Brexit: European Union-derived Rights

Viscount Waverley Excerpts

Tuesday 4th April 2017 Lords Chamber

[Lord Morris of Handsworth (Lab)]

My Lords, like other noble Lords, I support both Motions in the names of my noble friends Lady Smith and Lady Hayter. Like an overwhelming number of UK nationals, I am at heart a European and I care about all European citizens. To that end, I think that we have to confront what I call the “people issue”. We must do so as a matter of some urgency and stop treating UK and indeed EU citizens as bargaining chips.

The Prime Minister does not seem to understand that, just by saying that no deal is better than a bad deal, she has shattered the lives of thousands. That statement has created uncertainty and fear for thousands throughout the European Union on both sides of the debate, and her letter to Donald Tusk has not given them any confidence. Saying that we should,

“aim to strike an early agreement about their rights”,

does not fill anyone with any sense of confidence, or indeed suggest any urgency.

As well as affecting the lives of EU nationals here in Britain and British nationals in Europe—their jobs, their housing, their children’s schools, and their social and family lives—the uncertainty has started to impact on all of us. Two years might seem a very long time, but the reality is that time is not on our side.

Following the referendum, there began a trickle of EU nationals leaving their jobs and homes in the United Kingdom in fear of the future. That trickle has now become a flood. The Royal College of Nursing has reported a fall of 92% in the number of EU nationals registering as nurses in England since the referendum in June. It has blamed the haemorrhaging of foreign staff on the failure of the Government to provide EU nationals in the UK with any security about their future. Over 17,000 EU nationals in the NHS left in 2016, compared with 13,000 in 2015. Many were doctors and nurses. The Royal College of Physicians and the British Medical Association blamed the rise on the Prime Minister’s lack of assurances about the position of EU nationals resident in the UK.

A survey of members of the Food and Drink Federation at the end of last year found that their EU employees felt “unwanted and uncomfortable”. The Royal Institution of Chartered Surveyors says that the construction industry could lose more than 175,000 employees. It has cited projects that could be at risk, such as the HS2 rail link. The construction industry reports that its dependence on overseas workers could make it difficult to tackle Britain’s housing shortage if there were to be an exodus of EU workers. Although farmers have been able to recruit enough seasonal workers for this summer, whereas a job previously attracted 10 applicants, this year it attracted only three or, at the most, four. By delaying positive action now, some sectors of the economy will be heading for disaster because of a shortage of labour.

In the meantime, in mainland Europe British families are worried about possible retaliation at what may happen to EU nationals, and they fear for their homes and families outside the UK. For the Prime Minister, they may be no more than negotiating capital, but, for many Europeans, this is an issue that will determine the future life chances of individuals and families for generations to come.

In a recent debate, the Minister was robust in saying that EU citizens living in Britain could apply to stay. However, with due respect to the Minister, that statement was somewhat disingenuous. The Minister knows perfectly well that there is a qualitative difference between the right to apply and the right to stay. In his statement, he offered only the right to apply. Anyone has a right to apply, but it is the outcome which counts and which is important. I will not burden this House and this debate with the requirements of the right to apply. I say no more than the form is 85 pages long.

In my previous contribution on this issue, I said that this was not a political game: that people on both sides of the channel could not be left in limbo. We must urgently give an unequivocal guarantee to EU nationals that they and their families have a right to stay and ensure that reciprocal arrangements are made on behalf of British nationals throughout the EU.

The Prime Minister, in her letter to the President of the EU, had an opportunity to resolve the bilateral status of all the people affected by our departure—but she missed the opportunity. As we have seen over Gibraltar, it would appear that our Prime Minister now never misses an opportunity to miss an opportunity. But missing the opportunity is not without consequences. Already one section of the Tory party is saying that Spain should be treated in the same way as we dealt with the Falkland Islands. That cannot be on the agenda of this debate.

So today I wholeheartedly support the proposal of my noble friend Lady Hayter to resolve that a Minister reports to this House at the end of this Session on progress towards securing what I call the “people issue”. I hope, for the sake of millions of our fellow Europeans, that when that report is made it will bring some comfort and, most importantly, security, and that they will be able to continue their lives in the country of their choice.

[Viscount Waverley (CB)]

My Lords, I believe that the noble Baroness, Lady Hayter, has touched a raw nerve. I refer to a concern and, in doing so, declare that I fall into that bracket. I originally referred to this matter in the form of a Written Question on 4 July last, asking what steps the Government had taken,

“to bring UK law into line with the European Court of Justice ruling C-127/08 on the implementation of Directive 2004/38/EC and the rights of non-EU spouses of EU citizens to move freely in the EU”.

The case concerned the ability of a Colombian lady to enter the United Kingdom with no visa impediment.

A response came through from government, in effect saying that United Kingdom law relating to the rights of EU nationals and their family members—this is the key point—to enter and reside in the UK is fully compliant with the decision of the ECJ, to which I referred earlier. I refer to this again as, while in no way doubting the Government, I am not actually sure that this is working in practice. Will the Minister, at his convenience, look at this and confirm that non-EU spouses and family are able to enter the UK without any condition?

[Lord Hope of Craighead (CB)]

My Lords, I should like to say just a few words in support of the Motion in the name of the noble Baroness, Lady Smith of Basildon, to which the noble Baroness, Lady Hayter of Kentish Town, spoke.

I want to stress one word that comes towards the end of the Motion, and that is the word “before”. It is used in a phrase that sets out that among the matters to be looked at by the Joint Committee will be the taking of votes before any agreement is considered by the European Parliament. The timing is very important. The point is made in answer to points made on several occasions in our debates on the notification of withdrawal Bill, with reference to the curiously worded enactment already on our statute book, the Constitutional Reform and Governance Act.

At the end of the whole process, assuming that an agreement is reached and approved by the European Parliament, there will have been created by that agreement a treaty which we in Parliament will be required to ratify. It was suggested that that was enough to satisfy the constitutional requirements of approval by Parliament. The point that the noble Baronesses are making, which is absolutely right, is that the time for Parliament to express its wishes is before the agreement is reached to be put before the European Parliament. It is too late once we are presented with a completed agreement in the form of a treaty that we are being asked simply to approve. So this Motion is very carefully worded and, in my respectful submission, very correctly worded to address that point. The issues must be considered before the agreement is handed over to the European Parliament.

The same point arises in regard to a point that is not mentioned in the Motion but which was very properly raised by the noble Baroness, Lady Hayter: the need for legal certainty. I touched on this at Second Reading and do not wish to repeat all that I said then. However, the point I made is that there is a need for parliamentary authority for the making of the agreement itself by the Prime Minister, because it is the Prime Minister who will eventually conclude the agreement on our behalf that is to be handed over to the European Parliament.

The guidance as to how one achieves legal certainty is to be found in the decision of the UK Supreme Court in the case of Miller. It does not need to be repeated, but that decision looked for legislative underpinning for the authority to enter into that agreement. Again, the timing is critical. That is required before the agreement is entered into and before it is handed over to the European Parliament. I stress the word “before” because it identifies a critical point in what will become, at the end of the process, a very important issue of timing, as one event follows another.

Perhaps it is a reason also to stress a point made by the noble Baroness, Lady Hayter, that the sooner legal certainty is achieved, the better. I suggest that the worst thing of all would be to leave the search for legal certainty until near the end of the process, when things will become more and more urgent. The sooner it is sorted out, and sorted out in the correct way, the better. Therefore, I support both Motions—but in particular the second because of its careful wording.