European Union: Negotiations (European Union Committee Report)

Baroness Ludford Excerpts

Monday 16th March 2020 Lords Chamber

[Baroness Ludford (LD)]

My Lords, as a preliminary, I just want to send best wishes to colleagues from any Benches who are ill or staying at home because of coronavirus. Just before I left home, I was pleased that Radio 4 on “The World at One” responded to the plea from Esther Rantzen for some amusing material to keep up morale and played a clip of Martin Jarvis as Bertie Wooster. More from where that came from, please.

Yet again, we on these Benches are very grateful to our EU Committee for a timely and high-quality report of the standard we have come to expect from it. I can say that now without any vestige of self-congratulation as I have, alas, been rotated off even a sub-committee. The report’s finding that there is a wide gap between what the Government committed to in the withdrawal agreement and the political declaration and the policies now espoused in the Written Ministerial Statement in last month’s Command Paper is deeply concerning. I shall focus on the question of trust, as exemplified by the Government’s behaviour over the Ireland protocol; on the triumph of absurd hard-line ideology over pragmatism, as illustrated by the rejection of heath co-operation; and on the damage that the Government’s limited ambition for the future relationship will cause.

In the current coronavirus crisis, trust is an essential component of the Government’s credibility; people will not follow advice they feel does not have a grounding in facts and competence, as opposed to political posturing. A Government who acquire a reputation for playing games or crying wolf will not be trusted in a crisis. This is one reason it is so essential that the Government can be trusted in their conduct of the Brexit negotiations —both to comply with their legal obligations and to deliver a Brexit that meets, as far as possible, the pledges made by the leaders of the leave campaign in 2016.

Under those legal obligations, respect for the terms of the Northern Ireland protocol, which came at the request of the May and then Johnson Governments and which became, at their request, a front-stop instead of a backstop, is at the core of this. A few weeks ago, Tony Connelly of RTÉ wrote a commentary in which he noted that, in one breath, Michael Gove had told the House of Commons that

“this government are wholly committed to implementing the withdrawal agreement, to respecting and enacting the Northern Ireland protocol,’ yet minutes later told the DUP’s Jim Shannon that ‘there will be no border down the Irish Sea’.”

Mr Connelly reminded us that public messaging from Boris Johnson and Northern Ireland Secretary Brandon Lewis has added to the confusion, such that Michel Barnier could barely conceal his irritation at the UK’s apparent doublespeak on the protocol after the EU adopted its negotiating mandate.

After suggestions that Suella Braverman, former chair of the hard-line European Research Group, had been appointed Attorney-General to help Downing Street extricate itself from some of the obligations of the protocol, one EU diplomat reportedly said, “The UK can’t mess around with peremptory norms of international law, as that goes to the heart of the UK’s reputation as a reliable international partner.”

Paragraph 42 of the EU Committee’s report says that the Government have explicitly distanced themselves from the withdrawal agreement and the protocol on Ireland, with a consequence that some of the language in the Command Paper is misleading. We are entitled to be shocked and dismayed. In particular, the Command Paper rejects any obligation to align with EU laws, or to allow the CJEU any jurisdiction in the UK. Yet, as the committee points out, such jurisdiction is conferred in respect of Northern Ireland by the protocol. Can the Minister make it very clear in his reply today how the Government intend to comply with the Ireland protocol? Can he give an assurance that they are not trying to wriggle out of that protocol, which would be totally corrosive of trust?

Turning to what sort of Brexit the Government are now pursuing, let us recall that, after many twists and turns, Prime Minister May finally settled on the goal of a “high alignment” future relationship. Perhaps nothing demonstrates how far we have come from Mrs May’s intentions than the question of co-operation on health matters.

The Written Ministerial Statement said rather pompously:

“The UK is ready to consider participation in certain EU programmes”,—[Official Report, Commons, 3/2/2020; col. 4WS.]


oddly, making it sound as though we would be doing everyone else a favour by such participation. In fact, this Government have not only pulled out of the European Medicines Agency, booting it out of London and therefore booting the UK out of its fast-track drug and vaccine approval system and the joint procurement system, they have also declined to take part in meetings of EU Health Ministers, which Switzerland asked to be part of and was allowed to be. The Government have also declined to participate in the EU systems of public health co-ordination in the European Centre for Disease Prevention and Control, and its early warning and response system. The ECDC was set up in 2004, just after the SARS epidemic, and has been active in advising and co-ordinating in respect of bird flu. Norway, Iceland and Liechtenstein are associates, and Switzerland has been granted temporary access to cope with coronavirus.

What possible justification can there be for the Government’s refusal to participate in these mechanisms? It goes against the pleas of, we understand, the Department of Health and Social Care and sectoral bodies such as the Brexit Health Alliance, whose co-chair is Niall Dickson, the chief executive of the NHS Confederation, which, as its website says,

“speaks on behalf of the whole NHS.”

This Government’s failure to seek association with these EU bodies and networks, as well as their failure to prioritise staying plugged into research programmes, is nothing less than a dereliction of their duty to do all in their power to keep the people of this country safe. Do they seriously think that sovereignty trumps safety? Have they discovered a way to instruct a virus to respect national borders? Of what value is autonomy in these dangerous times? It is all very well seeking, in the words of the Written Ministerial Statement, for the UK to

“have recovered in full its economic and political independence”,—[Official Report, Commons, 3/2/20; col. 86WS.]

but at what price in terms of the social and economic welfare of the people of this country? Why should they be put at risk because of some idiotic ideological bee in the bonnet of hard Brexiters such as Dominic Cummings? Can the Minister give any other explanation?

Another example of the triumph of hard-line ideology over pragmatism is the Government’s rejection, as a matter of policy, of the notion of an extension to the negotiations, which has to be requested by 1 July. This was untenable before coronavirus hit; it is even more so now. Will the Minister assure us that the question of an extension will be guided by the needs of this country, not the prejudices of the ERG?

It is increasingly suspected that this Government have reverted not only to a preparedness for no deal but to an ambition to that end. They have certainly set the bar of ambition very low—for a minimalist free trade agreement of zero tariffs and zero quotas, rejecting any level playing field, regulatory alignment obligations or shared governance akin to an association agreement. This Government also reject the mutual respect for core values and principles, including explicitly staying in the European Convention on Human Rights and keeping the Human Rights Act, which the Council decision calls for. This will also hit the prospect of co-operation on internal security, which is supposed to be a high priority for the Government.

Outside the single market and customs union, the costs for business, including mountains more red tape, and the risk to jobs will be very high. Of course, we know what the Prime Minister’s attitude to business, including manufacturing in aerospace and cars, is—he expressed it very pithily—but that is a bit tricky when you are appealing to manufacturers to turn their hand to the production of ventilators. New border frictions and delays due to checks and formalities instead of just-in-time deliveries are very bad for filling supermarket shelves. This is a long way from what was promised in 2016, when a “deep and special partnership” was said to be the goal. Hostility and resentment have characterised the approach of those who won the referendum. The aim now, apparently, is the dogmatic rejection of anything and everything remotely connected to the EU, whether that is in health, Galileo, Erasmus, Euratom, EASA, REACH, the Unified Patent Court, the European arrest warrant and many more.

The Government intend to replicate the functions of these agencies at huge cost, but money is one thing that will be in short supply. Not only is there absolutely no Brexit dividend, but the OBR says that we have already lost 2% of GDP since the leave vote; it also warned that leaving the EU will hit growth, exports and the public finances at a time of rising uncertainty, predicting a 5.2% loss of potential GDP over 15 years if a “typical” FTA is struck. It blames trade friction, restrictions on migration and red tape. Even before coronavirus struck, economic growth had sunk to zero. Why are the Government refusing to publish their own economic impact assessment of the limited Canada-style trade deal that they are aiming for, when they published one on the not very beneficial US deal that they want? Are the Government afraid that the citizens of this country will wake up to the price they are paying for the ideological dogmatism of the hard Brexiters, who are now in charge of this country’s fortunes—or, rather, misfortunes?

Our EU Committee has done us a huge service with its forensic report, but it sets off many alarm bells. The country cannot afford the hard-line, doctrinaire Brexit policy of this Government, especially when our health is so much under threat. As one commentator, Professor Chris Gray, observed, their policy is indeed demented.

--- Later in debate ---

[Lord True]

All right—I shall accept the timetable. However, I maintain the point. In the middle of the Second World War, when Winston Churchill sent for Rab Butler—who my noble friend will remember very well—to look into the future of education in this country, he did not suddenly, when some news came in, say, “Rab, you must drop this.” The Government went on and, in the 1944 Education Act, laid the foundations to the education system in this country despite the enormous crisis of the Second World War. Everything is possible and nothing is impossible in life, but I do not think—

[Baroness Ludford]

My Lords, the Minister has just been advised by the noble Lord, Lord Cormack—and I support what he said—that nobody has suggested that the negotiations be abandoned. People have talked about the Government not being ideological about requesting an extension, so that we possibly go beyond December. There were murmurs of support for the noble Lord, Lord Cormack. The Minister should surely have got the message: this House does not accept his interpretation of what he is claiming was said, but he is going on with the same theme.

[Lord True]

My Lords, it is an unfortunate condition of democratic life that not everybody accepts the contention that is put forward by somebody on the other side. When I hear a plea being made for indefinite open-ended deferment—if I may go that far—that might or might not be a move towards abandonment. Let us not argue about that. My contention is that, in so far as possible, the business of this Government should go on. Until instructed otherwise, my view is that the central promise made by this Government to the electorate at the recent general election was that they would accomplish the completion of this process—and by the date agreed by both the European Union and the British Government: 31 December 2020. As I stand here, the position of the Government is that we should seek to conclude the arrangements on the timetable set out.

Having been diverted by those last few speeches, I should perhaps get back to the central response to the outstanding report put forward by your Lordships’ Select Committee and the noble Earl, Lord Kinnoull. I do not agree with all the strictures or necessarily all the rapture that attaches to that report, but I do think that it was outstanding and timely. That he, his committee and their clerks have achieved this report so swiftly and ably is a tribute, as many have said, to the work of your Lordships’ House. To the noble Baroness, Lady Donaghy, I say that I would certainly be interested to see the report of her sub-committee when it comes out; I am sure that that would be widely shared.

In a tight timeframe, the committee has produced a detailed and informative report. I believe that everyone who has spoken would agree, at least on this: that it has facilitated the debate that we have had today on negotiations. I salute the continued dedication of your Lordships’ committee and I say clearly to the noble Earl that, certainly while I stand at this Dispatch Box, I will wish to have the closest co-operation with him and the committee and that is the position, I think, of all my colleagues on the Front Bench. He asked me some specific questions about engagement and methodologies—these were also put forward in the amendment in the name of the noble Baroness, Lady Hayter. I will come to those, but in general terms, without setting out a specific structure for engagement, of course the Government wish to engage with and hear the opinions of your Lordships’ committee.

I was struck by the tone at the start of the debate, when, with the greatest respect to her, the noble Baroness, Lady Hayter, spoke of a mean-spirited tone and of extremism—it is a fact; Hansard will record it—and went on to talk about our hard line. She actually ended her speech saying that the Government’s policy was “demented” in trying to put into effect the central proposal of our manifesto and the central request twice made by the British people. I reject that. I do not accept it and I think it was a tone that luckily we moved away from after the first few speeches, when we moved to the normal tone of your Lordships’ House.

I was asked about the current negotiations—not just about the timeframe, but whether negotiations would actually continue this week. As noble Lords will know, the EU and UK negotiators have today jointly decided not to hold this week’s round of negotiations in London in the form originally decided, but both sides remain fully committed to continuing negotiations and are currently exploring alternative ways to continue discussions. That must be right, and it must and does include the possibility of video conferencing or conference calls and exploring flexibility in the structure over the coming weeks. If we are asking the people of this country to do ever more indirectly —by video, remotely—then surely the Government of this country and the negotiators for the European Union can seek to advance policy in the same way.

Today’s debate also covered the UK’s approach to negotiations with the European Union as set out in our Command Paper. That remains, although I know it does not please everybody, that by the end of this year —I have to repeat it again—we will be fully independent and a sovereign country. The Command Paper is also clear that we are not asking for a special or bespoke relationship with the European Union: in our proposals, which are based on the political declaration, we are looking for a relationship grounded in precedent. Even the noble Lord, Lord Hannay, acknowledged in his speech that the UK proposals were grounded in precedent. The relationship that we are suggesting is aligned with the parameters for our relationship as agreed in the political declaration.

Points have been made, including by your Lordships’ Select Committee, about the political declaration—who has moved away from it, who has not moved away from it and so on. I thought that, in an outstanding speech, my noble friend Lord Barwell set out a point also made in the Select Committee report: that the wording is not aligned in every respect with the wording of the political declaration. Both sides are making new asks—no, that is not the right phrase: both sides have set out their objectives. As was explained in another outstanding speech by the noble Lord, Lord Kerr of Kinlochard, there are differences in the positions, and the British position is as has been set out before your Lordships.

Our view, that our future relationship must be based on sovereignty, and that autonomy of decision-making must be respected as a principle on both sides, is not incompatible with having a close relationship with the EU. Our outline for negotiations, which noble Lords have heard before, builds on precedent and the EU’s offer of a Canada-style agreement. It reflects the type of free trade agreement that should be entirely achievable between sovereign states, as the EU has done previously. We continue to see the EU as our neighbour and friend and want our future relationship to be as wide-ranging as precedent allows. I do not accept that this is a doctrinaire Government who do not want good relations with the European Union; the opposite is true. However, it is a Government who believe that the relationship must be one of sovereign equals. That is what the British people have required and requested of us. We believe that our economic and political independence is a matter of vital national interest.

I will now address the specific points raised by the report. From my reading, there were three specific areas that the noble Earl asked the Government to address. The first was on an association agreement. It invited the Government to comment on the structure of the relationship and whether it would take the form of an association agreement. It is not fruitful to parse the political declaration, but my noble friend Lord Barwell quoted from the relevant part of it, which said that it could take the form of an association agreement, but, as the noble Lord, Lord Liddle, said, the parties may also decide that an agreement should sit outside an overarching framework and in a series of linked agreements. We strongly believe that the content of discussions should drive the structure of the agreement, not the other way around. As my Prime Minister set out, we will seek to negotiate a free trade agreement as well as a separate fisheries agreement, an internal security agreement and other more technical agreements, which I hope will include one on aviation, where points have been made about the move in the European Union’s position.

The report also invited the Government to explain the extent to which the general principles and core values in the political declaration should form part of our future relationship with the EU. This has been the theme of a number of opening speeches on the other side. The noble Lord, Lord Hannay, said that there was “blithe disregard” for the political declaration. I certainly do not agree with that. The UK and the European Union signed up to the political declaration. All the areas of policy set out in the political declaration will be relevant to the UK’s future co-operation with the European Union. However, not all need form part of a negotiated treaty. Many can be developed in a spirit of friendly dialogue between the UK and the EU, which is what we seek. This vision is fully compatible with the political declaration and based on the principles of precedent and reciprocity.

The noble Earl also asked whether the Government would publish a comparative analysis of the political declaration and the Government’s Command Paper. There has been a great deal of debate on the political declaration. The document has been on public record since last October. As the noble Lord, Lord Liddle, I think, said, the Select Committee’s own document provides what the Select Committee asked for.

The report notes Parliament’s role. The noble Baroness, Lady Hayter, has tabled an amendment on this topic, and a number of noble Lords have touched on this point. This House and Parliament as a whole was given a chance to vote on a potential statutory role for the House when they approved the Government’s approach to negotiations and the agreements during the passage of the withdrawal agreement Bill. As noble Lord will recall, and as my noble friend Lady Noakes reminded us, the other place voted decisively against giving a statutory role to Parliament in these matters. Indeed, the noble Baroness, Lady Hayter, withdrew her amendments on this matter during the passage of the Bill. Nevertheless, as the Prime Minister said at the Second Reading of the withdrawal agreement Bill:

“Parliament will be kept fully informed of the progress of these negotiations”.—[Official Report, Commons, 20/12/19; col. 150.]


In meeting that commitment, I ask noble Lords to note that the publication of the Government’s approach was supported by Oral Statements in both Houses and it is being debated today. A Written Ministerial Statement was also made on 9 March, and the Chancellor of the Duchy of Lancaster has appeared before a Select Committee in the other place.

I was asked about the role of the devolved Administrations by the noble Lord, Lord Hain, and others. Throughout the negotiations, the United Kingdom has acted on behalf of the whole of the union. That is the constitutional position and it is consonant with the UK’s constitutional responsibilities—in particular, for the international conduct of the UK’s interests. However, on 28 January in Cardiff there was a ministerial conference on future relationship negotiations, and we stand ready to hold more such meetings. We shared a draft of our approach to the negotiations with the devolved Administrations in advance of publication, and UK government officials and Ministers have been in regular contact with their counterparts throughout this process. That must be the correct position.

I was asked about the Northern Ireland protocol. The Government will hear what has been said in many of the distinguished speeches made today but, as noble Lords will know, a discussion is to take place on this issue at the first meeting of the Joint Committee, and I would not wish to anticipate that.

In conclusion, of course there are areas of divergence between the UK and the EU, and those have been highlighted by many in this debate. However, I like to travel in hope and we must not forget that the Government’s intention is to get a good deal with the European Union. There are many areas where there is convergence. The very act of highlighting the areas where there is divergence draws attention to the silence on the areas where there is not divergence, and that illustrates the fact that both sides want a comprehensive, friendly relationship based on free trade. We will continue to approach these conversations in that way.

We are committed to doing everything we can to ensure that both sides see reasonable progress by June, so there is a clear point in keeping the negotiations going with a view to completing ratification this year. However, under no circumstances will the Government accept an extension. We firmly believe that there is ample time to strike an agreement based on free trade and friendly co-operation.

Again, I thank the committee of your Lordships’ House for its important and insightful work. I look forward to engaging with it in the future and indeed with other Select Committees of this House throughout our negotiations with the EU.