Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019 — House of Lords, 2019-10-23
Topic: Immigration
Ian Duncan (Conservative, Centre-right): My Lords, I stress at the outset that a deal with the EU would render the provisions of this instrument unnecessary until the end of any agreed implementation period. The regulations are required only in the event of the UK leaving the EU without a deal, a reality which the UK cannot guarantee unilaterally but for which it must necessarily prepare A number of noble Lords have raised concerns with me over whether these regulations will remove the rights of EU nationals to establish a business or provide services in the UK. I am grateful to the noble Lord, Lord Stevenson, for meeting me earlier today to discuss this issue and those that he will raise in moving his amendment. I take this opportunity to put on the record that these regulations do not impose any new restrictions on EU nationals or EU-based businesses, or the nationals or businesses of countries with associated agreements, at the point at which we exit the EU. This is because the UK’s underlying legislative framework is compliant with these rights and, importantly, because EU retained law under the withdrawal Act will also apply The regulations do not impact on the immigration regime applying to the EEA or to Turkish and Swiss nationals in the UK. Indeed, they explicitly carve out any potential impact on the immigration rights of Swiss nationals and Turkish nationals to ensure that any changes come into force separately via primary legislation, which will be scrutinised in the normal way The regulations do not impact on the rights of EU citizens resident in the UK at the point of exit; those are protected separately. All EU citizens resident in the UK by exit day will still be able to work, study and access benefits and services, whichever scenario plays out. The instrument addresses the reality, once we leave the EU, of reciprocity and necessary legal certainty affecting EU states and those states with which the EU has association arrangements. It covers the definition of "services", rights of establishment and the provision of services, free movement of services, and the prohibition of non-discrimination, as set out in the relevant articles of the Treaty on the Functioning of the European Union and similar provisions contained in EU association agreements The Treaty on the Functioning of the European Union provides rights for nationals of member states and is founded on the principle of reciprocal rights, including in the areas of services and establishment. If the rights were not disapplied, this would create certain legal issues for the UK. Going forward, the UK could be in breach of the WTO’s General Agreement on the Trade in Services—the most favoured nation principle Unilateral provision of the measures could be interpreted as granting EU nationals additional rights to challenge the UK’s laws and decisions in the future, and could restrict the Government’s ability to regulate in the future. It would also create an uneven playing field in which EU nationals benefited and UK nationals in the EU did not The Government have sought the widest scrutiny of this instrument. The necessary consent of the devolved Administrations in Scotland and Wales was sought and secured, and the Northern Ireland Civil Service has been notified The Joint Committee on Statutory Instruments considered these regulations but chose not to report them to either House. The Secondary Legislation Scrutiny Committee chose to draw the instrument to the attention of the House, noting, in particular, compliance with WTO law and matters relating to satellite decoder cards To reiterate, the regulations impose no additional restrictions on EU nationals or EU-based businesses, or the nationals and businesses of countries with associated agreements, when we exit the EU, as the UK’s existing legislation is compliant with these rights. All relevant Whitehall departments have examined UK legislation to identify where direct impacts might arise from the regulations and underlying UK legislation is not already in line with the treaty rights. I am satisfied that UK legislation is compliant with the rights The regulations will impact on the use in the UK of satellite decoder devices intended for EU audiences—that is, dishonestly receiving programmes without payment. In essence, it brings the law into alignment with the rules for non-EU satellite decoder devices All EU citizens resident in the UK by exit day will still be able to work, study and access benefits and services, whatever the scenario. Further, the regulations will have no impact on the immigration regime applied to EEA, Turkish and Swiss nationals in the UK, save to ensure that changes to the immigration regime applied to Swiss nationals and Turkish nationals will come into force separately via primary legislation These regulations are necessary. They ensure the UK’s compliance with international law and protect the UK’s right to regulate in the future. On that basis, I commend them to the House. Amendment to the Motion