EU: Future Relationship

Lord Anderson of Swansea Excerpts

Wednesday 23rd September 2020 Grand Committee

[Lord Anderson of Swansea (Lab)]

My Lords, certainly the noble Lord, Lord Shinkwin, has held firm to his own particular views.

It takes two to negotiate and, of course, the EU is not the easiest of negotiating partners. It is excessively legalistic because of the treaties and continental traditions—plus, of course, there is the need to build consensus among 27 countries, which leads to rigidity and delays, as we saw for example with the seven years of negotiations with Canada over a trade deal—but the EU can be relied upon to honour agreements once reached, as used to be the case with us.

We in the UK prided ourselves on our pragmatism. That has now been replaced by dogma and ideology, impaling us on the altar of sovereignty, autonomy and a clean break. No wonder then that any objective observer will readily conclude that there is little to show so far on our negotiations. Is this just yet another example of the gap between promise and delivery so much a feature of the Prime Minister?

Understandably, the emphasis on a trade agreement—plus Covid, of course—has pushed other areas of policy into the shade because of the immediacy, hence the trumpeting of the deal with Japan as a triumph. Yet it is only marginally different to the current position and is relatively small compared with the big prizes of the European Union and United States. It is very clear that negotiations with both the US and the EU have been soured by the Government’s threat to breach international law in the internal market Bill. Is it just posturing? If so, it is very dangerous posturing.

I remind noble Lords of Article 26 of the 1969 Vienna Convention on the Law of Treaties, which is entitled “Pacta sunt servanda” and which states:

“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”


Further, Article 27 states that no domestic legal provision can protect a party if it breaches the terms of an international agreement, which is surely very germane, and the right response, to the internal market Bill.

On 16 September, in her state of the union address, Frau Ursula von der Leyen, President of the European Union, quoted Mrs Thatcher, saying that breaking a treaty

“would be bad for Britain, bad for our relations with the rest of the world and bad for any future treaty on trade”.

Mrs May spoke in similar terms on Monday.

Surely a stated willingness, readiness or threat to break international law is almost as bad as the act itself. Further, any parliamentary endorsement of the illegality is irrelevant—illegality will remain illegality. I have enormous respect for Bob Neill, in the other place, but I believe he sold himself and his own position too cheaply. Apparently, the Attorney-General, a leading member of the European Research Group, did not seek the advice of leading Treasury counsel but that of three outside lawyers who are all prominent Brexiteers: two law professors and, wait for it, Richard Howell, a barrister who is just out of pupillage. None of the three is on the Attorney-General’s panel. Having put politics before objective legal advice, she deserved her scorching at the recent meeting of the Bar Council and should surely consider her position.

In the early 1970s, I was Parliamentary Private Secretary to Sam Silkin, then Attorney-General. I was also deputy to the noble and learned Lord, Lord Morris. Neither of them would have taken that position, I am sure. Neither would have put a political position before their commitment to the law.

The relevance of this to the negotiations is clear. For the European Union, it will raise questions about our trustworthiness in future deals, as my noble friend Lady Hayter said. For any prospective deal with the US, the position is clear: the Irish lobby is powerful and the US Congress, with its key constitutional role in trade negotiations, has responded with outrage. Surely the Government, who were advised by our embassy, should have anticipated this response.

As a member of your Lordships’ Sub-Committee on Security and Justice, I have witnessed similar neglect adversely affecting our citizens in areas such as consumer protection and criminal and civil justice, including the dangers of losing the European arrest warrant and the damage to family law co-operation. The UK’s new proposal on unaccompanied migrant children has been met with the EU response that their negotiators have no mandate. Surely the Government should have been aware of that.

I conclude with a few observations on foreign and security policy. The EU has shown itself ready to negotiate by publishing a draft agreement on future co-operation in this field on 18 March. Why have the Government chosen not to respond? We have led missions in the past and acted as a bridge between the US and the EU. We have lost EU solidarity, as shown by the Chagos Islands vote, and are largely irrelevant in key issues, such as Nagorno-Karabakh, Ukraine and Belarus. Yet the EU has shown some good will and a willingness to co-operate by bringing us into discussions on sanctions at a pre-adoption stage. Our strategic interests are broadly the same as those of the EU, faced with the Russian threat under “Putin the Indefinite” and with China’s new assertiveness. Do we wish to work together? Have we ruled out foreign policy co-operation?

Finally, Liam Fox used to tell us that trade deals would be easy. After all, we could simply transpose existing EU deals. The reality has proved very different. Ideology rules okay—and we have not missed an opportunity to miss an opportunity.