The chances of EU citizens settled in Britain retaining all their rights to live, work and retire in the UK after Brexit have been rated as zero by legal experts.
A leading barrister who specialises in international public law told a House of Lords panel on Tuesday it was “inconceivable” that the laws would survive entirely intact.
Prof Alan Vaughan Lowe QC said this was the price millions of people – including 1.3 million Britons abroad and 3 million non-Britons living in the UK – were likely to pay for Brexit.
Such was the uncertainty surrounding negotiations and the demands of other EU states, he said, that the British government might have to consider compensation for British citizens abroad if some rights, such as access to Spanish or French healthcare, were lost.
But Lowe told the Lords justice subcommittee that what worried him most was the lack of knowledge about the issue at government level. “There is very little evidence of people knowing what they are trying to do,” he said.
Legal entitlements such as the right to work, reside, retire, vote in local elections and have access to welfare and health systems come automatically from Britain’s membership of the EU.
Only a limited number of rights, namely the right to own property and contractual rights, will be protected by international law, the peers were told.
Lowe said not only was there no clear objective on an individual’s legal rights post-Brexit in Britain or in Spain, France or any other EU state, it was not clear whom the government wanted to protect.
“If it’s been drafted with future citizens in mind, you would take a different view of rights that would naturally fade out with mortality,” he said.
The chair of the committee, Helena Kennedy, said the complexity of the so-called acquired rights was a concern to millions who wanted to plan their futures. Could any reassurances be given?
“Absolutely no,” Lowe replied. “I think there is zero chance [that the] … existing legal system affecting European nationals in this country will not change.”
Lady Kennedy said she was mindful of the number of lobbyists now attaching themselves to governments who would end up as negotiators.
Lowe suggested that in the absence of any evident expertise on the topic, the government could look at “decolonisation provisions” used in the 1950s and 1960s to protect the rights of British nationals in Rhodesia and Burma.
Sionaidh Douglas-Scott, a professor of law at Queen Mary University of London, pointed out there was no transparency in the Brexit negotiations, so it was difficult to assess what interests the government would seek to protect.
She said the Greenland treaty, which governed that country’s exit from the EU following a referendum in 1982, could be a starting point.
On the plus side, the Lords were told, the Greenland model was vague enough to allow Britain to attend to the legal detail over a period of 10 years after Brexit. On the minus side, it was mainly concerned with the protection of fishing territory.
Kennedy said it is was not clear with what “vehemence” the government would seek to safeguard some rights, and which ones would be “negotiated away”. She also questioned the seriousness with which the issue was being taken. “So it is worrying,” she said.
Safeguarding all EU rights might not be best strategy, said Lowe. It might be that the government would have to step in to offer protection for Britons abroad.
“If [they] lose rights to access to a free health system, then maybe that is something the British government should pick up,” he said. “I can’t see any practical possibility whatsoever of getting a withdrawal agreement that ties up all the legal issues.”
Douglas-Scott said it was not clear who would be leading the negotiations on acquired EU rights – whether it was a government minister or a collective body that would include experts and opposition politicians.
Both Douglas-Scott and Lowe stressed that EU rights would fall away unless specifically protected under new British law.