Brexit: Attorney-General’s Advice

Lord Bridges of Headley Excerpts

Thursday 29th November 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the observations of the noble Baroness simply underline the prematurity of this Question. A Statement is going to be made by my right honourable and learned friend the Attorney-General on Monday. To anticipate the content of that Statement in the way proposed by the noble Baroness is wholly inappropriate. As regards the suggestion that the Government are hiding anything, perhaps I may quote the noble and learned Lord, Lord Goldsmith, who said that advice from the Law Officers is,

“covered by legal professional privilege, and is subject to a long-standing convention which prevents disclosure of the advice (or even the fact that the Law Officers have been consulted)”.

That explains why it is not appropriate for me to go further. However, to anticipate a Statement that has not yet been made is, I suggest, wholly inappropriate.

[Lord Bridges of Headley (Con)]

My Lords, given that we are so fortunate to have my noble and learned friend—

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in March 2003 the Government resisted publishing the Attorney-General’s full advice on the legality of the war in Iraq, publishing a summary only. That episode showed how misleading a summary can be and how such tactics discredit government. Will the promised full, reasoned Statement to which the noble and learned Lord referred amount to more than a summary, and will it be the work of the Attorney-General? Are the Government determined to repeat the mistake of 2003, and this time in defiance of a binding Motion on a humble Address requiring publication of the full advice? Do the Government have any proper basis for defying that Motion? The noble and learned Lord has not addressed that question. Is not the only possible inference that the Attorney-General has advised that the Prime Minister’s deal would tie the United Kingdom to the backstop unless and until the European Union agrees to its release?

--- Later in debate ---

[Lord Keen of Elie]

I am not suggesting for a moment that the will of Parliament is going to be ignored.

[Lord Bridges of Headley]

My Lords, I apologise to the noble Lord, Lord Marks, for my earlier enthusiasm. My question is not precisely on this point; it is on a point that I raised yesterday which I believe has a very material impact on the decision that Parliament is about to take. In July last year, the European Commission said explicitly that, once triggered, Article 50 cannot be unilaterally reversed. Will the Government make it clear, before Parliament has a meaningful vote on whether to accept or reject the deal, whether they accept that point of view?

[Lord Keen of Elie]

My Lords, I spent an interesting day on Tuesday before 26 judges in the Court of Justice of the European Union, where this matter was addressed. I am advised that the Advocate-General to the court will deliver his opinion—of course, it is not an opinion binding upon the court itself—on 4 December.

Brexit: Negotiations

Lord Bridges of Headley Excerpts

Tuesday 20th November 2018 Lords Chamber

[Lord Bridges of Headley (Con)]

My Lords, I share many of the concerns that have been expressed about the backstop, but I will focus my remarks on the political declaration. As the noble Baroness, Lady Hayter, and others have remarked, I argued back in January that the political declaration that sets out the future framework of our relationship with the EU had to be a clear heads of terms, so that the transition that we will enter into is a bridge to a fixed destination, not a gangplank into thin air. My fear is that, at the moment, the document that we have before us is very long on aspiration but rather short on hard, copper-bottomed commitments.

I realise that the Prime Minister is negotiating this document further this week, but if it remains in its current situation, this matters greatly, because once we sign this agreement, we will lose much of our negotiating leverage; we will have signed the cheque. The backstop will then become legally binding as a treaty and it will also become the EU’s baseline in its negotiating position. So it is absolutely mission critical that the Prime Minister sticks to the pledge given by Downing Street a few weeks ago that,

“there can be no withdrawal agreement without a precise future framework”.

If it is precise, the chances that we will fall into the backstop obviously begin to recede. We can, however, as has been said, be pretty sure about what the final destination is. The political declaration states that our long-term relationship should,

“build on the single customs territory”.

What does that mean? We have been told what it means by the EU’s deputy chief negotiator. It means:

“This requires the customs union as the basis of the future relationship”.


The UK,

“must align their rules but the EU must retain all controls”.

I hope that the Government will have the honesty to say clearly in the days and weeks ahead whether this is or is not the case.

The fact that the UK might be trapped in a single customs territory by the backstop or might enter into the customs union under the political declaration is why some in this House and many in the other place argue that the agreement should be opposed. My hunch is that Parliament will not allow us to leave without an agreement. So, although entering into a transition period would avoid the possible chaos of a no-deal Brexit, I fear that without clarity—real clarity—in the political declaration, we will not have solved the underlying, fundamental problem that we have faced for months.

The problem is this: ever since the general election, the Prime Minister has effectively been in office but not in power. She has been unable to negotiate with the confidence that her strategic aim in the negotiations has the support of the majority not just in Parliament but also, crucially, in Cabinet. That weakness has largely led us to where we are now. So if we are to sign an agreement, unless there is this clarity in the political declaration, that uncertainty will continue. We will continue to twist in the wind as the interminable debate about our future relationship continues. Worse, the EU will be able to dictate the terms in the next phase of the negotiations.

If we want to avoid this, we will have to do what we have failed to do so far. That is to be honest about the situation that we are in and find the courage to compromise among ourselves here at Westminster. The challenge is not to come up with new policy approaches: we know all the options. The challenge is to settle on an option and an approach that commands a clear parliamentary majority and to present it honestly to the British people.

Let us wait to see whether the political declaration contains the precise, clear position around which we as a Parliament might coalesce. I somehow doubt it. If it does not, while I believe that we must honour the referendum result and leave the EU, the Government must confront the reality of the parliamentary arithmetic and compromise to find a position that commands a guaranteed parliamentary majority. Only then can the Government try to retrieve the situation and negotiate in the next phase of negotiations with real force and conviction.

--- Later in debate ---

[Lord Keen of Elie]

It is suggested that my party had the first one. I believe Harold Wilson had a referendum over the EU rather before my party, but I may be mistaken about that. I am obliged to the noble Baroness.

It is said by the noble Lord, Lord Reid of Cardowan, that we have arrived at an impasse. We have not. We have arrived at an agreement, and it is one that will go before the House of Commons in the near future.

The noble Lord, Lord Steel of Aikwood, talked about crashing out without a deal, and we have had references to car crashes and catastrophes. Such arguments are not improved by overstatement. That, with respect, is what has been happening, perhaps at both ends of the spectrum, with regard to the debate on this matter and it takes away from the factual issue. It plays into what the noble and learned Lord, Lord Goldsmith, referred to as the “storytelling” that can sometimes fog proper decision-making in this context.

The noble Lord, Lord Steel, also referred to “a defective deal, at great expense”. Again I remind him that the sum of £35 billion to £38 billion is not a great expense; it is a negotiated means of meeting our outstanding obligations under international law, and that is what we intend to do.

The noble Lord, Lord Browne of Belmont, also raised the question of Northern Ireland. Again I emphasise that the issue of the backstop, even if it comes into play, will be subject to the obligations of “best endeavours” and to the independent arbitration process provided for in the withdrawal agreement. I also note that there is no limitation at all upon the movement of goods from Northern Ireland to the remainder of Great Britain. That movement remains wholly unimpeded by these terms.

My noble friend Lord Bridges of Headley referred to the political declaration. Of course, as he later observed, it is not yet complete, which is why we must wait to see the outcome of further discussions regarding the political declaration in order to see where we are going to be. It is certainly not the time to anticipate what that outcome might be.

[Lord Bridges of Headley]

My Lords, I understand that it is premature, but could my noble friend therefore refute the proposition put forward by the EU’s deputy negotiator that the political declaration means that the customs union will be the basis of the relationship?

[Lord Keen of Elie]

The withdrawal agreement has expressed the terms for the implementation period and the present political declaration has indicated where negotiations will begin, but where they will end is a wholly different matter. It is a case of saying that it is a work in progress and we will have to await the outcome of that further negotiation.

European Union (Withdrawal) Bill

Lord Bridges of Headley Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, I almost hesitate to take part in this debate because I do not have the specialist knowledge and understanding of many who have spoken about Northern Ireland. But I do know a little about sectarianism because I was born and brought up in the west of Scotland. Although there was never violence, none the less, there was deep division. Some of that may have been alleviated, but from time to time it still expresses itself, not least when two football teams play against each other.

I want to go back to the terms of the amendment, because I hope I may be able to alleviate the anxiety of my noble friend Lord Alderdice. It is important to consider the whole terms of the proposed clause. It begins by saying:

“In exercising any of the powers under this Act”—


so it confines its application to this Act and not to any other Act. Subsection (2) says:

“Nothing in section 7, 8, 9 or 17 of this Act authorises regulations”—


among which my noble friend picked out with anxiety subsection (2)(b)(iii) relating to,

“a requirement for security checks”.

It is only if a Minister of the Crown, with the authority and powers conferred on them by these sections proposes to act, that these other matters arise. That does not preclude in any circumstances, nor could it, the exercise of other powers for the purpose of security.

The noble Lord, Lord Trimble, knows more about this and was properly rewarded for his enormous contribution to the welfare of the people of Northern Ireland. He talks about the very last two lines of the amendment:

“that did not exist before exit day and are not subject to any agreement between Her Majesty’s Government and the Government of Ireland”.

Many individuals, like the noble Lord, argue fervently that the United Kingdom as a whole left, or proposes to leave, the European Union and therefore the reference to “Her Majesty’s Government” is entirely consistent with the position which says: “Irrespective of the views of the people of Northern Ireland, who after all voted to stay, none the less, it is the Government of the whole of the United Kingdom to which are accorded both the responsibility and the power”.

If this matter were easy, why has there not been a solution? I think I am correct in saying that I do not believe any of those who have spoken have offered a solution. We know that the Cabinet is divided. We know that that Robespierre, Mr Jacob Rees-Mogg, has already issued yet another of his threats. We know that the Government are deeply divided. If this is a simple issue, perhaps the Minister will be able to tell us precisely what the solution to this matter is that the Government now endorse. I think I can argue with some force that they have had plenty of time to get to that conclusion.

As has already been said, I think by the noble Lord, Lord Hain, the Good Friday agreement is a fragile piece of agreement. The noble Lord, Lord Trimble, shakes his head. From time to time there are terrorist outrages in Northern Ireland, and were it not to be fragile in any way one would not have expected the kind of attacks that we have seen on prison officers and members of the police. I believe the agreement combined both symbolism and practicality, and I support the amendment because it does exactly that.

It is said that those of us who talk about risk are overstating the case. I want the House to remember for a moment how many people on both sides of the argument died, and how many people’s lives were materially affected by the Troubles. I have one illustration in mind, which is entirely personal; other noble Lords will have equally valid and compelling illustrations. I remember the three young privates of the Royal Highland Fusiliers who, on the promise of sexual favours, allowed themselves to be persuaded to go to a flat where they were executed by being shot in the back of the neck.

A huge price has been paid for this agreement, and nothing should be done that has the effect of undermining it. That is why I support the amendment.

[Lord Bridges of Headley (Con)]

My Lords, I rise with a considerable amount of hesitation because I am very conscious of the level of experience in this House on matters pertaining to Northern Ireland, not least my noble friend Lord Patten, who spoke with considerable eloquence in introducing his amendment.

I utterly reject the views expressed in some parts of the media that noble Lords, including my noble friend, should not be allowed to express their views on this issue. That is what we are here to do, it is what we should do, and we should not face the opprobrium of the media in so doing. The issue is whether we get the balance right between advising and scrutinising this important piece of legislation as opposed to blocking it and thwarting the will of the people. That is an issue that I am sure my noble friends have very much in mind as we debate this amendment and all others.

I stand shoulder to shoulder with all noble Lords who wish to see the Good Friday agreement remain intact as we leave the EU. None of us, whether we voted to leave or whether, like me, we voted to remain, wishes to see Brexit undermining that agreement, nor do any of us wish to see Brexit undermining the union of our nation itself. I would find it very difficult—I almost say impossible—to vote for any withdrawal agreement that contained a backstop whereby in the event of no deal a new border or unacceptable new barriers were to arise between Northern Ireland and mainland Britain. My fear is that come the autumn the agreement on the future arrangements will be fudge, but it must not and cannot be fudge containing the poison pill of that backstop. People voted to leave the European Union; they did not vote to break up the union that underpins our nation.

The doublethink of the December agreement, in which paragraph 49 says one thing and paragraph 50 another, cannot be allowed to seep into the final agreement, but there is clearly a risk that it might. Given that risk, if this House were to pass the amendment in the name of my noble friend, it would seem odd not to pass another one preventing this Government from creating such a border in the Irish Sea or creating new barriers to trade between one part of the United Kingdom and another in the event of no deal. For if we treasure the Good Friday agreement, as we all clearly do, surely we treasure the union just as much. Would it not be odd for Parliament to stop the Government from erecting new borders on the Irish border only to leave them free to erect them in the Irish Sea? After all, this too is government policy, and it would be unacceptable.

However, I argue that now is not the time to do any of this. We should not pass the amendment nor anything else on this sensitive topic for two simple reasons: first, the Bill is one of process; and, secondly, we must remember where the negotiations stand. We are hurtling towards a reckoning. The EU appears to reject the Government’s concept of a free trade agreement, rejects their approach to customs, is insisting on frictionless trade between Northern Ireland and Ireland and is committed to this dreaded backstop as a contingency. Meanwhile, our Government are rejecting membership of a customs union and rightly refusing to accept the EU’s definition of a backstop. As of Monday, this Parliament may be given the power to stop the UK leaving the EU without a deal.

We are approaching a deadlock. The Brexit negotiating chamber is, I fear, beginning to resemble the Little Ease in the Tower of London: so tiny that there is no room to move. As a remainer, I believe that we must honour the referendum result and negotiate an agreement to leave the EU that is in our national interest. The key word in that sentence is “negotiate”. As my noble friend said, in any negotiation there must be compromise. If your Lordships agree on that, it surely follows that we must give the Government room and space to make compromises. The more we put constraints on what the Government can and cannot do in any eventuality, the more it will hinder the Government’s room for manoeuvre.

Rather than put this into legislation, I simply ask your Lordships to think of this. Would it not be better to reserve judgment until we see what the negotiations actually produce? To vote against the amendment is not to vote for a hard Brexit, it is certainly not to vote against the Good Friday agreement, it is simply to vote to give the Government the space they need to negotiate, and then we can and we must decide.

[Lord Howarth of Newport (Lab)]

My Lords, we are told that unless we remain in the customs union, there will be a hard border between Ireland and Northern Ireland, which would be contrary to the Good Friday agreement and endanger peace in Northern Ireland. The noble and learned Lord, Lord Carswell, spoke to us illuminatingly just now about the reality of the historical border.

The future of Northern Ireland and of peace in Northern Ireland is of course hugely important, and we have very serious responsibilities with regard to Ireland, but the future of Britain, the future interests of Britain and the future economic opportunities for Britain are just as important—I would contend, more important, as the noble Lord, Lord Spicer, said earlier. The intransigence of Monsieur Barnier and of some remainers, and their ruthless exploitation of the border issue in order to coerce us into remaining in the customs union is inappropriate. Neither should we be coerced by the threat of hypothetical violence, should some border changes need to be made.

As someone who has had family members on both sides of the border and spent a great deal of my life in Ireland, I am fully aware of how terrible the Troubles were and of the extraordinary blessings of peace that the Good Friday agreement has brought about. One of the virtues of the Good Friday agreement is that, through it, the people of Northern Ireland have learned to live with complexity and uncertainty. With the spirit of compromise advocated by the noble and right reverend Lord, Lord Eames, with pragmatism, good will and the smart use of technology, a workable solution can be found. The noble Lord, Lord Patten, was somewhat dismissive of the possibilities of creating a virtual border, but I understand that the Cabinet sub-committee is, quite rightly, looking at that very issue this afternoon. I think it would be wise of the Republic of Ireland to look equally seriously at that option, which would be very much in the interests of the economy of Ireland.

There are other possible solutions to this problem. This is perhaps not the moment to elaborate on them, but I just note—my noble friend encourages me. One possibility would be for us, when we are no longer members of the European Union and not in a customs union, to decide to abolish tariffs. That would be good for our own people and would very satisfactorily address the border issue.

Another solution—I would not wish events to play out in this way, but it would be entirely within the letter and spirit of the Good Friday agreement—would be for there to be a referendum in Northern Ireland, in which the people of Northern Ireland could decide for themselves whether they wished to be reunited with Ireland. After all, 56% of them voted to remain; it would be an opportunity to test how serious they are about that. If that was the decision that they took, that, too, would solve the problem of the border. I emphasise that it is not a resolution that I would like to see—but it is nonsense to say that there are no policy solutions other than staying in the customs union.

I finally note that it is a curiosity to me that Amendment 88 effectively gives the Government of Ireland a veto on the list of policy options in relation to the border that is set out in the amendment. Since this Government of Ireland take their instructions from the EU, it effectively gives a veto to the EU. The noble Lord, Lord Patten, mentioned in the debate on the customs union the other day that he has experience of international negotiations. I would just ask him whether he really thinks that it is wise to legislate to give to the people you are negotiating with a veto on crucial issues that you are negotiating on. I do not think that that is sensible, realistic or appropriate, and I do not think that we should support this amendment.