HL Deb 09 March 1981 vol 418 cc83-97

8.40 p.m.

Lord McGregor of Durris rose to ask Her Majesty's Government whether they will state their views on the draft EEC directives on right of residence and on the conclusions of the Ninth Report of the European Communities Committee (H.L. 55).

The noble Lord said: My Lords, in asking this Unstarred Question, may I first apologise to the noble Lord, Lord Belstead, for unduly extending his parliamentary day and thank him for undertaking the task of replying? The draft EEC directive on right of residence to which I wish to draw your Lordships' attention will have the effect of abolishing the restrictions on movement and residence which still apply to those not covered by the regulations and directives relating to the free movement of workers and their families. Consequently, it will affect chiefly students and people who have retired or are well enough off to have no need to work, and their families.

However, if the directive were implemented in this country, it would make little or no difference. In practice, the resulting changes would be no more than marginal because we already extend similar treatment to the nationals of other EEC members as a matter of administrative policy. In particular, we assist fully in the maintenance for students of what the noble Lord, Lord Wolfenden, recently described to your Lordships as academic free trade within the Community, and his statement about the importance of this trade was endorsed by the noble Baroness, Lady Young, on behalf of the Government.

Under the directive a member state may require an intending resident to provide proof of sufficient resources to provide for the family but cannot set the amount of such required resources above the minimum subsistence level defined under its national law. This would be hard to apply in the United Kingdom because the supplementary benefits scheme contains so many variable and discretionary payments to meet individual circumstances that a clear figure for minimum subsistence cannot easily be teased out of it. A notional amount of a minimum would have to be agreed for the United Kingdom.

Moreover, some fear other repercussions in this administrative area. Would an extension of the right of residence result either in a disproportionate increase in claimants or would some people exercise their right of residence in order to become claimants? Such questions cannot be answered with certainty. There are as yet no means of estimating how many intending residents would enter or what proportion of them would come with the intention of scrounging. In 1979 some 5 million people came into the United Kingdom from Community countries. Of these, 1,350-odd were refused entry, the majority because the immigration officers believed that they were coming to live on public funds. This figure, applicable to all entrants from the EEC, does not suggest that the slight extension of the right to residence proposed by the directive would release a flood of ill-intentioned claimants upon the Supplementary Benefits Commission.

Further, it is not easy to make generalisations about the advantages to scroungers of the different systems of social security within the Community. Under the directive, we might end up by benefiting as a net exporter of that commodity. Another difficulty is that the directive proposes that a residence permit should be granted in the first instance for five years. Your committee concurs with the Home Office in holding the opinion that that is too long. However, I do not think that administrative difficulties can be a serious objection to the directive if the principle which underlies it is approved. That principle, as the Committee expresses it in its Ninth Report, is that the proposal is a logical extention of the rights at present accorded to persons engaged in economic activity.

There is an argument against this view which holds that the directive cannot possibly be intra vires the Treaty of Rome because that treaty was framed only for economic man who toils and moves freely to seek toil but possesses none of the other characteristics of citizenship. This point was put to the chairman of the Legal Affairs Committee of the European Parliament when he was a witness before the Committee. He replied as follows: The preambles"— of the treaty— talk of 'an ever-closer union between the European peoples' and of 'an action tending to eliminate barriers'. These barriers cannot, in my opinion, only refer to the homo economicus, … they have to concern persons as a whole. It would be, allow me to say, of a second-rate materialism to keep only to the economic part of the Treaties … we have to try and go beyond". My Lords, the directive takes but a halting step beyond though it is not the less to be valued because it is limited in scope. I believe that it should be regarded not from an administrative point of view but as enlarging the concept of citizenship and widening the national areas over which shared rights are recognised and enjoyed.

I am encouraged by what I understand to be the attitude of the Government. Speaking in Hamburg in November 1980, the noble Lord the Secretary of State for Foreign and Commonwealth Affairs observed that Europe is everything which serves to bring our peoples together in their work and in their leisure. The more these links grow, the more substance there will be to the Community and to its activities. That is why the Ninth Report of your Lordships' Committee considers that this draft directive raises important questions of policy and principle and that is why I am confident that the noble Lord, Lord Belstead, will be able to approve the committee's opinion that the principle behind the proposal should be accepted.

8.49 p.m.

Lord Avebury

My Lords, in welcoming the opportunity to discuss the report of the committee, of which the noble Lord, Lord McGregor of Durris, was a distinguished Member, may I first of all return to a theme which I have touched on previously when Select Committee debates have been held in your Lordships' House: that is, the lack of any feedback later on from Brussels in terms of a reaction to what is said in your Lordships' House and what has been said already by the Committee which is reporting to us. I feel that if people have taken the trouble to work long hours on these committees and then come before the House and explain them, as the noble Lord, Lord McGregor, has done, some kind of public reaction from Brussels is the least that we could demand.

It was said to me only this evening by a noble Baroness who is on one of the other sub-committees that she had heard on numerous occasions that the work done by your Lordships is valued in Brussels; but that is not the same thing as having a positive reaction to the suggestions that are made. Even if they are not always accepted, one would like to know that they had been properly considered and that the discussions which proceed on the draft directives have been fully taken into consideration.

Obviously my Party warmly welcomes any extension of the European ideal, and in principle we are in favour of making the free movement of people apply to those who are not engaged in any form of economic activity, as this draft directive does. As the noble Lord has already explained, it applies to three categories: students, retired people and those of independent means, together with their families. We agree that although this objective may appear to go beyond the Treaty, the directive would not be found to be ultra vires if challenged in the European Court. I think enough evidence was taken to satisfy the Committee on that point.

I also recognise that if Britain does consent to this directive or to one which is based on the draft now before us, it would reduce the power of the United Kingdom Parliament to make laws regulating the right of residence in this country by nationals of member states. But that is already the case for EEC nationals wishing to enter in order to take up or to seek employment, to set up in business or to work as self-employed persons. In paragraph 61 of the immigration rules it is expressly provided that such persons are to be admitted without a work permit or without prior consent. Paragraph 62 requires us to admit also their spouses, their children under 21, other children and grandchildren, if still dependent, and their dependent parents and grandparents. These provisions are not discretionary but they allow us to comply with our existing Treaty obligations. Clearly, if this draft directive came into force it would simply be an extension of what we have already agreed.

As the committee remarked, the optimum arrangement would be to concede unrestricted rights of residence to all citizens of every member state. The proposals in the directive do not go as far as that, but they lay down guidelines which determine whether or not a person who is not gainfully employed should be able to reside in a member state of which he or she is not a citizen.

The two points of concern expressed by the committee were the definition of "members of the family", including the word "dependent", and the imposition of the arrangements for ensuring that we do not get thousands of indigent Germans coming here to benefit from our generous social security arrangements. We are in some difficulty if we adopt a wider definition of "members of the family" for this purpose than we do in our existing immigration rules. We already have the absurd situation, for example, that a Frenchwoman who marries an American or Pakistani may take up residence here with her husband if she is in work here or is seeking to work here, whereas an Englishwoman who is married to the brother of that American or Pakistani would not necessarily be entitled to live here with him. In fact, since the last immigration rules were enforced, that would occur only if she was either born here herself or her parents or grandparents were born here.

So already we have citizens of this country being put into an inferior situation vis-à-vis their spouses than citizens of other Common Market countries. It would be unfortunate if we were to introduce further anomalies in the wake of these proposals, as we shall do obviously if we are going to permit the spouses and children and parents of spouses to be included among "dependents". In any case, as has been pointed out, there is an ambiguity in the drafting which would have to be cleared up; so we could not accept the present document as the final version.

May I suggest that the easiest way out of the difficulty might be for the directive to allow each member state to define "members of the family" and "dependent" in accordance with its own law. I admit that that might lead to some minor loss of reciprocity, but that is already inevitable when we come on to interpreting the financial criteria in the directive. Article 4(2) says that member states may require would-be immigrants for purposes other than work to provide, as the noble Lord, Lord McGregor, has already explained, sufficient proof that their resources will satisfy their own needs and the needs of their accompanying family members. That, according to the Economic and Social Committee, has to be not just for the immediate future after they have come in but for the whole of the five years, although that is not made absolutely clear in the directive.

But these resources are not to be greater than the minimum subsistence level defined under the law of each member state, so that if each member state defines separate subsistence levels there could be differences of treatment as between one country and another. The difficulty is that we do not have such a concept in our law of a minimum subsistence level. We have the various levels of supplementary benefit, as the noble Lord, Lord McGregor, has explained; but the inference from the directive is that this subsistence level is a unit amount which is defined in some way in the law of each member state.

What might be a way round this problem, if I may suggest it through your Lordships to the draftsmen in Brussels, is to say that member states may not require the resources to be greater than an amount sufficient to render them ineligible for social assistance in whatever State they are intending to enter. That means that somebody coming to Great Britain would have to show that he or she had sufficient resources to make it unnecessary to apply for supplementary benefit. But in the other countries of the Common Market, where different systems are in force, some of them of a much more local character than we enjoy here, the requirements would have to be settled in the light of their internal legislation.

The discussion in your Lordships' Committee makes it clear that there is some anxiety that we might get droves of Italian scroungers descending on us to live off our lavish supplementary benefits. At the moment they may come here, saying they are intending to look for work, and they may have no resources at all when admitted. There have been allegations by some newspapers, notably the News of the World, that people are coming for this purpose. The News of the World carried a front-page article some time ago showing a group of Italians enjoying a large meal washed down by great flagons of chianti, and it was rather puzzling to me how they had managed to afford such a large number of bottles on the supplementary benefits they were supposed to be receiving. Following enquiries, I found out that the wine had been paid for by the editor of the News of the World. So I think there may be some exaggeration of the extent to which people are benefiting from our social security provisions.

According to an estimate which was given to the committee, in 1980 I think there were only 500 people in total who had received supplementary benefit for more than eight weeks. It was not clear exactly how that figure was obtained, except that the witness from the DHSS who gave evidence said that if an EEC national claimed benefit for any less time than that it would not have been separately recorded but simply included in the total of all claims. We require rather more information than we have at the moment about the extent to which overseas nationals are claiming supplementary benefits, and we need that information on a continuing basis, because I dare say that this is not the last discussion of the kind we are having now which will take place in your Lordships' House or in the House of Commons.

I suggest—although it is not the responsibility of the noble Lord, Lord Belstead—that perhaps the DHSS might look into the possibility of collecting some more regular statistics than are available at the moment. If free movement leads to more EEC nationals coming here and claiming benefit, then, presumably, more of our own citizens will be claiming them—as the noble Lord, Lord McGregor, has said—in France or Germany. But, according to the DHSS, it is harder to claim supplementary benefits in France or Germany, or, indeed, in practically every other country in the EEC, because some countries pay social benefits only to their own nationals, which, so far as I can see, appears to be contrary to the provisions of Article 7 of the Treaty. Others also impose a residence condition and most of the schemes have a discretionary element in them, unlike our supplementary benefits which have to be paid if a person satisfies the conditions.

I found it rather hard to believe, when I was looking at the note which the DHSS submitted to the committee, that our system is so very much better than anybody else's in Europe, as they would appear to have claimed. When the DHSS were first asked in oral evidence for a comparison, they had to admit that their knowledge of other countries was scanty; they could not give the levels of benefits or the residence requirements in other countries of the EEC, and I thought that the paper which they finally submitted was rather uninformative. It would be useful, if this matter is to be pursued, for detailed comparisons to be made; and perhaps this is something that the Commission might be asked to undertake for future reference.

For the time being, however, in spite of the enthusiasm for these proposals of the European Parliament, they were said by Home Office witnesses to be unpopular with most of the member states and thus they are unlikely to succeed. It is a pity that what was intrinsically a sound idea in principle has been rather botched in practice, and that may be one of the reasons why the proposals are disliked elsewhere. I hope that, while public opinion and the opinion of Governments is maturing, as it may do in time, the valuable suggestions of your Lordships' Committee will be pursued and, if I may say so, that those which I have ventured to put forward may be considered as well.

9.3 p.m.

Lord Wolfenden

My Lords, I feel bound to begin with an apology. I hope that I may have your Lordships' pardon if I have to leave before the end of this debate. I very much hope that that will not be the case, because I particularly want to hear what subsequent speakers have to say. But, if it comes to the real crunch choice between listening to those speakers on the one hand, and catching my last train home on the other, I know which course I shall adopt, if your Lordships will forgive me.

I have very little to add to the admirable exposition of this report by the noble Lord, Lord McGregor of Durris. As has been said already, he is an important and influential member of the sub-committee which was responsible for reporting to the Select Committee itself on this matter, and it will not be any surprise to your Lordships who have heard him this evening that that is so. I want only very briefly to underline two of the points which he has made.

The first is the desirability, as it seems to me, of removing the distinction which at present exists between "workers" and others; not just a distinction but, if I may say so, what seems to me to be discrimination in favour of whichever you choose to adopt. I think that that is an especially unfortunate distinction if, in fact, students are—as they are—included among the non-workers. Equally, that would be the case, I suspect, with most of your Lordships if you wished to take advantage of living in another country. I suspect that most of us would be categorised not as seeking employment, but as, in my crude word, non-workers. So there is that very real reason—that personal, close, intimate reason—why we should wish this discrimination to end.

My second point, equally briefly, is the desirability, as it seems to me, of knitting the European Community more closely together not just by economic considerations. Obviously, this is no place to begin a debate on our membership of the Community, but we are members of it, we are committed to it and, in so far as we are, then I should like to see it as successful and all-embracing and wide in its scope as it can be. It is not just a matter of economic considerations and the Common Market in the narrow sense. We are talking about a human community, a community of human beings of various nationalities, some of whom are students and some of whom are not; some of whom are called employed or seeking employment; some of whom are regarded as being of independent means. Whatever the immediate category, what we are really talking about is a vast number of human beings who very much want for the most part, I am sure, to enjoy what can properly be called the benefits of the existence of the Community and of their membership of it.

It is perfectly true, as has been pointed out already, that there are one or two practical and administrative problems to be solved before this directive could be acceptable. But I find it hard to believe that they are beyond the wit of those who will have to attempt to solve them, and I should have thought that it would be a pity if, certainly at this stage, we allowed simply administrative, practical or even minor financial obstacles to impede the progress of this directive. I personally welcome it and I presume to commend it to your Lordships and to the Government.

9.8 p.m.

Lord Scarman

My Lords, I also should like to congratulate the noble Lord, Lord McGregor of Durris, on the admirable way in which he has introduced this debate. I can only hope that when the noble Lord, Lord Belstead, replies both he and those of us who are on the Select Committee will hear words supporting and approving this report. Indeed, I hope that the points made by the noble Lord, Lord McGregor of Durris, and by the noble Lord, Lord Wolfenden, will be carefully considered by the Government.

I should like to say just one word in answer to some of the observations made in the course of his speech by the noble Lord, Lord Avebury. He suggested that more attention should be paid in Brussels by the European Commission and others to the reports of the committee of your Lordships' House dealing with proposals for legislation emanating from the European Communities. Let me at once allay, I hope, some of his fears. I had occasion with the noble and learned Lord, Lord Fraser of Tullybelton, to visit Brussels about 10 days ago on the business of your Lordships' House, so far as that business is conducted by the Select Committee on the European Communities. We were largely concerned with legal questions but it was perfectly plain to both of us from what two Commissioners, Viscount Davignon and Herr Narjes, said that our reports and the debates in your Lordships' House arising from those reports are most carefully considered.

We were given one specific example which I hope will encourage the House as well as allay the anxieties of the noble Lord, Lord Avebury. Viscount Davignon had in front of him during our discussion the report on product liability. He had read in Hansard the debate in your Lordships' House on that report. As I understood what he said, he had already accepted the point that was made during the course of that debate about the way in which his officials, or the draft directive were proposing to deal with the problem of limitation of liability.

I am quite satisfied that our reports and the debates in your Lordships' House have their effect in Brussels. It is notable that during recent months representatives of the Commission and of the European Parliament have come over to London to assist not only the committee but its sub-committees in their deliberations upon draft proposals emanating from the European Communities. Sparsely attended though this debate may be, what is said tonight and what is said in this report will, I know, be most carefully considered and have real influence in Brussels.

Lord Avebury

My Lords, it was not so much that I had any doubt that people in Brussels read the committee's reports and what was said in your Lordships' House, as the lack of any formal mechanism by which your Lordships could be made aware of the consideration that had been given to these proceedings to which I was referring. Indeed, the experience of the noble and learned Lord, Lord Scarman, was in a way fortuitous. It was a happy accident that he was able to hear at first hand that Viscount Davignon had read the proceedings of the committee in question, but those members of the committee who were not in Brussels with him could have known about it only because the noble and learned Lord, Lord Scarman, reported back to them. I am asking for a rather more formal system by which your Lordships could be made aware of the consideration which Brussels had given to these proceedings.

Lord Scarman

My Lords, as a lawyer accustomed to formal mechanisms, I prefer almost any other mechanism to a formal one. But I take the noble Lord's point.

I have only a very few observations to make; the ground has been so admirably covered by the noble Lord, Lord McGregor of Durris, and by the noble Lord, Lord Wolfenden. My points are largely legal and I mention them only with the invitation that the Government give them some consideration. There are two classes of legal points arising on this draft directive. One is a point on the law of the European Communities, which is really for the Commission and for the institutions of the Communities to consider—and ultimately, of course, for the European Court of Justice to consider. It is the problem to which the noble Lord, Lord McGregor of Durris, referred—the problem of vires. Is this directive intra vires the treaties? That question must be open to a measure of doubt, although I happen to have no hesitation in advising—if I may advise your Lordships—that the European Court of Justice will almost certainly hold that the directive is intra vires if it should ever be challenged, and of course if it receives the unanimous support of the member states it is extremely unlikely that it will be challenged.

Nevertheless, there is a difficulty and that difficulty arises from the very excellence of the draft directive. When the chairman of the Legal Affairs Committee of the European Parliament came to give evidence to the Select Committee on the subject of this directive, he said that the directive, although of course limited in scope and applying really only to retired persons, persons of independent means and their families, and students, nevertheless heralded a new trend—an attempt to bring Europe closer to the people.

He went on to say that there was a note of freshness in the directive. It does not regard citizens and member states as merely economic agents. It treated them as people. It does, but by so doing it runs itself into a measure of difficulty which I am confident that the European Court of Justice—if it ever has to—will solve. The measure is there. It is a difficulty which is present, at any rate to the Legal Affairs Committee of the European Parliament, because the chairman, in giving evidence, said that there must be a rock hard basis in law for the directive so that it could stand up to legal challenge. The rock hard basis will be there if the court of justice adopts what we lawyers call a purposive approach to the interpretation of the preamble and the opening words of the treaty. I say no more about that. I have no fears and I am quite sure that if Her Majesty's Government are satisfied that this directive is to be encouraged they will not be deterred by those arguments, either.

I now pass to the legal problems in our national law. Here I would respectfully suggest that Her Majesty's Government should press for a greater, closer definition of certain matters to which your Lordships have already referred in the course of this debate. I shall mention only two. There is the definition of a dependant or member of the family. I cannot help thinking, notwithstanding the explanations given to the committee by the chairman of the Legal Affairs Committee of the European Parliament, that the definition is (at any rate by British standards) somewhat loose, if not woolly.

The European Parliament have proposed as an amendment which I think, though I am not sure, has been accepted by the Commission, that the definition of a dependant should be, any person whom the holder of a right of residence has an obligation to support or who is in practice dependent on the holder". When the Select Committee first heard that definition, certain members, including myself, were somewhat apprehensive. The chairman of the Legal Affairs Committee of the European Parliament, giving his evidence, said that "obligation" meant legal obligation", and "who in practice [is] dependent upon the holder of the right of residence" meant "who is living under the same roof as the person entitled to the right of residence". If those two meanings are implicit in that definition, so be it, but I would suggest to Her Majesty's Government that they should press for something a little more explicit so that doubts may be removed.

The other point of genuine difficulty is the one to which all your Lordships who have so far participated in this debate have referred and which was developed (quite rightly) at some length by the noble Lord, Lord Avebury. That is the right given by the draft directive to member states to insist upon minimum sufficient resources from those persons seeking to take advantage of the draft directive and move from their own home state into another member state.

The difficulties are real. This is a late hour and it is not the appropriate moment to explore them. They are not simply difficulties of definition; they are difficulties of policy and they do need some attention. I would invite Her Majesty's Government to insist on getting some sort of formula which would ensure that the draft directive contains an indication as to the minimum amount of resources deemed sufficient which is suitable to the needs of the United Kingdom. I do not think, from what I have heard said in the Commission or in evidence to the Select Committee, that there will be any lack of goodwill in the Common Market in seeking to resolve that difficulty. It is a genuine difficulty through nobody's fault. I do hope that we shall hear something really encouraging and helpful from the noble Lord, Lord Belstead, when he answers this Unstarred Question.

9.21 p.m.

Lord Boston of Faversham

My Lords, my noble friend Lord McGregor of Durris has performed a most valuable service in raising this matter today, and in thanking him I should like to thank also all of the members of the committee for all their hard work. This is an important subject, and, like my noble friend, I shall be most interested to hear the views of the Minister, the noble Lord, Lord Belstead. I must confess that on reading the report I did feel somewhat apprehensive about aspects of the draft directive. I have been somewhat reassured by both what my noble friend himself has said and by what has been said by other noble Lords, including the noble and learned Lord, Lord Scarman, in his speech. But the reservations expressed by the Home Office in their memoranda are not insignificant ones, and some of the matters to which they draw attention, matters to which noble Lords have referred in the course of this debate tonight, not least on, for example, identity cards, are likely to arouse a certain amount of controversy.

My Lords, I do not intend in these few brief remarks to spell out the disadvantages that appear—these have been frankly explored by noble Lords who have spoken in support of the draft directive itself—but I would just add this: that those points also have to be seen against the background outlined in the report itself, and especially its reference in Paragraph 11 to the fact that the directive, if made, would involve a surrender by the United Kingdom Parliament of its future power to make laws relating to the right of residence in this country of nationals of the Member States, since … the Community would pre-empt that legislative field". I think it is important that that point should be mentioned in the course of a debate like this. It was clearly one of the principal factors which was most obviously in the minds of the sub-committee and the Select Committee in recommending that this draft directive ought to be drawn to the attention of your Lordships.

So I feel that we should need to be reassured by the Government on the points the Home Office itself has raised. It is probably fair to say, especially in the light of the views expressed tonight, that those are largely administrative or technical worries and need not affect the principle involved in the directive itself. My Lords, all this simply helps to underline our sense of gratitude both to my noble friend and to the committee for bringing this important matter to the attention of your Lordships.

9.24 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Belstead)

My Lords, I am grateful to the noble Lord, Lord McGregor of Durris, for this opportunity to set out the Government's views on this draft directive, and in particular on the conclusions reached in the Ninth Report of the European Communities Committee of your Lordships' House. I should first say that the general attitude of the Government to the objectives of this draft directive is influenced by the fact that, under our system of immigration control, the privileges that the directive seeks to give are, as the noble Lord, Lord McGregor of Durris, recognised in his speech, for the most part already accorded in practice to those people whom the directive would cover. These would mostly be retired people, persons of independent means and students.

Of course, Community nationals are not normally subject to strict immigration controls chiefly because, under existing Community law, nationals of member states may move freely between those states to seek or to take up employment. That being so, one of the principal purposes of the immigration control—namely, the control of unauthorised employment leading possibly to settlement—is removed. Any of your Lordships who have seen the procedures at Heathrow Airport, for instance, will, I am sure, agree that the examination of passengers from Community countries is very brief and is indeed very much of the same speed as the procedures for citizens of the United Kingdom. The reason for that is simply that there is no point in questioning a student or other visitor closely to discover whether he has an intention to work, because the person would be perfectly entitled to do so anyway.

I have not heard it suggested that the present practice of United Kingdom immigration control excludes those such as retired people, persons of independent means and students from Community countries entitled to free movement of labour who want to come here either temporarily or even permanently. I would think, from the debate, that this is common ground between all sides of your Lordships' House and I would just say that our practice is to admit such people with a minimum of formality.

While one must therefore argue that, so far as United Kingdom practice is concerned, the objectives underlying this draft directive represent no significant change of policy, and indeed they can hardly be presented as a dramatic development in the history of the Community, it can also be said that if we claim already to be doing what the directive is all about then we should be able to support it. I should like to say quite clearly to your Lordships that the Government do indeed maintain that the principle behind the proposal carries no major policy implications for the United Kingdom, and such misgivings as we have are to some extent based on the view that, unless great care and attention is devoted to the drafting stage of such instruments, they can subsequently be interpreted in a way which the originators had never intended or foreseen.

I was grateful to the noble Lord, Lord Boston of Faversham, for saying that the reservations which were expressed by the Home Office—and many of them were indeed repeated in the report of the committee of your Lordships' House—are not insignificant. We are therefore concerned to ensure that in its final form the proposal of the directive does not inhibit a member state's freedom to deal with individual cases to an unwelcome degree.

In this regard there are three areas to which I think Parliament needs to pay particular attention. In the first place we must be sure that there is adequate provision for us to keep out those who are generally undesirable, such as serious criminals or terrorists; secondly, we must be satisfied that the final instrument is not open to exploitation by non-Community nationals whose aim may be to circumvent our normal immigration controls; and finally, there must be adequate provisions to prevent the abuse of public funds.

I should like to say a few words about public funds. I agree with the noble Lord, Lord McGregor, that it would be wrong to exaggerate the scale of abuse or to give the impression that Community nationals are waiting to come here to live on social security benefits. There are, however, cases which are very properly a matter of public concern. It is right and necessary that benefits for workers, students or retired people should not be exploitable by those who move from one country to another with the object of living off the taxpayer in whichever country will provide for them most easily. Nor indeed would it be in the interests of the Community and the ideals of the Community for Community instruments, drafted with the best of intentions, to be open to exploitation in this kind of way.

In the noble Lord's speech and in the speech of the noble Lord, Lord Avebury, there was the suggestion that any hesitation on the part of the United Kingdom would be ill-advised because in the two-way movement which the draft directive would encourage we should be as likely to benefit as much as, or perhaps even more than, other countries. That may be so, but I must point out that the number of European Community nationals coming here to work has not, as I understand it, lessened over the last three or four years during which this country has been in a deepening recession.

However, the point at issue is that a directive, which could after all form the basis of a case right up to the European Court, must surely be drafted as accurately as possible and not lead to unforeseen consequences. With that in mind, may I briefly mention some of the details of the proposal as it is at present drafted which could be a source of some difficulty?

Article 1 of the draft directive specifies those people who would benefit from its provisions, and its definition of family members is very wide indeed. It would appear, at least from the present English text, that the directive would extend to relatives in the ascending and descending lines without limits; to relatives who are not themselves Community nationals, and, it would appear, to those who do not even live with the person who would be exercising the free movement rights. The noble and learned Lord, Lord Scarman, spoke about the interpretation which the chairman of the Legal Affairs Committee of the European Parliament placed upon the words "obligation" and "dependent" in Article 1 of the draft directive. I was most interested to hear the remarks of the noble and learned Lord about this. All I would say is that the Government would like to see—and I am reinforced in my feeling about this, having heard the speech of the noble and learned Lord—these matters clarified in the directive, as I believe that at the moment they have not been clarified as regards this country.

This definition goes beyond what is contained in existing provisions for the families of workers and is particularly open to exploitation in so far as it concerns non-Community nationals. As at present drafted, for example, a man from a country outside the Community could gain settlement in the United Kingdom simply by marrying a girl from a Community country who happened to be here for a few months to learn English. Before we embark on any disagreement about a point of that kind at this late hour, may I just say that that may or may not be held to be desirable by your Lordships, but I do not think it should be governed by a European Community directive. In addition, as regards Article 1, that part of the draft referring to dependants even though they may be Community nationals, is, as the committee of your Lordships' House recognised, vaguely worded.

Lord Avebury

My Lords, a non-Community national can acquire a permanent right of residence now, can he not, if he marries a woman from one of the other member states who comes here for the purposes of work? If he accompanies her and remains here for the five years that is provided under our law for that woman to acquire a permanent right of abode, he also acquires it. So the extension to non-Community nationals of this right of spouses would be a logical feature of the proposal, would it not?

Lord Belstead

My Lords, it might be a logical one so far as the noble Lord is concerned, but what I am saying is that in addition to it being, I think, quite wrong that it should be put into effect by a directive, which would be a European Community directive and not a directive which is supposed to apply to the rest of the world, the effect of the directive would be to make the effect of what the noble Lord calls a logical extension very much wider indeed.

Another issue of concern to us, and I think to other member states as well, is the provision contained in Article 4 of the draft, which says quite properly that member states may require those who would benefit from the directive to provide them with proof of sufficient resources to maintain themselves and their dependants. Practically all your Lordships have referred to the difficulty created by the fact that the article goes on to lay down that such resources may not be required to exceed the minimum subsistence level defined under the law of member states.

In our law there is no generally applicable minimum subsistence level. Under the supplementary benefit scheme the level varies from one person to another depending on many different factors. The Government share the view which was expressed in the committee's report that there may not be an adequate solution to establishing a minimum subsistence level. The noble Lord, Lord Avebury, put forward a solution to this problem. I would simply say to the noble Lord that any alternative concept will require very careful thought if it is to be workable within our system.

As the committee recognises, this difficulty is made more intractable by the provision in Article 5 of the draft directive, which lays down that a residence permit must be valid for five years with no discretion to issue one for a lesser period. This would effectively remove the possibility of reviewing a person's ability to support himself and his family. The noble Lord, Lord McGregor, said that administrative convenience should not stand in the way of the principle of the directive. I sympathise with that. Indeed, I sympathise with the noble Lord, Lord Wolfenden, who gave the view that administrative convenience is never a good argument for standing in the way of something which is desirable in principle.

I would just remind your Lordships that the committee of your Lordships' House held that a right to review is essential. I think your Lordships came to that view because the directive as drafted could lead to people persistently living here at the taxpayers' expense for almost a full five-year period. I must say that we regard this provision as being unreasonably rigid.

Lord McGregor of Durris

My Lords, if I may say so, I said that the committee concurred with the Home Office's view that the five-year period was too long, and the committee certainly did not—and I do not think that I did in what I said—make a fetish of overriding administrative convenience.

Lord Belstead

My Lords, I must apologise to the noble Lord that I was perhaps making it sound as though I departed from what the noble Lord, Lord McGregor, was saying instead of calling his words into aid, which was not very good tactics on my part. I am glad that the noble Lord therefore would agree with me that there should be, as I understand what the noble Lord is saying, a discretion for member states to vary the period of validity of the residence permit according to circumstances. These are just some of the areas of concern which the Government would hope to see clarified before the draft directive could be finally adopted. I believe that some of them are shared by other member states, while a few countries may see more fundamental objections.

The Government will certainly give close consideration to the points which the noble and learned Lord, Lord Scarman, made. May I mention just one of his points. I think I have referred to the others in my speech. The noble and learned Lord raised the question of the vires of the directive. While this issue is known to be a source of concern for some who believe it to be ultra vires, there are arguments both ways. The noble and learned Lord put the other argument this evening. The Government will therefore participate in continuing discussions on the text of the proposal.

It is in harmony with what I have just said that I conclude by adding that the Committee's Ninth Report is a helpful and welcome document for which the Government are grateful. We are particularly grateful that in its careful exposition of the issues involved, your Lordships' committee gave due recognition to those points on which changes are felt to be required and agree that efforts should continue to be made to see whether those matters can be satisfactorily resolved.