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Brexit: European Union-derived Rights

Volume 782: debated on Tuesday 4 April 2017

Motion to Resolve

Moved by

That a Minister of the Crown do report to this House by the end of this Session on the progress made towards ensuring that qualifying non-United Kingdom European Economic Area nationals and their family members are able to retain their fundamental European Union-derived rights after the United Kingdom has left the European Union.

My Lords, in moving this Motion I shall not go through all the arguments which led to a majority of 102 when we discussed this issue before. It is clear that the House felt that neither EU citizens here nor UK citizens abroad should pay the penalty of our withdrawal. We said that we would continue to make the case.

As Sadiq Khan said of London, where a third of the EEA nationals—some 1 million—live, Europeans who live and work in London are Londoners and should be given “a cast-iron guarantee” of their right to stay post-Brexit. These Europeans work in every part of our community. As the unions such as Unison have said, clarity is needed as early as possible because any decrease in the number of EU citizens working here would have a huge impact on our public services, especially in health and social care. One in 15 nurses in England is European, although already the number registering is declining to only a quarter of those in the same period of 2015. We have also lost twice as many doctors as in 2015. The RCP and the BMA blame this on the lack of assurances for EU nationals.

In social care, Europeans comprise 6% of the English workforce—some 84,000—of whom 90% do not have UK citizenship. We should remember that of the 3 million EU citizens only 10% are married to British nationals, which gives them some hope of being able to stay. Other concerns arise for those whose spouses are non-EU. In academia, at the Francis Crick Institute—he of course won his Nobel Prize for the double helix with that immigrant Mr Watson—44% of its staff and 56% of its post-docs are from the EU.

I want to make three points today: on transparency of negotiations; on urgency; and on the EU 27’s priorities. On the first, we have already seen that there is going to be no secrecy. Predictably, we saw the Tusk letter on TV before the ink had dried so our Motion will not expose any secrets. It will simply allow what is in the public domain to be discussed in your Lordships’ House.

Secondly, on urgency people really cannot put their lives on hold for two years while awaiting the outcome of talks. They need to know now whether to take jobs and choose schools for their children, or make plans to leave. We are seeing European citizens turned away by mortgage lenders because of uncertainty over whether they can stay, while some employers are asking proof of permanent residency before workers get more than a fixed-term contract. Certainty is also needed for business. The British Chambers of Commerce has called on the Prime Minister to confirm that EU residents can remain after Brexit, with its director-general pointing out that some firms are already losing staff due to the avoidable uncertainty. The CBI president has said that its number one issue was to tell all 3 million EU workers that they can stay, or else their exodus will bring business to a halt. Likewise techUK, which is reliant on EU entrepreneurs, wants confirmation that EU citizens will be able to stay.

Thirdly, there is the stance of the EU 27. As Joseph Muscat, Malta’s Prime Minister and the EU’s chair, has said, the two sides need to remain friends. We can help if we meet their priorities wherever possible; the position of our respective nationals is one such area. Their chief negotiator Michel Barnier wants negotiations to begin by removing the uncertainty over the rights of citizens in each other’s countries. For the European Parliament’s Brexit lead, Guy Verhofstadt, it is an absolute priority and needs to be the first issue in the negotiations. He says that citizens should not become bargaining chips. In Malta, Donald Tusk prioritised people caught up in this process as the first duty, stressing the need to settle the status of EU citizens in the UK. The EU’s draft guidelines highlight reciprocal guarantees as a priority for the negotiations.

Meanwhile, a helpful Politico survey of the wish list of each of the 27 showed, for example, Austria putting the rights of its 25,000 citizens here as the top priority, as did Bulgaria for its 60,000 citizens. The future of 80,000 Latvians is key to their Government’s Brexit strategy. It is the first item for Romania, for Slovakia with its 75,000 Slovaks and for Lithuania’s 200,000 citizens, who are 8% of its population. Budapest wants a mechanism that would give automaticity to renewing the work permits of Hungarians while Warsaw’s main concern—admittedly, alongside money—is the 800,000 Poles. Even in Spain, where alone among the 27, more Brits live there than its citizens live here, Madrid favours a quick reciprocal deal.

Evidence that we take these issues seriously will help our negotiations—not if forced by a vote in the House but rather as a willing gesture from the Government. How much better it would be as a signal to those 27, and to provide comfort to the 3 million, for the Government to accept our request, which is simply to report back on how the issue is unfolding.

The Motion in the name of my noble friend Lady Smith seeks to get the Government off a bit of a hook. It was Mrs May who promised a vote at the end of the process but with little thought, it appears, as to its legal status. Our amendment, moved so effectively by the noble Lord, Lord Pannick, had a majority of 98 but with 634 Peers voting—the highest ever in any Division in your Lordships’ House throughout its long history. The Government should have heeded that but it was overturned in the Commons, on the grounds that it was not a matter that needs to be in the Bill. Perhaps not, but it is a matter for now because without legal clarity we risk being in a difficult position in 18 months’ time when the promised vote comes before us in both Houses.

I am in no position to judge the opinion of the three knights or the warning of the noble and learned Lord, Lord Hope, at Second Reading, nor to answer the question of my noble friend Lord Grocott: what happens if the two Houses disagree? But I know that I would not want to be the Minister steering this through its final stages without robust legal certainty. So our advice is not to leave this until we are actively giving serious consideration to the draft withdrawal agreement, when our concentration will be on that. Let us set up a parliamentary route as to how the Houses will vote ahead of the European Parliament’s consent vote to ensure that the Commons have the veto, not us, and to give legal certainty to the vote. It cannot be right for the European Parliament’s vote to be entrenched in law but ours to be merely on the Prime Minister’s words, with no legislative back-up.

Neither Motion this evening requires any new government position. We are taking the Government’s policy on both issues. In her letter to Donald Tusk, Theresa May wrote that,

“we should aim to strike an early agreement about”,

EU citizens’ rights. It was also her decision that there would be a vote in both Houses on the outcome of the negotiation. We seek simply to ensure that this House, and in one case also the Commons, is involved in the discussion of how the Government implement their stated plans. I beg to move.

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.

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.

My Lords, I support both Motions. On the first Motion from the noble Baroness, Lady Hayter, I can be very brief. I will start with a quote:

“I think it is absolutely right to issue the strongest possible reassurance to EU nationals in this country, not just for moral or humanitarian reasons, but for very, very sound economic reasons as well. They are welcome, they are necessary, they are a vital part of our society, and I will passionately support this motion tonight”.—[Official Report, Commons, 6/7/16; col. 939.]

That was said by Boris Johnson. The Motion he was passionately supporting asked the Government to,

“commit today that EU nationals living in the UK shall have the right to remain”.

He was right, for once. I worry that by letting this question get tied up in the negotiation we risk to years of uncertainty for both sets of people—their nationals here and our nationals there.

The European Council’s draft guidelines say:

“Negotiations under Article 50 … will be conducted as a single package. In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately”.

That is ominous. Yes, President Tusk and Monsieur Barnier have picked out citizens’ rights as a priority first-phase issue, and, yes, the Prime Minister suggested aiming to strike an early agreement. But it could still be held up behind other first-phase issues such as the money issue—settling the bills—on which negotiations will inevitably be protracted and unpleasant. It is a serious sequencing error to let a win/win common-interest negotiation be held up by a win/lose, zero-sum negotiation —but it could happen.

It could also still be averted—even now—if, before 29 April, before the European Council approves these guidelines, the Government were to do the decent, moral and economically sensible thing, as recommended by the Foreign Secretary on 6 July last year. The Government should be announcing now that those non-UK EU citizens living here will retain the right to do so, and that we expect our partners to follow suit. My answer to the noble Viscount, Lord Hailsham, is that they would. It is a win/win, and our partners see that, too. We should take the issue off the table right now.

On the second Motion, from the noble Baroness, Lady Smith, my particular concern about the amendment that we passed by such a large majority, and which the Commons rejected, was the risk that there would be no deal. My concern was that the Government have as yet given absolutely no commitment, oral or written, that in the event of no deal there would be a meaningful vote in the House of Commons. Indeed, the last time we addressed this question, last week, the noble Lord, Lord Bridges, appeared to be saying that there would be no vote because there would be no deal to vote on. A situation in which there was no deal would be the situation in which we would most need to have a vote.

In the last week, I think the risk of no deal has grown slightly. I had put it at about 30% and it is probably now a little higher than that—not because of Gibraltar and silly interventions from here; not because of the reference to Gibraltar in the European Council draft guidelines, which was absolutely predictable; not because of the absence of any reference to it in the Prime Minister’s letter, since any reference would not have made the slightest difference, so that criticism of her letter is invalid; nor even because of the unfortunate perception that her letter contained a threat to withdraw co-operation against crime and terrorism if we failed to get a good deal on trade. Any such threat would have been seriously counterproductive and would have suggested a dangerously transactional approach to questions of security—but I believe our partners accept that the drafting infelicity was unintentional.

The reason for my concern is a bigger one: the mismatch between the Prime Minister’s bland assertion in her Statement last Wednesday that there would be a phased process of implementation and her insistence that in two years’ time:

“We will take control of our own laws and bring an end to the jurisdiction of the European Court of Justice in Britain”.—[Official Report, Commons, 29/3/17; col. 252.]

Unsurprisingly, the draft European Council guidelines state:

“Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory and enforcement instruments and structures to apply”.

I do not find anything surprising in that; it is what I would have expected the European Council to be advised to agree, and what it will agree. But it means that, in the transition or implementation phase, the ECJ’s writ will still run in this country—and, presumably, that the European Union’s resistance to our cherry-picking of the acquis would apply to an interim phase just as much as to a permanent position. So, despite the great repeal Bill and despite losing our votes in the Council and the Parliament, we would still be applying all EU laws during the transitional phase. That is not exactly what Mr Davis told the other place and is quite a climbdown from Mrs May. Therefore, the risk of the Government walking out has grown.

That is why it really is troubling that the Government are giving no commitment to a meaningful vote in the Commons in the event that the Government decide to throw in the towel and walk out with no deal or no transition deal. With all due respect to the Prime Minister, “No deal is better than a bad deal” is plain wrong, and Mr Johnson was wrong to say that to leave with no deal would be “perfectly okay”. The Commons Brexit committee’s report, the CBI and the IoD are all correct in saying that no deal would be a disaster. If the Government were to head for the cliff edge, Parliament must be given the chance to require them to think again—to seek an extension of the negotiations or to consult the country. That is the principal reason why I strongly support the Motion from the noble Baroness, Lady Smith. Parliament needs to work out how best to ensure that it gets its say on the emerging outcome of the negotiations, particularly if it does not match Mrs May’s aspirations, and particularly if the outcome is no deal—and Parliament needs to work out how to do so in good time, before the die is cast.

My Lords, I shall be brief. I have a simple question for the Minister: what happens if there is a blockage in the negotiations on these matters in the wider European Union? In principle, is it possible for the UK to enter into bilateral agreements with 27 individual nation states offering rights to national residency in the UK in return for reciprocal rights for UK citizens living in the Union? The advantage of bilaterals if we hit a stalemate would be that any state opposing such concessions at the time of final settlement of these matters could find their own citizens’ rights in the UK in jeopardy and subject to review. It would have the effect of moving the debate to the capitals of obstructive states in the circumstances of a blockage in the negotiations. I wonder if the Minister might be able to help us with that very simple question.

My Lords, like the proverbial Irishman, I would not have started from here. We have to be careful that we do not continually refight the same battles, but that does not mean that we cannot repeatedly restate the same principles.

I remain of the same view that I did the day after the referendum, 24 June last year. I deeply regret the result, and I thought that the first and most positive thing that we could and should do would be to guarantee the rights of EU nationals in this country—I was a week ahead of Boris Johnson. We would have taken the moral high ground; we would have lost nothing; we would have made an extremely important gesture, which I believe would have been reciprocated. My noble friend Lord Bridges, who will be replying to this debate, knows very well that that has been my view throughout, and I have repeated it in this Chamber on a number of occasions.

However, as someone said a few moments ago, we are where we are. What is now crucial—my noble friend Lord Hailsham made this point—is to ensure that we guarantee as soon as possible the right of EU nationals. I am confident that there would be reciprocation. We do not want to let this drag on for two years.

Uncertainty was referred to by the noble Baroness, Lady Hayter, in her admirable opening speech. We all know from our personal lives that nothing is more mentally debilitating than uncertainty. Whether it is concern over a loved one with illness or over a job, if we have uncertainty, we cannot plan ahead, look forward with confidence or aspire. Every human being has the human right to all those things. I very much hope that, when my noble friend comes to wind up, he will be able not only to state his personal agreement but to say that the Government will indeed report back to Parliament and that he will do all in his power—I am sure that he has great negotiating skills—to bring this uncertainty for 3 million human beings in our country to an early and a hopeful end.

I also find myself in agreement with the Motion spoken to persuasively by the noble Baroness, Lady Hayter. We have said these things before in innumerable debates, but the cry from those who did not think that they would win, but did, was, “We want to take back control”. Control where? In a parliamentary democracy, control can lie in only one place, and that is Parliament—particularly in the House which has supreme power, the elected House, but, to a degree, in your Lordships’ House, too.

We must never forget that the single, cardinal principle of our democracy is that government is accountable to Parliament, and Parliament is accountable to the electorate. It is crucial that we have not only discursive debates—which, in a sense, is what we are having tonight—but debates with real purpose and real votes at the end of them. That is not because I want in any way to circumscribe the freedom of those who will be negotiating on our behalf, but because I want them to be answerable to us and, particularly, to the other place.

It is a good idea that there be a Joint Committee; there are many precedents. One thing that has disappointed me in the more than six years that I have been in your Lordships’ House is that there is not more co-operation between the two Houses. I sat on one or two Joint Committees myself when I was in the other place. I felt that they were good to have but that there were not enough of them. In the most important journey that our nation has taken since the war, where we do not yet have an agreed destination, still less a route map to get us there, it is crucial that we work with our colleagues in the other place. I believe that this suggestion is both practical and sensible, and I very much hope that it will be adopted.

I conclude on another note. During recent debates and exchanges on the Floor of your Lordships’ House, there has been a degree of fractiousness that is not typical of our debates. It is understandable, because those who won have become, if I may say so, increasingly triumphalist, and those of us who lost have perhaps become increasingly disappointed. We have to try to put that disappointment behind us for the sake of our country, which has known greater perils in the past and has come through them. I think it is incumbent on each and every one of us to try to temper our language and not indulge in inflammatory rhetoric of any sort, but to know that we should have one common aim and purpose. That is to ensure that our country, when all this negotiating is over, is not in an appreciably worse and weaker position than it is at the moment.

There is a real danger of that. I do not think that many of those on the leave side— I talk to a lot of them—thought that there would be quite so much to unravel. Certainly, outside your Lordships’ House and in the country, many of those I have talked to in my native county of Lincolnshire and the county that I had the honour of representing for 40 years in the other place, Staffordshire, did not realise how much had to be undone. The unpicking of almost half a century of history while ensuring that we do not go back is incredibly difficult.

I have the honour to sit on the Home Affairs Sub-Committee of the EU Committee of your Lordships’ House. We have recently been taking evidence on the European arrest warrant. What becomes increasingly obvious from our sessions is that the whole struggle is to try to maintain a sort of status quo.

We are beginning a long journey. I hope that we can be together on this, and I congratulate the noble Baroness on introducing the Motion tonight.

My Lords, I start by thanking the Library for its most helpful analysis of the issues and arguments we are discussing today.

I believe that few things can be more important than the proposed task of the Joint Committee to clarify the options for the promised vote in Parliament on the outcome of the negotiations. At the moment, I submit, the offered choice is meaningless. What are the possible outcomes?

The Government are confident that they will establish a new relationship with the EU which retains for us the benefits of the single market and the customs union but without remaining members of either, without commitment to the freedom of the movement of labour, without continuing to make the present level of contributions to the European budget and without accepting the jurisdiction of the European Court of Justice. With great respect to the Prime Minister, this is perhaps a somewhat overoptimistic scenario. There have been no suggestions from the 27 that they are willing to make any such concessions to a non-member, granting us a special status far more favourable than that granted to any other nation.

Of course, if the Government did succeed in negotiating such a new relationship, Parliament would no doubt be very willing to accept the deal. But if they did not succeed, outside the customs union and the single market, our exporters would face tariff and non-tariff barriers and the high costs and delays of border controls. Our service industry would lose its rights to operate in Europe and we would be bound by regulations in whose formulation we would have no say. In fact, we would be no better off than if there were no deal.

What would Parliament then vote for? It could accept the bad deal, I suppose, because it said that the vote of the people in the referendum must still be obeyed. It could reject the deal and tell the Government to go back and negotiate a better one—some hope. In practice, the choice on offer would be meaningless. Rejecting a bad deal means no deal—WTO terms.

The real alternative would be to withdraw the Article 50 notice, as the noble Lord, Lord Kerr, and indeed, Mr Jean-Claude Piris, the former head of the legal services to the European Council, have told us we are perfectly entitled to do. The Article 50 notice is of an intention to leave. An intention is not a decision. Only the member state can decide to give the notice and therefore only the member state can decide whether to withdraw it. That seems a very convincing argument. But remain is not an option that the Government will allow. Some time ago, Donald Tusk told us that the final choice would be between a hard Brexit and remain. I think he was right.

But the option of remain is not available at present. Now, the anti-European wing of the Conservative Party, including several very distinguished Members of this House, are all for hard breakfast—I mean Brexit. They are not worrying about Parliament having no choice. They favour the WTO route because they predict that, once we have cast off the shackles of the European Union, we can exploit a glorious bonanza of free trade deals with the rest of the world. They may be right: there has never been a more uncertain time.

But it seems at least as likely that we are now in the calm before a storm, that in the Trump era of “America first” the world is likely to be one of protectionism, not free trade, and that a hard Brexit—indeed, even the prospect of one—will in due course lead to a further fall in sterling, a rise in inflation, a flood rather than a trickle of corporate emigration, and a serious decline in living standards. It seems far from inconceivable, as the noble Viscount, Lord Hailsham, said, that many of those who voted leave will then decide that this is not what they voted for and there will be a major shift in the public mood.

The Government have decreed that the Brexit vote is sacrosanct and irreversible. Autocracies and dictatorships forbid people to change their minds. It is the essence of democracy that they may do so if circumstances change, and the verdict of a referendum is no more sacrosanct than that of a general election in which people vote—unlike the vote in June—after detailed manifestos from the parties.

This principle is highly relevant to this Motion. The proposed Joint Committee is to review the options of what Parliament can vote for. The Government’s so-called concession, to let Parliament have the final say, limits them in a way that makes the choice meaningless as it stands. I hope that Parliament will at least agree that there must be a real choice at the end of the negotiations, and that people should be able to exercise their democratic right to change their mind if circumstances change and their hopes are dashed.

My Lords, it is a pleasure to attend the latest meeting of the House of Lords Brexit club. The agenda bears a striking resemblance to our last meeting on 13 March, but there is a reason for that—the issues on the agenda were not satisfactorily resolved when we last met.

I want briefly to comment on the second Motion. We all agree, I think, that at some stage in the next two years the Government are going to reach a deal with our EU partners, or they will decide that we will leave the EU with no agreement. The Prime Minister, we all agree, has promised that an agreement would be put to a vote in both Houses. The Prime Minister has made no promise—there is no undertaking if there is no agreement—but noble Lords from the government side and from all around the House told this House that it was inevitable in practice that a decision to leave the EU with no agreement would be put to a vote in Parliament.

A number of difficult questions were posed by noble Lords as to the procedures that will be adopted when we come to the crunch point and when Parliament is asked to vote. I certainly was unable to answer those difficult questions and, more importantly, the Minister, with all his expertise, experience, wisdom and foresight, was unable to answer those difficult questions. Surely on a matter of such significance to the future of the United Kingdom we would all benefit from some mature consideration—before we come to the beginning of the end game—by a Joint Committee which can assist this House and the other place, the Government, the Opposition and all Back-Benchers.

My Lords, being a member of the Brexit club, I support both the Motions but will speak to just the first one.

The Prime Minister’s welcome assurance to President Tusk, that,

“We should always put our citizens first”,

will, I hope, as she stated, act as a guiding principle in the negotiations and the legislative programme stemming from the repeal Bill. I hope, too, that this principle will embrace the rights that our citizens enjoy—broader human, equality and environmental rights as well as employment rights to which the Government have committed to safeguarding.

As we have already heard, the first Motion concerns the rights of our fellow EU citizens who have made the UK their home, and also has implications for UK citizens living elsewhere in the EU. We know from the many emails we have received how insecure they now feel and also how insecure many of their loved ones who are British citizens feel. We have heard from my noble friend Lady Hayter and the noble Lord, Lord Cormack, what it means to have that sense of insecurity.

As well as insecurity about their future, there is another aspect, which I do not think was mentioned during the debates on the relevant amendments to the Article 50 Bill but which was raised by the EU Committee’s excellent report on acquired rights. The committee expressed the fear that,

“Question marks about the rights of EU nationals to live in the UK may be fuelling xenophobic sentiment”.

So long as this uncertainty about their status remains, the danger is that they are seen as second-class citizens—the foreign other—rather than as our fellow workers and neighbours, contributing to this country. It is therefore right and proper that resolution of their situation is a priority in the negotiations, and I hope that the first Motion will be accepted as supportive of the Government’s own goal in achieving this.

It has been suggested that the xenophobia unleashed by the referendum result arose in part from the threat that some people have felt to their identity in the face of rapid EU migration in some areas of the country. As I said at Second Reading of the Article 50 Bill, I and many others have felt the loss of European citizenship as a blow to our identity. Since then, there has been talk of some form of associate European citizenship which would, at the very least, enable us to still call ourselves European citizens if we so wish and to move freely within the EU, with appropriate rights for EU citizens wanting to visit the UK. This has been proposed by Guy Verhofstadt, the European Parliament’s Brexit representative, and has been the subject of a new European citizens’ initiative. The President of the European Commission has said that he has not shut the door to the idea. I hope that our Government will, likewise, keep an open mind. Would it not represent a tangible expression of the “deep and special partnership”, to which the Prime Minister and Brexit Secretary have frequently referred in recent days? I would welcome the Minister’s thoughts on this idea.

Last week, the Brexit Minister stated on the “Today” programme that he sees it as a “moral duty” to give EU citizens in the UK certainty and to take away any anxiety they have about their situation. I hope and trust that the Government will accept this Motion in recognition of that moral duty.

My Lords, it is frequently suggested that any noble Lord who starts a speech with, “I shall be brief”, will drone on for many minutes. However, I do propose to be brief in speaking in favour of the Motion proposed by the noble Baroness, Lady Hayter. As the noble Lord, Lord Cormack, said earlier, so much has already been said and we should not keep refighting the same battles. I therefore have just one question for the Minister. On more than one occasion during the passage of the EU withdrawal Bill, the noble Baroness, Lady Symons, and I said that the nature of EU negotiations is that nothing is agreed until everything is agreed. That is what the European Union has now said. In light of last week’s statement from the EU—not just from people like me—how do Her Majesty’s Government envisage giving certainty to EU nationals who are currently resident in the United Kingdom? The Prime Minister’s frequently stated hope is that the issue can be dealt with early on in the procedure but it is absolutely clear that this is not going to happen if everything has to be agreed at the end. Another two years of uncertainty is clearly wrong.

My Lords, the noble Baroness, Lady Smith of Newnham, has raised a key question for the Minister to respond to. The principle of nothing being agreed until everything is agreed is now questionable. There is a contradiction on the reciprocity and simultaneity of citizenship and rights in a document to which Mr Tusk and Mr Barnier are both party. Paragraph 2 states that,

“nothing is agreed until everything is agreed”,

but paragraph 8 states that:

“Agreeing reciprocal guarantees to settle the status and situations at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be a matter of priority for the negotiations”.

On the issue of process, one has to conclude that there is confusion about the timescale, not only in the British Government but also—dare I say it—in Brussels. If there is confusion in Brussels, do we write a public letter saying, “Your statement says x, y, z; we say a, b, c”? Is there a protocol that has not been agreed about how these negotiations must be conducted in secret? You cannot have things being agreed ad hoc without some clarity and transparency so that we can all have a look at them. I agree with both Motions, but it is not just a question of nothing happening until the end of two years. I agree with the noble Baroness, Lady Smith of Newnham, who made the same point.

My Lords, two issues have concerned me throughout recent developments. The first is that this is not a hypothetical or theoretical question. Already in industry, commerce, the university world and other aspects of life, planning is being disrupted by uncertainty about the future availability of personnel. There is an urgent, administrative, economic reason to resolve this issue. Secondly, I am disturbed because, in the very good secondary education which I was fortunate to have, I came to understand the importance of citizenship in a modern civilised society. Many people who have established themselves in this country and who saw a future for themselves and their family here have been sustained by the concept that they had European citizenship. Speaking with knowledge from my own family, people who went to live or establish themselves elsewhere in the European Union had the same concept of citizenship. By our unilateral action in removing ourselves from the European Community we are depriving these people of citizenship. According to the education which I was privileged to receive, that is a very serious matter indeed. On those grounds it is, therefore, essential to resolve this issue rapidly.

In his very good speech, the noble Lord, Lord Cormack, put the issue of the arrangements very well. We were being told constantly that there was going to be a return of power to our own society. But in our society power lies in Parliament. As he said, Ministers are accountable to Parliament and Parliament is accountable to the people. It therefore behoves us to make it very clear and certain—not least to ourselves—what the procedures will be by which we thoroughly review progress. It is not just a case of saying, “We should review progress and we have to have some arrangements”. We have to have very clear arrangements for how we will review progress.

I have been around in Parliament now, in one way or another, for 39 years. There is a way in which we, as it were, adopt a procedure which will satisfy us, our consciences and our approach to the public that we have a procedure. I say to all my colleagues—to my friends on both sides of the House—that we are not playing games. If we have this procedure, we must take it very seriously indeed. We must not have a situation in which debate is rushed, truncated or rationed. There has to be an opportunity to debate and deliberate fully so that we can reassure the public on these matters. I am absolutely certain that if we are to be a parliamentary democracy—I sometimes wonder about this—we have no alternative than the resolutions that are put before us.

There is another thing which I know does not go down well with a lot of people. I totally accept that we in Parliament framed the arrangements for the referendum. I know that we had no threshold of our own volition, but I find it very difficult when I am constantly being told that the will of the people has been expressed. I do not know what this means. A majority voted in favour of the broad position, but there was certainly not a majority of the electorate positively in favour of this position. I am not suggesting that we do other than accept what we did, and we have to live with the results. Having said that, it seems to me to increase even more the moral and real responsibility of Parliament to look to the interests of the whole population in evaluating what is proposed in the negotiations. It is not just a case of the interests of the people who won the referendum but the interests of the whole people. We have that responsibility.

My Lords, my first point echoes nicely the noble Lord, Lord Judd, in that a prime example of the uncertainty facing EU nationals is to be found in the world of music and other artistic institutions and places of learning. Many professional and visiting professional posts are filled, vitally, by artists from the EU. They enrich our lives immeasurably. Indeed, this artistic intercourse—it is true of the world of science too—is absolutely vital to intellectual exchange, innovation and excellence. I understand that the Minister will not be able to unravel this this evening, he will be glad to hear me say. However, like the noble Lord, Lord Judd, I would be grateful if the Government placed high in their priorities the concept of giving some kind of lead to our great institutions of learning, so that they can fill these professorial posts with people of the quality that our country needs and deserves.

I thank the noble Lord. We are a very friendly Brexit club here.

I speak in support of both these Motions, which seem to me very moderate and reasonable. I know that my noble friend Lord Bridges is a very reasonable and moderate man and I hope that he will have no difficulty accepting them. However, perhaps it will encourage him a little more to know that, as regards the first Motion, my postbag has been full of letters and emails from UK citizens resident in Europe. They unanimously do not want to be used as bargaining chips. They want us to do the decent thing and to do it now because they know the damaging uncertainty that they are going through, and they would like people who come to the UK not to have to cope with that uncertainty. The wonderful thing is that this would also be enlightened self-interest on our part because, as even the Minister for leaving the EU has said, we need these people to stay. Already that is less attractive for them than it was, not just because of the changed climate but because of what Brexit has done to the pound. Those who want to send money back to the countries they come from are already finding that that is much tougher than it was. In the agriculture industry, for instance, wages are already having to go up, and food prices will therefore go up too. Therefore, we should do the decent thing, do it quickly and keep those people we need living here.

Secondly, having a Joint Committee is a very sensible thing to do. We need to be clear about what the vote is and when it is. A vote simply on the proposition, “Accept this deal or we are out of Europe without a deal” would be a travesty of parliamentary democracy and certainly would not amount to taking back control. I wonder whether the Select Committee might look at what we need to know before it is possible to vote on any deal, or no deal. Perhaps the Minister could tell us, for instance, when we might be clearer about what the border in Ireland might be, because for the people living in Ireland there is as much uncertainty as there is for EU citizens living in the UK.

My Lords, I support both the Motions but want to address the second one, or what is behind it: in other words, the role of Parliament.

I have much in common with the Minister. I was a remainer and I accept the vote count of 23 June. Indeed, there are not really two sides anymore but the language of contest is still used. It is because I am a democrat that I accept the vote count and it is because I am a democrat that I accept the rule of law. Parliament is sovereign, not the Government, and it is Parliament’s role to protect the rule of law. As such, it has to be Parliament’s role to consider and judge the terms of fundamental changes to our way of life. Governments come and go via Parliament, or in this case through an ill-thought-out advisory referendum held for more purposes than just to remain or leave the EU.

It is in my view more important to protect Parliament than the Government. A Joint Committee would help considerably in this respect. In fact, the Supreme Court case in some ways helped in respect of protecting the rule of law, and at some point will probably need to do so again. When the people voted on 23 June, it was simple—leave or remain. They knew that the Government’s view was to remain, as set out in the booklet sent to every home in the country. They knew then that the Government had abandoned the idea of an advisory referendum and that the decision would be implemented. They also knew that there was a set of rules around the decision, to the extent, for example, that it was not the Government who drafted the question but the Electoral Commission. They knew that there were rules about the funding of the two strands of opinion. Parliament had set out those rules so there was confidence. However, in the last couple of months, any informed person has to be concerned by the extensive reporting by Carole Cadwalladr in the Observer of 26 February and 2 April, to refer to just two of the very long articles. I have never met nor had contact with Ms Cadwalladr, but I contacted the Electoral Commission in February following the first of the three-page articles and received this response on 8 March:

“I can confirm the Electoral Commission has begun an assessment in respect of Leave.EU’s spending return at the EU Referendum to determine whether or not there are potential offences under the law that require investigation. Our assessment is focused on whether any donation—including services—was made by Cambridge Analytica or Goddard Gunster to Leave.EU; whether those donations, if any, were from a permissible source and whether Leave.EU spending return was complete. Given the high public interest in the returns submitted by campaigners, the Commission will announce the outcome of its assessment in due course”.

I suspect that that response will be made public to others.

Accepting the vote count of 23 June, therefore, we need Parliament to play a key role, as via these proposed Motions. There must be concern that the major donor to Leave.EU is now quoted as saying:

“I don’t give a monkey’s what the Electoral Commission says”,


“We were … cleverer than the regulators and the politicians. Of course we were”.

To me, that is an admission of “cheating”—that they were cleverer than the regulator, the Electoral Commission. The self-confessed cheat Mr Banks is planning to unseat “bad MPs”, via an unregistered organisation. Therefore, Parliament itself is now under threat from dark money, as we have not yet passed the legislation introducing unexplained wealth orders—I suspect that he will be the first candidate for one of those.

Passing these two Motions will send a signal to those who threaten democracy with secret funds and by cheating election regulators. Indeed, it is a wake-up call which, if we fail to answer it, will put Parliament, not the Government, in peril. When I hear a Brexit extremist raise these concerns, I will know the battle of the referendum is over and the battle for Parliament has begun.

My Lords, following the noble Lord, Lord Rooker, the important part about these two Motions is that they say that once again, Parliament should be at the heart of everything. Let us not forget that straight after the referendum, the Prime Minister and the Government wanted to bypass Parliament altogether.

On so-called independence day, 29 March, I was on a radio programme following Nigel Farage and Alex Salmond battling it out. Nigel Farage said, “This is independence day—the day we got our country back”. We never lost our country. Philip Hammond said that,

“we can’t cherry pick. We can’t have our cake and eat it”.

The irony is that we had our cake and were able to eat it too—we had the best of both worlds.

What nobody mentions, and people overlook, is: why the promised rush into triggering Article 50 by 31 March of this year? It is a self-imposed deadline. The answer is very simple: the Prime Minister wants this two-year process to be over, to put it to bed so that she can go into the next election and get re-elected. In every other way, this timing is madness. We have the French and German elections coming up, and we will lose six months of these two years when Europe will be completely distracted. Why rush into it now and try to bypass Parliament altogether?

If you look at the letter that was written, it very clearly admits how complex these negotiations will be. I believe that the letter also shows that the British people have been completely misled. The Conservative Party manifesto very clearly stated that staying in the single market was a priority. Now the Prime Minister, from her Lancaster House speech and then on 29 March, has said that we will not stay in the single market. Had the British people known this and been told this by the leave campaign, many would not have voted to leave. In fact, if British businesses—small, medium and large—had been told, “You vote to leave and you will be leaving the single market”, they would not have done.

What about these 3 million people and their rights? What about the fact that our unemployment is less than 5%—what would we do without these 3 million people? We would have a labour shortage in this country. We are up against it. We need Parliament to be involved because this is not a balanced negotiation. We are one against 27, against the European Commission, against the European Council, and against the European Parliament. Therefore, getting this done in two years, with the bureaucracy that exists in Europe, and dealing with all these countries, will be very difficult.

What about the rights of these European Union nationals? How many of them are there? By the way, on this figure of 3.2 million, we do not know the exact figure. Why? I came back from a short visit to India this morning and came through the passport checks. You scan your passport when you come into the country, but when you leave this country, nobody checks your passport. Every single passport, European Union or not, should be scanned in and scanned out. Then we would know who is in this country, and these European Union citizens, for example, would be able to say, “I’ve stayed here for five years—I’ve got the right to stay regardless”. Why will the Government not bring in those visible extra checks? That would give us security over our borders—and we are not in Schengen.

Now we have the European Union’s chief Brexit negotiator, Michel Barnier, saying that he has told a delegation of EU citizens that he wants to have an agreement in principle to secure the future of EU citizens in the UK and UK citizens throughout Europe by the end of the year. However, he had to admit that it would be late 2018 before he could strike a deal with the UK. Can the Minister tell us why we cannot do this quicker?

We hear that record numbers of EU citizens quit working in the NHS last year. Can he confirm that? As we have heard before, EU nationals are being denied mortgages because of this. The Institute of Directors said just yesterday, very clearly, that a guarantee for EU citizens after Brexit would reduce uncertainty for IoD members. Allie Renison of the IoD said:

“Just under 40 per cent of our members employ EU nationals. You’d be surprised about the amount of nervousness that is genuinely giving to a lot of these employees”.

This is a human issue.

The House of Commons Exiting the European Union Committee has not been spoken about much here. Its report has just been released, in which it said:

“Sadiq Khan told us that uncertainty over the rights of one million Londoners who are EU citizens is feeding into uncertainty in business recruitment”.

The committee clearly said:

“The status of EU nationals in the UK and UK nationals living elsewhere in the EU cannot be left unresolved until the end of the two-year period for negotiations”.

It urges the Government to sort this out now and says:

“We note that, to date, Ministers have not taken this step. The debate around whether ‘no deal is better than a bad deal’ has focussed on the trade aspects of the future relationship. If the negotiations were to end prematurely without an agreement on rights for the 4 million, this could put them in an uncertain position”.

The committee’s recommendation is very clear. There should be,

“a stand-alone and separate deal which is otherwise not dependent on any other exit or future trade deal being agreed to between the parties”.

Will the Minister agree with this?

I conclude with the whole concept of “no deal is better than a bad deal”. This is absolutely ridiculous. It is now clear that the Government have said that it is unsubstantiated—they have not even done the homework. Looking at the report prepared by the Select Committee, there is such complexity: the timescale for reaching agreement, Gibraltar has suddenly come up, there is a potential exit payment, securing a free trade agreement, the customs union, free trade agreements with countries outside the European Union, and co-operating in the fight against crime and terrorism is now being used as a bargaining chip, which is hugely irresponsible. How can we as a country even think of doing that? There is also immigration and consultation with devolved Administrations, we have the Scotland issue, the Northern Ireland border and the Republic of Ireland, and minimising disruption when we leave the EU.

Sir Simon Fraser has just said that transitional agreements will almost definitely be necessary. Once again, it is crucial that these two Motions be agreed. He has said clearly that we will reach a cliff edge. In fact, a number of EU diplomats have now said that the Government,

“fears the economy could be left in ‘havoc’ if Britain left without agreeing any preferential access”.

Does the Minister agree?

The noble Lord, Lord Kerr, spoke about Boris Johnson saying that it will be “perfectly okay” if we leave, and David Davis admitted that the Government had not assessed what “no deal” means. Michel Barnier—this is not fear-mongering—said that no deal would have,

“severe consequences for our people and our economies. It would … leave the UK worse off”.

I support these two Motions in the name of the noble Baronesses, Lady Hayter and Lady Smith. The last point is about 16 and 17 year-olds who were not allowed to vote last year. By the time we come to 2019, these individuals will have the right to vote, and almost 100% of them will want to reverse this decision. People will be allowed to change their minds; the public might change their mind, having seen that the Brexiteers’ emperor has no clothes. We are watching a train crash in slow motion.

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.

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?

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.

My Lords, I note that the route of resolution is that chosen by the Opposition to “pursue in other ways” the interests of EU citizens and parliamentary control, rather than voting, as far as possible, those guarantees into legislation three weeks ago. These Benches were reproached by the Opposition on 13 March for falsely raising people’s hopes when we know that the Government will not change their mind. I respectfully point out that a section in an Act would have been more persuasive even than a resolution initiated by Her Majesty’s Opposition.

None the less, the cause of guarantees for EU and British citizens and their families is one for which I am more than ready once more to speak up. I concur wholeheartedly with the remarks of everyone who has spoken. In particular, the noble Lord, Lord Cormack, made a very effective point that there is nothing more mentally debilitating than uncertainty, as did the noble Baroness, Lady Wheatcroft, who said that a guarantee for EU citizens would be enlightened self-interest, as well as morally right.

The point has been very well made that EU migrants make a vital and positive economic and social contribution to the UK. That is indeed why Ministers have said over recent weeks that there will not be a reduction in EU workers in various major sectors of the economy, representing over one-third of EU nationals currently employed. This is going to make life quite difficult for the Government as they try to square their Brexit promise of immigration cuts with the needs of the economy. I am confident that we will end with the continuation of a large amount of inward migration from the EU but without having the rights pertaining to membership of the single market, including the rights of EU citizens of free movement across the rest of the EU.

The economic realities ought, in all justice, to lead the Government to make life easier for EU free movers already here. The way to do that is to put their minds at rest. There are many months—maybe 18 months—before any Brexit deal becomes clearer or, worse, the cliff-edge scenario reappears. Every day of delay, every hour, perpetuates an economic and moral scandal for which there is no justification. A unilateral announcement by the Government that all rights of EU citizens, acquired and in the process of acquisition, would be guaranteed is essential.

It is unclear why the Home Office has been making life such a misery for applicants for proof—which they do not need—of permanent residence rights. However, it has been doing so, to the extent of rejecting people with the peremptory injunction “make arrangements to leave”. The infamous 85-page form and requirements that, in the words of one person, make acquiring Catholic sainthood look simple, have made life very difficult indeed.

The European Commission, as we know, takes the view that a requirement for so-called comprehensive sickness insurance is a breach of EU law for people who are entitled to use the National Health Service. Infringement proceedings are said to be ongoing and the Minister may wish to comment on that, but the practical question is why have the UK Government allowed EEA citizens to use the NHS continuously without ever once, until now, telling them that they needed to have, what has been interpreted as, in practice, private medical insurance? Many people have lived here for decades and the authorities have never asked them for it.

Let me quote from a student about the difficulties this raises. He writes that,

“to avoid the risk of deportation I was forced to incur the expense of £50 per month for private medical coverage. In the absence of a clear instruction of what ‘comprehensive’ means, I had to buy an expensive package, which I will (hopefully) most likely never use. As a student, I don’t have to tell you the kind of unnecessary burden that this is on my budget … it feels like I’m being forced to pay a tax to a corporation—like a gift given to private insurers by the Tories”—

his words—

“considering that the pool of students seeking insurance will invariably be young, low risk and low cost”,

for insurance companies. He asks me, and I am asking the Minister, whether the noble Lord can clarify on behalf of the Government what is meant by “comprehensive” in the phrase “comprehensive sickness insurance”? People are having to buy expensive policies because there is no clarity on exactly what is needed. That could at least help mitigate the cost.

Could the Government also tell us whether they are going to introduce a new, less bureaucratic route than that currently operated by the Home Office—something which is a more light-touch mechanism, some kind of conversion, to indefinite leave to remain? That would be fully justified by the history of EU-acquired rights.

On the other resolution, many commentators last week praised the less strident tone of the Prime Minister’s Article 50 notification letter to President Tusk and the accompanying Statement to the House compared to her January speech, such as the absence of the “no deal is better than a bad deal” threat. However, that phrase was repeated in the White Paper the next day on the great repeal Bill and so the threat of hard Brexit is not dead. Indeed, the noble Lord, Lord Kerr, made an interesting prediction of the odds—I do not know which way it is; I am not a gambling person—and the prospect having got more likely. Hence the need for the amendment to the Article 50 Bill, tabled originally by the noble Lord, Lord Pannick, and which became Motion B1 at ping pong.

The Liberal Democrats remain of the view that a political promise, in the words of the noble Lord, Lord Pannick, made by the Prime Minister in good faith is no substitute for an obligation in an Act of Parliament. That obligation should enshrine the need for parliamentary approval of withdrawal, future relations and a no deal scenario. That is why we pushed it to the vote on the central question of who is the master, Ministers or Parliament?

We did not succeed in that legislation and so I welcome the suggestion in the Motion of a Joint Committee. I would like to know the progress on discussions. I believe there have been attempts to get closer liaison between our own EU Select Committee and the Brexit Committee in the other place, including at staff level, but I am not aware where that has got to. Our EU Select Committee last year proposed a new specific European Union withdrawal committee but I do not think that has made any obvious progress. Perhaps the noble Baroness will tell us what prospects there are for a Joint Committee.

We on these Benches will support anything which makes a reality of the parliamentary control which is vital and on which the Government have proven reluctant in the past nine months. We need that to happen, even if it is through a resolution rather than legislation.

My Lords, this has been an interesting and somewhat unusual debate. By my reckoning, I am the 21st speaker in the proceedings this evening and I am the 21st Peer to speak in favour of both of the Motions before the House. I do not know why the Government Benches are so empty of supporters who might have opposed them, but I am delighted to have such overwhelming support from noble Lords. Perhaps I should be grateful that all those who support these Motions are not here to speak in favour of them, because perhaps then Brexit really would mean breakfast.

When we debated the Brexit Bill previously, these were the two key issues that your Lordships’ House voted on with significant majorities in favour, in one case with a majority of 98 and in the other a majority of 102. I take issue with some of the comments made by the noble Baroness, Lady Ludford, who has said that the Liberal Democrats wanted them in statute. The entire House wanted that, and that is why we voted with such large majorities: to put them in statute. It remains our view that they would have been better in statute, but I have to say to the noble Baroness—noble Lords will understand this—that once the House of Commons had rejected the proposals for the second time, all we could have done was send them back and perhaps delayed the Bill by a few hours. A few people might have missed their train home, but what would that have achieved? In fact, before the dust had settled, as my noble friend Lady Hayter said at this Dispatch Box, we said that we would look at other ways to return to these issues. That is the correct way to proceed. If you lose a vote, you do not give up and walk away. You look for other routes because these matters are far too important to be decided in a debating society or on who can win the last vote. We knew that we were not going to win the vote, but we also knew that we would return to these issues, and we will never give up on them.

When we last debated these matters, the Government were insistent that they wanted what they called a clean Bill—as if these two amendments, with their overwhelming support in your Lordships’ House, would have made it a dirty Bill. They would not, and I think that that was a mistake on the Government’s part. But we move on, and I think the point made by the noble Lord, Lord Cormack, was important. He said that it is not just about principles, but about putting principles into practice. The only reason I got involved in politics and the only reason I accepted a place in your Lordships’ House—I am sure that I speak for many others—is that I want to make a difference. If we cannot make a difference, there is little point in just talking about issues. That is why we are bringing these two amendments back to the House tonight.

As my noble friend Lady Hayter said, we are not asking for anything from the Government that they have not already committed to doing. They have said already that they will give priority to EU nationals, and by extension to UK nationals living in other countries in the EU. That is an important priority. They have also said that they want a final vote on this issue in both Houses. What we are seeking to do tonight is bring some clarity to that, so let us look at the two issues.

On EU nationals, I am grateful to the noble Viscount, Lord Hailsham, for making the point that we are talking about a reciprocal arrangement for our nationals as well. The Government have said that it is a top priority. It had a large majority in your Lordships’ House and the Government have been clear about the importance of the matter. Concern is gathering pace. My noble friend Lord Morris described some of the issues in the construction industry, which will mean that the Government cannot meet their housing targets. We have already heard about the issues developing in the National Health Service and how the number of nurses coming to this country is falling dramatically. These Motions would provide a mechanism, an opportunity, for the Government to report back to your Lordships’ House. We are not expecting an immediate resolution. We are not asking the Government to come back before the House rises with absolute plans about how this can be achieved, but we need an assurance that when they say this is a priority, they are putting it into practice and are already in discussions about the way forward.

I still think that the Government have made a mistake by putting this issue into the negotiations. The noble Baroness, Lady Smith of Newnham, quoted my noble friend Lady Symons of Vernham Dean who spoke from her own experience of international negotiations. She said that when you put things on the table for negotiation, nothing is agreed until everything is agreed. That clearly cannot be allowed to continue in the case of EU nationals. I loved hearing the noble Lord, Lord Kerr, quote Boris Johnson; rarely can there have been so much agreement among noble Lords with his comments, to the effect that this is a moral, economic and practical obligation. I hope the Government understand that we are bringing this forward now because it is a matter of urgency and because damage can follow if their plans are not clear.

On the second Motion, tabled in my name, we have had a useful and interesting debate. We had a similar debate when we voted in favour of the amendments to the Bill. Again, a large majority was rejected by the Government and by the House of Commons. The White Paper, reinforced by Statements from the Prime Minister and the Secretary of State, said that there should be a final vote in Parliament, but, as has been outlined by the noble Lords, Lord Pannick and Lord Kerr, and others, the questions remain: when and how?

There are three issues here. Concerns were expressed in your Lordships’ House that the Prime Minister’s own words, which were used in the resolution we brought before your Lordships’ House before, lack clarity on how this is to be achieved. As they stand, they brought into question whether your Lordships’ House will have a veto. It was quite clear that nobody in this place or the other place thought that was appropriate. Clarification is needed in the wording to ensure the primacy of the Commons.

The noble and learned Lord, Lord Hope, both tonight and in his Second Reading speech, made it clear that there needs to be some legislative authority to conclude the deal. That has to be put in statute. Why should the European Parliament have it in statute and not the UK Parliament? That seems a somewhat strange position for a Government who say that they want to leave the EU to retain sovereignty for the British Parliament, yet do not give it the same rights as the European Parliament.

My third point is crucial. As the noble Lord, Lord Kerr, reminded us, whether it is deal or no deal, Parliament should have a say. There are different ways of looking at this. The way I look at it is to say that we should be helpful to and co-operate with the Government. There is a way forward here. We can employ, on a completely cross-party basis across both Houses of Parliament, the best of the skills and experience of this Parliament to focus on providing advice to the Prime Minister and to Parliament on how this can be achieved in a practical, workable manner.

The Prime Minister obviously has to focus on the negotiations. Surely it makes sense for Parliament to do the heavy lifting in looking at this and getting it right. If we do not, we will not, as my noble friend Lady Hayter made clear, have robust legal certainty around the process and the vote at the end. The Prime Minister and the Secretary of State speak of parliamentary engagement. This is an opportunity to use that engagement to make good use of Parliament’s time and expertise. Also, support for this approach will show that the Government take Parliament seriously, will do so throughout the process and will make use of its skills and experience in the national interest.

The Government cannot be seen to swerve this, because it goes to the heart of what Parliament is about and of the national interest. When we debated the Statement earlier this week and we talked about the six tests Keir Starmer and the Labour Party have set for the Government, I set out a seventh test, which we called honesty. That test is that if the Prime Minister can do a good deal for this country she should say so, but equally, if she has concerns or is less than satisfied with the arrangements on offer, she must also say so.

Both Motions are proposed in the true spirit of parliamentary engagement and involvement in the national interest on two crucial issues. The timing of these issues is different because there is an immediate urgency on EU nationals. We have to recognise that the problems are here now and the concerns are being raised now. If we fail to act, the damage to our economy will be huge, in addition to the moral issues and the concerns being raised for individuals. It would be helpful as we progress to have regular updates. The Government reporting back soon to say, “This is the approach we intend to take”, would show that they are upholding their promise to make this a key priority. It would be a move towards certainty, showing that the intention is to achieve that certainty, and that the making of arrangements will not be left until the end of the two-year period.

On a meaningful vote, we understand the concerns and issues that have been raised. We have time to work this out and the best way to use it is through the expertise and experience of Parliament. As my noble friend Lady Hayter made clear, we are not asking for the Government to take a new position on this; we are asking that they live up to their words and say that they believe in genuine parliamentary engagement. That is the process by which, over the next two years, Parliament will be involved.

I see the empty Benches behind the Minister, apart from a few notable and welcome exceptions. The Government should not oppose these Motions tonight but embrace both their spirit and intent. If they are passed, we look forward to early discussions with the Government on their implementation.

My Lords, I am grateful to all those who have contributed in what the noble Lord, Lord Pannick, christened this great “Brexit club”, of which we are all part. I thank the noble Lord, Lord Pannick, and my noble friend Lady Wheatcroft for their kind compliments. They must understand and know me very well to know that flattery gets them everywhere with me. Therefore, I will certainly try to be as reasonable as possible towards these Motions. Both Motions touch on important issues that we have discussed previously in this House and no doubt shall rightly discuss again.

The Motion in the name of the noble Baroness, Lady Hayter, is on a matter we all want to see resolved as soon as possible: the future status of UK nationals in the EU and of EU nationals in the UK—the noble Lord, Lord Morris, made a passionate speech, as did the noble Lord, Lord Bilimoria, about the need to do so. We all want to secure the future status of UK nationals in the EU and of EU nationals in the UK.

I shall not detain your Lordships by going over the rationale behind the Government’s approach to this issue—we debated that at length the other day—other than to repeat that we wish to see the status of both UK and EU nationals resolved at the same time and as early as possible in the negotiations. The only circumstances in which this would not be possible would be if the status of UK nationals was not protected.

As your Lordships will know, the Prime Minister again highlighted the Government’s wish for this issue to be an early priority in the negotiations in her letter to trigger Article 50. As the noble Baroness, Lady Hayter, quite rightly said, this sentiment has been shared by many across Europe. She quoted Guy Verhofstadt, who has said that the issue of EU citizens’ rights after exit should be addressed,

“before we talk about anything else”.

The Swedish EU Affairs Minister has suggested much the same thing, saying:

“I am happy to say that the UK side and the EU side agree very much on the need to find a good solution”.

She continued:

“I am convinced that a solution will be found for them”.

As President Donald Tusk said on Friday,

“Our duty is to minimise the uncertainty and disruption caused by the UK decision to withdraw from the EU for our citizens, businesses and Member States”.

The Prime Minister of Malta followed that up by saying:

“The guidelines show that the first priority is settling issues relating to citizens—we need to ensure our citizens in the UK and British citizens in the EU are not used as bargaining chips by any side. There is a wide-ranging commitment to settle this as soon as possible”.

So the omens are good.

We are absolutely clear that we want to reach an agreement on this issue so that we can give people the certainty which so many of your Lordships have spoken about as soon as possible after the negotiations begin and reach a position where we can address the points raised by the noble Lord, Lord Oates.

The noble Lord, Lord Kerr, raised an interesting point—the noble Lord, Lord Lea, and the noble Baroness, Lady Smith, raised it, too—as to whether we might be able to reach an agreement on this before the end of the two years, given the approach of “nothing is agreed until everything is agreed”. There are a number of different ways in which such an agreement could be reached. I hope your Lordships will forgive me if I stick to the words used so far by my right honourable friend the Secretary of State, who suggested that this might come in an exchange of letters between ourselves, the member states, the Commission and the Council. I am sorry, but I am not going to go beyond that point at the Dispatch Box now.

As to the point that the noble Lord, Lord Campbell-Savours, made—another good point—as to whether some form of bilateral relationships might be struck, all I would say, and I hope noble Lords will forgive me if I choose my words very carefully, is that the European Commission has made it very clear that there will be no separate negotiations between individual member states and the UK.

The substance of the Motion, however, is that the Government should make a Statement to this House and the other place before Parliament prorogues at the end of this Session. I am absolutely clear that if there is anything to report to Parliament on this issue, the Government will do so as soon as possible. As my noble friend Lord Hailsham so rightly said, it is in everyone’s interests that we do so. Having made seven Statements to Parliament since my department was established—about one every three and a half weeks that the House is sitting—I believe that we have made a clear commitment to report to Parliament.

I also point out gently that the European Commission will only get the guidelines for its negotiating position formally adopted on 29 April. After that, the Commission will need to agree on a mandate for its negotiating position. That too is likely to take some time, so I gently argue that committing to make a Statement before the end of this Session might—and I put it no more strongly—simply raise expectations as to what we might say, as this clearly will be at a time when, at best, we would expect negotiations to be just beginning. I stress that this should not be read as a sign that the Government are doing nothing to prosecute and press our case in this period; for in the next few weeks, while the EU agrees upon its proposed guidelines, Ministers will continue to meet our European colleagues right across Europe to discuss our agenda to create a new partnership.

As I have said, we will stress that agreeing on the future status of EU nationals should and must be a priority for the negotiations. This debate has once again reinforced the concern and focus that Parliament rightly has on this issue, and I assure noble Lords that it is a concern and focus that the Government utterly share. However, in the spirit of reasonableness, I simply question whether it is necessary to pass this Motion, given our clear willingness and commitment to keep this House and the other place updated, and our wish to focus now on making a success of negotiations which will begin shortly. Finally, I point out that the Prime Minister will certainly be updating Parliament in the usual way, with a Statement to be repeated in this House following her attendance at the next European Council on 22 June.

On the second Motion, standing in the name of the noble Baroness, Lady Smith, I will be brief. The Government’s position on the issue overall is clear that there will be a vote of both Houses on the final agreement and we expect and intend this to happen before the European Parliament votes on the agreement. This vote will be either to accept the final agreement or to leave the EU with no agreement. As for what would happen if this House were to reject the agreement, as put forward in the Motion by the Government, then of course the Government would respect the Lords’ decision.

The noble Lord, Lord Kerr, raised the issue of what happens if no deal is reached with the European Union. As I have said on many occasions, and as the Prime Minister has made clear, we want to reach an agreement with the European Union and the Government are confident that the UK can do so, but in the event of there being no deal at all, as I have also said before, it is very hard to see what meaningful vote could be given. In the absence of any agreement, I have absolutely no doubt that there would be further Statements to this House. Furthermore, one needs to bear in mind the other means by which we are going to be keeping Parliament informed on the process as it goes along.

As for the view that some have expressed, including the noble Baroness, Lady Hayter, and the noble and learned Lord, Lord Hope, that we need further legislative cover for our withdrawal so as to protect the Government from further legal challenge, I simply say that the Government’s position is that the requirements of the Miller judgment are entirely fulfilled by the recent Bill passed by this House and the other place. The Supreme Court ruled that, because withdrawal from the EU involves removing a source of domestic law in the United Kingdom, and because of the far-reaching effects of the European Communities Act, the authority of primary legislation was needed before the Government could decide to give notice under Article 50. The Supreme Court did not rule that anything further was required to satisfy our constitutional requirements.

So bearing in mind the importance of these issues—as my noble friend Lord Hailsham implored me, I am trying to be very reasonable—while the Government do not think there is any compelling reason or need for a Joint Committee to be set up, whether your Lordships wish to do so and whether the other place agrees is a matter for Parliament.

I thank the Minister, who we all think is young, handsome, brilliant and intelligent—so he will vote with us. There are really only two issues: certainty and a degree of urgency.

On the first—in the words of my noble friend Lord Morris, the people issue—there is some urgency. They need something now. If the noble Lord, Lord Kerr, is right and there is even a 30% risk of no deal, there are some really serious issues. If there is no deal, what happens to the idea of reciprocity that the Prime Minister wants? That is why we need continuous updates. We need to know what the Government’s thinking and preparations are, and their plans for that. This is not a secret. It should be open and it should engage us all.

On the second issue, I think—and brains much better than mine say—that we need legal certainty. But should the Government be right on that—that we do not, that everything is tickety-boo at the moment—this Joint Committee will find out because it will have taken advice and it will say, “We were wrong. The noble Lord, Lord Bridges, was right and we do not need it”. I would trust that Joint Committee to find out if that was the case and report back to us. The urgency of that case, as was said by others, is that we really do not want to muddle our discussion about how the vote takes place and what it means at the point we are actually discussing the agreement that we have, because people might then use the procedure to muddle the discussion about the core issue. We do not want that.

As the Minister knows, there is support all around the House. I hope that we will agree these two Motions but, even more, I hope the Government will respect the will of the House and will move to implement both of them if they find favour with your Lordships. I beg to move.

Motion agreed.