What assessment has the First Minister made of the UK Government’s policy paper, ‘Safeguarding the Position of EU Citizens in the UK and UK Nationals in the EU’, published last week? TAQ(5)0716(FM)

European Union citizens make a hugely positive contribution to daily life here in Wales. The UK Government’s proposals are a belated step forward, but still do not provide full clarity for those citizens who are affected, and still, at worst, appear to treat people as bargaining chips, which is absolutely unacceptable to us. Full clarity and certainty needs to be given to all those affected, and that needs to be provided without further delay.

I’m grateful for that answer. Whilst it’s always a pleasure to see the Cabinet Secretary for finance, I tabled this question for the First Minister, because he’s insisted repeatedly that he is the Cabinet Secretary responsible for external affairs. And perhaps his inability to be here today reflects the need for Welsh Government to look again at the need for an external affairs Cabinet Secretary for Wales during these very important couple of years that are upon us.

Last week, the paper, as the Cabinet Secretary has said, fell far short of the expectations that were set by the UK Government originally. They insisted that they would look at an arrangement that would be reciprocal, and when we contrast the UK Government’s paper to that of the European Union, it’s fair to say that that has not been achieved. And, of course, that has had a huge effect on the 80,000 EU nationals in Wales and the 3 million EU nationals across the UK.

The proposals include conferring settled status, which would not be automatically conferred on EU nationals, even those who achieve permanent residence. EU students would be allowed to remain for the duration of their course, but there’s ambiguity around whether they would be allowed to remain after the course has completed. One area of great concern is the ambiguity around the cut-off date, because there is a prospect for EU nationals—in particular those with children—that the parents would have a different immigration status to their children. And actually, from my reading of the UK Government’s position paper, it appears to me that EU nationals will be stripped of family reunification rights, which the EU was not proposing, in its position paper, to be the case for UK nationals on the continent. And on that issue of UK nationals on the continent, perversely, the UK paper says less about the rights of UK nationals on the continent than the European Union paper does on British nationals on the continent. You mentioned bargaining chips. I think it’s very sad to see that it looks like, in the position paper published, EU nationals are being used as a bargaining chip. I’d like to ask the Cabinet Secretary: did the Welsh Government submit its own position paper as part of the UK Government’s process of drawing up its own? If not, does he believe that it’s worthwhile the Welsh Government publishing a position paper now to bring political pressure to bear on the UK Government, so that we can uphold the rights of the 80,000 EU nationals in this country? And is it the Welsh Government’s position that the current EU frameworks relating to citizens’ rights should be transposed into UK law, under the provisions of the repeal Bill, rather than through the method being proposed by the UK Government, which is to start from scratch with UK law, which, as I’ve mentioned, strips EU citizens of the rights that they enjoy?

And finally, we were all told that this was meant to be the easiest part of the European UK negotiations. That’s what the UK Government told us repeatedly. And the fact that we cannot come to a position of reciprocal arrangements on this fundamental issue of the rights of citizens who have contributed to our country—what does this tell us about the next two years when we get to issues that were deemed to be even more difficult than this one?

Well, Dirprwy Lywydd, let me begin by just saying something on the points that Steffan Lewis started with. Because what seemed to me to be a basic mistake in the way that the UK Government went about this part of the negotiations was: instead of describing their paper as a starting point, something for further discussion, a way into some quite complex areas, they insisted on describing it from the beginning as some incredibly generous offer that people were bound to flock to want to sign up to. It inevitably ended, as Steffan Lewis said, in just disappointing people, having had their expectations raised. It’s an utterly curious start for the UK Government not to refer even to the EU paper that had been published in advance of theirs in the document that they published, again offending people with whom you need to be able to come to a sensible agreement. So, my reading of the paper is that it was a sensible enough start, and had it been pitched in that way, and described in that way, I think it would have been easier to get engagement around it.

It leaves, as Steffan Lewis said, a series of ambiguities about the status of EU citizens. Will they be able to support dependent parents? What rules will future spouses apply under, for example? And the issue of the cut-off date is fundamental here. I really do think that those UK politicians that I hear arguing that a cut-off date in the future would result in a mass influx of people to the United Kingdom trying to establish settled status—that is so far from the contemporary realities of migration, where what we have seen is actually a collapse in the number of people coming to the United Kingdom. When I spoke to the CBI last week, what their members wanted to say to me was how difficult they are now finding it to recruit people that they need to work in their businesses. So, the dangers of a cut-off date are much exaggerated at the UK level, and that ought to be resolved too.

Did we publish a position paper? Well, as the Member knows, we didn’t, but I can tell him that that did not mean for a moment that we were unable to unambiguously put our point of view to the UK Government on this matter. We’re told by the UK Government that this will not be part of the repeal Bill mechanism, but will be part of a separate Bill, and there will be things that we will want to say, and want to say publicly, in advance of any such Bill being published.

Steffan Lewis’s final point is, in some ways, the most depressing, isn’t it? If this was the easiest part, if this was an issue on which everybody agreed we needed to get rapid agreement on, then the failure to be able to make rapid progress in the way that we feel was eminently possible is a pretty bleak signal of the difficulties that lie ahead when far more tricky territory has to be negotiated.

Following on from Steffan’s point on EU nationals working in the United Kingdom, today marks the sixty-ninth anniversary of the establishment of the NHS. I think there’s evidence to suggest that there are fewer people now registering to work in the NHS from the EU as a direct consequence of that Brexit vote. Today, I’ve relaunched the ‘Diolch Doc’ campaign, encouraging people in Wales to thank the people from overseas who work and help us in our NHS. But that’s not the question I wanted to ask. The question I wanted to ask was: does the finance Minister agree that the Act that triggered the Brexit process could have a technical flaw in it, in that whilst the Act does authorise the Prime Minister to notify the EU that we intend to leave, it does not, as it’s written, indicate that we should leave?

Now, I understand that coming from an EU enthusiast like me, that’s going to sound like a ruse to stop us from leaving the EU, but it’s not—it’s a genuine question of whether the Act, as it is drafted, could be challenged in court. Would the finance Secretary be prepared to look into this to seek clarifications from Government legal experts?

I thank Eluned Morgan for both parts of what she said. She’s absolutely right about the NHS—the NHS in Wales would not survive without the good fortune that people in Wales have that we are able to attract people from other parts of the world who are willing to commit their futures to be part of our future. It’s absolutely right that we should recognise that and be prepared to say that directly to people who live and work in our communities.

I am aware of the point she makes about the potential technical flaw in relation to the article 50 legislation. I know that there are groups of lawyers—there is one in my own constituency who has argued very much that there is a technical problem with the Act of Parliament that passed at the UK level. I know that they have taken this view to the Commission and I know that it is shared by some very senior previous Law Lords, for example. The Counsel General is in the Chamber and will have heard that point and we’ll make sure that we get a view from Welsh Government lawyers. When I have looked at this and had people come to see me, I often end up saying to them that I wonder whether they are mistaking the law for the politics of this matter, and whether, even if there is a technical flaw in the way that the Act may have been put together, the political majority that was in favour of the purpose of that Act will not, in the end, be held to be more significant.

The UK Government states that securing a deal on the rights of EU citizens in the UK and UK citizens in the EU has always been a priority, but of course, prior to the beginning of formal negotiations, both the Commission and the UK Government had said that offers and counteroffers and discussion on deals couldn’t begin until those negotiations formally started. So, the UK has made an offer, giving 3 million EU citizens the certainty they seek about the future of their lives, which would give access to UK benefits on the same basis as UK nationals, but they also say that a reciprocal agreement would provide the same certainty to more than a million UK citizens living in the EU. It’s the UK Government that states that this proposal means that formal negotiations on the UK’s exit from the EU can get off to what they hope will be a productive start. So it is part of a process, and they’ve made that absolutely clear. But in its response, the EU chief negotiator recommended that the European Court of Justice should continue to be the body that upholds EU citizens’ rights in the UK. I understand that other options have been preliminarily discussed—whether a new body might be established, given the outcome of the referendum last year, which applied in part to the repatriation of law-making powers. So, given that the next round of the negotiations between the UK and EU is set to take place on 17 July, what representations has the Welsh Government made to the UK Government on this specific matter?

Well, Dirprwy Lywydd ‘dros dro’, as Steffan Lewis said, if this has always been a priority for the UK Government, then the failure to make adequate progress on something that has always been a priority is a pretty bleak sign for other, more difficult aspects of the negotiation. The Prime Minister’s obsession with the European Court of Justice is becoming a real barrier to making sensible decisions in these negotiations. Mark Isherwood is, I think, right to say that there are some intermediate solutions to this matter, but the quicker the UK Government recognises that and is realistic about it, the faster we’ll reach a resolution. There’s absolutely no doubt that in any trade deals that the UK makes, there will be an independent arbiter of those trade deals that does not reside entirely within the UK’s own domestic court system. That ought to be a solution that they can devise in relation to citizenship rights as well.

As far as the next round is concerned, I wrote jointly with Mike Russell, the Scottish Brexit Minister, for the second time, to the Secretary of State for Exiting the European Union recently, proposing that the Joint Ministerial Committee mechanism should have a regular part in the monthly cycle of negotiations that the UK Government has now embarked upon, because that would give devolved administrations a guaranteed opportunity to come round the table with the UK Government, wanting to do it constructively, wanting to be helpful in the way that we can contribute to the negotiating position that the UK will take. But, without such a mechanism that is routine and guaranteed, we are left with a set of bilateral phone calls, meetings, letters and so on, which I think is a very unsatisfactory way of conducting inter-UK arrangements between the devolved administrations and the UK Government.