European Union (Notification of Withdrawal) Bill

Viscount Waverley Excerpts

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

[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.

--- Later in debate ---

[Lord Bowness]

My Lords, I did not participate at Second Reading because I could not be present for the closing speeches, but I have sat through, watched or read all the proceedings. Had I been present, I would have spoken in support of the Government taking the action urged in this amendment, to which I have added my name—something for which I have no regret, despite this afternoon.

Our attitude to this amendment will help define the kind of country that we want to be. I have read very carefully the letter to your Lordships from my right honourable friend the Home Secretary urging rejection of the amendment. I do not disregard it lightly, but I do not find acceptable the argument that we should be prepared to confirm the rights of EU nationals living here only as part of the negotiation about our own citizens. I think it is a misjudged position to adopt, and wrong both politically and in terms of justice and fairness. I find it neither justifiable nor, with respect, credible to prolong the uncertainty of EU nationals in this country. I wish that we could remove the uncertainty for our nationals in other EU countries, but that is not in our gift.

Our stance on this matter implies that, without a satisfactory outcome to the linked issues of UK citizens, the rights of EU citizens here might not be safeguarded. If we may use the rights of EU citizens here as a bargaining tool in connection with UK citizens’ rights, why not, some people think, for other important issues? But I do not believe it to be a credible argument. Does anyone believe that we in the United Kingdom would actually deprive EU citizens of their rights? For that matter, do we believe that our current partners in the European Union would want to make our nationals’ continued residence in their country impossible, impractical or intolerable? If we do indeed believe that, it says much about our attitude towards our partners. I suggest that in negotiations we need to demonstrate some greater trust. Before we start negotiations, we should reject outright the idea of some kind of diplomatic tit for tat.

Let us remember that we are not dealing with enemy aliens in times of war but with people who came to this country with our consent under the treaties of accession. In 2003, the United Kingdom, together with Sweden, Greece, Ireland, Denmark and the Netherlands, agreed not to impose transitional arrangements limiting free movement. That was a brave decision at the time, which recognised that the countries of eastern Europe had waited a long time for freedom and membership.

That European Union (Accessions) Act was passed in the other place with no votes against. There were some discussions about transitional arrangements, and likewise, in this House, some discussions but no votes. Although any transitional arrangements would by now have long expired, there is no doubt that the United Kingdom and this Parliament offered an unconditional welcome, which was an attraction to many. We felt what has been described this afternoon: that we had the moral high ground. I suggest to my noble friend on the Front Bench that now is the time to take that high ground again and give certainty where there is now uncertainty and clearly state that we in the United Kingdom do not bargain with people.

We have chosen to leave the European Union. That is our choice and our right, but we should also recognise that as a nation we made it possible for people from other countries to come here and build a new life. Let us give reassurance and show that we are indeed the generous, outward-looking, internationalist country that we are stated to be heading for in these Brexit negotiations. Let us also not play a blame game with other leaders in Europe. I say with great respect to noble Lords who spoke earlier: do not read the Prime Minister’s Lancaster House speech as an unconditional offer to settle the issue of EU nationals in this country. Within the words of that speech, the “deal”, which I think was the word used, was inextricably linked to a deal on UK citizens in Europe.

I am very aware of the injunction that we should pass this Bill without amendment—indeed, I have been made very aware of it just in case I had not received the message. If we accept that we will not deprive EU citizens of their rights, what possible motive can we have for being so reluctant on this issue? I hope that it is not because we think it would be seen as a sign of weakness on migration issues. It remains my preference to hear the Minister say that the Government will make a statement that will meet the concerns of those who have put forward this amendment and other amendments in this group. But if he cannot do that now or later, then the matter has to be settled by a Division. For the Minister to take such a step would be preferable, because there are many issues that have been raised by me and other noble Lords that need clarification.

Our amendment refers to EU citizens “legally resident”. That should cover people resident here under their treaty rights. The noble Baroness, Lady Kennedy of The Shaws, referred to that at some length. I ask the Minister to confirm that the Government recognise the rights of those EU citizens who may just be family members living with an EU citizen who has a permanent residence certificate.

To vote for this amendment is not to delay the Bill, to thwart the outcome of the referendum or to deny the will of the other place. It is a simple request to look at a very serious issue. Indeed, were we to do so, it would be in line with the recommendations of your Lordships’ European Union Committee report on this issue. There is plenty of time for it to go back to the other place and come back here. I hope that my noble friend on the Front Bench will understand that I, for one, do not want to be associated with a position which, whatever the motive for adopting it, appears mean-spirited and does us no credit.

With this amendment or a government commitment to EU citizens, we could commence negotiations—I hope that the future of UK nationals will be top of the list—by saying to our EU partners that we have already done the proper thing by their nationals. That could even assist in creating a good climate in which to start our talks. We want a new relationship with Europe. Let us make no mistake: there are many things that we shall need from our partners in the future. To open the talks with a generous gesture, freely given, would not be a bad start.

[Viscount Waverley]

My Lords, emotions understandably run high on this issue, both here and on the continent. As a long-term resident on the continent, and after a lot of soul-searching over the weekend, including consultation with multiple UK residents’ organisations that are consistent in the messages they project, I see, however, that the only course of action is to allow the Government a clear run on these negotiations.

A mixture of issues are at play this afternoon, some of which belong elsewhere. Matters such as meeting the dire needs of our health service should be parked as a subject for another day, as should other regrettable circumstances, including those of families, many with children, facing the stark reality of enforced separation or, worse, having to split up because of the quirks of being a non-EU spouse and not meeting immigration criteria set for residence in the UK. Let those needs indeed be recognised but tagged for resolution in legislative debate and amendments to an immigration or any other appropriate Act.

There is no guarantee that, should EU citizens be offered the right to remain in the UK in advance of negotiations, UK citizens’ rights to remain on the continent will be secure. It could be argued by Brussels, for example, that the UK’s need to propose this is more pressing than that of the 27 remaining members. This is where there is a coup de grâce, of which the Minister will be aware. It addresses the point wished for by the noble Lord, Lord Howard, about the need for a new fact or perspective.

Eight member states have thus far failed to notify the Commission of complete transposition into their national legislation of a citizens’ rights directive, thereby enabling working by citizens in another member state. Failure to react to the formal notice and the recent reasoned opinion necessitating compliance will be referred to the ECJ within two months. This does not help the cause behind these amendments. “Beware the small print” is an adage.

After the trigger, however, the Government could, with Brussels, agree to an across-the-EU process of removing a first stage of uncertainty by announcing that those compliant with national residency rules are good to remain. A limited grace period for compliance by others could then be agreed by mutual consent. The only practical way forward is to establish red lines on the criteria on rights to remain. Two sets of issues would then determine where the line in the sand could be drawn. First, two dates are relevant: the date of the referendum and the date of leaving the EU. Secondly, two sets of persons are relevant: those compliant with individual national residency criteria, who should be correctly registered with the national authorities of the country concerned; and those compliant with bilateral tax-treaty terms and correct reporting on the 183-day rule, taking into account primary residence status and centre of economic interests, paying national social security and municipal taxes as required, including conversion of driving licences and so on. In other words, there should be visible and verifiable commitment of intent. By complying with those conditions, one should be afforded the right to equal treatment as nationals in the country in which one is living, including the right to healthcare. The road map I propose would remove a first stage of uncertainty, from which could follow an incremental, reciprocal and mutual consent approach with Brussels that would be considered throughout the Article 50 process.

I will therefore not be supporting these amendments. They would complicate the process of exiting the EU, probably fail to deliver on a reasonable, timely and negotiated settlement, and lead to a hard Brexit.