Brexit: Negotiations

Baroness Evans of Bowes Park Excerpts

Monday 15th October 2018 Lords Chamber

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, with the leave of the House I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:

“With permission, Mr Speaker, I would like to update the House ahead of this week’s European Council. We are entering the final stages of these negotiations. This is the time for cool, calm heads to prevail and it is the time for a clear-eyed focus on the few remaining but critical issues that are still to be agreed.

Yesterday, the Secretary of State for Exiting the European Union went to Brussels for further talks with Michel Barnier. There has inevitably been a great deal of inaccurate speculation, so I want to set out clearly for the House the facts as they stand. First, we have made real progress in recent weeks on both the withdrawal agreement and the political declaration on our future relationship. I want to pay tribute to both negotiating teams for the many, many hours of hard work that have got us to this point.

In March, we agreed legal text around the implementation period, citizens’ rights and the financial settlement; we have now made good progress on text concerning the majority of the outstanding issues. Taken together, the shape of a deal across the vast majority of the withdrawal agreement—the terms of our exit—are now clear. We also have broad agreement on the structure and scope of the framework for our future relationship, with progress on issues like security, transport and services. Perhaps most importantly, we have made progress on Northern Ireland, where the EU has been working with us to respond to the very real concerns we had on its original proposals.

Let me remind the House why this is so important. Both the UK and the EU share a profound responsibility to ensure the preservation of the Belfast or Good Friday agreement, protecting the hard-won peace and stability in Northern Ireland and ensuring that life continues essentially as it does now. We agree that our future economic partnership should provide solutions to the unique circumstances in Northern Ireland in the long term. While we are both committed to ensuring that this future relationship is in place by the end of the implementation period, we accept that there is a chance that there may be a gap between the two. This is what creates the need for a backstop to ensure that if such a temporary gap were ever to arise, there would be no hard border between Northern Ireland and Ireland, or indeed anything that would threaten the integrity of our precious union, so this backstop is intended to be an insurance policy for the people of Northern Ireland and Ireland.

Previously, the European Union had proposed a backstop that would see Northern Ireland carved off in the EU’s customs union and parts of the single market, separated through a border in the Irish Sea from the UK’s own internal market. As I have said many times, I could not accept that, no matter how unlikely such a scenario may be. Creating any form of customs border between Northern Ireland and the rest of the UK would mean a fundamental change in the day-to-day experience for businesses in Northern Ireland, with the potential to affect jobs and investment. We published our proposals on customs in the backstop in June and, after Salzburg, I said that we would bring forward our own further proposals. This is what we have done in the negotiations and the European Union has responded positively by agreeing to explore a UK-wide customs solution to this backstop, but two problems remain.

First, the EU says there is not time to work out the detail of this UK-wide solution in the next few weeks so, even with the progress we have made, the EU still requires a “backstop to the backstop”—effectively, an insurance policy for the insurance policy—and it wants this to be the Northern Ireland-only solution that it had previously proposed. We have been clear that we cannot agree to anything that threatens the integrity of our United Kingdom and I am sure that the whole House shares the Government’s view on this. Indeed, the House of Commons set out its view when agreeing unanimously in Part 6 of the Taxation (Cross-border Trade) Act to what is now Section 55, on a ‘Single United Kingdom customs territory’. This states:

‘It shall be unlawful for Her Majesty’s Government to enter into arrangements under which Northern Ireland forms part of a separate customs territory to Great Britain’,


so the message is clear not just from this Government but from this whole House.

Secondly, I need to be able to look the British people in the eye and say that this backstop is a temporary solution. People are rightly concerned that what is meant to be only temporary could become a permanent limbo, with no new relationship between the UK and the EU ever agreed. I am clear that we are not going to be trapped permanently in a single customs territory, unable to do meaningful trade deals. So it must be the case: first, that the backstop should not need to come into force; secondly, that if it does, it must be temporary; and thirdly, while I do not believe this will be the case, if the EU were not to co-operate on our future relationship we must be able to ensure that we cannot be kept in this backstop arrangement indefinitely. I could not expect this House to agree to a deal unless we have the reassurance that the UK, as a sovereign nation, has this say over our arrangements with the EU.

I do not believe that the UK and the EU are far apart. We both agree that Article 50 cannot provide the legal base for a permanent relationship and that this backstop must be temporary, so we must now work together to give effect to that agreement.

So much of these negotiations is necessarily technical, but the reason this all matters is because it affects the future of our country. It affects jobs and livelihoods in every community. It is about what kind of country we are and about our faith in our democracy. Of course it is frustrating that almost all of the remaining points of disagreement are focused on how we manage a scenario which both sides hope should never come to pass and which, if it does, will only be temporary. We cannot let this disagreement derail the prospects of a good deal and leave us with the no-deal outcome that no one wants.

I continue to believe that a negotiated deal is the best outcome for the UK and for the European Union. I continue to believe that such a deal is achievable, and that is the spirit in which I will continue to work with our European partners. I commend this Statement to the House”.

--- Later in debate ---

[Lord Newby (LD)]

My Lords, I am grateful to the noble Baroness for repeating the Statement, which is sober and sobering. It begins by saying that the Prime Minister wishes to set out clearly the facts as they stand. Unfortunately, as the noble Baroness, Lady Smith, said, there are virtually no facts in the Statement at all. It is extraordinarily difficult simply by reading or listening to it to have the faintest clue as to what is really going on.

Take, for example, not the immediate cause of the rupture but the longer-term relationship. The Prime Minister says:

“We … have broad agreement on the structure and scope of the framework for our future relationship, with progress on issues like security, transport and services”.


Leaving aside that the “like” covers 80% of the economy, it is clear that there is no agreement on these issues. Indeed, Dominic Raab said last week in relation to them that,

“we continue to make progress … although there is still some way to go”.—[Official Report, Commons, 9/10/18; col. 51.]

In other words, we are nowhere near having an agreement.

I think that answers the noble Baroness’s question as to why the future relationship document did not go to the Commission last week as was expected: not enough of it had been agreed. But how do we know? We do not have the faintest clue. There are no facts or even suggestions from the Government as to how discussions on the future relationship document are progressing.

So we come to the immediate cause of the breakdown: the question of the backstop and its backstops. If we were on a cricket field, we would be inventing new fielding positions, each one more ludicrous than the last—and each one unnecessary if we had a well-run team. As far as the backstop is concerned, the Prime Minister states the obvious concern of the EU that,

“while we are both committed to ensuring that this future relationship is in place by the end of the implementation period, we accept that there is a chance that there may be a gap between the two”.

In other words, the Government do not believe that they can sort this out during the transition period. So is it surprising that the Commission is saying, “Actually, let’s work out what we do in those circumstances”?

That brings us to the backstop to the backstop. The Prime Minister says that there are two problems with this. The first is that the backstop we proposed—I hope that everyone is following this—has not been accepted by the EU because, it says, there is not time to work out the detail of this UK-wide solution in the next few weeks. Well, why is that? Whose proposal is it? Can we not just tell the EU that we know what it is going to be? Are we expecting the EU to tell us how our backstop—not the EU’s backstop—works? The clear implication of the Prime Minister’s Statement is that we are waiting supinely for the EU and not helping it out on our problem and our proposed solution to it.

The next problem is the issue of “temporary”. This is a huge issue because it is an attempt to define the undefinable. All Members of your Lordships’ House know that the word “temporary” is in the same category as “in due course” and “soon” as definable only in the mind of the speaker at the time. No two people using those phrases necessarily have the same thought in their mind—so it is hardly surprising that it is a struggle to define it. But why would you need to define it anyway? The only reason is that there is no trust or good will between the parties.

There are two problems about “temporary”. The first is that a large proportion of the Tory party in the Commons does not trust the Prime Minister that temporary means temporary and thinks that it is being sold down the river. The other is that the EU more generally does not trust the Government and there is no body of good will that would enable it to agree on something such as this without a definition of something that cannot be defined.

So we have a withdrawal agreement on which progress has stalled because an attempt to define the indefinable failed, and the future relationship negotiations clearly have a long way to go. As the noble Baroness, Lady Smith, said, this leads us to the question of timing. She asked whether it would be possible to get a deal in December. Earlier today, for the first time, I read the suggestion that a summit was being cooked up for January, because we are so far behind that the chances of getting a deal in December are now deemed to be not all that good—not necessarily that there will be a crash out, but the British Government have not come forward with enough detailed proposals to enable us to get to that point.

Can the noble Baroness the Leader of the House say, from her experience of negotiations within government, whether there is any discussion of a further summit in January to discuss where we might have got to by then? Indeed, in the Government’s view, what is the latest date by which an agreement not just on withdrawal but on the future relationship would have to be signed and sealed if they are to meet their deadline of 29 March? Can she give us any glimmer of hope that the passage of time might reduce to a manageable level the splits within the Tory party that have made today’s sobering Statement necessary?

[Baroness Evans of Bowes Park]

My Lords, I thank the noble Baroness and the noble Lord for their comments. I reassure both of them that we have made real progress on the political declaration on our future relationship. We have broad agreement, as the Statement set out, on its scope and structure, and progress on specific issues such as security, transport and services. The Prime Minister has been very clear that we will publish a joint political declaration on the future relationship to Parliament alongside the withdrawal agreement, because we are extremely conscious that Parliament will expect to be able to look at those two documents together. That remains our aim and our commitment.

We want to get on with securing this deal as planned, and this week’s Council will be an important step. The Prime Minister is looking to continue negotiations as planned in November, and the noble Baroness and noble Lord do not have to stress to me the consciousness of the amount of time we have and the fact that Parliament will want to properly scrutinise the withdrawal Bill—and obviously there will be a vote in the other place. I am extremely cognisant of that, and I hope that they know me well enough to know that I am making those points very strongly within the Cabinet. Indeed, the Prime Minister is making those points strongly with our EU partners, because the European Union itself has deadlines through its Parliament. So we are aware of that.

In relation to Northern Ireland, as the Statement made clear, we are committed to ensuring that our future economic partnership should provide the solutions to the unique circumstances of Northern Ireland. We want a future relationship to be in place by the end of the implementation period, but we must accept that there is a chance that there may be a gap. The Prime Minister has been extremely clear: we do not want to use the backstop at all. We think that it is possible to work out the details of a UK-wide customs solution, which is why we will continue to work through our negotiations to move forward on it, because we believe that it will be possible within the timeframe.

[Lord Lilley (Con)]

My Lords, the Government have repeatedly promised they will not enter into a legally binding withdrawal agreement that commits us to giving away £40 billion of public money without a detailed political statement committing us to our future trading relationship with Europe. Yet the Prime Minister’s Statement contains nothing on that. Can my noble friend reassure me this is not a hyped-up concern about the Irish border and the squared back-ups as a kind of bait and switch manoeuvre to distract attention from the fact we are giving away money with nothing in return?

[Baroness Evans of Bowes Park]

I hope I made clear in my answer to the noble Baroness and the noble Lord that the Prime Minister has been clear: we will be publishing a joint political declaration at the time of the withdrawal agreement, because we completely understand Parliament will want to see the two documents together.

[Lord Reid of Cardowan (Lab)]

My Lords, today’s Statement was completely predictable. Among others, I pointed out as early as January this year that the only way to square the circle of the Prime Minister’s two promises—to the EU, that there would be complete regulatory alignment between Northern Ireland and the Republic of Ireland; and to the DUP, that there would be the same alignment between Britain and Northern Ireland—was to remain in the customs union. Today the Prime Minister laid that out, under another name but as her strategy. This is not a backstop; this is a three-year deferral until December 2021, the date used by the Prime Minister today. But it creates two problems—out of the frying pan, into the fire. Why should the European Union unilaterally, in advance, abrogate its right to the promise we made in the event of not having a solution in 2021 and just abandon the backstop that we signed up to? Secondly, if it does not do that, and gives a conditional break clause in 2021, our remaining in the customs union will be permanent, or at least indefinite, and the Prime Minister will never get it through Parliament. How does the Minister think we can square that circle?

[Baroness Evans of Bowes Park]

As was laid out in the Statement, we put forward our proposal for a UK-wide customs backstop to deal with these issues. That is what we will continue to work towards. The EU proposal is unacceptable. We believe we are not so far apart that we cannot come together but, as the Statement sets out, there are issues between us that we need to continue to work through, and that is what we will do. We will not renege on our commitment to the Good Friday agreement or our promises to the people of Northern Ireland.

[Lord Tugendhat (Con)]

My Lords, I am encouraged by the Prime Minister’s Statement, and very much agree with the line she has put forward. But does the Leader of the House understand there is great concern, not so much about the position the Prime Minister is taking up, but about whether the Cabinet is capable of agreeing on the position the Prime Minister brings back from Brussels? This is the nub of the concern: it is not what the Prime Minister’s position is, but whether her colleagues are capable of agreeing. At a time when the Leader of the House and the Prime Minister are calling for support for her negotiating position, it really is intolerable that Cabinet Ministers and ex-Cabinet Ministers should be briefing the press in a manner more disloyal than any I can remember.

[Baroness Evans of Bowes Park]

I can assure the noble Lord that the Prime Minister is leading the negotiations, the Cabinet is behind her and we will continue to support her.

[The Lord Bishop of Leeds]

My Lords, the question I have is not political, it is phenomenological. The statement:

“We cannot let this disagreement derail the prospects of a good deal and leave us with a no-deal outcome that no one wants”,


is a statement of unreality. It is clear that there are people, even within the Cabinet, who would be very happy with a no-deal outcome. I wonder if the Minister could comment.

[Baroness Evans of Bowes Park]

I am afraid I disagree with the right reverend Prelate. We have made real progress on the withdrawal agreement and the political declaration on our future relationship. We have been clear, as we were in the Statement, that there are a couple of outstanding issues that we need to resolve, but we are moving forward and remain confident we will get a good deal for both sides.

[Baroness Ludford (LD)]

My Lords, can the noble Baroness the Leader of the House explain how the furious No. 10 spin operation on speed of the last 24 hours has helped to achieve serious, calm progress in the negotiations? I read in the Evening Standard this afternoon of the Prime Minister hitting out at a secret new plan for a failsafe to avoid a hard border in Ireland. This is nothing new. It is just that the UK Government have failed to convince Brussels that their plans—we do not actually know what they are—will work. There is nothing new from what the Prime Minister agreed to last December. How does all the journalistic noise we have heard in the last 24 hours help? Would the Government not do better—as my noble friend Lord Newby suggested—by getting on with providing some facts, suggestions and concrete proposals?

[Baroness Evans of Bowes Park]

We have been consistently clear that we are committed to avoiding a hard border between Northern Ireland and the Republic of Ireland. That is not new. We have been consistently clear we want to preserve the economic integrity of the UK in all scenarios. That is not new. That is what we have been saying to the EU throughout. And we have been clear from the beginning: the backstop proposal is not acceptable to us. As the Statement makes clear, the EU have responded positively by agreeing to explore a UK-wide customs solution, and that is what we will continue to discuss over the coming days and weeks.

[Lord Bridges of Headley (Con)]

My Lords, I agree with the sentiments expressed by the Prime Minister in her Statement this afternoon about maintaining the integrity of the United Kingdom. However, referring back to the statement agreed—I understood—by both the European Union and the UK Government in December, it said in paragraph 49:

“In the absence of agreed solutions”—


that is, as regards the Irish border—

“the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement”.

In light of the Statement this afternoon, am I to take it the UK Government no longer stand by that statement?

[Baroness Evans of Bowes Park]

No, we are committed to ensuring that our future economic partnership should provide solutions to the unique circumstances of Northern Ireland and that the future relationship is in place by the end of the implementation period. We accept, however, that there is a chance of a gap, which is why the backstop is, in effect, an insurance policy for the people of Northern Ireland and the Republic of Ireland.

[Lord Foulkes of Cumnock (Lab)]

Of course, the Northern Ireland border and all aspects of our trade are vital. So, too, are the rights of UK citizens resident in Europe and EU citizens resident in the United Kingdom. Are they to be totally abandoned? If not, what agreement is going to be reached? What progress is being made regarding their position?

[Baroness Evans of Bowes Park]

The noble Lord will be aware there has been agreement on that, and it will be in the withdrawal agreement.

[Lord Anderson of Swansea (Lab)]

My Lords, in the referendum, there was a clear majority for remain in Northern Ireland. Yet the DUP purports to speak on behalf of the people of Northern Ireland. Must this not be very puzzling to our EU partners? Are the Government not in thrall to a minority in Northern Ireland? When will someone in this Chamber and in the House of Commons speak on behalf of the majority of Northern Ireland?

[Baroness Evans of Bowes Park]

The noble Lord will be aware we had a referendum across the United Kingdom. The vote was clear and we are now working on the wishes of the people.

[Lord Campbell of Pittenweem (LD)]

My Lords, it seems to me this Statement is a triumph of draftsmanship over reality, and the noble Lord, Lord Tugendhat, put his finger on it: does the Cabinet agree? Beyond that is a further question: will the House of Commons be willing to agree? Of course, among the things not mentioned in this Statement is the fact the Secretary of State for Scotland and the leader of the Scottish Conservative Party have both threatened to resign if special arrangements are made for Northern Ireland which are not also extended to Scotland. Have they withdrawn that threat?

[Baroness Evans of Bowes Park]

The whole Government are clear that we want to protect the integrity of the United Kingdom in all scenarios. The House of Commons will indeed have a vote. We believe that we will bring forward a deal that the Commons will be able to support, but it will be for it to make that choice.

[Lord Green of Deddington (CB)]

My Lords, this is a field day for the Opposition. Is it not the case that the Europeans might now be deciding that there will not be a deal and, as I believe they are, preparing themselves for no deal? Should that not be the focus of our own work very soon?

[Baroness Evans of Bowes Park]

As I said, we believe we are not too far apart. We have obviously been discussing some key issues today. We believe we will still get a good deal, but we have been working to prepare for a no-deal scenario, as the EU has and as any responsible Government would. We have published over 106 specific technical notices to help businesses, citizens and consumers prepare for no deal. There is work going across government, but I repeat that a good deal for the EU and the UK remains our focus and we believe that we will get that deal.

[Lord Liddle (Lab)]

My Lords, does the noble Baroness agree that if we are to meet the commitment we made in December—that under no circumstances would there be a hard border between north and south in Ireland—the talk of the backstop being time-limited is a logical impossibility? How can an insurance policy be time limited?

[Baroness Evans of Bowes Park]

As we have said, we do not want to see the backstop used at all. We anticipate that we will be able to move seamlessly from the implementation period through to our future partnership but, to have this insurance policy, we need a backstop. We have been very clear about what that backstop must not do. We have put forward proposals to make sure that we can offer a solution to that and we will continue to discuss with the EU how to ensure that we achieve that outcome.

[Lord Soley (Lab)]

I am relieved to hear that the Cabinet is behind the Prime Minister, but I have to say that some of them look and sound remarkably like Brutus, so she should be advised to take caution. The Minister and the Prime Minister have both used the word “gap”. Is that a gap of months or years? Is there some indication of how long it will take?

[Baroness Evans of Bowes Park]

I say again: we do not intend there to be a gap.

[Baroness Smith of Newnham (LD)]

My Lords, in response to the noble Lord, Lord Foulkes, the Minister suggested that there was no issue for EU citizens and UK citizens resident elsewhere in the European Union, because that deal had been done. But was that legal text of March not contingent on there being a withdrawal agreement? If that agreement does not happen—if there is no deal—what security and certainty is there for EU citizens?

[Baroness Evans of Bowes Park]

I am afraid that I obviously take a very different view from your Lordships. I anticipate that we will get a deal and we will continue to honour the commitments we have made to EU citizens. The Prime Minister has also been clear that, in the event of no deal, we want EU citizens to stay. We have made that offer already. We have said that we will look at the assurances that we can give and we will continue to do so. I reiterate: we believe we will get a deal.

[Lord Hutton of Furness (Lab)]

We all want the Prime Minister to come back with a good agreement. Most noble Lords accept that an agreement is vastly preferable to no deal at all. However, we can all hear the sound of the can being kicked down the road. I welcome the fact that we have a little more time, but it is now pretty clear to all that the only credible way that the Government can meet their commitment on preserving the current arrangements between the Republic of Ireland and Northern Ireland is for the UK to remain in some kind of a customs union beyond the three-year period that the Prime Minister mentioned today.

[Baroness Evans of Bowes Park]

The noble Lord is right: we are entering the endgame of the negotiations and things are obviously getting more fraught. We are cognisant of and understand the timeframes that both sides are working on. That is why intensive negotiations are going on. However, we have been very clear that we will be leaving on 29 March. We will have an implementation period that we see ending in December 2020. We anticipate and are working towards a new future partnership agreement after that.

[Lord Dobbs (Con)]

My Lords, I am delighted to hear that we are making real progress, we are moving forward and we are not far apart. These are words of great encouragement. To avoid it looking as though this is a game being played by elites in Brussels, London and elsewhere, and given that we are “not far apart”, will the Government consider publishing the details of that which has already been agreed so that everybody—not just this House, but the people in the country whose futures are at stake—know precisely what is on offer?

[Baroness Evans of Bowes Park]

My noble friend will be aware that various texts have been published on things that are agreed. However, we are still negotiating and it is not normal practice to publish a live text that is still under review as we work on it.

[Baroness Smith of Basildon]

I refer the noble Baroness back to the question from my noble friend Lord Foulkes and the follow-up from the noble Baroness, Lady Smith. The Minister referred to the position of UK nationals being resolved in the agreement. Will she look at this again? I understand that the position on onward movement of UK nationals within the EU has not been resolved and was taken out of the original document. Will she clarify the exact position on onward movement of UK nationals after Brexit?

[Baroness Evans of Bowes Park]

The noble Baroness is right. She has pushed me on this point in various ways and is completely correct. The last time she asked this question, it was still a matter for negotiation. I have to confess that I do not know whether that is still the case—whether it has been firmed down or is still within the bounds of negotiation, as it was when she last asked me the question. I will go back and check on that and will write to her about the exact position. I am not sure if things have moved on since our last discussion.

[Lord Stevenson of Balmacara (Lab)]

I do not know if other noble Lords have had the same experience but, when involved in negotiations, one is often heartened by the prospect of the opposition saying that we were so close that we must surely be able to reach an agreement. It usually means that you have won. There are many other borders that are also in dispute. Will the noble Baroness make a statement about Gibraltar?

[Baroness Evans of Bowes Park]

The noble Lord will be aware that the primary forum for engagement with Gibraltar is the Joint Ministerial Council, which has been meeting regularly. The Government of Gibraltar have been actively involved in these meetings and we are working closely with them on the practical implications arising from our exit. Those discussions are continuing positively.

[Lord Whitty (Lab)]

My Lords, the Government have promised the House of Commons a meaningful vote on the outcome of these negotiations. When does the Minister now expect that vote to take place? How many times will we have to vote in a meaningful way to complete the process? How many votes does that mean Parliament will be presented with before the end of the transition period?

[Baroness Evans of Bowes Park]

I am not in a position to comment on the timing of the votes, but I assure noble Lords that the Chief Whip and I are fully aware of things. Although we do not have a meaningful vote, we will be discussing a take-note Motion. We will work through the usual channels to make sure that this House is able to fully put forward its views in the course of the discussions.