Brexit: Withdrawal Agreement and Political Declaration

Lord Forsyth of Drumlean Excerpts

Wednesday 9th January 2019 Lords Chamber

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, the noble Lord, Lord Foulkes, is paying attention. Today marks the start of three days of debate examining two documents: the withdrawal agreement and the political declaration, which together form the agreed deal with the European Union. These were, of course, the subject of two days of debate before Christmas in this House, as well as three days in the other place.

In both Houses we heard many diverse views on the deal, with much positive commentary—and of course some negative commentary—on what has been agreed after two years of difficult negotiations. While the task of closing the next three days of debate falls to my noble and learned friend Lord Keen, I thought it would be appropriate, with the leave of the House, to take time in my opening remarks to address many of the points made by noble Lords before Christmas, since they did not get to benefit from a closing speech at the time.

Noble Lords examined every aspect of the deal, demonstrating the breadth and depth of their experience and expertise. While the vote on the final agreement is rightly one for the elected House, it is clear that contributions from this House will be of great value to those making their choice in the other place. One subject in particular was raised by my noble and learned friend Lord Mackay, the noble Lords, Lord McCrea and Lord Empey, and the noble and learned Lord, Lord Goldsmith, among others, and that was of course the Irish border and the backstop. At the time, I was especially struck by the powerful intervention from the noble Lord, Lord Bew. Given the concern about the backstop across both Houses, it was right that the Government took the opportunity to raise these concerns with our negotiating counterparts in the EU.

Following the December European Council, the EU published conclusions which gave the reassurance that the EU,

“stands ready to embark on preparations immediately after signature of the Withdrawal Agreement to ensure that negotiations can start as soon as possible after the UK’s withdrawal”.

As has been made clear in private meetings with the Prime Minister, this confirms that the EU, like this Government, does not want to use the backstop. I recognise that, despite all this, significant concerns remain in this House, which is why the Prime Minister set out that we would be seeking further assurances on top of those provided in the December European Council conclusions.

Over the Christmas period, the PM has been in contact with a number of her European counterparts about the further assurances that Parliament needs on the backstop. The PM has been in touch with the Taoiseach, and British and Irish government officials have also been in contact over the past week. Securing those additional reassurances that Parliament needs remains our priority, and leaders remain in contact. Leaving the EU with the deal that has been agreed is in the interests of both sides.

We recognise the concerns raised around the backstop and the unique challenges presented by Northern Ireland in our exit from the EU. That is why we have today published a paper setting out a series of commitments to Northern Ireland, in particular in any backstop scenario. These recognise the unique circumstances of Northern Ireland and the unique nature of the impact of the backstop in Northern Ireland. This seeks to address some of those concerns and reaffirm Northern Ireland’s integral place as part of the United Kingdom.

In that paper, we set out that we will ensure a strong role for the Northern Ireland Assembly ahead of any decision to bring the backstop into effect. We will provide a Stormont lock over any new areas of law being added to the backstop, giving a guarantee in law that no new areas of law can apply to Northern Ireland under the backstop without seeking the consent of the Northern Ireland Assembly. We will guarantee the unfettered access of Northern Ireland businesses to the whole of the United Kingdom market. Again, we will set that out in legislation. We will give an unequivocal commitment that that there will be no divergence in rules between the scope of the backstop between Great Britain and Northern Ireland, were it ever to come into effect.

We will set out a legal guarantee that nothing will change areas of north/south co-operation without the explicit agreement of the Executive, in line with the arrangements under strand 2 of the Belfast Agreement. We will provide a clear role for the Northern Ireland Executive in discussions between the UK and the EU under the withdrawal agreement structures that specifically affect Northern Ireland, and we will ensure a strong role for the Northern Ireland Executive and the other devolved Administrations as we move into the next phase of negotiations.

I am aware of the Motion tabled by the noble Baroness, Lady Smith of Basildon, to which I am sure she will speak in more detail shortly. My noble and learned friend Lord Keen will respond to that in closing the debate.

Over the course of this debate, we will examine two documents that represent months of complex negotiations and deliver on the result of the referendum. As noble Lords, including my noble friend Lord Tugendhat and the noble Baroness, Lady Falkner, noted before Christmas, the deal may not be perfect. It is well known that negotiations require compromise, especially when dealing with 27 other countries. As the Prime Minister has said, we must not risk making the perfect the enemy of the good.

[Lord Forsyth of Drumlean (Con)]

My noble friend has made an interesting statement about Northern Ireland and the paper that has been published. Why was it not possible for the Government to publish it in advance of this debate so that we had a chance to read it and understand what was involved?

[Lord Callanan]

My noble friend makes a good point, but important negotiations have been going on on these matters and we continue to discuss these matters with our EU partners. We hope to bring further clarifications before the vote.

The withdrawal agreement and political declaration demonstrate our joint commitment to a future partnership that reflects the depth of our shared history and values. It is right, as the most reverend Primate the Archbishop of Canterbury, among others, reminded us in the first debate, that this future partnership should work in the best interests of the country and for all generations in it. This deal delivers on the result of the referendum by restoring sovereign control over our borders, laws and money. It protects jobs and the vital security co-operation with our European neighbours, and it delivers certainty for businesses and citizens. This is a deal which, if passed in the other place, will ensure that our exit is smooth and orderly, and delivers in the national interest.

This deal delivers in securing the rights of EU citizens living and working in the United Kingdom, who make such a valuable contribution to our society, economy and public services. That contribution was highlighted by noble Lords, including the noble Baronesses, Lady Miller of Chilthorne Domer and Lady Kennedy of The Shaws, and the noble Lord, Lord Cashman. This deal delivers on that commitment and secures the rights of 3.5 million EU citizens living and working in the UK and those nearly 800,000 UK nationals living and working in the EU, so that they can continue living their lives broadly as they do now.

The noble Baroness, Lady O’Neill, rightly raised the important question of Irish citizens’ rights in the UK, particularly those who may be without a passport. The Government will ensure that these rights will continue to be protected when we leave the EU, no matter what the terms of our departure.

The noble Earl, Lord Clancarty, and the noble Baroness, Lady Thornton, spoke passionately about immigration and freedom of movement. We shall introduce a skills-based immigration system, built around the talents and skills that a person has to offer, not solely on where they come from.

This deal ensures there will be an end to the billions of pounds we send to Brussels every year, allowing us to invest in our domestic priorities. It means that we will leave the common agricultural policy and the common fisheries policy. We will once again be in control of our immigration policy.

Let me turn now to the political declaration, which sets out the terms of our future relationship. The noble Lords, Lord Mendelsohn and Lord Livermore, and my noble friend Lord Howard of Rising spoke about the impact of leaving the EU on the economy.

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[The Archbishop of Canterbury]

My Lords, one of the aspects of being a Bishop in your Lordships’ House is the inherent link to local communities through our dioceses. My own diocese being Canterbury, which covers the eastern end of Kent, I shall start by speaking for a moment about the small picture, about local issues in Kent, as an example that applies in many other places, that would be exacerbated and strained by the impact of a no-deal Brexit which serve as a reminder to us all of the seriousness of the challenges we face should we, perhaps by default rather than design, leave the EU without an agreement.

We have all seen in the media—it has been referred to by the noble Baroness, Lady Smith, and the noble Lord, Lord Newby—the artificially created traffic blip, rather than traffic jam, which was staged on Monday albeit with only 89 vehicles. In the case of this experiment, the reality we face is much worse. The channel ports handle over 10,000 lorries a day, so that 89 represented less than 1% of the flow.

Aside from delivery issues, if there are border delays as a result of no deal, which will of course impact on the rest of the country, in practical terms these lorries will take up an enormous amount of space. Anecdotally, one day’s lorry supply would stretch from Dover to Leicester. Furthermore, if 10,000 lorries are stuck in east Kent daily, 10,000 drivers will need to use the local facilities to eat, drink and go to the bathroom. That will have a major impact on local towns and villages, as was seen during Operation Stack three or four years ago.

Support services will be physically unable to access those in need. That was also our recent experience. If roads are logjammed people will be unable to get to work, small businesses, tourist sites and haulage companies will suffer very severely and go out of business, with an increase in unemployment. The burden on local communities and their infrastructure—

[Lord Forsyth of Drumlean]

Did the most reverend Primate by chance hear the chief executive of Calais ports on the radio this morning? He said that there was no question of there being any delays at Calais because preparations had been made. Therefore, is it responsible to continue to spread these scare stories?

[The Archbishop of Canterbury]

My Lords, I did not have the privilege of hearing the chief executive of Calais, but I did have the privilege of talking to the chief executive of Kent County Council, of Canterbury City Council and others involved in small businesses in Kent over the past week—and very significant numbers of them. I take my evidence from our own people in this country and it is evidence.

Noble Lords might remember the effects of Operation Stack in 2015 after strikes in Calais disrupted thousands of lorries bound for cross-channel ferries. It cost the local economy £1.5 million a day. It cost the country £250 million a day. Operation Brock, which will supersede Operation Stack, can only cost more. Back in 2015, arterial roads were blocked which had a significant impact on local communities.

“No man is an island”,


as John Donne tells us, and significant disruption in one industry will invariably have a knock-on effect across the community and eventually across the country. This is not Project Fear or projected fear. It is an account of what happened in 2015.

Having spoken to local officials, I have heard time and again that Kent does not currently have the structural capacity to cope with a no-deal Brexit or time to prepare. The last time that customs checks were made for UK/EU trade, in 1993, before the EU single market, there were between 2 million and 2.5 million customs clearance documentation entries. Since 1993, Dover has seen significant increases in freight, and Eurotunnel is also now in operation. Consequently, post Brexit, there could be an estimated 25 million customs clearance documentation entries. Before 1993, 300 customs officers were located in Kent, 125 at Dover. There are now only 24 in east Kent, covering both the port of Dover and Eurotunnel. In 1993, there were 185 customs clearance agents to do the paperwork. Today, there are only 17 and only five of them operate a 24-hours-a-day service.

The transition in the event of no deal may possibly be without difficulty. We are assured by those who support it that it will be, and many of the projections of two years ago have not come to pass. But experience in 2016 and 2015 indicate a very material risk. To take that risk without assured and adequate mitigation is not a moral decision.

That brings me to my second point about moral responsibility. The decision is rightly with Parliament and specifically with the other place, but with parliamentary sovereignty comes responsibility for the welfare of those represented and legislated for. We face not just practical choices but moral decisions alongside our highest responsibility to protect our poorest and most vulnerable. The burden, therefore, must be on those who believe that no deal is a reasonable option to prove that it would not have a significant negative impact on people such as those in the diocese that I serve who already face hardship.

My third point is on the adversarial nature of the process. I spoke a little about this in December with regard to reconciliation. The most serious and visible aspect is the personalised nature of the threats outside the House against Members of the other place especially, whether personally, online or by other means. These threats have rightly united all sides in stating that this is an attack on democracy itself. Our Christian heritage and the heritage of other faiths and non-faith traditions call for us to treat others as we would wish to be treated—the golden rule. Christ himself went on to call for love for enemies. That does not mean the absence of passionate difference but calls for respect for human dignity. That requires active leadership— politically and in security against such threats—and it must require now, not after 29 March, examples of reconciliation by public figures who have differed most profoundly during this painful process over the past two or three years. That is leadership.

My final point is on the nature of the decision now. It may not feel like it and we may not wish it but we are still near the beginning of the Brexit journey, not at the end of the process. The decisions made over the next week will not be finalised for all eternity but are a foundation for further discussion and negotiation down the line. There has to be an agreement in which all accept the need to deliver the “will of the people” that was expressed in the referendum, while also recognising that when it was expressed in such a close result, there is a duty to build in compromise—an inevitability, albeit unwelcome to some. If not, there will be by default a no-deal Brexit. That outcome would be not only a political and practical failure but a moral one equally as serious as ignoring the result of the referendum entirely.

A second referendum is not my preference but if Parliament fails in the task entrusted to it, then regrettably it may be required. This is about more than Brexit, and Parliament must not show itself unfit for the job. Parliamentarians must be able to look back at this time and say honestly to the people of this country that we put them, their choices, their welfare and their communities above the politics and ideology that can seem so all-consuming here in Westminster. As we embrace the challenge, which is hope-filled and exciting, of reimagining our country and its structures over the next few years and months, I hope politicians will take it upon themselves to make these crucial decisions, not only with the grand vision but with the small picture—the effect on local people, communities and businesses—in mind.

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[Lord Forsyth of Drumlean]

My Lords, I have huge admiration for the noble Lord, Lord Hennessy, but I am afraid I do not agree with much that he had to say, surprisingly enough. It has been a very interesting debate, in which he talked about angels and the horsemen of the apocalypse and the most reverend Primate the Archbishop of Canterbury talked about the arrangement for lorries crossing the border from Calais, in contradiction to the man who actually runs the Port of Calais.

I want to draw your Lordships’ attention to a cliff edge—not the insubstantial and imaginary creation of Project Fear, but a real one. The north face of the Eiger is a 6,000-foot sheer wall of rock and ice. In 1936, a young German, Andreas Hinterstoisser, attempted a first ascent. He was a brilliant rock climber and cleverly traversed an impossibly smooth section of ice-covered rock high up on the mountain by swinging on a rope in a pendulum motion to a lower point on the other side. Today it is known as the Hinterstoisser Traverse in his honour. Unfortunately, gravity meant that it was not possible to reverse the manoeuvre and when he and his companions were forced to retreat by a storm, they were trapped and tragically perished.

The decision by the House of Commons, by 544 votes to 53, to hold a referendum on our membership of the European Union, and the subsequent vote to trigger Article 50, by 494 votes to 122 and to set a date in law to leave on 29 March is the constitutional equivalent of the Hinterstoisser Traverse. There is no turning back without putting our democracy in serious peril, as pointed out in a brilliant speech by the noble Lord, Lord Grocott, and by my noble friend Lord Dobbs. The Government would do well to follow the advice given by the former leader of our party, my noble friend Lord Howard of Lympne, in our debate before Christmas. He has asked me to say how much he regrets not being able to be here today. We should try to amend the deal, perhaps by accepting the offer made by Mr Barnier to have a free trade Canada-plus-style agreement and repeated on numerous occasions. While getting on with that, we need to start discussions now with the EU in parallel, to make our transition to trading on WTO terms as smooth as possible for both the EU and ourselves.

The Prime Minister’s deal, I regret to say, is completely unacceptable. It is not just because of the backstop. The House of Commons has no right to surrender our right to govern ourselves. Unionist parties should never risk the integrity of the United Kingdom. Nor is it responsible, when we have so many other priorities, as the noble Lord, Lord Steel, pointed out, to borrow £39 billion to pay the EU for a political declaration that is long on aspiration, short on commitments and leaves us without a fig leaf to cover our nakedness in future negotiations which require unanimity. The international treaty we are asked to sign hands over the cash and leaves us at the mercy of every member state. It is hewn from rock, while our interests and demands are written in water.

I have longed for the day when we could be free of the job-destroying, enterprise-crushing European Union since I first attended European Council of Ministers meetings and saw how they operated. It is genuinely puzzling to me how people can believe that our future lies with this deal, which would leave us out of the EU but being run by the EU—an organisation disintegrating before our eyes. At the end of last year we saw Paris in flames at le weekend, Italy in revolt and extremists prospering throughout Europe, fanned by a political integration project which only the elite desire.

The noble Lord, Lord Newby, who is not in his place, and some other Peers in the previous debate cited the importance of our young people and their future in defence of their determination to reverse Brexit. Thank goodness our youngsters have been spared the criminal rates of youth unemployment that Spain, Greece, Italy, France and others have endured as a result of economic and monetary union. Three cheers for Gordon Brown, who resisted the CBI and the same establishment gang who are a Greek chorus for this deal—many of whom are now here in your Lordships’ House—and who told us that we would lose the City to Frankfurt and face economic ruin if we did not join the euro. Think where we would be if we had taken their advice.

I say to the Liberals who plead for another referendum: what would the question be? If the choice is between the PM’s deal and remaining in the EU, it is a choice between remain and remain plus emasculation. If a third option of no deal is added, it is a rigged vote. This deal is a trap that leaves us worse off than now and utterly betrays the 17.4 million people who voted for Brexit.

The noble and learned Lord, Lord Hope, told us, as many have, that we need to compromise, but compromise means settling for less than you want for something better, not something worse. The deal is like the little boxes that we used to see around this place to catch the mice. They go in and cannot get out and wait patiently for someone to dispatch them. But the Prime Minister’s mousetrap could run for longer than Agatha Christie’s, prolonging the uncertainty that business and the public want ended.

So, as Ministers say on the “Today” programme, with differing degrees of success these days, let me be absolutely clear: I do not like this deal. It certainly is not in the national interest to enter into a legally binding agreement from which we will have no unilateral right to withdraw, to bind the hands of future Parliaments and to make us reliant on the permission of a foreign power or court to fulfil our manifesto promises. Nor is it in the national interest to risk fracturing our United Kingdom by making Northern Ireland a rule-taker in further areas, including goods, agricultural products and VAT. It is a gift to the Scottish separatists and, along with the sell-out on fishing rights, a slap in the face for the 13 Scottish Tory MPs elected to preserve our union.

The backstop is a back stab for the Democratic Unionist Party, which was assured that no unionist—indeed, no Prime Minister—could ever countenance a border in the Irish Sea. It betrays the trust of the British people, breaking the promise given by a Conservative Government—indeed, by all political parties—that they would implement whatever the people decided in the referendum. Now we have even members of the Cabinet openly campaigning against it and promoting a Norway solution, which they themselves rubbished during the referendum campaign. Their message is, “It was necessary for us to leave in order to remain”.

Sir Ranulph Fiennes, in an astonishing feat and against all the odds, scaled the north face of the Eiger in 2007. He was not a trained climber, he suffers from vertigo and his left hand is missing its fingertips, which he sawed off himself after suffering frostbite. I asked him how on earth he managed this highly technical climb on the most vertical face in the Alps. He said that he was determined to get to the top, wanted to raise funds for Marie Curie and did not want to let down the great team supporting him. “What about the vertigo?” I said? “Oh”, he said, “I just tried not to look down”. I do not know what Ran’s views on Brexit are, but this is the kind of courage, commitment and leadership that our country deserves and needs now.

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[Lord Roberts of Llandudno]

That is not my intention, of course, but I shall mention something in a moment that might go in that direction. As I said, we are denying young people their voice in this issue. People change their minds. Even Prime Ministers can change their minds. The Commons were to have a vote in December; now they will have a vote in January. If the people are not allowed to change their minds but the Prime Minister and parliamentarians are, we are denying a democratic right to the people.

We know all about referenda in Wales. In 1979 we voted against having a Parliament for Wales—900,000 people voted no and about 200,000 people voted yes—yet we now have a Parliament. Why is that when the people voted against it? It is because in 1987 we had another vote and the people changed their minds. People are allowed to change their minds. The same thing happened in Scotland. People reflect the era and the thinking that they are part of. To deny them the right to change their minds is to make them fossils. Therefore, we really have to think about whether we are reflecting the views of the people today or those of the people of yesterday.

Noble Lords will be glad to hear that I will not keep them for long. We have had other votes in Wales. We voted against opening pubs on Sundays. In, I think, 1891 we had a licensing Act that closed the pubs on Sundays and it was another 70 years before, in 1961, we had the Licensing Act that gave local authorities the right to open the pubs in their area on a Sunday. I remember it well. I was in the Llŷn Peninsula, and being a Methodist minister I knew which side I was going to battle for. Most local authorities in Wales said, “Yes, let’s keep Wales dry”, yet between 1961 or 1962 and 1990 all the pubs in Wales opened on a Sunday, although the people had voted for that not to happen. During that time, we had six ballots. Here, we are asking for two but in those six ballots the Sunday opening campaign was squeezed forward. I was in the studio when the count came in from Carmarthen. We thought, “Oh gosh”, but these things happen—people change their minds. Only one local authority claimed to keep Sunday dry and that was Dwyfor on the Llŷn Peninsula. The only reason that pubs there started to open on Sundays was that the local government boundaries changed.

Therefore, people change their minds. Are noble Lords going to say that people are not allowed to do that? Are they going to say, “No, we’re going to be as we were. We’ll go ahead with slavery and women won’t have the vote”? People change their minds and we as a Parliament should be ready to reflect that change. That is why we need another opportunity, following which we will be able to say, “Yes, the people of 2019 have decided”. I hope very much that when the vote takes place in this House on Monday, we will be able to reflect the need for an opportunity for the young people who were disfranchised last time to cast their votes.

[Lord Forsyth of Drumlean]

The noble Lord talked about people changing their minds about a Welsh Assembly, where the vote was very narrow—just over and just below 50%. The young people did not have a chance to vote on that, so, following his logic, shall we have another vote on the existence of the Welsh Assembly?

[Lord Roberts of Llandudno]

If the noble Lord wants to organise another vote, he should do it.

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[Baroness Ramsay of Cartvale (Lab)]

My Lords, if the noble Baroness really is finished, I will get to my feet. Of all the many things that could be said about the situation we are in, certainly no one can say that our political system is having one of its finest hours. We are in a situation which is perhaps inevitable when you use a referendum—a very blunt instrument—to answer a complicated, multifaceted question, especially in a political system like ours, which is a representative democracy without a written constitution. But we are where we are; we are in a mess. I agree with what my noble friend Lord Hutton said about that earlier. It is a mess which demands decisive action from a Parliament which seems to be going round in ever-decreasing, fractious circles. That is a rather messy mixed metaphor, but it is a very messy, mixed-up situation.

We should be very clear about our role in this House in this mess of a situation. We are a bicameral Parliament, so in this House, we are not just entitled to give our opinion—which may or may not be in opposition to decisions made at the other end of the building—we have a duty to do that. We are supposed to give our advice and opinions based on the very varied experiences we all have, and we must do that. Of course the elected House at the other end of the building must make all the decisions, but at the moment we have to hope its Members find the courage to remember that while it is wholly legitimate for them to be very concerned about the views of their constituents, they are representatives not delegates. That is the basis of our democracy and it is what representative democracy is supposed to be about. I sometimes think that is lost sight of in the constant talk about the will of the people as expressed in the referendum.

To be told that only two choices for the future development of this country are open to us is frankly political blackmail, and I do not accept that premise for one minute. Of course we have more than two choices about where the country can now go. Instead of either the inadequate and very poor deal the Prime Minister has produced from the woefully inept negotiations of her Government, or the disaster of crashing out of the EU with no deal at all, we could decide that the best of all possible deals is the one we have now, as a full EU member. We could then revoke Article 50—there is absolutely no doubt that we have the power to do that, unilaterally—and work to reform the EU and do whatever we would like to make it better than it is. Nobody in Europe thinks the EU is perfect, but it is better to work from the inside to change it than to walk off in a huff and make things much worse for ourselves. As the right honourable Kenneth Clarke repeatedly explains, nothing prevents applying for Article 50 again some time if we withdraw now. Or we could do what is, for me, a second-best option: we could decide to have a people’s vote and ask the other 27 EU members to agree to us delaying Article 50 to do that.

In my opinion, the best option for the economic, political and strategic future of our country is to remain a member and work to reform the EU from within. As a Scot, I add that I am also very conscious that, by leaving the European Union, we are handing the SNP a nuclear political weapon in its battle for independence. It is no use hopefully shaking one’s head about this, as the noble Lord, Lord Forsyth, is doing from a sedentary position, because that is exactly what the SNP is hoping for. I know, as someone who fought hard during the independence referendum in Scotland, how we used the idea that if you leave the United Kingdom you will be leaving the European Union. That will be completely denied to us as an argument.

[Lord Forsyth of Drumlean]

Would the noble Baroness give way?

[Baroness Ramsay of Cartvale]

I am pushed for time.

My second-best option is to go back to the people for a people’s vote. I see no option other than those two that does not threaten the well-being of all our citizens in every aspect of their lives. I support the Motion in the name of my noble friend Lady Smith of Basildon.

[Lord Forsyth of Drumlean]

As the noble Baroness still has a minute left, on the point she made about—

[Noble Lords]

Oh!