EU Withdrawal

Baroness Deech Excerpts

Wednesday 13th February 2019 Lords Chamber

[Baroness Deech (CB)]

My Lords, I wrote this speech with the intention of being optimistic and constructive, and I have just about managed to hold on to that.

I hope by now that the House has given up on the notion that people do not know what is good for them and that we must rescue them from themselves. Those days are long since gone. Surely the European Union is not going to allege that it has to follow rules in all circumstances and cannot be flexible. Look at the appointment of Mr Selmayr, as the noble Viscount, Lord Ridley, said. Look at the rejection of migrant quotas across the Union, the building of fences between countries to keep out migrants and, above all, Mr Tusk’s Poland, which is breaking the rules on the environment, independence of the judiciary, independence of the press and without any sanction from the EU because Hungary is backing up Poland.

The exchange of correspondence between the Prime Minister and Mr Corbyn should not be taken at face value, although it cannot be bad that they are at last in contact over our exit from the EU. I surmise that Mr Corbyn wants the UK to leave the European Union because continued membership might stymie some of the ideas he has for his potential premiership—for example, state aid rules. He admitted voting against membership in 1975; he opposed the Maastricht treaty and called it a bankers’ Europe; and he opposed the Lisbon treaty. I never thought I would say this but I agree with Jeremy. I believe that his letter is designed not to block Brexit but to ensure that if things go wrong he cannot be held responsible. His letter might also serve to undermine the Prime Minister’s negotiations in Brussels and divide the Cabinet. To these ends, he appears even to have abandoned his insistence on an end to free immigration. I do not think that this will hold.

The continuing uncertainty over the backstop should be seen as artificial, for it is clear that a border that satisfies safeguarding the territory of the Union is feasible. The Republic can work with the EU over the form. A customs union is not necessarily the answer, given the extensive delays on the Turkish-Bulgarian border. Nor should we be held to ransom by threats of renewed terrorism. The UK has always remained firm about not changing its policies in response to violence. I suspect the prolongation of dispute is part of a campaign by Ireland to achieve unification. Like it or not, if no technical solution to the border is achieved, or if we leave with no deal, the only solution in the end will be Irish unification, not now as dread a subject as it once was.

As we see the other place riding roughshod over conventions and proving that the Commons cannot and should not take control because it is as divided as the Government’s route to exit has ever been, and by displaying those divisions to the world, they are allowing Brussels to say that it does not know what we want and enabling it to ignore the obligation in Article 50 that,

“the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”.

The Union has shirked its responsibility. Should we indulge it by extending Article 50? In this I rely on the opinion of Martin Howe QC, who has examined the legalities. It has been too readily assumed, even here this evening, that we have but to ask for an extension and it will be granted, or that a legal duty should be placed on the PM to secure this. It is not, however, ours for the asking. Under Article 50, the European Council, with unanimous agreement, is empowered to grant this. It would take into consideration the fact that there is a European parliamentary election due in May. Any extension beyond the summer would mean the UK’s inclusion in the elections, even though our seats have already been reallocated, and our remaining there for the next five years. A short extension of a few weeks would be pointless as the European Parliament, which is charged with consenting to the withdrawal agreement, is to be dissolved on 18 April. In the case of a longer extension, given that the consent of each European state would be required, it places each of them in a strong position to demand concessions and impose conditions on their consent. The Spanish will be thinking about Gibraltar, the French about fishing, and the Germans about getting larger contributions from us to the EU budget to alleviate their increased share. In sum, to demand an extension drastically weakens our negotiating position, opens us to blackmail and takes the pressure off the European Union to fulfil its obligation under Article 50. Moreover, this and other amendments are ignoring our constitution and have changed the status of the Speaker in the other place. The way in which these amendments are being handled is storing up problems for future Governments and legislation that opposition and rebellious government MPs do not like.

All those who want to take hard Brexit off the table—if ever there was a meaningless concept, that is one—seem to forget there is a perfectly sensible alternative, namely voting for the May agreement, even if it is not ideal. As I have said more than once in the past two years, we are one against 27 and it was bound to be the case that if the Prime Minister came back with a deal that was not liked by Parliament, and had to go back to the 27, they were unlikely to offer her a better one. Therefore, if we vote on the Motion tabled by the noble Baroness, Lady Smith, it will not be a meaningful vote but meaningless. We cannot take no deal off the table unless there is an alternative. We cannot force the Government to comply with her wishes by the end of this month.

On treaties, noting a few days ago that France and Germany have re-entered another pact, I was reminded of what General de Gaulle said—in terms, I hasten to add, that would not be acceptable today—about the Franco-German treaty of 1963:

“Treaties are like roses and young girls. They last while they last”.

I turn to the escape mechanism I have mentioned before, which is backed by several international lawyers, including Professor Verdirame of KCL, and former First Parliamentary Counsel Sir Stephen Laws, but not by all. Article 56 of the Vienna Convention on the Law of Treaties provides for withdrawal if, inter alia, it is implied by the nature of the treaty. Since the wording of the protocol is clear that the objective of the withdrawal agreement is not to establish a permanent relationship between the Union and the UK, but is meant to be temporary, this is indeed implied. The protocol specifies a best endeavours obligation to conclude an agreement that supersedes the protocol in whole or in part.

Best endeavours must surely be in doubt, bearing in mind the comments of Donald Tusk recently and the plain wish of the European Union to keep us in a permanent union. If the EU in future proceeds in a way that is intended to make the protocol permanent, one can conclude that the best endeavours obligation is being breached, which is a ground for withdrawal under Article 60 of the Vienna convention. The arbitration provisions in Article 170 of the withdrawal agreement do not remove the Vienna convention rights. The fact that the most distinguished lawyers are not in agreement over this gives one hope. This sort of disagreement lays the foundation for prolonged and serious litigation in the International Court of Justice, which will be very lucrative for our legal representatives and might be what is needed to jolt the European Union into settlement and action, so I encourage the Minister to proceed on the basis that the Vienna convention applies. After all, if one can leave the European Union on the application of Article 50, surely an agreement of lesser scope cannot be permanent and without external determination, so my guess is that round about 28 March a version of Mrs May’s agreement will pass and in future we will have to sort out the adverse consequences, if any.