the speeches that have been made, I would not make any point that has not been made already, particularly in regard to the speeches of the noble Lord, Lord Deben, and the noble Viscount, Lord Hailsham, which were probably better than any I could ever have made. I am content to leave their words as mine on the record, in the hope that we may hear from the Minister fairly soon.